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Decision on inapplicability of “one action rule” in wrongful
death action where nominal defendant is named but not actually
served
Romero v. PG&E (Late 2007) |
At the request of a colleague, I’m summarizing an interesting case
that came out in late 2007 by the name of Romero v. PG & E
(2007) 156 CA4th 211. The case is worth a read for anyone who
defends wrongful death actions. In it, the Third Appellate District
held that a defendant tortfeasor in a wrongful death action waives
the protection of the one action rule by settling with fewer than
all the known heirs if such heirs are not parties to the action. A
defendant cannot assume that a nominal defendant has been served and
it is incumbent on the settling tortfeasor to insure that any and
all known nominal defendants are actually served in the case in
order to bar future litigation by them.
In Romero, the mother of a child killed while playing in an open PG
& E trench sued the company for wrongful death. The father of the
child did not join the wrongful death suit as a plaintiff; the
mother named him as a nominal defendant under CCP section 382, but
he was never served with the complaint by her. PG & E assumed the
father had been served but did nothing to investigate whether he
actually had been served before settling with the mother out of
court.
Thereafter, the father sued PG & E for wrongful death. PG & E
demurred on the ground the father’s action was barred by the “one
action rule.” A cause of action for wrongful death is authorized by
CCP section 377.60 and has “been interpreted to authorize only a
single action, in which all decedent’s heirs must join.” The father
appealed from the judgment of dismissal after the trial court
sustained PG & E’s demurrer without leave to amend. The father
argued that he was not barred by the one action rule because, even
though he had been identified as a nominal defendant on the face of
the complaint, he had never been served. The appellate court
reversed.
The court explained that an heir who does not consent to be joined
as a plaintiff in a wrongful death action must be named as a
defendant under CCP section 382. “If an heir is not included in the
original wrongful death action, the heir may not subsequently bring
an independent action against the tortfeasor unless the tortfeasor
had knowledge of the existence of the heir at the time of the
settlement. This is the case even if the plaintiff was aware of the
existence of another heir. The wrongfully omitted heir’s remedy is
against the heir (plaintiff) who brought the wrongful death action.”
(Cites omitted, emphasis added).
The exception to the one action rule occurs “if the tortfeasor
voluntarily elects to settle the case with less than all of the
heirs, having knowledge of the omitted heir’s existence and status
as an heir. The exception applies where the omitted heir is not
joined in the original action.” (Cite omitted).
PG & E took the position that it “had every reason to believe [the
father] had been properly joined in the lawsuit” and contended it
was the mother’s duty to ensure the father was properly joined. The
court of appeal succinctly said “PG & E misunderstands the law.” It
explained that the waiver of the protection afforded by the one
action rule is dependent upon the “defendant’s knowledge of the
existence or possible existence of an heir.” It also said that
defendant was on notice of the father’s existence when he was named
as a nominal defendant whether or not he had been served. The mere
fact he was named, however, should not lead to the conclusion that
the nominal defendant has been properly served and joined in the
action. “Instead, the burden is on the tortfeasor wishing to avail
itself of the one action rule to cause a known heir to be joined in
the action.”
This case was brought to my attention by an attorney who in the past
had wrongful death cases with nominal defendants, but the attorney
had not actually ensured the nominal defendants were served. On at
least one occasion this occurred because the heir was out of state
and determining his location and how to serve him was quite
difficult and would have been expensive. This case makes clear that
when a tortfeasor is aware of an heir who is named as a nominal
defendant, that tortfeasor has the duty to ascertain whether the
nominal defendant has actually been served in the action, and if
not, should see to it that the heir is served. Otherwise, the
tortfeasor defendant runs the risk of losing the right to assert the
one action rule in the event the case is settled with or tried
against fewer than all the known heirs.
Though a defendant is not barred from asserting the one action rule
when he is unaware of an unnamed heir at the time of the settlement
(that heir has a right of action against the settling
plaintiff-heir), from a practice perspective, it would seem prudent
for a defendant in a wrongful death action to ascertain early in the
litigation whether there are any heirs who should be named as
nominal defendants, and to name and serve them if the plaintiff has
not done so in order to protect the right to assert the one action
rule after settlement or trial of the wrongful death action.
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