Substitution Case Analysis

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Needless to say, the guidance provided by the court will be far from clear to future parties when an opposing party dies. Very few cases will involve an intrafamily dispute in which it is abundantly clear that the party knows whom to serve, and how to find them.

One would assume that, if the deceased party is married, service upon the surviving spouse would be both required and sufficient.

If the deceased party is not married, but has children, this case may be distinguishable, when the parties are not related, nor do they have any other relationship. Nevertheless, with relatively little work, the children’s identity will usually be discoverable.

Where the deceased party has neither a spouse, nor children, the number of interested parties could be enormous, however. In such an instance, it will usually be more expeditious to shift the burden to the deceased’s attorney.

The court’s citation to Yonofsky supports such an interpretation, as does a statement by the court that, “in other cases it might be unreasonable to read [the rule] as requiring service on ‘potential’ successors or representatives.”

Numerous other statements by the court provide further authority for such an interpretation: “The attorney for a deceased plaintiff has a professional obligation to ‘take steps to the extent reasonably necessary to protect a client’s interests.’”; “A lawyer for a deceased client must cooperate in any transition and seek to protect the deceased client’s property and other rights.” (citations omitted).

In every case, however, it is necessary to serve the deceased party’s attorney. The question is, by what method.

In this case, Attorney Pyzyk was served by mail. However, the court suggested in a footnote that this may be improper.

	Links Wisconsin Supreme Court Related Article Serving death notice only on attorney insufficient

The court wrote, “An attorney for a deceased plaintiff is not a party to the action. [Kasting v. American Family Mut. Ins. Co., 196 F.R.D. 595, 598 (D.Kan.2000)]. No one complains in the present case that service on the attorney for the deceased plaintiff, a nonparty, was improper because the service was by mail rather than by personal service. In Barlow, the court held that service by mail upon the deceased plaintiff’s attorney did not trigger the 90-day time period. [Barlow v. Ground, 39 F.3d 231, 234 (9th Cir. 1994)].

Once a legal action is underway, and there is opposing counsel involved in the case, it is easy to assume that service of any documents on opposing counsel by mail is sufficient. However, the fact that the court chose to sua sponte raise the issue that mail may not be proper is more than reason enough to utilize personal service.

– David Ziemer

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David Ziemer can be reached by email.