BETTY HOSKINSON, Individually and as Surviving Spouse of RONALD HOSKINSON, Deceased, Plaintiff,
HIGH GEAR REPAIR, INC., Defendant.
MEMORANDUM AND ORDER
David J. Waxse United States Magistrate Judge
The matter is presently before the Court on Plaintiff’s Second Motion to Amend Complaint (ECF No. 93). Plaintiff requests leave to amend her complaint to change the capacity in which she brings this case from “surviving spouse” to “special administrator of the estate” of her late husband, Ronald Hoskinson, deceased, and to clarify the allegations with respect to the estate’s survivor claim under K.S.A. 60-1801. The Court previously denied without prejudice Plaintiff’s first motion to amend her complaint, finding there was no state court order appointing her as special administrator of the estate. Plaintiff has now obtained a state court order appointing her as special administrator of the estate. As explained below, her motion is granted.
On March 10, 2010, while working in Haskell County, Kansas, for his employer Sallee, Inc., Ronald Hoskinson caught his shirt sleeve in the unguarded power take off on an anhydrous ammonia tank trailer, which had previously been refurbished and serviced by Defendant. As a result, Mr. Hoskinson became entrapped in the device, which caused him to sustain massive and traumatic injuries. He later died from those injuries on March 28, 2010.
On June 17, 2011, Mr. Hoskinson’s spouse, Betty Hoskinson, filed a Petition for Issuance of Special Administration in the District Court of Gray County, Kansas, captioned In the Matter of the Estate of Ronald Hoskinson, Case No. 11 PR-11. On June 20, 2011, the Gray County District Court issued Letters Testamentary under the Kansas Simplified Estates Act, which stated:
KNOW ALL PERSONS BY THESE PRESENTS:
BETTY HOSKINSON, a resident of the state of Kansas, named as Special Administrator of the estate of Ronald Hoskinson, deceased, having been appointed and qualified as Special Administrator, is hereby granted Letters Testamentary issued under the Kansas Simplified Estates Act with full power and authority as provided by law.
No order appointing Plaintiff special administrator of Ronald Hoskinson’s estate was entered in the Gray County action. The Gray County action was subsequently administratively terminated on January 9, 2012. No probate estate was ever opened.
On July 18, 2011, Plaintiff Betty Hoskinson filed this diversity action “individually and as surviving spouse of Ronald Hoskinson, deceased.” In her Complaint (ECF No. 1), she alleged that she “is the surviving spouse of Ronald Hoskinson and brings this action for damages sustained by Ronald Hoskinson, as well as her individual damages.” Plaintiff further alleged in paragraph 20 of the damages section of her Complaint that “[a]s a result of negligent acts of the defendant Ronald Hoskinson suffered traumatic and extensive injuries, and conscious pain and suffering.” She also alleged that as his surviving spouse, she “suffered the loss of spousal care, guidance, support and income, comfort, and mental anguish from the trauma and death of her husband, for which she claims damages.”
After Defendant failed to answer, Plaintiff filed a motion for default judgment on August 16, 2011. After holding a hearing on August 31, 2011, the Court granted the motion and entered an Order for Default Judgment and Damage Determination on September 1, 2011. The Order entered default judgment against Defendant in the total amount of $1, 163, 610.83, assessed as follows: Conscious pain and suffering $250, 000.00; Wrongful death $250, 000.00; Worker’s compensation payments $411, 607.63; and Lost income $252, 003.20.
On December 7, 2011, Defendant filed a motion to set aside the default judgment and dismiss complaint. Finding that Defendant had shown excusable neglect for its failure to answer, the Court granted the motion and set aside the default judgment on April 12, 2012.
On February 26, 2013, Defendant filed a motion to amend its answer to add certain defenses, including allegations that conscious pain and suffering is legally immaterial and an heir cannot recover for any damages that accrued to the decedent between the time of injury and death. Shortly thereafter on March 12, 2013, Plaintiff filed a motion to amend the complaint to change the caption from “Betty Hoskinson, individually and as Surviving spouse of Ronald Hoskinson, deceased, ” to “Betty Hoskinson, individually and as Special Administrator of the Estate of Ronald Hoskinson.”She also sought to amend her complaint to add allegations with respect to the survival claim.
On May 17, 2013, the Court convened the scheduled Final Pretrial Conference. After reviewing the parties’ proposed Pretrial Order and pending motions to amend, the Court postponed the Final Pretrial Conference and ordered the parties to submit supplemental briefing. Based upon the supplemental briefing, the Court concluded that there was in fact no existing order which appointed Plaintiff as special administrator. In the absence of such an order, the Court held that Plaintiff could not proceed in this action as the special administrator of her late husband’s estate and denied her motion to amend the complaint as futile. The denial, however, was “without prejudice to further motion in the event Plaintiff is able to obtain an order appointing her as special administrator of Ronald Hoskinson’s estate or otherwise show that she has been appointed special administrator.”
On June 26, 2013, Plaintiff filed the present motion to amend her complaint in which she advises the Court that the state probate court has entered an order appointing her as special administrator of the estate of Ronald Hoskinson, deceased. That Order Appointing Special Administrator Nunc Pro Tunc was entered by the state court on June 26, 2013, and states that it is ...