Johnson v. Rufo, 26 Mass. L. Rptr. 226 (2009)

Citation: Johnson v. Rufo, 26 Mass. L. Rptr. 226 (2009)
Parent Document: Johnson v. Rufo, 26 Mass. L. Rptr. 226 (2009)
Jurisdiction: Massachusetts (state)
Effective Date: 2009-10-28
Original Source: https://www.courtlistener.com/opinion/8357287/johnson-v-rufo/ ↗

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Here, Johnson did not satisfy the requirement of G.L.c. 197, §9 because he neither amended the complaint nor served it on Rufo’s representative within one year of Rufo’s death. See generally, Touzin v. Smith, 6 Mass.App.Ct. 641, 645 (1978) (recognizing right to amend complaint within limitation period to add deceased’s representative as defendant). Although Johnson initiated this action while Rufo was alive, the suit became a nullity once he died. See White v. Helmuth, 45 Mass.App.Ct. 634, 635 n.2 (1998) (“The doctrine of nullity states that a complaint brought against a deceased person ... is, in truth, brought against nobody”) (internal quotations omitted); see also Chandler v. Dunlop, 311 Mass. 1, 8 (1942) (nullity doctrine barred suit where sole party to original complaint had died). Johnson has not shown that he should be excused from the requirements of G.L.c. 197, §9. See G.L.c. 197, §10 (¿lowing plaintiffs to recover against deceased’s estate if he “is not chargeable with culpable neglect in not prosecuting his claim within the [limitation period]”); Parker v. Rich, 297 Mass. 11, 15 (1937) (burden is on creditor to establish timely commencement of action). Therefore, Johnson’s claims for damages not related to his personal injuries are barred.4 B.

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