Conservator lacks capacity to sue alleged wrongdoers

Virginia Lawyers Weekly

Where a special conservator appointed to represent a man injured in an automobile accident did not register the Massachusetts conservatorship in Virginia before filing the amended complaint, he lacked capacity to maintain an action in Virginia as conservator. Because the foreign conservatorship has now been domesticated, he can file an amended complaint.

Background

This case arises out of a motor vehicle accident on Interstate 81 in Montgomery County, Virginia, on Sept. 25, 2021. The amended complaint alleges that Jaime Antonio Flores Landaverde sustained personal injuries as a passenger in a vehicle operated by Jose Lopez, which struck a parked tractor-trailer that was being driven by Joshua Flores on behalf of Move Freight Trucking LLC, or MFT.

The amended complaint alleges alternatively that Flores was an employee of FedEx Ground Package System Inc. and Western Express Inc., acting within the scope of his employment, and that these entities, as motor carriers, brokers and/or shippers, were negligent in the hiring of MFT and Flores. The amended complaint also alleges negligent entrustment against the owners of the vehicle. This memorandum opinion addresses the motions to dismiss filed by three defendants as to plaintiff’s lack of capacity to sue.

Capacity

Chris A. Milne was appointed as special conservator for Landaverde in the Massachusetts probate and family court on July 10, 2023. Under Fed. R. Civ. P. 17(6), “[t]he capacity of a party suing or defending a state law claim on behalf of another is governed by ‘the law of the state where the court is located.’”

Milne, however, argues that the court need not consider whether he possesses capacity to sue under Virginia law because Rule 17(c)(1)(C) flatly provides that a conservator may sue on behalf of an incompetent person. As Milne was appointed conservator in Massachusetts before suit was filed, he claims that his capacity to sue on behalf of Landaverde is established by Rule 17(c)(1)(C), without regard to Virginia state law. The court disagrees with Milne. Milne’s capacity to sue on behalf of Landaverde must be evaluated under Virginia law.

Virginia Code § 64.2-2117 authorizes conservators appointed in another state to register an out of state conservatorship order in Virginia. In the context of a wrongful death action, the Virginia Supreme Court has held that a personal representative appointed out of state and not qualified in Virginia lacks standing to bring suit. Following that decision, three decisions issued in this district have dismissed wrongful death actions filed by personal representatives not qualified in Virginia.

Although those decisions arose in the wrongful death context, the court does not discern any meaningful difference between the requirements for a foreign personal representative to be qualified under Virginia’s wrongful death statute, and a foreign conservator to be registered under Virginia’s conservator registration statute. Because Milne did not register the Massachusetts conservatorship in Virginia before filing the amended complaint, he lacked capacity to maintain an action in Virginia as conservator for Landaverde.

Next steps

While these motions were pending, Milne registered the Massachusetts conservatorship decree in the Circuit Court of Montgomery County. However, the next question is whether Milne is able to amend or supplement his pleadings in this case or whether law requires that he instead file a new lawsuit. Defendants argue that the amended complaint cannot be amended. The court disagrees.

There is no discernable prejudice to allowing a supplemental pleading to document the registration of the Massachusetts conservatorship in Virginia. The filing of a supplemental pleading will not affect the substantive legal rights of the parties. This is because Virginia Code § 8.01-229(A)(2)(b) provides that a suit “may be commenced by such conservator … before the expiration of the applicable period of limitation or within one year after his qualification as such, whichever occurs later.”

Because Milne was not appointed special conservator in Massachusetts until July 10, 2023, and the conservatorship was not registered in the Circuit Court of Montgomery County, Virginia, until Nov. 29, 2023, the applicable limitations period has not run. The court will allow Milne to file a supplemental pleading under Rule 15(d) to establish his capacity to sue. This approach is consistent with that suggested in an earlier Fourth Circuit decision.

Defendants’ motions to dismiss granted. Plaintiff granted leave to file supplemental pleading.

Milne v. Move Freight Trucking LLC, Case No. 7:23-cv-432, Jan. 5, 2024. WDVA at Roanoke (Urbanski). VLW 024-3-015. 12 pp.

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Conservator lacks capacity to sue alleged wrongdoers