O.C.G.A. § 9-3-92 (2019)

Annotations

JUDICIAL DECISIONS Tolling calculation is mandatory. - Tolling calculation was mandatory in every instance when the statute was applicable; the tolling provisions of O.C.G.A. § 9-3-92 are triggered by operation of law. Legum v. Crouch, 208 Ga. App. 185, 430 S.E.2d 360, 1993 Ga. App. LEXIS 480 (1993). Catchline not determinative as to whether section mandatory. - Appellees who cited the descriptive heading or

catchline of O.C.G.A. § 9-3-92 to assert that the tolling provision was not triggered by operation of law, but could only be invoked on a case-by-case basis and in benefit of the estate by its legal representative were in error. The descriptive heading or catchline immediately preceding the text of a Code section does not constitute a part of such statute and is not controlling regarding the construction or interpretation thereof. Legum v. Crouch,

208 Ga. App. 185, 430 S.E.2d 360, 1993 Ga. App. LEXIS 480 (1993). This section can be invoked only by legal representative, and does not apply in favor of heirs at law who elect to sue in their own right. Lazenby v. Ware, 178 Ga. 463, 173 S.E. 86, 1934 Ga. LEXIS 78 (1934); Citizens & S. Nat’l Bank v. Mize, 56 Ga. App. 327, 192 S.E. 527, 1937 Ga. App. LEXIS 342 (1937); State Farm Fire & Cas. Co. v. Pace, 176 Ga. App. 737, 337 S.E.2d 401, 1985 Ga. App. LEXIS 2520 (1985). Appointment of a temporary administrator. - Appointment of a temporary administrator did not result in the representation of the estate for purposes of tolling; consequently, the statute of limitation as to the estate claims remained tolled from the mother’s death until the administrator was named the permanent administrator, less than two years before the current action. Somani v. Cannon, 363 Ga. App. 610, 872 S.E.2d 9, 2022 Ga. App. LEXIS 182 (2022). Five years are allowed before statute of limitations begins to run against unrepresented estate; after that time, statute runs against it as in ordinary cases. Citizens & S. Nat’l Bank v. Mize, 56 Ga. App. 327, 192 S.E. 527, 1937 Ga. App. LEXIS 342 (1937). While limitation statutes run against estates, when estates are unrepresented such statutes are tolled between death and appointment of representative or between representations for five years, provided representation is taken within that period of time. Harrison v. Holsenbeck, 208 Ga. 410, 67 S.E.2d 311, 1951 Ga. LEXIS 395 (1951). After expiration of time fixed by this section, statute begins to run, regardless of whether any administration is had on estate or not. Smith v. Turner, 112 Ga. 533, 37 S.E. 705, 1900 Ga. LEXIS 235 (1900). Former Code 1933, § 3-803 (see now O.C.G.A. § 9-3-92) had no application to action under § 51-4-5 brought by an administrator to recover damages for benefit of dependent next of kin of deceased, when action was one in which estate was nowise interested or concerned, but when interested parties are permitted merely to

use name of administrator in bringing action. Patellis v. King, 52 Ga. App. 118, 182 S.E. 808, 1935 Ga. App. LEXIS 73 (1935). Tolling not applicable to statute of repose. - Pursuant to a question certified by the federal appellate court, the Supreme Court of Georgia finds that since the tolling of the ultimate statute of repose for medical malpractice cases is not required by O.C.G.A. § 9-3-71(d) or O.C.G.A. § 9-3-73(a) and it would contravene the mandatory language of O.C.G.A. § 9-3-71(b), the unrepresented estate statute, O.C.G.A. § 9-3-92, does not toll the statute of repose during the time that the estate of a claimant is unrepresented; thus, the district court properly dismissed the state court medical malpractice claims brought by the administrator of the estate of the claimant because the claims were time-barred and could not be extended by O.C.G.A. § 9-3-92. Simmons v. United States, 421 F.3d 1199, 2005 U.S. App. LEXIS 18157 (11th Cir. 2005). Statutory language not addressed to estates adjudicated “fully administered.” - Language in O.C.G.A. § 9-3-92 tolling the running of the statute of limitation “between the termination of one administration and the commencement of another” is not addressed to those estates which have been adjudicated “fully administered,” but instead applies in situations when one administration has come to an end - is terminated - but the estate has not been fully administered due, e.g., to the death, removal, substitution, or renunciation of the administrator or executor. Wilson v. Tara Ford, Inc., 200 Ga. App. 98, 406 S.E.2d 807, 1991 Ga. App. LEXIS 756 (1991). Action by administrator in individual capacity. - O.C.G.A. § 9-3-92 does not apply to action for wrongful death by the administrator in an individual capacity when the estate has no interest. Childers v. Tauber, 160 Ga. App. 713, 288 S.E.2d 5, 1981 Ga. App. LEXIS 3180, 1981 Ga. App. LEXIS 3198 (1981). No tolling because estate was not necessary party in challenging revocable trust. - Because a decedent died in May 2013, the two-year period in O.C.G.A. § 53-12-45(a) barred the niece’s

challenge to the revocable trust asserted in January 2017; even if § 53-12-45(a) was a statute of limitations that could be tolled by fraud, the trustee did not act to conceal the trust’s existence or contents. The statute was not tolled by the failure to appoint an estate representative because the estate was not a necessary party. Howell v. Bates, 350 Ga. App. 708, 830 S.E.2d 250, 2019 Ga. App. LEXIS 358 (2019). Five year period of § 9-2-60, relating to dismissals for want of prosecution, was not a limitation within the meaning of former Code 1933, § 3-803 (see now O.C.G.A. § 9-3-92). Swint v. Smith, 219 Ga. 532, 134 S.E.2d 595, 1964 Ga. LEXIS 311 (1964). Construction with O.C.G.A. § 9-371(a). - Because the evidence presented on appeal adequately showed that the decedent estate’s claim filed by the personal representative under O.C.G.A. § 51-4-5 was filed two months after the two-year statute of limitation under O.C.G.A. § 9-3-71(a) expired, despite the application of O.C.G.A. § 9-3-92, the trial court properly dismissed the claim as time-barred. Goodman v. Satilla Health Servs., 290 Ga. App. 6, 658 S.E.2d 792, 2008 Ga. App. LEXIS 233 (2008). Appointment of temporary administratrix is not “representation” on estate, within provisions of this section. Scott v. Atwell, 63 Ga. 764, 1879 Ga. LEXIS 334 (1879); Baumgartner v. McKinnon, 137 Ga. 165, 73 S.E. 518, 1911 Ga. LEXIS 341 (1911); Collins v. Henry, 155 Ga. 886, 118 S.E. 729, 1923 Ga. LEXIS 180 (1923). Under Georgia law, the fact that an estate is unrepresented tolls the statute of limitations. Although a temporary administratrix may file an action for the collection of debts owed the decedent (O.C.G.A. § 53-7-103, pre-1988 probate Code), the temporary administrator is not considered a representative of the estate for the purposes of the tolling provision. Miller v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 572 F. Supp. 1180, 1983 U.S. Dist. LEXIS 13018 (N.D. Ga. 1983). For summary judgment purposes, a decedent’s symptoms which occurred nearly

two years after a doctor’s alleged misdiagnosis, but less than two years before the decedent’s death, were a new or subsequent injury; because the decedent’s husband was only appointed temporary administrator of the decedent’s estate, the limitation period was tolled under O.C.G.A. § 9-3-92, and thus summary judgment ruling that the estate’s claim for pain and suffering was untimely was error. Kitchens v. Brusman, 280 Ga. App. 163, 633 S.E.2d 585, 2006 Ga. App. LEXIS 781 (2006). When entire estate is set apart as year’s support and no appeal is taken from such judgment, there is no estate to be administered, no assets which administrator can reclaim, and no tolling of statute of limitations under this section. McLanahan v. Keith, 135 Ga. App. 117, 217 S.E.2d 420, 1975 Ga. App. LEXIS 1589 (1975) (see O.C.G.A. § 9-3-92). Action on note under seal on which payees had died, having been brought within 20 years after period of five years which is not to be counted against unrepresented estate, was not barred as against administrator in whose name it was proceeding. Citizens & S. Nat’l Bank v. Mize, 56 Ga. App. 327, 192 S.E. 527, 1937 Ga. App. LEXIS 342 (1937). Effect of abatement of letters of administration. - Appointment of administrator terminates bar of statute of limitations, but if letters of administrator are abated, statute will not run until there is another appointment of a qualified administrator. Garland v. Milling, 6 Ga. 310, 1849 Ga. LEXIS 44 (1849). Difference in treatment with legally incompetent individuals. - Provision of O.C.G.A. § 9-3-73(b) making tolling unavailable for legally incompetent persons in medical malpractice cases does not violate the equal protection clause, U.S. Const., amend. 14. The legislature had a rational basis for distinguishing between the legally incompetent and parties who are permitted tolling: foreign object plaintiffs, unrepresented estates, and contribution plaintiffs. Deen v. Egleston, 597 F.3d 1223, 2010 U.S. App. LEXIS 4172 (11th Cir. 2010).

RESEARCH REFERENCES Am. Jur. 2d. 51 Am. Jur. 2d, Limitation of Actions, § 241, 242. ALR. Statutes of limitations or laches as bar to suit by heirs or next of kin to set aside conveyance or transfer by ancestor, 2 A.L.R. 447. Suspension of contestable period of incontestable clause of life insurance policy pending appointment of personal representative of insured or of beneficiary, 157 A.L.R. 1204. Running of statute of limitations as affected by doctrine of relation back of appointment of administrator, 3 A.L.R.3d 1234.

Statute of limitations: effect of delay in appointing administrator or other representative on cause of action accruing at or after death of person in whose favor it would have accrued, 28 A.L.R.3d 1141. Tolling or interruption of running of statute of limitations pending appointment of executor or administrator for tortfeasor in personal injury or death action, 47 A.L.R.3d 179. Claims for expenses of last sickness or for funeral expenses as within contemplation of statute requiring presentation of claims against decedent’s estate, or limiting time for bringing action thereon, 17 A.L.R.4th 530.