What To Do When the Tortfeasor Dies Before Suit is Filed

Here is the beginning of my “Day on Torts” column for the Tennessee Bar Journal on what a plaintiff should do if the tortfeasor dies before suit is filed.  Click on the link to read the full text of the article.

Your new client thought she could avoid hiring a lawyer and instead work out on her own a settlement with the insurance claims representative for the other driver. The dance lasted 10 months. “Wait until the end of medical treatment.” “Sign these forms.” “Send me your medical bills.” “I need your EOB forms.” “Your employer needs to confirm in writing your lost wages.” And so on.

She (finally) has concerns about whether she is going to be treated fairly and hires you as her lawyer. You have two months to investigate and evaluate the case, and to file a lawsuit. Your chance to settle the case pre-suit is long gone.

You interview your client, talk to the three witnesses identified on the crash report, and visit the scene. You believe liability can be established. You order documents that will establish your medical and loss of earning capacity claims. You draft a complaint. You ask your assistant to confirm the address of the at-fault driver as shown in the crash report so that you can have a summons issued and obtain service of process.

Your assistant discovers the residence at the address listed in the crash report for the at-fault driver was sold four months after the crash. A search of the property tax assessor’s records for the same county reveal the at-fault driver did not purchase another home in that county. An internet search reveals your at-fault driver died two months after the crash. Facebook research reveals he probably died of cancer. The one-year anniversary date of the crash[1] is two weeks away.

Now what?