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Wheeler v. Williams8/2/1995
RIGGS, Presiding Judge.
Plaintiff appeals from the circuit court's dismissal of her personal injury action. On April 3, 1991, plaintiff was injured when the car in which she was a passenger was struck by a vehicle driven by Ira O. Williams, who was insured by Mid-Century Insurance Company. On April 26, 1992, Williams died. Plaintiff did not learn of his death until March 1993.
William's estate was administered pursuant to ORS 114.505 et seq, as a small estate. That proceeding had been initiated in May 1992, with the filing of an "Affidavit of Claiming Successor." The affidavit recited that reasonable efforts had been made to ascertain conditions of the estate and that the claiming successor was "not aware of any claims against the estate remaining unpaid or on account of which the affiant or any other person is entitled to reimbursement from the estate." It also recited that no petition for the appointment of a personal representative had been granted in Oregon. No personal representative was appointed within four months after the filing of the affidavit, and the estate closed. William's property listed in the affidavit was transferred to the persons shown in the affidavit to be his heirs. ORS 114.555.
In March 1993, after the estate had been closed, plaintiff's attorney acquired a copy of the affidavit, which listed the decedent's son, Jerry Dale Williams, as claiming successor. On March 31, 1993, plaintiff filed this proceeding naming as defendant "Ira O. Williams, deceased," and alleging a claim for negligence arising out of the automobile accident. On April 1, 1993, service of summons and complaint was made on Douglas Harrison, who had been the attorney for Jerry Williams in the small estate proceeding, and on May 31, 1993, Jerry Williams was also served. Plaintiff also mailed a copy of the complaint to Mid-Century.
On May 18, 1993, the putative defendant, referred to by defendant on appeal as "the Estate of Ira O. Williams," filed a motion to dismiss the complaint, on the grounds that the court lacked jurisdiction and that plaintiff had failed to state a claim because the complaint named a dead person as defendant. On June 14, 1993, the court granted the motion without prejudice and entered an order accordingly on July 9.
On June 11, 1993, plaintiff filed a petition in the small estate proceeding, seeking summary review of the administration of the estate. ORS 114.540. The probate court denied her petition. Plaintiff appealed that ruling, but has withdrawn the appeal.
In her personal injury action, plaintiff filed a petition on July 6, 1993, seeking the appointment of Jerry Dale Williams as personal representative. On July 17, 1993, she filed a motion for leave to file an amended complaint substituting "Jerry Dale Williams, personal representative of Ira O. Williams, deceased," as the defendant. On July 27, 1993, the court denied the petition to appoint a personal representative, on the ground that the court lacked jurisdiction to do so, and declined to rule on the motion for leave to file an amended complaint on the ground that, there being no personal representative, there was no person against whom an amended complaint could be filed.
On September 14, 1993, plaintiff filed a petition in the probate department of the Multnomah County Circuit Court, seeking the appointment of Margaret Hogland, plaintiff's attorney's legal assistant, as personal representative of the estate of Ira O. Williams. On October 13, 1993, the court denied the petition as untimely, and dismissed with prejudice the personal injury action on the ground that there was no party defendant against whom the claim could proceed. The court entere
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