We read with great interest the recent article entitled “The Deadly Mistake in ‘Wrongful Death’ Litigation,” New Jersey Law Journal, May 22, 2017. The author suggests that only a general administrator can pursue a survival claim, and that the failure to have the plaintiff appointed as the general administrator is “fatal” to such claims. “While letters of administration ad prosequendum provide plaintiffs standing to pursue wrongful death claims—without letters of general administration—they do not have standing to pursue survival claims.” Although the author cites a dozen or so cases and statutes, the author does not cite any of the three cases which have actually discussed this precise issue and held that the “technical mistake” of not obtaining both general letters of administration and letters of administration ad prosequendum can be cured at any stage of the litigation.
The first case in this trilogy is Wilson v. Dairymen’s League Co-Op Ass’n, 105 N.J.L. 188 (1928), where the plaintiff filed a wrongful death suit as general administrator of the estate of her late husband. The plaintiff was not appointed as the administratrix ad prosequendum for more than two years. The trial court permitted the plaintiff to amend the complaint to name her as the administratrix ad prosequendum, but then dismissed the case based upon the statute of limitations. In reviewing the case, the New Jersey Supreme Court first explained that then, as now, “The aim of courts and legislatures is to abolish technicalities and enable suitors to have the merits of their controversies fully tried.” Id. at 190. The Supreme Court then reversed and remanded for trial, holding that “there was no error in the allowance of the amendment to substitute Mrs. Wilson as administratrix ad prosequendum as the plaintiff in the action. Such substitution affected no substantial right of the defendant below. It was the correction of a technical mistake.” Id. at 191-92.
