O.C.G.A. § 9-3-92 (2019)

Statute text

The time between the death of a person and the commencement of representation upon his estate or between the termination of one administration and the commencement of another shall not be counted against his estate in calculating any limitation applicable to the bringing of an action, provided that such time shall not exceed five years. At the expiration of the five years the limitation shall commence, even if the cause of action accrued after the person's death.

History

(Ga. L. 1855-56, p. 235, §§ 21, 40; Code 1863, § 2869; Code 1868, § 2877; Code 1873, § 2928; Code 1882, § 2928; Civil Code 1895, § 3781; Civil Code 1910, § 4376; Code 1933, § 3-803.)

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).

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).

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); Citizens & S. Nat'l Bank v. Mize, 56 Ga. App. 327, 192 S.E. 527 (1937); State Farm Fire & Cas. Co. v. Pace, 176 Ga. App. 737, 337 S.E.2d 401 (1985).

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).

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).

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).

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).

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 (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).

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 (1982).

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).

Construction with O.C.G.A. § 9-3-71(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).

Appointment of temporary administratrix is not "representation" on estate, within provisions of this section. Scott v. Atwell, 63 Ga. 764 (1879); Baumgartner v. McKinnon, 137 Ga. 165, 73 S.E. 518, 38 L.R.A. (n.s.) 824 (1911); Collins v. Henry, 155 Ga. 886, 118 S.E. 729 (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 (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).

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) (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).

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).

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 (11th Cir. 2010).

Cited in Burts v. Duncan, 36 Ga. 575 (1867); Weitman v. Thiot, 64 Ga. 11 (1879); Hawes v. Glover, 126 Ga. 305, 55 S.E. 62 (1906); Baumgartner v. McKinnon, 137 Ga. 165, 73 S.E. 518, 38 L.R.A. (n.s.) 824 (1911); Baumgartner v. McKinnon, 10 Ga. App. 219, 73 S.E. 519 (1912); Norris v. Nixon, 78 Ga. App. 769, 52 S.E.2d 529 (1949); Barnett v. Ashley, 89 Ga. App. 679, 81 S.E.2d 11 (1954); Georgia Power Co. v. Gibson, 226 Ga. 165, 173 S.E.2d 217 (1970); Jones v. Citizens & S. Nat'l Bank, 231 Ga. 765, 204 S.E.2d 116 (1974); Deller v. Smith, 250 Ga. 157, 296 S.E.2d 49 (1982); Dunn v. Towle, 170 Ga. App. 487, 317 S.E.2d 266 (1984); Dowling v. Lopez, 211 Ga. App. 578, 440 S.E.2d 205 (1993); Camps v. City of Warner Robins, 822 F. Supp. 724 (M.D. Ga. 1993); Rowland v. Clarke County Sch. Dist., 272 Ga. 471, 532 S.E.2d 91 (2000); Jensen v. Engler, 317 Ga. App. 879, 733 S.E.2d 52 (2012).

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 tort-feasor 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.