The Estate of Rufo Alvear, Jr. v. Am. Samoa Gov’t

Cite as [The Estate of Rufo Alvear, Jr. v. Am. Samoa Gov’t, CA No. 09-12, slip op. (Trial Div. April 10, 2012) (order denying application)]

THE ESTATE OF RUFO ALVEAR, JR., MYRNA A. BAUTISTA, GEORGE A. ALVEAR, EDUARDO A. ALVEAR, PATRICK HENRY A. ALVEAR, JOSEPH A. ALVEAR, JEANNETTE A. MATEO, MARCIA A. TAVITA, ANGELA A. AMATA, and DAVID I. ALVEAR, Plaintiffs,

v.

 

AMERICAN SAMOA GOVERNMENT, JOHN DOES I – X, jointly and severally, Defendants.

___________________________________

 

High Court of American Samoa

Trial Division

 

CA No. 09-12

 

April 10, 2012

[1] A “representative” in a survival action (or wrongful death action) is either an executor or an administrator.

[2] A “successor in interest” can be a person who has not been formally appointed as a representative or administrator. The term “successor in interest” encompasses those individuals who have received a portion of the decedent’s estate after the estate has been distributed.


[3] An adult-decedent’s estate must undergo probate before anyone can become a “representative” or a “successor in interest” in a survival action.


[4] The burden is upon an applicant applying for status as a “representative” (administrator/executor) or “successor in interest” of an estate to establish the applicant is an administrator or an executor or a “successor in interest” in a probated adult-decedent’s estate.


[5] It is unsettled whether this older ruling is still applicable in the wake of the plausibility standard in pleadings: parents of a deceased minor child can maintain a survival action against another all the way to final judgment if the parents, a reasonable time after final judgment, probate their child’s estate.


[6] In the estate of an adult-decedent, where the action was filed after the adult-decedent’s passing, only an administrator, executor, or a “successor in interest” has the right (locus standi) to bring a survival action on the decedent’s behalf.


[7] Jus tertii is a legal classification concept, wherein a third party asserts the right of another in a lawsuit most often used (to ill-effect) in property actions and constitutional challenges.


[8] Where an applicant applying for status as a “representative” or “successor in interest” of an adult-decedent’s estate provides nothing indicating the applicant is a legal administrator, executor, or “successor in interest” of the adult-decedent’s estate, the application will be denied.

 

 

Before: KRUSE, Chief Justice; LOGOAI, Chief Associate Judge.

 

Counsel: For Plaintiffs, Mark F. Ude.

 

ORDER DENYING APPLICATION

 

BACKGROUND

 

Plaintiffs are composed of Rufo Alvear, Jr.’s estate, and his siblings, the latter of which reside throughout the globe from American Samoa to Dubai to the Philippines to the continental United States. We do not know if Rufo Alvear, Jr. (“Decedent”) was survived by direct issue or a spouse, as Plaintiffs’ Complaint omits such information. Nevertheless, Decedent’s sister, Angela A. Amata (“Amata,” a named plaintiff), filed an ex parte application (“Application”) with this Court to be named as “personal representative of the [Decedent] in accordance with American Samoa Code Annotated §[§] 43.5001 and [**2**] 43.502.” Application at 3. The statutes Amata cites therein concern survival actions/claims and wrongful death actions/claims, respectively; two different legal theories with particular application, each statute listing certain parties capable of instituting and collecting under the same. A.S.C.A. §§ 43.5001-43.5002.

 

Decedent died on October 14, 2010, allegedly due in part to the American Samoa Government’s (and its unnamed agents’) negligence and intentional infliction of emotional distress. Plaintiffs collectively filed a Complaint on March 5, 2012, listing three separate claims: (1) Negligence, (2) Intentional Infliction of Emotional Distress, and (3) Wrongful Death.

 

Before us at this time is the Application by Amata only. In ruling on the Application, we intimate nothing as to our jurisdiction over this action.

 

DISCUSSION

 

First, we deny Amata’s request to be named the personal representative of the decedent’s estate under A.S.C.A. § 43.5001(b) (“the deceased’s legal representatives may recover, on behalf of the estate, the reasonable expenses of the deceased’s last illness and burial”) for reasons articulated more fully infra concerning the legal status of a “representative” of an estate.  

 

[1-3] Secondly, local statutes outline the procedure for instituting survival claims/actions in pertinent part as follows: [**3**]

“An action or cause of action...shall not abate by death...but shall in all cases, where a cause of action...arose in favor of such party prior to his death...survive and be maintained by his representatives or successors in interest; and in case such action has not been begun...the action may be begun...in the name of his representatives or successors in interest.”

A.S.C.A. § 43.5002. A representative in a survival action (or wrongful death action) is either an executor or an administrator. See Black’s Law Dictionary 1328 (8th ed. 2004). A “successor in interest” can be a person who has not been formally appointed as a representative or administrator. 6 Moore’s Federal Practice, § 25.12[3] (3d ed. 2004). The term “successor in interest” encompasses those individuals who have received a portion of the decedent’s estate after the estate has been distributed. Id. See, e.g., Hardy v. Kaszycki & Sons Contractors, Inc., 842 F.Supp. 713, 716-17 (S.D.N.Y. 1993); McShurely v. McCellan, 753 F.2d 88, 96, 98-9 (D.C. Cir. 1985); Rende v. Kay, 415 F.2d 983, 985 (D.C. Cir. 1969). Cf. Ashley v. Illinois Cent. Gulf R.R., 98 F.R.D. 722, 724 (S.D. Miss. 1983) (widow did not qualify as proper party because she was not a representative of decedent party’s estate, which had not yet been distributed). Accordingly, an estate must undergo probate before anyone can become a “representative” or a “successor in interest” in a survival action. A.S.C.A. § 43.5002.

 

[4] The burden is upon Amata to prove she is a “representative” (administrator/executor) or “successor in interest” of Decedent’s estate. Nothing attached indicates as much. [**4**]

 

[5-7] In Fa’avae v. American Samoa Power Authority, the parents of a minor youth brought an action against the American Samoa Power Authority (ASPA) for wrongful death on behalf of themselves and negligence on behalf of their son’s estate. 5 A.S.R.2d 53 (Trial Div. 1987). The court awarded damages for both, noting that the parents, as representatives of the estate could bring and collect, on behalf of their son, a survival action,

There is an allegation in the complaint that the parents are the representatives of his estate; that allegation is to be construed liberally,[1] so we will award this item of damages to the parents in their capacity as representatives of the estate. This means that all probate rules have got to be complied with.

Id. at 58. However, we limit Fa’avae’s current application (if any of it is still relevant) to the facts before it: parents of a minor child can maintain a survival action against another all the way to final judgment if the parents, a reasonable time after final judgment, probate their child’s estate. However, here, we rule on the facts before us: that in the estate of an adult-decedent, where the action was filed after the adult-decedent’s passing, only an administrator, executor, or a “successor in [**5**] interest” has the right (locus standi) to bring a survival action on the decedent’s behalf.[2]

 

[8] Here, Amata provided nothing indicating she is a legal administrator, executor, or “successor in interest” of Rufo Alvear, Jr.’s estate. Consequently, Amata’s Application to be named a “representative” is, at this time, denied.

 

It is so ordered.



[1] The Supreme Court articulated a “plausibility standard” in Ashcroft v. Iqbal, 556 U.S. __, 129 S. Ct. 1937, 1949-50 (2009) and Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 557 (2007). We adopted this standard in Vergara v. Am. Samoa Gov’t, CA No. 86-11, slip op. at 5 (Trial Div. Feb. 9, 2012) (order on def.’s mot. to dismiss). The plausibility standard may render this holding in Fa’avae obsolete, as the plaintiffs in that case appear to have made naked assertions about their standing as “representatives.” We do not decide here whether Fa’avae’s holding remains intact, nor whether that persuasive authority has any application here, as the facts of this present action are dissimilar.

[2] Jus tertii is a legal classification concept, wherein a third party asserts the right of another in a lawsuit. Merriam-Webster’s Dictionary of Law (1996). Jus tertii is most often used (to ill-effect) in property actions and constitutional challenges, but we can see its potential application in the action before us. But we note this Supreme Court admonition on allowing actions premised on jus tertii,

[C]ourts must hesitate before resolving a controversy...on the basis of the rights of third persons not parties to the litigation. The reasons are two. First, the courts should not adjudicate such rights unnecessarily, and it may be that in fact the holders of those rights either do not wish to assert them or will not be able to enjoy them regardless of whether the in-court litigant is successful or not.

Singleton v. Wulff, 428 U.S. 106, 113-14 (1976) (citations omitted). We rightly hesitate allowing this survival action to proceed. The probate process will better discern the Decedent’s estate’s division of property; more importantly, probate will determine the person bound by law to administer the decedent’s estate, and those, either by will or by intestacy, recognized as “successor[s] in interest.”   A.S.C.A. § 43.5002.