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IN THE COURT OF APPEALS OF IOWA No. 6-1006 / 05-1494 Filed March 28, 2007 KAY ELLIOTT and DAVID ELLIOTT, Plaintiffs-Appellants, vs. ABBIE AMENT and WILLIAM AMENT, Defendants-Appellees. ________________________________________________________________ Appeal from the Iowa District Court for Dubuque County, Monica Ackley, Judge.

Plaintiffs appeal the district court's dismissal of their tort action against defendants. AFFIRMED.

Paul T. Jensen of Hammer, Simon & Jensen, Dubuque, for appellants. Gene Yagla of Yagla, McCoy & Riley P.L.C., Waterloo, for appellees.

Considered by Sackett, C.J., and Zimmer and Eisenhauer, JJ.

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SACKETT, C.J. Plaintiffs-appellants Kay and David Elliott appeal from the dismissal of their tort action against Abbie Ament and her father, William Ament. The

plaintiffs sued after a car driven by Kay collided with a car driven by Abbie Ament. The plaintiffs contended Abbie was negligent and William, the owner of the car Abbie was driving, had negligently entrusted the car to her. The matter was tried to a jury, and at the close of the plaintiffs' evidence, the defendants moved for a directed verdict contending the plaintiffs failed to introduce evidence to show (1) William was the owner of the car Abbie was driving, (2) Abbie was an incompetent or inexperienced driver, and William knew she was inexperienced or incompetent. The defendants also moved for a directed verdict as to Abbie

because Abbie was dead, and a dead person cannot be sued. The district court granted the motion on the grounds urged. 1 We affirm. BACKGROUND. The accident happened on November 9, 2001. The

plaintiffs filed suit on September 29, 2003. Abbie died on July 20, 2004. Early in August of 2004, the attorney for the defendants advised the attorney for the plaintiffs that Abbie had died and it was the intention of her family not to open an estate for her. The matter came on for trial on July 7, 2005. Prior to trial, the attorney for the defendants made an offer to confess judgment of $6500, which was rejected by the plaintiffs. The plaintiffs basically raise three issues: (1) a directed verdict on the claim against Abbie should not have been permitted on the ground that she is dead where no notice of this defense was filed prior to trial, (2) Abbie's estate
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David Elliott's consortium claim was also dismissed because as a derivative claim it failed when the chief claim was dismissed.

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was a necessary party to the suit, and (3) it was fraudulent to make a settlement offer on behalf of Abbie when she had not authorized the offer. CLAIM AGAINST A DECEDENT. The law is clear that a decedent does not have the capacity to be sued. Jacobson v. Union Story Trust & Sav. Bank, 338 N.W.2d 161, 163 (Iowa 1983). In Brubaker v. Estate of Delong, 700 N.W.2d 323, 326 (Iowa 2005) (citations omitted), the Supreme Court stated: A party must be legally capable of being sued in order to maintain an action. Causes of action survive the death of a person. [However,] [a]fter the death of a person who may be liable for a tort, [it is] the legal representative of the decedent's estate [that] has the legal capacity to be sued. See also Iowa Code

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