Estate of Helen M. Faucheaux, Respondent,
City of Provo,  Petitioner.
Certiorari to the Utah Court of Appeals Fourth District,
Provo The Honorable Fred D. Howard No. 100401999
Pfrommer, North Salt Lake, Ron D. Wilkinson, Nathan S. Shill,
Orem, for respondent
D. West, J. Brian Jones, Gary D. Millward, Provo, for
Associate Chief Justice Lee authored the opinion of the
Court, in which Chief Justice Durrant, Justice Himonas,
Justice Pearce, and Justice Petersen joined.
ASSOCIATE CHIEF JUSTICE
Helen M. Faucheaux died of a drug overdose in 2009, in an
incident in which Provo City police officers were dispatched
to her home. Her heirs sought damages through a wrongful
death suit. That suit was captioned as "Estate of Helen
M. Faucheaux v. City of Provo." Six years after the case
was filed, Provo City moved to dismiss the case on the ground
that an estate lacks the legal capacity to assert a claim
sounding in wrongful death. The district court granted the
motion, and the heirs appealed. The court of appeals
reversed. It concluded that a lack of capacity is an
affirmative defense and held that Provo City had forfeited
this defense by waiting to raise it until a motion filed six
years into the litigation.
We affirm the court of appeals on two alternative grounds.
First we conclude that there was no capacity defect in the
complaint when it was initially filed. The district court
correctly indicated that an estate is not a proper plaintiff
in a wrongful death case and rightly noted that the caption
of the complaint identified the Faucheaux estate as the
plaintiff. But the caption of a complaint has no controlling
significance, and the complaint in this case otherwise made
clear that the action was being pursued by the personal
representative on behalf of the heirs. And for that reason,
the district court erred in dismissing the case on the basis
of a lack of capacity.
We also identify a second basis for our decision. We conclude
that even if this action had been initiated by the estate,
the estate's lack of capacity could properly have been
corrected by substitution under rule 17(a) of the Utah Rules
of Civil Procedure. In so holding we overrule the court of
appeals' decision in Haro v. Haro, 887 P.2d 878
(Utah Ct. App. 1994), which states that a wrongful death
action initiated by an estate is void. Id. at 880.
We conclude that this kind of defect merely renders the
action voidable and thus subject to correction under rule
17(a). And we hold that such a correction could have properly
resolved any arguable lack of capacity problem in this case.
In 2009 Helen Faucheaux died of a fatal drug overdose. Prior
to her death, her husband, Kevin Faucheaux, called the Provo
City Police Department for help. He explained that he feared
that his wife, who had a history of drug abuse, had
overdosed. Provo City police officers were dispatched to the
home. Once there, the officers concluded that Ms. Faucheaux
was intoxicated but did not need additional help. They told
Mr. Faucheaux that they thought his wife just needed to
"sleep it off." And they left the house without
offering any further assistance. Two hours later, Mr.
Faucheaux went to check on Ms. Faucheaux and found her dead.
In 2010 Mr. Faucheaux, in his capacity as personal
representative of Ms. Faucheaux's estate, filed a
wrongful death action against Provo City, claiming that Provo
City police officers had "negligently failed to
protect" her. The caption of the complaint listed
"The Estate of Helen M. Faucheaux" as the
plaintiff. Provo City filed a timely answer to the
complaint-a pleading that failed to challenge the capacity of
the plaintiff to sue the City. Almost three years later, the
City filed a motion for summary judgment. In that motion the
City asserted that "its police officers had no legal
duty to take [Ms. Faucheaux] into custody against her will
and deliver her for involuntary commitment." The City
also claimed that the officers had acted within their
discretion and thus had governmental immunity. The district
court granted Provo City's motion. Mr. Faucheaux
The court of appeals reversed. Faucheaux v. Provo
City, 2015 UT App 3, ¶ 37, 343 P.3d 288
(Faucheaux I). It held that the district court had
erred in concluding that "the public-duty doctrine
shields Provo from liability." Id. And it
concluded that "the Governmental Immunity Act does not
immunize Provo from [responsibility for] the officers'
actions and omissions." Id. The court of
appeals thus remanded for further proceedings in the district
On remand Provo City asserted a new ground for challenging
Mr. Faucheaux's claims. In a motion filed more than six
years after the case was initiated, the City sought dismissal
of the complaint on the ground that "the Estate of Helen
M. Faucheaux had no capacity to sue for wrongful death, and
no real party in interest may be substituted" in its
place. In response Mr. Faucheaux asserted that he was
bringing the suit as the personal representative of Ms.
Faucheaux's estate, and insisted that the caption's
listing of the Faucheaux estate was a mere technical error
subject to correction. The district court granted Provo
City's motion and dismissed the case.
Mr. Faucheaux appealed. And the court of appeals again
reversed. "Because the error of which Provo City now
complains was evident on the face of Faucheaux's
complaint," the court of appeals held that "Provo
City . . . should have presented the issue as an affirmative
defense in its answer or in an early motion to dismiss."
Faucheaux v. Provo City, 2018 UT App 150, ¶ 12,
436 P.3d 104. In light of its failure to do so, the court of
appeals held that Provo City had waived the defense that the
Faucheaux estate did not have the capacity to sue.
Provo City filed a petition for writ of certiorari. We
granted the petition and now proceed to consider the
important questions presented in this case. In so doing we
review the decision of the court of appeals. "Our
certiorari review of the court of appeals' decision is de
novo . . . ." State v. Ramirez, 2012 UT 59,
¶ 7, 289 P.3d 444. In reviewing the court of
appeals' decision we apply the same standard of review
that it would apply in reviewing the decision of the district
court. See State v. Dean, 2004 UT 63, ¶ 7, 95
P.3d 276 ("The correctness of the court of appeals'
decision turns on whether that court correctly reviewed the
trial court's decision under the appropriate standard of
review."). And the standard of review of a district
court's "decision on a motion to dismiss [is] de
novo." State v. Ririe, 2015 UT 37, ¶ 5,
345 P.3d 1261.
"[W]hen the death of a person is caused by the wrongful
act or neglect of another, his heirs, or his personal
representatives for the benefit of his heirs, may maintain an
action for damages against the person causing the death . . .
." Utah Code § 78B-3-106(1). Our code thus limits
the appropriate plaintiffs in a wrongful death suit to either
heirs or personal representatives of an estate suing on
behalf of the heirs. The estate is not a proper party.
Estates are not excluded from the statutory list by mistake.
Damages in a wrongful death suit include "financial
support furnished; loss of affection, counsel, and advice;
loss of deceased's care and solicitude for the welfare of
the family; and loss of the comfort and pleasure the family
of [the] deceased would have received." Switzer v.
Reynolds, 606 P.2d 244, 246 (Utah 1980). The estate is
not an intact entity at the time of the act giving rise to
the wrongful death. So the estate could not have suffered
damages at the time of the wrongful death. With this in mind,
our law holds that the estate, acting on its own behalf,
cannot claim the types of damages available in a wrongful
The estate itself could conceivably suffer damages of some
sort. Such damages could include medical expenses or other
expenses incurred by the decedent that the estate is now
responsible for. But the cause of action for these damages is
separate and distinct from the wrongful death cause of
action. See In re Behm's Estate, 213 P.2d 657,
660-61 (Utah 1950). A wrongful death claim is "a
separate and independent cause of action and is not a
continuation of the right of action of the injured party for
personal injuries." Id. "The death creates
a new cause of action for the loss suffered by the heirs by
reason of [the] death," which "comes into