Hill v. InTown Suites Management, Inc.

Filing 35

MEMORANDUM AND ORDER. (read order for details) IT IS HEREBY ORDERED that plaintiff's motion for substitution of parties [# 33 ] is denied. IT IS FURTHER ORDERED that the deadlines in the Case Management Order and the Order Referring Case to Alternative Dispute Resolution are vacated, pending further order of the court. IT IS FURTHER ORDERED that plaintiff's counsel must file a proper motion to substitute, or a status report indicating when such a motion will be filed, no later than July 15, 2014. Once a proper party is substituted, the court will issue a new scheduling order. Signed by District Judge Catherine D. Perry on 06/06/2014. (CBL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
DONALD T. HILL,
Plaintiff,
vs.
INTOWN SUITES MANAGEMENT
INC.,
Defendant.

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) Case No. 4:13CV1827 CDP
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MEMORANDUM AND ORDER
Donald Hill brought suit for personal injuries against defendant Intown
Suites Management, Inc. A Suggestion of Death has now been filed indicating that
Mr. Hill, has died in an unrelated automobile accident. A Motion for Substitution
of Parties has also been filed on plaintiff’s behalf, seeking the substitution of
plaintiff’s wife, Josephine Hill, as a plaintiff ad litem.
Under Missouri law, a cause of action for personal injuries not resulting in
death does not abate by reason of the party’s death, but instead survives to the
personal representative of the injured party. R.S. Mo. § 537.020.1(1); State ex rel.
Cunningham v. Wiggins, 156 S.W.3d 473, 476 (Mo. Ct. App. 2005). “Personal
representative,” as used in the statute, is that person to whom letters testamentary
or letters of administration have been issued in a probate estate. Cunningham, 156
S.W.3d at 476 (citations omitted).

In contrast, Section 537.021.1(1) of the Missouri Revised Statutes authorizes
an ad litem appointment to maintain a decedent’s action instead of the personal
representative, “but only for the purpose of pursuing a cause of action for lost
chance of recovery or survival.” Cunningham, 156 S.W.3d at 476.
Plaintiff’s complaint includes no count for lost chance of recovery or
survival. As such, substitution as a plaintiff ad litem is inappropriate, and if the
case is to continue, plaintiff must have a personal representative appointed by the
state court. Accordingly,
IT IS HEREBY ORDERED that plaintiff’s motion for substitution of
parties [# 33] is denied.
IT IS FURTHER ORDERED that the deadlines in the Case Management
Order and the Order Referring Case to Alternative Dispute Resolution are vacated,
pending further order of the court.
IT IS FURTHER ORDERED that plaintiff’s counsel must file a proper
motion to substitute, or a status report indicating when such a motion will be filed,
no later than July 15, 2014. Once a proper party is substituted, the court will issue
a new scheduling order.

CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE
Dated this 6th day of June, 2014.
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