537.021. Action for damages--personal representative to maintain or defend--exception--action against liability insurer, procedure.
Action for damages--personal representative to maintain ordefend--exception--action against liability insurer, procedure.
537.021. 1. The existence of a cause of action for an injury toproperty, for a personal injury not resulting in death, or for wrongfuldeath, which action survives the death of the wrongdoer or the personinjured, or both, shall authorize and require the appointment by a probatedivision of the circuit court of:
(1) A personal representative of the estate of a person whoseproperty is injured, or a person injured or a person entitled to maintain awrongful death action upon the death of any such person and suchappointment in only those cases involving loss chance of recovery orsurvival shall be made notwithstanding the time specified in section473.050, RSMo, for the exclusive purpose of pursuing a cause of actionrelated to such injury or wrongful death; provided that, in such cases, thecourt in which any such case is brought shall appoint a plaintiff ad litemat the request of the plaintiff or other interested person delineated insection 537.080 and such person shall be entitled to the proceeds of suchaction. Such plaintiff ad litem may maintain such action instead of thepersonal representative of the deceased and may maintain the action as analternative theory in any action under section 537.080; and
(2) A personal representative of the estate of a wrongdoer upon thedeath of such wrongdoer; provided that, if a deceased wrongdoer was insuredagainst liability for damages for wrongdoing and damages may be recoveredfrom the wrongdoer's liability insurer, then the court in which any suchcause of action is brought shall appoint at the request of the plaintiff orother interested party a qualified person to be known as a defendant adlitem. The defendant ad litem when so appointed shall serve and act as thenamed party defendant in such actions in the capacity of legalrepresentative of the deceased wrongdoer and such appointment and anyproceedings had or judgment rendered in such cause after such appointmentshall be binding on the insurer of such deceased wrongdoer to the sameextent as if a personal representative had acted as the legalrepresentative of such deceased wrongdoer in such cause of action. Shouldthe plaintiff in such cause of action desire to satisfy any portion of ajudgment rendered thereon out of the assets of the estate of such deceasedwrongdoer, such action shall be maintained against a personalrepresentative appointed by the probate division of the circuit court andthe plaintiff shall comply with the provisions of the probate code withrespect to claims against decedents' estates. Nothing in this sectionshall be construed to permit a plaintiff in such cause of action to pursueother assets of a decedent's estate after the expiration of the timeprovided in section 473.444, RSMo.
2. Nothing herein shall be construed to require that the deceasedwrongdoer leave no assets subject to probate administration before theappointment of a defendant ad litem as herein provided, nor shall theappointment of a defendant ad litem as herein provided prevent the probatedivision of the circuit court from appointing a personal representative ofthe estate of the deceased wrongdoer for purposes of administration of theassets thereof.
3. The defendant ad litem may be allowed a reasonable fee by thecourt appointing him which shall be taxed as court costs. The defendantad litem shall not be liable for court costs unless specially charged bythe court for personal misconduct in the action.
4. Actions properly pending against personal representatives anddefendants ad litem prior to September 28, 1981, shall not be affected bythe provisions of this section.
(L. 1977 S.B. 147, A.L. 1978 H.B. 1634, A.L. 1981 S.B. 22 & 119 & 23, A.L. 1993 S.B. 88, A.L. 1996 S.B. 494)Effective 5-23-96