Summary
Under Wyoming's wrongful death statute, the two-year limitations period is tolled when any petition for appointment of a wrongful death representative is timely filed, regardless of whether the eventual appointee was the original petitioner. The Tenth Circuit held that a complaint filed within 30 days of the plaintiff's appointment as wrongful death representative was timely, even though she filed her amended petition after the two-year deadline, because the original petition was "properly filed" within the limitations period. The court rejected arguments that the appointment was subject to collateral attack or that "properly filed" requires analysis of substantive issues like ethical concerns.
Topics
Practice areas
Questions Presented
- Whether Porter's wrongful death complaint was timely under Wyoming's tolling statute, Wyo. Stat. § 1-38-103(b)(ii), when a petition for appointment of a wrongful death representative was filed within two years of death, but the eventual representative was appointed after the two-year limitations period.
Holdings
- When a petition for appointment of a wrongful death representative is properly filed within the two-year limitations period, the limitations period is tolled under Wyo. Stat. § 1-38-103(b)(ii) until thirty days after an order appointing a WDR is entered, and the subsequent appointed representative may file suit within that thirty-day period, regardless of whether the appointed representative was the original petitioner. Additionally, a defendant lacks standing to collaterally attack the state court's appointment of the WDR absent facial invalidity.
Key quotations
“However, '[i]f an action to appoint the [WDR] is properly filed, the limitation period under [§] 1-38-102(d) and any other applicable limitation periods shall be tolled from the time the action is filed until thirty (30) days after an order appointing the [WDR] is entered.' § 1-38-103(b)(ii).” (3)
“The Wyoming statute sets forth a straightforward conditional statement: 'If an action to appoint the [WDR] is properly filed,' then 'the limitation period . . . shall be tolled from the time the action is filed until thirty (30) days after an order appointing the [WDR] is entered.'” (4)
“The antecedent was satisfied when the Petition to appoint a WDR was filed within two years of Richardson's death, on November 21, 2016. Accordingly, the limitations period was tolled.” (4)
Factual background
Delandis Richardson died in an auto accident on November 25, 2014. Within two years, on November 21, 2016, Vance Countryman filed a petition for appointment as wrongful death representative (WDR). After the state court expressed ethical concerns, Porter filed an amended petition for appointment as WDR on April 27, 2017, in the same action. The state court appointed Porter as WDR on July 10, 2017. Porter filed this wrongful death action against Ford on August 7, 2017, within thirty days of her appointment.
Procedural history
The district court (District of Wyoming) dismissed the complaint with prejudice based on the statute of limitations. Porter appealed.
Remand instructions
for further proceedings consistent with this opinion