Duncan v. Progressive Preferred Ins. Co.

258 P.3d 216, 227 Ariz. 398
CourtCourt of Appeals of Arizona
DecidedJune 9, 2011
Docket1 CA-CV 10-0265
StatusPublished

This text of 258 P.3d 216 (Duncan v. Progressive Preferred Ins. Co.) is published on Counsel Stack Legal Research, covering Court of Appeals of Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Duncan v. Progressive Preferred Ins. Co., 258 P.3d 216, 227 Ariz. 398 (Ark. Ct. App. 2011).

Opinion

258 P.3d 216 (2011)

Melissa DUNCAN, a single woman, Plaintiff/Appellant,
v.
PROGRESSIVE PREFERRED INSURANCE COMPANY, on behalf of The Estate of George Pop, Intervenor/Appellee.

No. 1 CA-CV 10-0265.

Court of Appeals of Arizona, Division 1, Department D.

June 9, 2011.

*217 Tidmore Law Offices, L.L.P. By Mick Levin, Phoenix, Attorneys for Plaintiff/Appellant.

Law Offices of Michael E. Baraban By Trevor H. Gardner, Scottsdale, Attorneys for Intervenor/Appellee.

Kutak Rock LLP By Michael W. Sillyman, Vanessa R. Brown, Scottsdale, Attorneys for Amicus Curiae Property Casualty Insurers of America.

Haralson, Miller, Pitt, Feldman & McAnally, P.L.C. By Stanley G. Feldman, Tucson, and Knapp & Roberts, P.C. By David L. Abney, Scottsdale, Co-Counsel for Amicus Curiae Arizona Association for Justice/Arizona Trial Lawyers Association.

OPINION

GEMMILL, Judge.

¶ 1 The superior court dismissed Melissa Duncan's personal injury action after granting a motion to dismiss based on insufficiency of process. We conclude that the motion to dismiss in this tort action was an impermissible collateral attack on the order appointing a special administrator and the letters of administration from a related probate proceeding, Maricopa County Superior Court Cause Number PB XXXX-XXXXXX. Accordingly, we vacate the dismissal and remand for further proceedings.

FACTS AND PROCEDURAL HISTORY

¶ 2 On December 13, 2007, Duncan was involved in an automobile accident allegedly caused by George Pop. Duncan claims to have sustained personal injuries and over $6,000 in medical expenses. At the time of the accident, Pop was insured under an automobile liability policy issued by Progressive Preferred Insurance Company ("Progressive"). *218 The applicable liability coverage limit is $15,000 per person for bodily injuries.

¶ 3 On December 15, 2008, Duncan's attorney sent a letter to Progressive, demanding that it pay Duncan $20,000 as compensation for the injuries and medical expenses Duncan incurred as a result of the December 2007 accident. Duncan was not then aware that the applicable policy limit was $15,000. Progressive refused Duncan's demand, and on March 26, 2009, Duncan filed this action in superior court against Pop. Pop died on April 16, 2009, before Duncan had accomplished service of process on him. The trial court at Duncan's request extended the deadline for service of process until September 2009.

¶ 4 In July 2009, Duncan initiated the above mentioned probate proceeding, requesting informal appointment of a special administrator for Pop's estate in accordance with Arizona Revised Statutes ("A.R.S.") sections 14-3301(A)(7) (2005) and 14-3614(1) (2005). The application sought appointment of the special administrator for the limited purpose of accepting service of process on behalf of the estate and tendering the defense of the lawsuit to Progressive. The application stated that "[u]pon information and belief, Decedent died with no surviving family" and "no one has ever been appointed as a personal representative of Decedent's Estate." It also stated that "it is not anticipated that any recovery in the civil action will exceed the amount of insurance coverage."

¶ 5 Duncan's application was granted by a probate registrar. The Statement of Informal Appointment of Special Administration issued by the registrar stated: "The undersigned is satisfied that Craigg Voightmann, Esq. is a proper person qualified to act as Special Administrator pursuant to all applicable provisions of A.R.S. Title 14, Chapter 3, Article 6." Additionally, Letters of Special Administrator with Limited Powers ("Letters") were issued to Voightmann. The issuance of letters of administration vests authority in the special administrator. Grant v. Ariz. Bank, 5 Ariz.App. 197, 200, 424 P.2d 845, 848 (1967).

¶ 6 In August 2009, Voightmann accepted service of process on behalf of Pop's estate and tendered the defense to Progressive. According to the Letters, Voightmann's appointment as the special administrator terminated once he tendered the defense to Progressive or by October 17, 2009 at the latest.

¶ 7 Pop's estate did not file an answer to the complaint, however, and Duncan filed an application for default on December 22, 2009. Progressive then filed a motion to intervene on behalf of Pop's estate for the limited purpose of contesting the sufficiency of process. Progressive also filed a Rule 12(b)(4) motion to dismiss the action based on insufficiency of process. See Ariz. R. Civ. P. 12(b)(4). Progressive argued that Duncan's complaint should be dismissed with prejudice because Pop's heirs were not notified that a special administrator had been appointed for Pop's estate or that a lawsuit was commenced against the estate. Progressive also argued that the manner in which the estate was created resulted in a "shell entity/estate" without a representative and/or administrator with which defense counsel could confer.

¶ 8 In response, Duncan asserted that service of process upon the special administrator was appropriate under A.R.S. § 14-3614(1) because it was necessary to protect the estate. Duncan also stated that she did not believe Pop had heirs and, even if he did have heirs, it was unlikely that her recovery in the lawsuit would exceed Pop's insurance coverage. She also noted that it is permissible for Progressive to defend Pop's estate without consulting with an administrator or personal representative.

¶ 9 In February 2010, the court granted both of Progressive's motions (to intervene and dismiss). In its order dismissing Duncan's complaint, the court explained:

This [c]ourt interprets A.R.S. § 14-3614 to permit the appointment of a Special Administrator "to protect the estate of the decedent prior to the appointment of a general personal representative."
Plaintiff has cited no law allowing for the appointment of a Special Administrator solely for service of process and when no *219 general personal representative has been appointed.

(Emphasis in original.)

¶ 10 Duncan timely appeals from the dismissal of her complaint. We have jurisdiction in accordance with A.R.S. § 12-2101(B) (2003).

ANALYSIS

¶ 11 Duncan contends the court erred in dismissing her complaint against Pop because a special administrator may be appointed pursuant to A.R.S. § 14-3614(1) for the limited purpose of accepting service of process on behalf of a decedent's estate.[1] Progressive, on the other hand, asserts that the informal appointment was improper because it was not "necessary to protect the estate" as required under § 14-3614(1), and because Duncan did not arrange for the appointment of a general personal representative.

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Bluebook (online)
258 P.3d 216, 227 Ariz. 398, Counsel Stack Legal Research, https://law.counselstack.com/opinion/duncan-v-progressive-preferred-ins-co-arizctapp-2011.