HLD, v. 31, n. 8 (August 2003)
Virginia Supreme Court Holds Former Estate Administrator Did
Not Have Standing To Bring Wrongful Death Suit
Robert Fowler (decedent) died on December 24, 1999, and on March
9, 2000 his wife Rebecca Fowler was appointed administrator of his estate in
West Virginia. On October 2, 2000, the settlement of decedent's estate was
approved and the estate was closed. On December 21, 2001, Fowler sued ten
healthcare providers for wrongful death for the care provided to the decedent
before his death. At the time she filed the suit, Fowler was not qualified as
the personal representative of decedent's estate. Some of the defendants filed
motions to dismiss on the ground Fowler had no standing to maintain her suit,
that the action did not toll the statute of limitations, and the motion for
judgment should be dismissed with prejudice. Fowler moved for a nonsuit, which
the trial court denied. The trial court granted defendants' motion to dismiss,
and Fowler appealed.
The Virginia Supreme Court affirmed the trial court's judgment
on the ground Fowler did not have standing to maintain the action. Fowler
argued that while she did not have standing she was a "real party in interest"
and the trial court erred in dismissing her motion for judgment with prejudice.
Citing McDaniel v. North Carolina Pulp Co., 95 S.E.2d 201 (1956), Fowler
argued that she had the right to properly qualify as personal representative
and refile the suit within two years as if the original action had never been
filed. The high court noted the decedent died on December 24, 1999 and Fowler
had filed the action on December 21, 2001 and was not qualified as the personal
representative of the estate in Virginia, and her prior qualification as
personal representative in West Virginia had expired. In McDaniel, the
plaintiff filed a wrongful death suit in Virginia as the personal
representative of the decedent's estate. At the time of the suit the plaintiff
was the personal representative of the estate in Nevada, but not in Virginia.
After the trial court granted the defendant's motion for summary judgment on
the ground the plaintiff was not qualified as the decedent's personal
representative in Virginia, the plaintiff filed another suit based on the first
cause of action and his co-plaintiff was the recently qualified personal
representative of the estate in Virginia. The trial court dismissed the second
case on the ground the statute of limitations had expired, but on appeal the
high court held the statute of limitations had been tolled by the first suit
because the plaintiff was a "real party in interest" as the personal
representative in Nevada and for the second suit the plaintiff remained the
real party in interest with the addition of the co-plaintiff. In this case,
Fowler was not the real party in interest at the time the first suit was filed
because she was no longer the personal representative in West Virginia.
Accordingly, the court affirmed the trial court's judgment that Fowler did not
have standing to maintain the wrongful death action.
Fowler v. Winchester Med. Ctr., No. 022260 (Va. June 6,