Failure to Promptly Secure Counsel Can Prove Costly in Estate Litigation

April 24, 2013 by Scott C. Soady

It's an unfortunate reality that death often results in litigation. If a person dies as the result of
injuries caused by others, that person's estate may seek restitution in the courts. There may
also be litigation over debts owed to the deceased. The possibility of postmortem litigation is
just one factor that should inform your choice of an executor and the need for an experienced
California probate lawyer to advise the estate of its rights and obligations.

Confusion over an estate's representation can prove especially costly. A recent high-profile
decision
by a federal judge in Los Angeles offers a cautionary tale. The case involves the Estate
of Derek Boogaard, a Canadian hockey player who played for the National Hockey League's
Minnesota Wild and New York Rangers. Boogaard was addicted to prescription narcotics and
sleeping pills. In May 2011, he died in his sleep from a combination of these drugs and alcohol.

Boogaard previously signed a four-year contract with the Rangers in 2010. Player contracts are
guaranteed for their full term under the collective bargaining agreement between the NHL and
the NHL Players Association, the union to which Boogaard belonged. Due to Boogaard's death,
however, the Rangers informed the estate it would not pay any compensation owed for the
remaining three years of the contract.

The collective bargaining agreement gives the NHLPA the exclusive right to file a grievance on
behalf of a union member. The estate worked with Roman Stoykewych, and NHLPA attorney,
to develop a possible grievance. Ultimately, the NHLPA did not pursue the matter and informed
the estate accordingly in December 2011.

The estate then sued the NHLPA in September 2012 for “breaching its duty of fair
representation” by failing to file a grievance against the Rangers and the NHL. The suit was
originally brought in California state court and later removed to federal court. On March 20 of
this year, U.S. District Judge Otis D. Wright, II, granted the NHLPA's motion to dismiss the
lawsuit.

Ignorance of the Law Is No Excuse

The dismissal was not based on the merits of the estate's claims, which never reached
trial. Instead the estate lost because it failed to file its lawsuit within the prescribed statute
of limitations. Federal law dictates that a claim against a labor union must be filed within
six months of the disputed action. The NHLPA notified the estate of its decision not to file a
grievance on December 2, 2011. The estate filed its lawsuit on September 21, 2012, more than
nine months later.

The estate argued before Judge Wright that the six-month limit should not apply here because
of a legal excuse known as equitable tolling. Basically, the estate argued it was unaware of
the six-month deadline because it lacked independent counsel and relied on the NHLPA's
Stoykewych for legal advice. Judge Wright didn't buy this. He noted that equitable tolling only
applied in “extreme situations” where a reasonably diligent party was somehow tricked into
missing the deadline.

In this case, Judge Wright said the estate was presumed to have “constructive knowledge” of
the filing deadline because it previously retained counsel for the probate process. This occurred
in June 2011 just after Boogaard's death. The mere fact the estate had its own attorney at some
point means it should have been aware of any filing deadline related to a possible claim against
the union. Furthermore, Judge Wright said, the NHLPA had no legal duty to inform the estate
about the six-month deadline and that there was no evidence Stoykewych misled it in any way
on this subject.

Planning Ahead Can Avoid Later Confusion

The Boogaard estate may have been honestly confused about the nature of its relationship
with the NHLPA and its counsel. The lesson here is that you should never rely on an outside
attorney to fully apprise you of your legal rights. In the context of an estate, where an executor
may be not be legally savvy, it's even more important to immediately retain counsel whose only
professional interest is protecting the estate.

If you're in the process of creating or revising an estate plan, you should consider the potential
impact of your professional relationships with an employer or union and apprise your designated
executor about any issues that might arise. If you have any questions or concerns, please feel
free to contact the Law Office of Scott C. Soady at 1-858-618-5510.