DAVID J. WAXSE, Magistrate Judge.
The matter is presently before the Court on Defendant's Motion to Amend its Answer (ECF No. 59) and Plaintiff's Motion to Amend Complaint (ECF No. 66). In its motion, Defendant seeks leave to amend its answer to add certain defenses, including allegations that conscious pain and suffering is legally immaterial and an heir cannot recover for any damages that accrued to the decedent between the time of injury and death. After Defendant filed its motion to amend its answer, Plaintiff filed a motion to amend her complaint "to clarify and better state" her wrongful death and survivor's claims. As explained below, the Court denies Plaintiff's motion to amend her complaint as futile and finds Defendant's motion to amend its answer moot.
On March 10, 2010, while working in Haskell County, Kansas, for his employer Sallee, Inc., Ronald Hoskinson caught his shirt sleeve in the unguarded power take off on an anhydrous ammonia tank trailer, which had previously been refurbished and serviced by Defendant. As a result, Mr. Hoskinson became entrapped in the device and suffered massive and traumatic injuries. He later died from those injuries on March 28, 2010.
On June 17, 2011, Mr. Hoskinson's spouse, Betty Hoskinson, filed a Petition for Issuance of Special Administration in the District Court of Gray County, Kansas, captioned In the Matter of the Estate of Ronald Hoskinson, Case No. 11 PR-11.
On June 20, 2011, the Gray County District Court issued Letters Testamentary under the Kansas Simplified Estates Act,
No other order, including an order appointing special administrator, was entered in the Gray County action. The Gray County action was subsequently administratively terminated on January 9, 2012. No probate estate was ever opened.
On July 18, 2011, Plaintiff Betty Hoskinson filed this action "individually and as surviving spouse of Ronald Hoskinson, deceased." In her Complaint (ECF No. 1), she alleged that she "is the surviving spouse of Ronald Hoskinson and brings this action for damages sustained by Ronald Hoskinson, as well as her individual damages." Plaintiff further alleged in paragraph 20 of the damages section of her Complaint that "[a]s a result of negligent acts of the defendant Ronald Hoskinson suffered traumatic and extensive injuries, and conscious pain and suffering." She also alleged that as his surviving spouse, she "suffered the loss of spousal care, guidance, support and income, comfort, and mental anguish from the trauma and death of her husband, for which she claims damages."
After Defendant failed to answer, Plaintiff filed a motion for default judgment on August 16, 2011. After holding a hearing on August 31, 2011, the Court granted the motion and entered an Order for Default Judgment and Damage Determination on September 1, 2011. The Order entered default judgment against Defendant in the total amount of $1,163,610.83, assessed as follows: Conscious pain and suffering $250,000.00; Wrongful death $250,000.00; Worker's compensation payments $411,607.63; and Lost income $252,003.20.
On December 7, 2011, Defendant filed a motion to set aside the default judgment and dismiss complaint. Finding that Defendant had shown excusable neglect for its failure to answer, the Court granted the motion and set aside the default judgment on April 12, 2012.
On February 26, 2013, Defendant filed the instant motion to amend its answer. Plaintiff filed her motion to amend the complaint on March 12, 2013.
On May 17, 2013, the Court convened the scheduled Final Pretrial Conference. After reviewing the parties' proposed Pretrial Order and pending motions to amend, the Court advised the parties that it was postponing the Final Pretrial Conference until it had resolved the pending motions to amend. The Court further advised the parties that it required additional briefing on some issues before it could rule on the pending motions. The Court thereafter entered an Order (ECF No. 80) setting out the six issues on which it needed additional briefing from the parties. Plaintiff filed her Response (ECF No. 84) on May 31, 2013. Defendant filed its Response (ECF No. 85) on June 4, 2013. Based upon those submissions, the Court is now ready to rule on the pending motions to amend.
Federal Rule of Civil Procedure 15(a) governs the amendment of pleadings before trial. It provides that the parties may amend a pleading "once as a matter of course" before trial if they do so within (A) 21 days after serving the pleading, or (B) "if the pleading is one to which a responsive pleading is required," 21 days after service of a responsive pleading or a motion under Fed. R. Civ. P. 12(b), (e), or (f), whichever is earlier.
A party objecting to the proposed amendment on grounds of futility has the burden to establish its futility.
In support of her Motion to Amend Complaint under Fed. R. Civ. P. 15(a), Plaintiff asserts that she is not adding any new claims or parties, but is only amending her complaint "to clarify and better state" the claims she set forth in her original complaint. However, a comparison of her proposed First Amended Complaint and her original Complaint reveals that Plaintiff is also seeking to amend the capacity in which she brings her claims. She seeks to amend the caption from "Betty Hoskinson, individually and as Surviving spouse of Ronald Hoskinson, deceased," to "Betty Hoskinson, individually and as Special Administrator of the Estate of Ronald Hoskinson."
Defendant objects to Plaintiff's proposed amendment, arguing that she is attempting to plead that she is the special administrator of her deceased husband's estate and add a survival claim pursu-ant to K.S.A. 60-1801. Defendant argues that it would be futile to allow such amendment because Plaintiff lacks the capacity to bring a survival claim as there is no order appointing her as special administrator. Defendant further argues that the proposed amendment is futile because any such claim would be time barred.
Under Kansas law, a cause of action for wrongful death, under K.S.A. 60-1901 et seq., is a separate and distinct type of action from a survival action, which is authorized by K.S.A. 60-1801 et seq. A wrongful death action may be brought by "any one of the heirs at law of the deceased who has sustained a loss by reason of the death."
Here, Plaintiff cannot prosecute the survival claim in her capacity as the surviving spouse of the decedent, but may only prosecute it in her capacity as the special administrator of his estate. She now seeks leave to amend her complaint to change the capacity in which she brings the survival claim.
The problem with Plaintiff's request is that she has not been appointed as special administra-tor of the estate of Ronald Hoskinson, deceased. No order appointing her as special administrator of the estate was ever entered. The document that Plaintiff claims appointed her, the Letters Testamentary Issued Under the Kansas Simplified Estates Act, entered by Gray County District Court Magistrate Judge Duncan on June 20, 2011, does not appoint her as special administrator. Letters Testamentary, Letters of Administration, and Letters of Special Administration serve different purposes than an order appointing administrator or order appointing special administrator.
In this case, the Letters Testamentary is not an order appointing Plaintiff as special administrator of her late husband's estate. While the Letters Testamentary refers to Plaintiff as "named as Special Administrator of the estate of Ronald Hoskinson, deceased, having been appointed and qualified as Special Administrator," it does not specifically appoint her as special administrator, grant or even reference her petition for issuance of special administration, reference the applicable statute for appointing a special administrator, or set out the duties as special administrator as required by K.S.A. 59-710. The Court therefore finds the Letters Testamentary issued by the Gray County District Court is not sufficient by itself to constitute an order appointing Plaintiff as special administrator of Ronald Hoskinson's estate.
Plaintiff argues that the Court cannot collaterally attack a state court order and the Letters Testamentary is a duly qualified state court order that is entitled to the full faith and credit. She also argues that under Kansas law, probate orders are to be liberally construed in order to give force and effect to the intention of the probate code and purpose of the probate pleadings. She argues that the facts show that her petition filed in state court sought an order appointing her as special administrator of the estate and that the state court judge granted that request even though it was never memorialized in a written order.
If there was an order appointing Plaintiff as special administrator, the Court would agree with Plaintiff that it would not be subject to collateral attack in this action.
As Plaintiff has not been appointed as special administrator of Ronald Hoskinson's estate, it would be futile to allow her to amend her complaint to reflect that she is bringing the survival claim as special administrator of the estate. The Court therefore denies her Motion to Amend Complaint. Such denial is without prejudice to further motion in the event Plaintiff is able to obtain an order appointing her as special administrator of Ronald Hoskinson's estate or otherwise show that she has been appointed special adminstrator.
Defendant has filed a motion seeking leave to amend its answer to add certain defenses, including allegations that conscious pain and suffering is legally immaterial and an heir cannot recover for any damages that accrued to the decedent between the time of injury and death. As the defenses that Defendant seeks leave to add pertain to Plaintiff's survival claim and the Court has denied Plaintiff leave to amend her complaint as to that claim, the Court finds that Defendant's Motion to Amend its Answer is now moot.
