§ 6.2 Substitution of Parties

LibraryOregon Civil Pleading and Litigation (OSBar) (2020 Ed.)

§ 6.2 SUBSTITUTION OF PARTIES

§ 6.2-1 Introduction

In some situations, it may be necessary to substitute another person in the place of a party. For example, substitution of a party is necessary on the death or disability of a party or by the transfer of an interest in the action. In that event, if the claim "survives or continues," the action proceeds with the substitute in the party's stead. ORCP 34.

Although not a particularly complicated area of the law, substitution of parties can result in serious consequences if overlooked or if done improperly. Possible consequences include loss of a claim through statutes of limitations and the voiding of judgments entered against parties who are not properly substituted. Therefore, substitution must be undertaken carefully to secure the benefits of provisions that allow claims to survive in favor of or against deceased or disabled parties, dissolved corporations, and transferees of rights and obligations.

The following rules apply regarding substitution:

(1) Death of a plaintiff. If a plaintiff dies, and if the claim survives or continues, the court, on motion, will allow the action to be continued by the plaintiff's personal representative or successors in interest at any time within one year after the plaintiff's death. ORCP 34 B(1); ORCP 34 D.

(2) Death of a defendant. If a defendant dies, and if the claim survives or continues, the court, on motion, will allow the action to be continued against the defendant's personal representative or successors in interest, unless the personal representative or successors in interest mail or deliver notice, including the information required by ORS 115.003(3), to the claimant or to the claimant's lawyer if the claimant is known to be represented, and the claimant or the claimant's lawyer fails to move the court to substitute the personal representative or successors in interest within 30 days of such mailing or delivery. ORCP 34 B(2); ORCP 34 D.

(3) Disability of a party. Within one year after the disability of a party, the court may, on motion, allow the action to be continued by or against the party's guardian, conservator, or successors in interest. ORCP 34 C.

(4) Transfer of a party's interest. When a party, during litigation, transfers its interest in the subject of the action, the action may be continued by or against the original party, unless the court, on motion, directs the person to whom the interest is transferred to be substituted in the action or joined with the original party. ORCP 34 E.

(5) Public officer's death or separation from office. When a public officer is a party to an action in an official capacity and, during the pendency of the action, the public officer dies, resigns, or otherwise ceases to hold office, the action does not abate and the officer's successor is automatically substituted as a party. ORCP 34 F.

The procedure for substituting parties is set forth in ORCP 34 G.

For a discussion of the representative capacity of personal representatives, guardians, conservators, trustees, and foreign fiduciaries, see § 6.1-2(a) to § 6.1-2(b)(3)(iii).

§ 6.2-2 Background

§ 6.2-2(a) Prior Statutes

Before 1980, former ORS 13.080, repealed by Or Laws 1979, ch 284, § 199, governed substitution. Substitution is now governed by ORCP 34. Subsections A to C of ORCP 34 use the language of former ORS 13.080(1) to (3), except that the words "if the claim survives or continues" were added to the first sentence of ORCP 34 A. The additional language makes clear that death, disability, or transfer of interests does not abate a claim that survives. Fredric R. Merrill, Oregon Rules of Civil Procedure 72 (1991) (citation not verified by publisher). Because the first three subsections of ORCP 34 are identical (with the exception noted above) to former ORS 13.080, cases interpreting the former statute are relevant in construing ORCP 34.

Former ORS 13.080(4) allowed claims to be prosecuted by successors in interest on motion. ORCP 34 E replaces former ORS 13.080(4), and permits the claim to be continued by or against the transferor, unless the court directs substitution or joinder of the transferee.

Subsections D, E, F, and G of ORCP 34 are based on subsections (a), (c), and (d) of FRCP 25. Thus, cases interpreting these federal rules are relevant to ORCP 34 D to 34 G.

The provisions of ORCP 34 D to 34 G did not exist under prior Oregon law. ORCP 34 D sets forth the procedure when one or more parties survive who are the only parties for or against whom a claim may be pursued. See § 6.2-3(b) (death of a party—right sought to be enforced survives only to or against surviving parties). ORCP 34 F establishes the procedure for substitution in cases involving public officials or officers who die or otherwise cease holding office. See § 6.2-3(f) (successor public officials). The mechanics for substitution are set forth in ORCP 34 G.

§ 6.2-2(b) Action or Interest Must Survive Death, Disability, or Transfer

Substitution must be addressed in all cases in which a claim survives for or against the estate of a party, the custodian or guardian of a party, the transferor of an interest pendente lite, or the shareholders of a corporation after dissolution.

ORCP 34 A provides that "[n]o action shall abate by the death or disability of a party, or by the transfer of any interest therein, if the claim survives or continues" (emphasis added). Thus, ORCP 34 addresses only procedural, not substantive, issues of abatement. Fredric R. Merrill, Oregon Rules of Civil Procedure 72 (1991) (citation not verified by publisher).

At common law, claims did not survive the injured party's or the wrongdoer's death. Taylor v. Lane Cty., 213 Or App 633, 644, 162 P3d 356 (2007), rev den, 345 Or 159 (2008). Thus, for a claim to survive, the common law must be modified by statute. Taylor, 213 Or App at 644. Numerous Oregon statutes modify the common-law rule and allow actions and specific claims to proceed. For example, ORS 115.305 states that all claims by or against an individual survive to or against the decedent's personal representative. Likewise, ORS 115.315 provides that an action commenced before a defendant-decedent's death may be continued against the decedent's personal representative under ORCP 34 B(2) without presenting the claim to the estate.

There are also numerous statutes addressing survival of specific claims, and very few specifically preclude it. Under ORS 30.080, actions for injury or death do not abate on the death of the wrongdoer, and the injured person or the decedent's personal representative has a claim against the wrongdoer's personal representative. Similarly, ORS 30.075 provides that the death of an injured party does not abate that person's claim, and allows the decedent's personal representative to maintain the action. Under ORS 30.075(2), reasonable attorney fees may be awarded to the prevailing party, except in actions for wrongful death. In a wrongful-death action, recovery is limited to "damages for disability, pain, suffering and loss of income during the period between injury to the decedent and the resulting death of the decedent." ORS 30.075(3).

Special statutes of limitations are activated upon the death of a person who dies before commencing an action, and before the time limiting the underlying claim expires. See ORS 12.190; ORS 30.075(1). See also ORS 12.220 (commencement of new action after voluntary dismissal). Additionally, ORS 12.195 provides the limitations rule for when a party's attorney dies before an action is commenced and before the limitations period expires.

The right of a surviving spouse or dependent child to claim a decedent-employee's unpaid wages is provided for in ORS 652.190. The rights of a surviving spouse and children to maintain claims against owners, contractors, or subcontractors under the Employer Liability Law (ORS 654.305-654.336) are established in ORS 654.325.

Beyond specific provisions governing the rights of survivors of plaintiffs or claimants, additional statutory provisions govern survival of claims for relief by or against corporations and financial institutions. A dissolved corporation may sue or be sued in its corporate name. ORS 60.637(2)(e). Dissolution does not abate or suspend corporate litigation pending on the effective date of dissolution. ORS 60.637(2)(f). The same is true in the case of voluntary dissolutions of financial institutions and credit unions. ORS 711.250; ORS 723.676(6). In the case of a merger or conversion of a financial institution, the resulting institution assumes the liabilities and obligations of the merging or converting institutions, and any existing claim against a merging or converting institution may proceed as if the merger had not occurred, or "the resulting financial institution may be substituted in its place." ORS 711.190(3).

In domestic-relations matters, the marriage relationship terminates when the court signs the judgment of dissolution. ORS 107.115(2). If either party dies during the pendency of an appeal of such judgment, the appellate court continues to have jurisdiction. ORS 107.115(3)(a). The decedent's personal representative may continue the appeal. "However, costs on appeal may not be awarded to either party." ORS 107.115(3)(a).

If one of the parties dies before termination of the marriage relationship, the issues of legal status and spousal support do not survive in domestic-relations cases, unless the parties provide to the contrary by agreement. In re Marriage of Libby, 23 Or App 223, 230-32, 541 P2d 1077 (1975); In re Carrier, 40 Or App 407, 410, 595 P2d 827 (1979). The death of a spouse terminates the marriage and, therefore, a proceeding for annulment also does not survive the death of one of the parties. In re Estate of Davis, 55 Or App 982, 985, 640 P2d 692, adh'd to on recons, 57 Or App 145, 643 P2d 1351 (1982). Support obligations are frequently ensured either by agreement or by judgment. ORS 107.105(1)(f); ORS...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT