Civil Procedure-Probate Court Order Cannot Be Collaterally Attacked in Tort Action

Civil Procedure—Probate Court Order Cannot Be Collaterally Attacked in Tort Action

Duncan v. Progressive Preferred Ins. Co., __Ariz. Adv. Rep. __ 1 CA-CV 10-0265 (App. Div. I, June 9, 2011) (J. Gemmill)

WHERE PROBATE REGISTRAR APPOINTS INDVIDUAL AS SPECIAL ADMINISTRATOR OF DECEASED TORT DEFENDANT'S ESTATE FOR SOLE PURPOSE OF ACCEPTING SERVICE OF PROCESS, INSURER MAY NOT COLLATERALLY ATTACK THAT APPOINTMENT IN THE UNDERLYING TORT ACTION

Plaintiff was injured in and automobile accident. The defendant driver died before the plaintiff could serve him with the lawsuit. The plaintiff therefore obtained the appointment in the probate court of an attorney as special administrator of the defendant's estate for the sole purpose of accepting service of the tort lawsuit. The plaintiff then served the special administrator who then delivered the complaint and summons to the defendant's insurer. The insurer did not answer the complaint and the plaintiff sought to enter a default. The insurer then was granted permission to intervene in the tort lawsuit and moved to dismiss the suit for insufficiency of service of process under Arizona Rule of Civil Procedure 12 (b). The insurer argued that the probate court did not have the authority to appoint a special administrator for the sole purpose of accepting service and that such an act was actually to the detriment of the estate. The trial court agreed and dismissed the case. The Arizona Court of Appeals reversed and remanded.

The Arizona Court of Appeals held that it was unnecessary to address the several reasons raised by the insurer as to why the probate court was not permitted to appoint a special administrator solely to accept service because all these arguments could and should have been raised in the probate action itself. Instead, the court found that the insurer was attempting here to collaterally attack that decision in another court in another action which is strictly prohibited. In fact, the insurer had initially attempted to attack the ruling in the probate court but dropped that strategy deciding to instead raise the issue in the tort action. Bad strategy; You snooze you lose.