Pending Actions and Abatement

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 What Is Abatement?

Abatement occurs when a legal proceeding is suspended or interrupted and a plaintiff is prohibited from going forward with a lawsuit at that particular time. Abatement may be available to a defendant through procedural pleadings called a motion to abate.

It may also be considered a defense. If a case is abated, the case will not continue until a court gives approval to resume the hearings.

Abatement laws provide that an abatement may be based on several objections that are raised by the defendant. However, abatement typically arises when a prior action has already been initiated or when a party to the lawsuit has passed away.

In other areas of the law, abatement is used to describe the removal or control of a nuisance. In a personal injury case, abatement may be necessary to help an injured party obtain relief more quickly.

Is Abatement Available if There Are Pending Actions on the Same Claim?

In general, yes. If a lawsuit or legal action is pending, it means that the proceedings have already begun but a final judgment has not yet been issued.

If an action is pending and a second action is filed, the first claim may be grounds for an abatement action in the second claim.

In other words, the second action will not be heard due to the fact that a claim has already been filed for the same purpose. A court will allow an abatement on the grounds of another action pending in order to protect a party from having to defend against several actions at the same time if they are based on the same cause of action.

The doctrine of abatement allows a court to prevent unnecessary expenditures of judicial time and resources. At the same time, an abatement can protect a defendant from a lawsuit that has been instituted simply for the purpose of harassment.

A second legal action may be abated based on a prior, pending legal action if:

  • Both actions are between the same parties;
  • The rights of the parties are already being adjudicated or have been determined in the prior action;
  • The two actions involve the same cause of action and subject matter;
  • Both actions are filed in the same jurisdictional territory; or
  • The second action has been filed in a court with competent jurisdiction.

If, however, the first pending legal action was filed in federal court, a second legal action filed in a state court will not be abated even if the causes of action and the parties are the same. This is due to the fact that federal and state personal injury laws may differ drastically, even on the same subject matters.

Can a Prior Action Be Abated Based on a Second Claim?

Typically, a second action is abated if there is a prior legal action pending. There are, however, certain instances where a second action will result in abatement proceedings in the first action.

A second action may abate a prior proceeding when:

  • The second claim address the legal issue in a manner that is more thorough or complete;
  • The second claim is brought in good faith, and not for the purpose of harassing the defendant;
  • Abatement of the second claim would result in a substantial loss of rights for the plaintiff; or
  • The prior action is defective in some manner.

In these situations, the first action will be terminated and the second action will be focused on instead.

Does the Death of a Party Lead to an Abatement of a Claim?

In the past, an abatement based on the death of a party was dependent upon whether a claim was considered to be personal to the parties. One example of this would be that, in general, a personal injury or slander case was considered to be personal.

Therefore, if a party to this type of lawsuit passed away, the claim was subject to abatement. Claims that involved real property or contracts, however, were not considered to be personal.

Due to these issues, when a party passed away, an action was not immediately abated. The general rule, currently, is that an abated claim may be revived, even if a party passed away during the court of litigation.

This typically applies regardless of whether or not the issue is personal in nature. In order to revive an abated claim once a party has passed away, a representative for the deceased party is substituted into the proceedings.

In general, this representative is the party’s executor or the administrator of their estate. For example, if the individual is married, their surviving spouse will typically step into the lawsuit in the place of their deceased spouse.

In addition, the cause of action must continue to have legal significance even after the party passes away. In general, only living persons may engage in a lawsuit.

Due to this, if a deceased party’s representative acts as their substitute, the proceedings will be allowed to resume. There may, however, be a short period of abatement while the representative is being contacted and becomes able to appear in court.

It is important to note that there is a distinction between the terms cause of action and action. A cause of action refers to a legal issue that is being resolved in court.

In the alternative, action refers to the proceedings themselves. A cause of action may survive even if the lawsuit or action has been abated.

In these cases, the claim can be revived because the cause of action is still at issue.

Are There Any Exceptions to Revival Statutes?

The laws that govern revival statutes will vary by state. The majority of states, however, do not totally abate a claim because of the death of an indispensable party.

One exception to this rule is marriage claims. Marriage claims, including divorce, are still considered entirely personal and, therefore, will be terminated upon the death of one of the spouses.

In the alternative, certain states do allow marital lawsuits to continue if there are lingering issues regarding marital property. This is true especially in cases where the marriage involved fraud.

This type of action may be revived if a representative of the deceased spouse is able to appear in court. For example, if a case involves past due child support where one parent owes the other parent for the support of their child as outlined in a court order, the child support claim would survive the death of the obligor, or the individual that has a duty to pay support.

Therefore, the obligee, or the person who is entitled to receive child support, would be able to continue to pursue collection of past due child support against the estate of the obligor.

Do I Need a Lawyer?

Even though abatement is largely a procedural matter, it may have far-reaching effects on the outcome of a case. Because of this, it is important to consult with a personal injury lawyer if you believe that abatement may be an issue in your case.

An abatement may be confusing, especially if there are several different claims to address at one time. Your attorney can explain to you how abatement would affect your claim, regardless of whether you are the plaintiff or the defendant in the case.

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