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Bennett v. R.J. Reynolds Tobacco Co.

Superior Court of Massachusetts, Suffolk

January 8, 2018

Tina BENNETT, Individually and as Personal Representative of the Estate of David Bennett
v.
R.J. REYNOLDS TOBACCO COMPANY, individually and as successor by merger to Lorillard Tobacco Co., Philip Morris USA, Inc., and Global Partners, L.P.

          MEMORANDUM OF DECISION AND ORDER ON DEFENDANTS’ MOTION TO DISMISS

          Mitchell H. Kaplan, Justice

         In this action the plaintiff, Tina Bennett, alleges claims for wrongful death and civil conspiracy against the defendants[1] . She brings these claims as the Personal Representative of the Estate of David Bennett (David and the Estate).[2] The defendants have moved to dismiss the complaint on the grounds that Ms. Bennett was appointed as the personal representative of the Estate under G.L. c. 190B, § 3-108 (4) of the Uniform Probate Code (UPC or the Code), and an appointment under that provision of the Code does not carry with it the authority to bring either a wrongful death action under G.L. c. 229, § 2 or a tort claim that belonged to the plaintiff’s decedent at the time of his death and had become an asset of the estate.[3]

         BACKGROUND FACTS

         The following facts are taken from the allegations of the plaintiff’s amended complaint, her petition for appointment as the personal representative of David’s estate (the Petition), and the Decree and Order on Petition for Late and Limited Formal Testacy and/or Appointment with respect to the Estate issued by the Worcester Probate and Family Court dated July 26, 2017.

         David Bennett died on March 7, 2014. In the Petition, his residence is listed as 22 Roosevelt Dr., Southbridge, Massachusetts. Southbridge is a town in Worcester County. This action was first filed on February 22, 2017, although the plaintiff had not yet filed any process seeking appointment as the personal representative of the Estate by that date. On May 16, 2017, the plaintiff filed a Petition for Late and Limited Formal Testacy and/or Appointment in the Worcester Probate and Family Court. On July 26, 2017, that Court issued a decree allowing the Petition and appointing the plaintiff the personal representative of the Estate pursuant to G.L. c. 190B, § 3-108(4). On August 11, 2017, the plaintiff filed an amended complaint alleging her appointment as the personal representative of the Estate.

         DISCUSSION

         The issue presented by this case is one of first impression, both in Massachusetts and other states that have adopted the UPC: does a personal representative appointed with the limited authority provided by § 3-108(4) of the UPC have standing to bring tort actions that were the property of the deceased and are an asset of the estate and/or an action for wrongful death under G.L. c. 229, § 2?

         Â§ 3-108 provides, as relevant to this question, that

No informal probate or appointment proceeding or formal testacy or appointment proceeding, ..., may be commenced more than 3 years after the decedent’s death, except ...
(4) if no proceeding concerning the succession or administration of the estate has occurred within 3 years after decedent’s death, but the personal representative shall have no right to possess estate assets as provided in section 3-709[4] beyond that necessary to confirm title thereto in the successors to the estate and claims other than expenses of administration shall not be presented against the estate; ...

         The MUPC Estate Administration Procedural Guide, Second Edition, published by the Administrative Office of the Probate and Family Court refers to a petition for appointment of a personal representative brought under this section of the UPC as a " Late and Limited Formal Proceeding." It contains the following " Practice Alert" regarding this type of appointment: " A late and limited appointed PR may not seek a license to sell real estate of the decedent. The PR’s authority is limited by statute to confirming title to estate assets in the successors and paying expenses of administration, if any." (emphasis in original).

         TORT CLAIMS

         It seems clear that a personal representative appointed under § 3-108(4) does not possess a cause of action that belonged to the deceased and devolved to the estate, such as one for conscious pain and suffering experienced by the deceased prior to his death that was caused by a tortfeasor. In consequence, this kind of personal representative cannot pursue those tort claims on behalf of the estate. This limitation appears consistent with the limitation that the personal representative also cannot cause the estate to pay any claim other than a cost incurred in performing the limited function of confirming title in an asset to a successor. In other words, a " Late and Limited" personal representative can neither assert estate claims nor have estate claims asserted against him/her. Accordingly, the plaintiff in this case does not have standing to assert conspiracy claims that may have belonged to David before his death, a species of tort claims, against the defendants.

         WRONGFUL ...


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