Monette v. Estate of Patrick J. Murphy

On appeal, appellant first contends that he did not need to comply with NRS 147.040(1) because his legal malpractice claim would not diminish the decedent's estate. See Bell Brand Ranches, Inc. v. First Nat'l Bank of Nev., 91 Nev. 88, 91, 531 P.2d 471, 473 (1975). In particular, appellant contends that his claim, if successful, would be paid from proceeds of the decedent's professional liability insurance policy, which is not part of the decedent's estate. Respondents, however, counter that the insurance policy is subject to a $10,000 deductible, meaning that the first $10,000 of a successful claim would be paid by the decedent's estate, thereby diminishing the estate and requiring appellant to comply with NRS 147.040(1). Respondents' argument is consistent with Nevada law, see Bell Brand Ranches, 91 Nev. at 91, 531 P.2d at 472-73, and appellant has not disputed the argument's factual accuracy either in district court or on appeal. Accordingly, we conclude that the district court properly determined that appellant was required to comply with NRS 147.040(1). Wood, 121 Nev. at 729, 121 P.3d at 1029. Appellant next contends that even if he needed to comply with NRS 147.040(1), the district court erred in determining that appellant did not satisfy NRS 147.040(3)'s exception for late-filed claims. We disagree. By its terms, NRS 147.040(3) permits a claimant to file a late claim only when "the claimant did not have notice as provided in NRS 155.020 or actual notice of the administration of the estate." Even accepting appellant's argument that he did not have notice as provided in NRS 155.020, appellant nevertheless had actual notice of the administration of the estate. Id. Specifically, it is undisputed that appellant knew of the decedent's death by December 2010, which was sufficient to constitute

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actual notice of the estate's administration. 1 See Bell Brand Ranches, 91 Nev. at 92 n.3, 531 P.2d at 473 n.3 ("[Al late filing may be denied if the creditor has knowledge of the death of the decedent, for such knowledge charges him with duty of further inquiry."); Gardner Hotel Supply of Houston v. Estate of Clark, 83 Nev. 388, 392, 432 P.2d 495, 497 (1967) (same) Accordingly, we conclude that the district court properly dismissed appellant's complaint for failure to file a claim with the decedent's estate in compliance with NRS 147.040(1). We therefore ORDER the judgment of the district court AFFIRMED.

J.

eveare Parraguirre

\ J. Saitta

cc: Chief Judge, The Eighth Judicial District Court Hon. Sally Loehrer, Senior Judge Carolyn Worrell, Settlement Judge Brent D. Percival Lipson Neilson Cole Seltzer & Garin, P. C. Eighth District Court Clerk

'It should further be noted that, at the time appellant's potential malpractice claim against the decedent accrued in December 2010, appellant still had roughly two months within which to file a claim with the decedent's estate. NRS 147.040(1).

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