DocketNumber: No. 96-P-2053
Citation Numbers: 45 Mass. App. Ct. 634
Judges: Smith
Filed Date: 10/13/1998
Status: Precedential
Modified Date: 6/25/2022
On April 20, 1993, the plaintiff was involved in a motor vehicle accident with Ida E. Helmuth, who was operating the other vehicle. Ida Helmuth died on the day of the accident. On April 17, 1996, the plaintiff brought a complaint in the Superior Court naming Ronald C. Helmuth (Ronald), in his capacity as executor of the estate of Ida Helmuth, as defendant. Service was made by leaving the complaint and summons at Ronald’s last place of abode in Hopkinton. No answer was filed, and Ronald was defaulted on June 6, 1996. The matter was then marked for a hearing regarding assessment of damages.
Safety Insurance Company (Safety) was the insurer of Ida Helmuth’s automobile. On July 31, 1996, Safety filed a motion
On September 20, 1996, the plaintiff filed an amended complaint naming Ida Helmuth as the defendant pursuant to G. L. c. 197, § 9A. The complaint was served on Safety. On October 2, 1996, a Superior Court judge allowed Safety’s July 31, 1996, motion to dismiss the original complaint.
Although the defendant’s legal representative was deceased at the time the action was filed, the real party at interest here is the insurer. Safety does not dispute that it was promptly notified after the original complaint was filed, and does not claim that it was prejudiced, in any material way, as the events unfolded.
While the case at hand might, therefore, present an opportunity to extend the decisions in Holmquist v. Starr, 402 Mass. 92, 95 (1988), and Nutter v. Woodward, supra, and to narrow further the nullity doctrine,
The order allowing the defendant’s motion to dismiss the plaintiff’s complaint is vacated, the order removing the default is affirmed, and the case is remanded to the Superior Court for further proceedings on the amended complaint, which was filed on September 20, 1996.
So ordered.
The nullity doctrine states that a complaint brought against a deceased person cannot be maintained because it is, “in truth, brought against nobody.” Chandler v. Dunlop, 311 Mass. 1, 5 (1942).
Upon reviewing the docket, it is apparent that the judge was not aware that the amended complaint had been filed when he acted on the motion to dismiss. Safety did not renew or amend its motion after service of the amended complaint. The order allowing the motion to dismiss could only have referred to the complaint and not to the amended complaint.
Safety knew of Ronald’s death within ten days of the filing of the plaintiffs complaint.
In Holmquist v. Starr, supra, the court narrowed the nullity doctrine, ruling that the doctrine does not apply under circumstances where (1) the representative of the deceased had legal existence at the time the action was com
In Nutter v. Woodward, supra, we narrowed the nullity doctrine even further. We ruled that the nullity doctrine was inapplicable even though no answer had been filed on behalf of the estate. A legal representative of the defendant’s estate was in existence and amenable to a suit, and that representative had actual notice of the action at the time the plaintiffs complaint was filed. Further, there was no showing, of prejudice. Nutter v. Woodward, supra at 598-600.
That section provides as follows:
“Notwithstanding the provisions of section nine, an action for personal injuries or death, if commenced more than one year after the date of death of the deceased, may be brought against said executor or administrator, provided that such action is commenced within three years next after the cause of action accrues, and provided further any judgment recovered in any action so brought may be satisfied only from the proceeds of a policy of insurance or bond, if any, and not from the general assets of the estate.
“If an executor or administrator has not been appointed, then an action allowed under this section may be maintained without such appointment, and shall be maintained naming the decedent as the defendant. In such event any service of process that may be necessary shall be made upon the entity providing the insurance or bond.”