Judge David Johnson of the Chesterfield County Circuit Court recently dismissed a $100,000.00 lawsuit at the request of KPM Law attorney Bill Pfund, because the plaintiff sued a deceased individual as well as that person’s “Estate”. Although Virginia law allows lawsuits to proceed against an Administrator of a deceased person’s “Estate” (even if the “Estate” has no assets other than insurance which could pay for the plaintiff’s damages), the law requires a Plaintiff to sue an actual living person. In this case, the Plaintiff, Albert Lee, was injured in a car accident with Ray Alexander in April, 2011. Unbeknownst to Lee, Alexander died the following month.
Two years later, Lee filed a lawsuit against Alexander. After learning that Alexander was deceased, Lee withdrew his lawsuit by taking a voluntary “nonsuit”. Lee subsequently refiled the lawsuit against both Alexander and the “Estate of Ray Alexander”. No one was appointed to serve as an Administrator of Alexander’s Estate until August, 2016 when Lee’s attorney arranged for an employee from his law firm to serve as the Administrator.
Judge Johnson found that the lawsuit was a “nullity”, and that the statute of limitations had expired as to any new lawsuit being filed against the actual person serving as the Administrator of Alexander’s Estate. Virginia law states that “[a]ll suits and actions must be prosecuted by and against living parties, in either an individual or representative capacity. The dead have passed beyond the jurisdiction of the court, and no decree or judgment of the court could be enforced against them personally. There must be such parties to the record as can be affected by the judgment and from whom obedience can be compelled . . . .” Rennolds v. Williams, 147 Va. 196, 198-99, 136 S.E. 597, 597 (1927). The court, in the Rennolds case emphatically stated, “[a] decree or judgment against one who was dead when the suit or action was brought . . . is a nullity.” Id. 199, 136 S.E. at 598. To further clarify the point, the court then stated, “[y]ou cannot sue a dead man. The fact that a plaintiff does not know that the defendant is dead at the time he brings his suit is wholly immaterial.” Id.
Applying the reasoning which the Virginia Supreme Court used in the Rennolds case, Judge Johnson found that Lee’s failure to sue an actual living person (since Alexander was deceased and there was no living person serving as Administrator of his “Estate”until after the statute of limitations had expired) was fatal to his lawsuit, which was dismissed with finality.