IN THE ESTATE OF: JOSEPH B. MICKELS
FROM THE CIRCUIT COURT OF MARION COUNTY The Honorable John J.
Mickels applied to be appointed as personal representative of
the estate of her late husband, Joseph Mickels, Sr., in light
of this Court's decision in Mickels v. Danrad,
486 S.W.3d 327 (Mo. banc 2016) ("Mickles
I"). The probate division denied her application as
untimely under section 473.020,  which requires all
applications be filed within one year of the decedent's
death. Ms. Mickels seeks relief in this Court, arguing
Mickels I announced a new cause of action previously
unavailable in Missouri. She contends this Court should use
its equitable powers to create a narrowly tailored exception
allowing her an out-of-time appointment. Because this Court
is obligated to follow the clearly articulated statute of
limitations, it cannot exercise any equitable powers to
provide relief here. Ms. Mickels's application for
appointment as personal representative was time-barred by
section 473.020. The probate division's judgment is
case has a lengthy procedural history. This is the second
time it is before this Court; the first was an appeal of
summary judgment in a wrongful death suit brought by Mr.
Mickels's family against the decedent's doctor, Dr.
Danrad. Mickels I, 486 S.W.3d at 328. The trial court
entered summary judgment in favor of Dr. Danrad, who had
reviewed Mr. Mickels's test results and had allegedly
made an initial misdiagnosis. Id. Because Mr.
Mickels's brain tumor was incurable and his death
certain, regardless of the actions of Dr. Danrad, the
plaintiffs could not prove facts establishing the alleged
negligence had caused his death. Id. In reviewing
the trial court's judgment, this Court stated, although
Dr. Danrad's negligence did not cause
Mickels's death, "it surely injured him by depriving
him of the opportunity to delay his death for up to six
months." Id. at 329. Id. The Court
vacated the judgment and remanded the case upon finding the
claims in the petition stated a negligence action "that
would have been actionable under section 537.020"
brought by Mr. Mickels's personal representative."
Id. at 329.
remand, Ms. Mickels opened a probate matter and applied to be
appointed personal representative of Mr. Mickels's
estate. By the time the application was filed, he had been
deceased for seven years. The probate division denied Ms.
Mickels's application as untimely and barred by section
473.020, which provides that all petitions for personal
representative "must be filed within one year after the
date of death of the decedent." Section 473.020.2. This
probate division's decision to dismiss Ms. Mickels's
application for appointment as personal representative as
untimely is analogous to the dismissal of a claim as barred
by a statute of limitations. This is a question of law this
Court reviews de novo. Bateman v. Platte
Cnty., 363 S.W.3d 39, 42 (Mo. banc 2012).
Mickels argues equity requires she be appointed personal
representative of Mr. Mickels's estate. It is Ms.
Mickels's position that this Court announced in
Mickels I a new cause of action for the
"deprivation of the opportunity to delay death"
that had not been available at the time of the original
wrongful death suit. She argues it would be a
"perversion of justice" to deny her the ability to
move forward with the claim, and so this Court should direct
the probate division to exercise its "complete and
unrestricted equitable powers in probate matters" and
grant her application for appointment.
Court does not agree Mickels I announced a new cause
of action. Though the claim had never before been classified
in Missouri as the "deprivation of the opportunity to
delay death, " a survivorship personal injury action has
long been available under Missouri law. The cause of action
was created in 1907, and the language of this original law
tracks - almost verbatim - the language found in today's
Causes of action upon which suit has been or may hereafter be
brought by the injured party for personal injuries, other
than those resulting in death, whether such injuries be to
the health or to the person of the injured party, shall not
abate by reason of his death, nor by reason of the death of
the person against whom such cause of action shall have
accrued; but in case of the death of either or both such
parties, such cause of action shall survive to the personal
representative of such injured party, and against the person,
receiver or corporation liable for such injuries and his
legal representatives, and the liability and the measure of
damages shall be the same as if such death or deaths had not
1907 Mo. Laws 252. Although the dissent characterizes
Mickels I as an announcement of a cognizable cause
of action and no reported Missouri case had yet outlined the
scope of this claim, it has been available since
1907. Mickels I simply articulated how
this missed opportunity is indeed an actionable personal
injury under this century-old statutory language. See
Mickels I, 486 S.W.3d at 329-30. It did not announce a
new cause of action.
arguing Mickels I broke new legal ground, Ms.
Mickels directs this Court to a court of appeals decision -
Morton v. Mutchnick, 904 S.W.2d 14, 17 (Mo. App.
1995) - in which this sort of claim was explicitly rejected.
In Morton, parents of a decedent brought a
negligence action against their son's doctors for failing
to diagnose and treat their son for AIDS. Id. at 15.
Their petition alleged, but for the negligence of the
defendants, their son would have lived longer. Id.
In affirming the dismissal of the plaintiffs' petition,
the court of appeals stated: "It appears that plaintiffs
are arguing they should be allowed to recover damages for
[the decedent's] lost chance to have his life extended by
an unknown period of time until his ultimate death ….
Unfortunately, Missouri does not recognize such a cause of
action." Id. at 17. This Court denied
transfer. But as this Court set out in Mickels
I, a claim for an injury of this type is ...