In Mitchell v. Thornley, No. 2101127 (Ala. Civ. App.
June 1, 2012), a three-automobile accident occurred on September 27, 2005,
involving Mitchell, Webb and Day. On September 21, 2007, Mitchell sued
Webb and Day. When Mitchell attempted to have Webb served, the summons
and complaint were returned with a notification that Webb was deceased; he died
in May 2007. On April 13, 2009, more than a year and a half after filing
the complaint, Mitchell filed a motion to appoint an administrator ad litem for
Webb’s estate “to serve as the personal representative” of Webb’s estate “for
purposes of this lawsuit.” On October 19, 2009, Thornley was appointed as
the administrator ad litem of Webb’s estate. Thornley moved for a summary
judgment, asserting that the action as to Webb’s representative was
time-barred.
Once Webb died, the proper party-defendant was not Webb but
was Webb’s personal representative. By operation of Sec. 6-2-14 and
because no letters testamentary or administration were ever granted after
Webb’s death, as to Webb’s representative, the statute of limitations was
tolled for six months, giving Mitchell until March 27, 2008, to commence a lawsuit
against Webb’s representative. Yet, nothing was done until April 13,
2009, too late. The Court of Civil Appeals held that Alabama’s
fictitious-practice rule did not apply in this factual situation. The
administrator ad litem, the proper party-defendant, was not sued within the
extended limitations period; thus, there was time bar.
Lesson: Once Mitchell learned that Webb had died,
Mitchell should have immediately determined whether an estate had been opened
and, if so, quickly moved to add or substitute the appointed personal
representative as a party-defendant and , if not, quickly sought the
appointment of an administrator ad litem. Mitchell could not do nothing
for a long time, here a year and a half.
The opinion did declare that, when an administrator ad litem
is appointed for a deceased defendant, the administrator is “automatically”
substituted for the deceased defendant and there is no need to amend the
complaint to substitute the administrator for the deceased named defendant.
