The At-Fault Driver Died: Your Injury Claim Now Has a Six-Month Fuse (Wilson v. Lawrence)

Published May 16, 2017 · Ohio Supreme Court

Every injured person in Ohio has heard of the two-year deadline. Almost no one has heard of the six-month one. It applies whenever the person who hurt you dies, whether in the crash itself, of old age while your claim is pending, or a month after a fall on his property. On April 19, 2017, the Supreme Court of Ohio made clear in Wilson v. Lawrence that this deadline is unforgiving about exactly how, and to whom, your claim must be delivered.

The six-month rule

R.C. 2117.06 governs claims against a dead person's estate. It applies to "all creditors," and it says so expressly for claims "arising out of contract, out of tort," which means an injured person with a negligence claim is a creditor of the estate like any other. Under division (B), claims must be presented within six months after the death. Under division (C), a claim not presented in time "shall be forever barred as to all parties."

The six months runs from the date of death, not from the day an estate is opened. In Wilson, the decedent died on January 20, 2013, and no estate was opened until July 1, 2013, leaving the creditor less than three weeks to present his claim.

What happened in Wilson

The claim in Wilson was a business debt, not an injury, but the rule is the same. Joseph Gorman had agreed to pay James Wilson $300,000 for a share of a company and still owed $187,000 when he died. The probate court appointed William Lawrence as executor on July 1, 2013. On July 11, Mr. Wilson's lawyer sent a letter asserting the claim, but he addressed it to Mr. Gorman's personal secretary and to the trustee of Mr. Gorman's trust, not to the executor and not to the estate's lawyer. Both recipients forwarded it, and the executor's attorney later acknowledged he knew about it. He also rejected it as not properly presented.

The Eighth District Court of Appeals in Cleveland sided with Mr. Wilson, reasoning that the law had "softened" and that it was enough that the claim reached people connected to the estate. The Supreme Court reversed, six to one. Division (A)(1)(a) of the statute requires presentment "To the executor or administrator in a writing," and the Court held the words mean what they say. "'Shall' means must." Delivering a claim to someone the probate court never appointed, who then passes it along, does not satisfy the statute. Quoting an older Ninth District decision, the Court added: "The statute places the burden upon the claimant to present his claim with the probate officer."

Justice O'Neill dissented, arguing that a letter addressed to the executor that actually reaches the executor before the deadline should count, and that the majority's rule would "elevate form over substance." He lost, and the majority's rule is now the law.

What still works

The Court was careful to preserve one path that matters enormously in injury cases. In a 1964 decision, Fortelka v. Meifert, the Court had held that filing a personal-injury lawsuit against the administrator of the at-fault driver's estate, with proper service of the complaint on the administrator within the six months, satisfied the presentment requirement. Wilson distinguished Fortelka rather than overruling it, pointing out that the Fortelka plaintiff identified and served the actual administrator. The lesson is that a written claim delivered to the court-appointed executor or administrator, or a timely suit served on that person, works. A letter to the family, the funeral home, the decedent's lawyer, or the insurance adjuster does not.

Why injury victims should care

Consider the ways this comes up in my practice:

• The other driver dies in the crash. A head-on collision on U.S. 35 kills the at-fault driver and leaves you with a shattered pelvis. His family may never open an estate. Unless someone does, there is no one to present a claim to.
• The defendant dies while the claim is pending. You are treating, the adjuster is cooperative, and nine months in, the elderly driver passes away. The six-month clock started at his death and has been running while you treated.
• A fall on private property. The homeowner whose icy steps injured you dies a few weeks later. The estate is opened, administered, and closed within months, and the assets are distributed.

In each case, the solution is procedural, and it has to happen fast. Where no estate exists, a creditor can ask the probate court to appoint an administrator so that there is someone to present the claim to. Where an estate exists, the claim goes in writing to the executor or administrator, by a method that proves delivery, well inside six months.

The insurance question

Here is the part that keeps these cases alive. R.C. 2117.06(G) provides that nothing in the estate-claims statute shortens the two-year injury deadline in R.C. 2305.10, which I explained in Ohio's Two-Year Deadline for Injury Claims, but that no recovery may come from the assets of the estate unless the claim was properly presented. In practice, that means an injury suit can usually still be brought against the deceased driver's liability insurance after the six months has run. What is lost is any recovery beyond the policy limits from the estate's own assets, which in a serious-injury case against a driver with minimum coverage can be the difference between a fair result and a fraction of one. The same timing issues arise when the wrongdoer's estate is the target of a punitive-damages claim, which the Court allowed last year in Can a Wrongdoer's Estate Owe Punitive Damages?

The rule also matters in reverse. When the victim dies, the family's wrongful-death claim has its own statute and its own deadline, which I covered in Wrongful Death Claims in Ohio: Who Can Bring One. Both sets of rules can apply to a single crash.

What this means for you

If the person who injured you has died, or dies while your claim is open, call a lawyer that week. The two-year deadline you have heard about still exists, but a second, shorter clock is running, and Wilson v. Lawrence confirms that the courts will not excuse a claim that reached the wrong person. Getting the claim to the right person, in the right form, in time, is the kind of detail that determines whether a family is made whole.