Dismissal of Mother's Case Is No Bar to Daughters' Suit

Claims filed against a nursing home by the daughters of a deceased resident were not barred by the dismissal of an earlier suit brought on behalf of their mother while she was alive, a Colorado appeals court has held.

The Court of Appeals ruled that Hollis Sawyer's daughters had not received proper notice that the first suit would be dismissed based on their mother's death and the failure to substitute the appropriate parties as plaintiffs.

Thus, the panel reversed the dismissal of both cases, allowing Jacqueline and Bonnie Sawyer to pursue their claims against the operators of the Iliff Care Center in Denver.

According to the opinion, Jacqueline Sawyer filed a negligence lawsuit on behalf of her mother July 1, 2005, in the Denver City and County District Court against Kindred Healthcare Inc. and several subsidiaries, as owners of the Iliff facility.

Jacqueline alleged that her mother suffered a series of preventable falls that led to a serious decline in her condition.

The mother died July 22, 2005, and Jacqueline's attorney filed a "suggestion of death," which notifies the court that a party has died. The attorney said in the filing that he was conferring with the Sawyer sisters and would notify the court of any substitution of parties or claims within 90 days.

No substitution was ever filed, and Kindred moved to dismiss the complaint. No response was filed, and the trial court dismissed the suit.

In July 2007 the Sawyer sisters hired the same attorney and filed a second lawsuit over their mother's care against the same defendants in the same court.

This time, the suit raised claims for wrongful death and violations of state consumer protection laws.

Kindred filed a motion to dismiss the sisters' lawsuit, arguing that the claims were precluded by dismissal of their mother's earlier suit.

The trial court granted the motion. The sisters then moved to reopen and intervene in the first lawsuit, which the trial court denied as untimely.

The plaintiffs appealed the dismissal of both cases.

The appeals court's decision turned on the proper interpretation of Colorado Rule of Civil Procedure 25(a)(1), which governs the substitution of parties and claims following a plaintiff's death.

The rule provides that cases will be dismissed when a party dies, a suggestion of death is filed and served on certain interested people, and no motion to substitute proper parties is filed within 90 days of the service.

On appeal the Sawyer sisters argued that Rule 25(a)(1) did not apply to their lawsuit because the negligence claim of the first lawsuit did not survive their mother's death. They said their latest claims were separate and distinct from those brought on behalf of their mother in the earlier suit.

The sisters further argued that they did not receive proper service of the suggestion of death and that the trial court lacked the authority to dismiss the first suit. This argument came despite the fact that the lawyer who filed the suggestion is their counsel in the second suit.

The appeals court said negligence claims survive the death of a plaintiff. The panel held that the Sawyer sisters, as personal representatives of their mother's estate, could have been substituted as parties in the first suit and pursued the negligence claim.

However, the panel found no evidence that the suggestion of death was properly served on the sisters. Kindred could have done this itself, the appeals court noted.

"We conclude that ... [Rule] 25(a)(1) requires personal service at least on the decedent's successors and personal representatives and, absent such service here, the trial court lacked authority to dismiss the complaint," Judge Dennis A. Graham wrote for the court.

The panel revived and remanded both lawsuits.

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Thomas B. Quinn and Jennifer C. Forsyth of Gordon & Rees in Denver represent Kindred.Jerome M. Reinan and Jordana Griff in Denver represent the Sawyers.