Duncan v. Progressive Preferred Insurance Co. ex rel Estate of Pop (6/9/2011)

June 13, 2011

Arizona Court of Appeals Division One Holds That Motion to Dismiss Tort Claim for Insufficiency of Process Is Improper Collateral Attack on Probate Registrar’s Appointment of Special Administrator to Accept Service On Behalf of Estate.

Melissa Duncan was involved in an automobile accident with George Pop and filed a tort action against him in superior court.  Pop died before Duncan had accomplished service of process, and Duncan believed (apparently incorrectly) that Pop had no surviving heirs.  In the probate proceeding, Duncan requested the informal appointment of a special administrator pursuant to A.R.S. § 14-3614(1) for the limited purpose of accepting service on behalf of Pop’s estate but did not seek appointment of a general personal representative.  A probate registrar granted the request, and the special administrator accepted service and tendered the defense to Progressive.

Pop’s estate did not answer the complaint, and Duncan filed an application for default.  Progressive then filed a motion to intervene for the limited purpose of contesting sufficiency of process along with a motion to dismiss for insufficient process.  The superior court granted both motions, and Duncan timely appealed.  Both parties to the appeal briefed the merits of the case, with Duncan arguing that the probate court’s appointment of the special administrator was proper and Progressive arguing that both the appointment and the powers granted in the appointment were impermissible under the statute.

The Court of Appeals reversed, exercising its discretion to decide the case on different grounds.  The Court held that the motion to dismiss the tort claim for insufficient service was a collateral attack on the probate registrar’s appointment because it was “an effort to obtain another and independent judgment which will destroy the effect of the former judgment” (quoting Cox v. Mackenzie, 70 Ariz. 308, 312, 219 P.2d 1048, 1051 (1950)).  Even if Progressive was correct and the probate registrar erred in appointing the special administrator, that error must be attacked directly in the probate proceeding.  (The Court noted that Progressive had initially filed motions to directly attack the appointment but later withdrew the effort.)

The Court also rejected Progressive’s arguments that the appointment was facially void for breach of the special administrator’s fiduciary obligation to the estate and violation of the due process rights of the estate’s heirs.  Without reaching the merits, the Court held that these were also collateral attacks that should have been raised in the probate proceeding.

Judge Gemmill authored the opinion; Judges Norris and Orozco concurred.