Estate of Kruzynski
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2000 ME 17
Docket: 	Wal-99-404
Submitted
on Briefs:	November 30, 1999
Decided:	February 3, 2000


Panel: 	WATHEN, C.J., and CLIFFORD, RUDMAN, DANA, SAUFLEY, ALEXANDER, and
CALKINS, JJ.

ESTATE OF WILLIAM KRUZYNSKI

CALKINS, J.

	[¶1]  Nicole Levine appeals from a judgment entered in the Waldo
County Probate Court (Mailloux, J.) dismissing her petition for appointment
as the personal representative of the Estate of William Kruzynski.  Levine
contends that the court erred by finding that the time limit for the
appointment of a personal representative had expired.  We affirm the
judgment.
	[¶2]  On August 20, 1992, when Levine was fifteen years old, she was
seriously injured in an automobile collision involving two vehicles.  Levine
was a passenger in one of the vehicles, and the other vehicle belonged to
and was operated by Kruzynski, who had liability insurance.  Kruzynski died
on October 6, 1993.  At the time of his death he was a resident of Waldo
County.  Levine did not learn of Kruzynski's death for at least three years.    
	[¶3]  No probate proceedings regarding Kruzynski's estate were filed
in the Waldo County Probate Court until March 30, 1999, when Levine filed a
petition for formal adjudication of intestacy and appointment of a personal
representative.  In the petition Levine requested that she, as a creditor, be
named personal representative.  After a hearing, the court found that
Kruzynski died intestate, and because more than three years had passed
since his death, the court dismissed the petition. 
	[¶4]  The court relied upon 18-A M.R.S.A. § 3-108(a) (1998) which
states:

For decedent's [sic] dying on or after January 1, 1981, no
informal probate or appointment proceeding or formal
testacy or appointment proceeding, . . . may be commenced
more than 3 years after the decedent's death, . . . .

The section provides for certain exceptions to the three-year deadline for
appointment, but none apply in this case.  See 18-A M.R.S.A.
§ 3-108(a)(1)-(3) (1998). 	
	[¶5]  Levine concedes that the appointment proceeding was not begun
within three years of Kruzynski's death,{1} but she contends that another
section of the Probate Code provides an exception to section 3-108(a) which
is applicable to her situation.  Specifically, she refers to 18-A M.R.S.A.
§ 3-803(c)(2) (1998).  Section 3-803 bars a claim against an estate, arising
before the death of the decedent, unless the claim is presented within the
time limits set forth in that section.  The relevant subsection states:

(c)  Nothing in this section affects or prevents:

		. . . .

(2)  To the limits of the insurance protection only, any
proceeding to establish liability of the decedent or the
personal representative for which the decedent or the
personal representative is protected by liability insurance;
. . . .

18-A M.R.S.A. § 3-803(c)(2).  In other words, when there is a claim which
arose before the decedent's death and that claim is limited to the amount of
the decedent's liability insurance, the time limitation in section 3-803 for
presenting the claim is not applicable.
	[¶6]  Neither section 3-803(a), limiting the time within which claims
must be presented, nor section 3-803(c)(2), the liability insurance
exception, are applicable in this case because their application would be
premature.  Claims cannot be presented to an estate until there is a personal
representative.  See 18-A M.R.S.A. § 3-104 (1998) (requiring appointment
to sue an estate) and 18-A M.R.S.A. § 3-804 (1998) (setting forth the
procedure to present a claim to the personal representative).  No personal
representative was ever designated for Kruzynski's estate.  
	[¶7]  A creditor can be named as a personal representative.  See 18-A
M.R.S.A. §§ 3-203(a)(6), 3-203(c) (1998) (setting order of priority for
persons seeking appointment as personal representative).{2}  A personal
representative, however, must be appointed within three years of the death
of the decedent.  See § 3-108.  Until the personal representative is
appointed, the claim cannot be presented to the estate.  Levine would like
us to apply the liability insurance exception, section 3-803(c)(2), to the
three-year time limit in section 3-108 for the appointment of a personal
representative.  She wants us to hold that, when there is a personal injury
claim against an estate and that claim is only for the amount of liability
insurance held by the decedent, there is no time limit for the appointment
of the personal representative.{3}  We are unable to agree with Levine's
interpretation of the statutory scheme.  The insurance liability exception to
the time bar for presenting claims to the estate is, by its terms, limited to
the presentation of claims.  See § 3-803(c)(2).  Nothing in the language of
the insurance liability exception indicates that it was intended to apply to
the three-year time limitation for the appointment of a personal
representative.  The Probate Court did not err in refusing Levine's untimely
request.
	[¶8]  Levine also argues that if the three-year statute is interpreted to
deny her appointment request, she is deprived of her property in violation
of the Due Process Clause of the Fourteenth Amendment of the United
States Constitution.  She relies on Tulsa Professional Collection Serv., Inc. v.
Pope, 485 U.S. 478 (1988).  In that case the Court held that the Oklahoma
nonclaim statute was unconstitutional because the only notice given to
creditors of an estate, once the estate was admitted to probate, was
publication notice which, under the principles established in Mullane v.
Central Hanover Bank & Trust Co., 339 U.S. 306 (1950), was insufficient. 
The Court held that the intimate involvement of the Oklahoma probate
court, once probate proceedings had been commenced, was state action
which implicates the Due Process Clause thereby requiring actual notice to
the known or reasonably ascertainable creditors of the estate.  See Pope,
485 U.S. at 491.
	[¶9]  This case is unlike Pope.  Here there was no state action because
there was no involvement of the Probate Court with the estate.  In Pope the
time bar did not begin to run until the probate proceedings were
commenced.  See id. at 487.  Time bars which are triggered by court
proceedings are not self-executing statutes of limitation.  See id.  In Texaco,
Inc. v. Short, 454 U.S. 516 (1982), the Court held that self-executing
statutes of limitations do not implicate the Due Process Clause.  Generally
speaking, probate statutes of limitations which begin running from the date
of the death of the decedent, rather than from a date established by the
probate court proceedings, are self-executing.  See Estate of Decker v. Farm
Credit Serv. of Mid-America, 684 N.E.2d 1137, 1139-40 (Ind. 1997)
(holding that one-year nonclaim statute, running from the death of the
decedent, is self-executing and does not implicate the Due Process Clause).
	[¶10]  In this case there was no state action because there was no
court proceeding.  The three-year statute started running at the date of
Kruzynski's death.  The action of the Probate Court in dismissing Levine's
petition did not rise to the level of state action because the court's sole
involvement was to determine that the statute of limitations had run.  See
Short, 454 U.S. at 533-36 (recognizing the difference between a self-
executing statute and the subsequent judicial proceeding to determine that
the statute of limitations has run).  Because there was no state action in this
case, there is no deprivation of Levine's due process rights.
	The entry is:
			Judgment affirmed.
Attorney for appellant:
Keith R. Varner, Esq.
Lipman & Katz, P.A.
P O Box 1051
Augusta, ME 04332-1051

No other parties participated.

FOOTNOTES******************************** {1} . Levine was a minor until February 22, 1995. We do not decide, because it is unnecessary to do so, whether the three-year period in section 3-108(a) was tolled by Levine's infancy until the date she reached her majority. She did not petition the Probate Court within three years of reaching her majority. {2} . A creditor who seeks appointment as the personal representative within forty-five days of the death of the decedent has priority after any person nominated in the will, spouse, devisees, and heirs. See § 3-203(a). A person not listed in the order of priority can still be named a personal representative but only after others have failed to request an appointment after having been notified of the proceeding. See § 3-203(c). {3} . Levine seems to argue that the only applicable statute of limitations is the general six-year statute of limitations for the filing of personal injury actions. See 14 M.R.S.A. § 752 (1980).