Free Brief in Opposition to Motion - District Court of Colorado - Colorado

Case 1:04-cv-00188-WYD-CBS

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-cv-00188-WYD-CBS ESTATE OF WILLIAM E. HARVEY; and WILLIAM B. HARVEY, A MINOR, BY AND THROUGH HIS MOTHER, CORAL CREEK, Plaintiffs, v. UNITED STATES OF AMERICA, Defendant. ________________________________________________________________________ PLAINTIFFS' OPPOSITION TO MOTION FOR PARTIAL SUMMARY JUDGMENT ________________________________________________________________________

PLAINTIFFS ESTATE OF WILLIAM E. HARVEY; AND WILLIAM B. HARVEY, A MINOR, BY AND THROUGH HIS MOTHER, CORAL CREEK; by and through their attorneys, the law firm of Olsen & Brown, LLC, respectfully oppose the Defendant's Motion for Partial Summary Judgment, and as grounds therefor state as follows:

1. This case involves Colorado probate law and a wrongful death action in which the law of the place where the alleged negligent conduct or omission occurred must be applied under the Federal Tort Claims Act. See, Richards v. United States, 369 U.S. 1, 82 S.Ct. 585, 7 L.Ed.2d 492 (1962). Pursuant to the pleadings that place was the State of Colorado. See, Second Amended Complaint, §§ 9-39. 1

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2. Joan Grace, sister of the decedent, William E. Harvey, was appointed by the Boulder District Court (State of Colorado) as the personal representative of the Estate of William E. Harvey. See, Exhibit 1, p. 2, ¶ 8. 3. The probate matter is Case No. 2007PR324, Boulder District Court. The administrator was appointed on July 12, 2007. Id. 4. Pursuant to state law, when a personal administrator is duly appointed in Colorado, "The powers of a personal representative relate back in time to give acts by the person appointed that are beneficial to the estate occurring prior to appointment the same effect as those occurring thereafter." See, C.R.S. § 15-12-701. 5. This "Relation Back Doctrine" has been incorporated into most of the state probate codes in the United States. The effect is to validate beneficial actions by the more recently appointed administrator nunc pro tunc to the prior date that those actions were taken even though the personal administrator was not appointed yet. Id. 6. The only question becomes whether the actions of the personal representative (Joan Grace) prior to her appointment were beneficial to the Estate. Without question, they have been in the instant case. As the Court is aware, the decedent advanced his own medical malpractice case until his death. Thereafter, the Estate took up the cause and brought a wrongful death action which, if prevailed upon, can only augment the Estate. Thus, there is no question that Joan Grace's action in authorizing the filing of the wrongful death action, to carry on the case, was and is beneficial to the Estate. 7. C.R.S. § 15-12-701 was a successor to a Colorado statute that gave approval to all acts of a later-appointed administrator who was "taking care of the estate" before the

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will was probated or the administrator appointed. See, §§7103 and 7138, Colorado Revised States 1908. See also, In re Mackey's Estate, 68 Colo. 556, 191 P. 106 (Colo. 1920). 8. This precise issue arose in Hill v. Martinez, 87 F.Supp.2d 1115 (D. Colo.), and District Judge Babcock ruled that C.R.S. § 15-12-701 served to validate an amended complaint served prior to appointment of the personal representative (and prior to the expiration of a statute of limitations). Id., at p. 1121. Wrote the Court: "I also conclude that under C.R.S. § 15-12-701, Plaintiffs['] November 10, 1998 appointment retroactively renders valid their October 22, 1997 filing of the Amended Complaint within the statute of limitations. . . . Consequently, summary judgment . . . on the basis that Plaintiffs failed to be appointed personal representatives of their son's estate within the statute of limitations is inappropriate." Id., at 1123. 9. In Hill, supra, the Court also discussed the capacity to become personal representative and determined that Colorado probate law defined said capacity, so that the trial court retained jurisdiction to apply the relation-back doctrine. Id., at 1123. In the instant case, there is no doubt that Joan Grace, as sister of the decedent, had the capacity to become personal representative. Indeed, she was nominated (to the Boulder District Court) by the other possible relatives. See, Exhibit 2. Moreover, state law qualified her to be the personal representative. See, C.R.S. § 15-12-203. And the Boulder District Court entered its Order that Grace "has priority for appointment as personal representative." See, Exhibit 1, p. 2, ¶ 8.

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10. The same result has been reached in many other cases across the land. For example, in Talan v. Murphy, 433 So.2d 207, 208 (Fla.3d DCA 183), the court held that a wrongful death case brought by a person before he was appointed administrator of the estate was still valid, and his post-filing appointment related back and his acts were validated insofar as they were acts he could have performed had he been qualified as a personal representative. 11. As another example, in Rennie v. Pozzi, 656 P.2d 934, 938 (Or. 1982), the Oregon Supreme Court ruled that a similar statute provided that a later appointment of a personal representative related back "to enable someone to act on behalf of the estate pending appointment. The subsequent appointment 'relates back' in the sense that for all legal purposes the prior act done by the personal representative-to-be on behalf of the estate is deemed to have [been] done by him or her at that time as personal representative with all the normally attendant powers." 12. See also, Brown v. Brown, 608 P.2d 840, 842-43 (Colo.App. 1980) [relation back doctrine validates acts of personal representative before he was appointed personal representative so long as they are beneficial to the estate]. 13. The above argument based on an express Colorado statute is apart from application of the Federal Rules of Civil Procedure relating to amendment and relation back of proceedings. Fed. R. Civ. P. 15(c) provides that a subsequently amended pleading, even one involving an amendment that "changes the party" relates back to the date of the original pleading so long as "the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be

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set forth in the original pleading." Said requirements fit the instant fact pattern like a glove. 14. The doctrine of relation back under Rule 15(c) is liberally applied today in the federal courts, especially if no disadvantage will accrue to the opposing party. See, 1A Barron & Holtzoff, Federal Practice and Procedure § 448 (Wright ed. 1960). Rule 15(c) is "based on the idea that a party who is notified of litigation concerning a given transaction or occurrence is entitled to no more protection from statutes of limitations than one who is informed of the precise legal description of the rights sought to be enforced." See, 3 Moore, Federal Practice P15.15(2), at 1021. 15. The pertinent principle of law is that a change from capacity as in individual to capacity as personal representative is not equivalent to commencement of a new action running afoul of a time bar. See, Missouri, K., and T. Ry. Co. v. Wulf, 226 U.S. 570, 57677 (1913) ["The change was in form rather than in substance . . . . It introduced no new or different cause of action, nor did it set up any different state of facts as the ground of action, and therefore it related back to the beginning of the suit."]. 16. Indeed, the Tenth Circuit has expressly ruled as follows: So also, under Federal Rules, whether he was the real party in interest when he first filed the claim, he became such when the written assignment was made. The new rules of Federal Procedure were adopted to unshackle the practice of law in the courts from the straight jacket of technical rules of pleading and procedure. The rules were liberalized to the end that there might be more speedy and complete adjudication of a controversy between all interested parties without regard to technicalities and mere formal technical rules. Under Rule 17(a) of the Federal Rules of Procedure, 28 U.S.C.A., Kilbourn was from and after the written assignment and the filing of the amended pleading, the real party in interest.

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In line with the spirit of the new rules, it has been held that a new plaintiff may be substituted in an action at least to bring in the real party in interest,FN6 even though the plaintiff who commenced the action had no right in the cause of action.FN7 So it has also been held that where a person who, though in her individual capacity has no cause of action, but who nevertheless commences the action in her individual name, may substitute herself in her capacity as a personal representative, even though she took out letters as personal representative after the action was commenced. See, Kilbourn v. Western Sur. Co., 187 F.2d 567. 571 (10th Cir. 1951). 17. Likewise, in Metropolitan Paving Co. v. International Union of Operating Engineers, 439 F.2d 300, 306 (10th Cir. 1971), the Tenth Circuit, affirmed that a change in capacities did not prevent application of the relation back doctrine: In allowing this amendment, the court did not abuse the discretion implied in Rules 15(c) and 17(a), Fed.R.Civ.P. Since it was clear from the outset that the three corporations were the real parties in interest in this matter, there was no prejudice to the defendant in granting the motion to amend. The fact that an applicable statute of limitations may have run before the real parties were substituted is not significant where the change is merely formal and in no way alters the known facts and issues on which the action is based. 18. C.R.S. § 15-12-701 does not limit its relation-back effect to subsequent judicial proceedings alone, but maintains the same effect as to any and all acts that the person could have taken had she been appointed as personal representative at the outset. Thus, pursuant to the same statute, the Estate's notice of claim to the federal government was expressly validated by statute as if she had already been formally appointed personal representative at the time that the claim was filed. 19. Moreover, the defendant was patently placed on notice of the claims that were to be brought in court (eventually) by the Estate. Such notice is all that is required 6

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by the notice requirements of the Federal Tort Claims Act even if the notice is provided by someone in the wrong capacity. See, Goodman v. U.S., 298 F.3d 1048, 1055 (9th Cir. 2002) ["The person injured, or his or her personal representative, need only file a brief notice or statement with the relevant federal agency containing a general description of the time, place, cause and general nature of the injury and the amount of compensation demanded. See, Warren v. United States Dep't. of Interior Bureau of Land Mgmt., 724 F.2d 776, 779 (9th Cir.1984); Avery v. United States, 680 F.2d 608, 610 (9th Cir.1982) ('[A] skeletal claim form, containing only the bare elements of notice of accident and injury and a sum certain representing damages, suffices to overcome an argument that jurisdiction is lacking.'). Furthermore, the notice requirement under section 2675 is minimal, and a plaintiff's administrative claims are sufficient even if a separate basis of liability arising out of the same incident is pled in federal court."]. 20. Finally, Joan Grace as personal representative has expressly ratified her prior acts before she was formally appointed, and this, as an additional reason, validates those acts under the law. See, C.R.S. § 15-12-701; Exhibit 3.
WHEREFORE, Plaintiffs oppose the Defendant's Motion for Partial Summary Judgment. RESPECTFULLY SUBMITTED,

OLSEN & BROWN, LLC By: s/ John R. Olsen John R. Olsen Attorneys for Plaintiffs 8362 Greenwood Drive Niwot, Colorado 80503 Telephone: (303) 652-1133

Date: July 16, 2007

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CERTIFICATE OF SERVICE The undersigned certifies that on July 16, 2007, a true and correct copy of the foregoing was electronically served upon defendant's counsel as follows: Elizabeth Weishaupl, Esq. Ass't U.S. Attorney U.S. Attorney's Office (Civil Division) 1225 17th St., Room 700 Denver, CO 80202 s/ John R. Olsen John R. Olsen

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