Federal Insurance v. Ronan
Federal Insurance v. Ronan
Opinion of the Court
We granted the plaintiffs’ application for direct appellate review to consider their claim that Mass. R. Civ. P. 25 (a) (1), 365 Mass. 771 (1974), requires the conclusion that their failure to substitute the defendant’s executrix within one year of the approval of her bond falls within
On April 24, 1987, less than four months after the plaintiffs’ amended their complaint to add the defendant as a party, he died. On May 15, 1987, counsel for the defendant filed a suggestion of death, which was served on all parties in the case. The suggestion of death did not identify anyone as Ronan’s actual or prospective representative. On June 22, 1987, the Probate Court appointed Faith E. Ronan to be the defendant’s executrix and approved her bond. Faith Ronan did not, as executrix, appear in the action, notify the parties of the defendant’s death, or file a suggestion of death on the record.
In August, 1988, counsel for the defendant moved to dismiss for failure timely to substitute proper parties under rule 25 (a) (1). The plaintiffs filed an opposition to the motion to dismiss and a motion to substitute the defendant’s executrix as a defendant. The judge in the Superior Court allowed the motion to dismiss, finding that the plaintiffs were “fully aware” of the defendant’s death. He ruled that their knowledge precluded him from finding that their failure to substitute the defendant’s executrix was excusable neglect under rule 25 (a) (1). The plaintiffs then filed motions to reconsider the allowance of the motion to dismiss and the denial of the
Having failed in their efforts to substitute the defendant’s executrix, the plaintiffs then moved for leave to file an amended complaint naming the defendant’s executrix as a defendant. The trial judge denied this motion, ruling that amendment in these circumstances would “effectively nullify rule 25 . . . .” The plaintiffs again sought relief from a single justice of the Appeals Court. After a single justice denied relief, the plaintiffs moved for the entry of a separate and final judgment under Mass. R. Civ. P. 54 (b), 365 Mass. 824 (1974), in the defendant’s favor. This motion was granted, and the plaintiffs appealed.
The plaintiffs argue that rule 25 (a) (1) requires a finding of excusable neglect in this case because the defendant’s representative did not undertake to notify them of the defendant’s death and did not herself file a suggestion of death. They contend that the suggestion of death filed by the defendant’s attorneys was deficient because only the defendant’s representative was authorized to file a suggestion under the rule,
Counsel for the defendant argues that the differences between our rule and the Federal rule compel a result in favor of the defendant. Unlike the Federal rule, which provides for dismissal of an action as to the deceased party “[ujnless the motion for substitution is made not later than 90 days after the death is suggested upon the record,” Mass. R. Civ. P. 25 (a) (1) provides for dismissal only after the more indulgent interval of “one year after the date of approval of the bond of the representative.” Counsel for the defendant contends that the Rende decision resulted from a concern that it would be unfair to compel surviving parties to assume the “burden of locating the representative of the estate within 90 days.” Id. at 986. The defendant’s counsel argues that the far longer time span contemplated by our rule renders the Rende court’s solicitude for surviving parties unnecessary, because surviving parties informed of a death (as were the plaintiffs here) have one full year to discover the identity of the dece
Although we agree with the defendant’s attorney that generally the burden is on counsel “to attend to the progress of pending matters,” Brown v. Quinn, 406 Mass. 641, 644 (1990), the plain language of our rule requires a conclusion that the burden is on the representative of the deceased party. The last sentence of rule 25 (a) (1) (not found in its Federal counterpart) reads as follows: “If the court finds that the representative of the deceased party has failed within a reasonable period of time after the date of the approval of his bond to notify in writing the surviving party of the decedent’s death and to file a suggestion of death upon the record it shall find excusable neglect for purposes of this rule and Rule 6 (b)”
The plaintiffs, therefore, are correct in arguing that the plain language of our rule imposes an even higher burden on the representative of a deceased litigant than does the Federal rule. Indeed, the rule appears to follow the holding in Rende in some respects
So ordered.
Rule 25 (a) (1) of the Massachusetts Rules of Civil Procedure provides: “If a party dies and the claim is not thereby extinguished, the court may order substitution of the proper parties. The motion for substitution may be made by any party or by the representative of the deceased party and, together with the notice of hearing, shall be served on the parties as provided in Rule 5 and upon persons not parties in the manner provided in Rule 4 for the service of a summons. Unless the motion for substitution is made within one year after the date of approval of the bond of the representative of the deceased party, the action shall, upon notice and hearing, be dismissed unless the failure of the surviving party to move for substitution was the result of excusable neglect. If the court finds that the representative of the deceased party has failed within a reasonable period of time after the date of the approval of his bond to notify in writing the surviving party of the decedent’s death and to file a suggestion of death upon the record it shall find excusable neglect for purposes of this rule and Rule 6(b).”
The provision of rule 25 (a) (1) relating to a suggestion of death filed by a party is not at issue in the case.
See, e.g., Boggs v. Dravo Corp., 532 F.2d 897 (3d Cir. 1976); Blair v. Beech Aircraft Corp., 104 F.R.D. 21 (W.D. Pa. 1984), aff'd, 787 F.2d 580 (3d Cir. 1986); Al-Jundi v. Rockefeller, 88 F.R.D. 244 (W.D.N.Y. 1980); National Equip. Rental, Ltd. v. Whitecraft Unlimited, Inc., 75 F.R.D. 507 (E.D.N.Y. 1977).
It is clear that the rule’s references to “representative” do not include the attorneys for the defendant. “On the death of [the client] there [is] no legal representative before the court and counsel’s authority was automatically terminated by his death. ... No effective action [can be] taken until
The rule’s emphasis on notice in writing renders irrelevant any notice of the representative’s identity by telephone. See National Equip. Rental, supra at 510.
Rende was decided in 1969. Our rule was adopted in 1974. See 365 Mass. 771 (1974).
Reference
- Full Case Name
- Federal Insurance Company & another v. James T. Ronan
- Cited By
- 2 cases
- Status
- Published