Long-Term Care: Be careful where you Qualify
In the Wake of Browne et al. vs. Williamsburg Facility Operations, LLC, et al.
The Norfolk Circuit Court recently held that qualification of a personal representative for suit purposes only must be where jurisdiction and venue would have been proper had the deceased survived. This holding came subsequent to a Plea in Bar filed Robert E. Walters, Jr. M.D. and Long Term Care of Tidewater, P.C. alleging that the plaintiffs, as the Administrators of the Estate of Jubelee Brown, deceased, lacked standing to maintain a cause of action in the City of Norfolk because the plaintiffs qualified in Petersburg.
The decedent, prior to death, filed a Complaint for personal injury in 2019 in the Norfolk Circuit Court. In January 2021, the defendants filed a Suggestion of Death indicating that the Plaintiff had died during the pendency of litigation. Although the decedent had died in October 2020, Plaintiff’s counsel requested a continuance to allow time for the appointment of a personal representative. Administrators were appointed in June 2021 in Petersburg Circuit Court and a hearing was held in August 2021 to allow for amendment of the Complaint to substitute the Administrators as the plaintiff; and, the Court noted that counsel recognized that Petersburg was an inappropriate venue for the cause of action and would have Administrators appointed in Norfolk (and further noted risks of failing to do so), but never ruled as it related to standing. As of December 7, 2021, the Administrators had not been appointed in Norfolk.
The Court concluded that although probate decisions of a circuit court cannot be subject to collateral attack, the Court could determine standing, which is separate from validity of appointment. Pursuant to Virginia Code § 8.01-50 provides for cause of action related to wrongful death, and Virginia Code § 8.01-56 specifically provides for conversion of a personal injury action to a wrongful death action. Frequently, full administration is required because the estate has assets and debts that must be resolved, and as a result, qualification is made under Virginia Code §§ 64.2-500 or 502. The issue, however, is that in the absence of the necessity for full administration, a personal representative may qualify for the sole purpose of litigating a personal injury or wrongful death claim pursuant to Virginia Code § 64.2-454, which specifically states that such qualification must be made, “by the clerk of the circuit court in the county or city in which jurisdiction and venue would have been properly laid for such actions if the person for whom the appointment is sought had survived.”
As a result of this case, clients, and their counsel, should be wary before rushing to the court to qualify on behalf of an estate. Instead, counsel should determine whether there are assets such that qualification is required under Virginia Code §§ 64.2-500 or 502, and if not, determine where the appropriate venue for the underlying litigation would be to qualify the personal representative under Virginia Code § 64.2-454. Absent a wrongful death claim, which passes to statutory beneficiaries in lieu of the estate itself, the personal representative will need to requalify, posting requisite surety, to accept funds and make appropriate distribution thereof – thinking through this backend additional qualification is also important when assessing who should qualify.
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