Asbestos product liabilityrelated, personal injury and wrongful death actions have been filed. The issue is whether the court should grant approval to the settlement of a wrongful death claim even if there has been no appointment of a personal representative.
Each of the three individuals, who are alleged to have sustained personal injuries as the result of exposure to asbestos products manufactured and/or distributed by the defendants, are now deceased. The complaint contains causes of action seeking money damages as the result of pain and suffering allegedly incurred by each one of them prior to their deaths. A cause of action for personal injury is not lost because of the death of the injured party, and may be commenced and/or maintained by the personal representative. In the event the injury causes death, damages are limited to those accruing before death, except for reasonable funeral expenses, and become assets of the estate.
Each of the named plaintiffs is a surviving spouse, and has made an individual claim for loss of consortium, which, of course, would be dependent upon the respective personal injury claims. In addition, according to a Brooklyn Personal Injury Lawyer, each plaintiff is designated, as the “Personal Representative” of the respective estates, which representation is repeated in the body of the complaint. In their respective, purported capacities as personal representatives, plaintiffs have asserted not only causes of action for personal injuries incurred by their spouses prior to death, but also causes of action for wrongful death. A “personal representative” is defined as “a person who has received letters to administer the estate of a decedent”
Unlike a claim for personal injuries, for which any recovery, by settlement or verdict, is payable and belongs to the estate, a wrongful death action is brought on behalf of the decedent’s distributees, who have suffered pecuniary damages as the result of death wrongfully caused by a defendant. A wrongful death cause of action is created solely by statute. The provision, which authorizes maintaining such an action, reads as follows: “The personal representative, duly appointed in this state or any other jurisdiction, of a decedent who is survived by distributees may maintain an action to recover damages for a wrongful act, neglect or default which caused the decedent’s death.” This section further provides that the wrongful death action must be commenced within two years after the decedent’s death, and in the event that an executor, appointed under a will, refuses to bring such a claim, “the distributees are entitled to have an administrator appointed to prosecute the action for their benefit.”
Wrongful death claims are one of the few types of civil lawsuits, in the State of New York, that require court approval for resolution by settlement.
Although Supreme Court may refer a case to the Surrogate’s Court for the purpose of administering the proceeds of an approved wrongful death settlement, the authority and responsibility for approval is conferred solely upon Supreme Court, to “resolve the fairness and reasonableness of the settlement, including the amount to be paid, the manner in which the payment obligation is amortized and the parties’ arrangements for payment of costs and attorneys’ fees”.
In asbestos related personal injury and wrongful death actions, it is not uncommon for the claims to be resolved by settlement on the eve of trial. This, in most instances, does not allow sufficient time for plaintiff’s counsel to make formal application for approval of the wrongful death claim. Accordingly, the CMO for the Seventh Judicial District attempts to accommodate this situation by making provision for a preliminary approval, based upon a statement from plaintiff’s counsel “certifying that the personal representative has consented to the compromise,” setting forth the amounts contributed by the respective defendants and stating the reasons for compromise of the claims. A Bronx Personal Injury Lawyer said if preliminary approval is granted by the court, the case is marked “Off” of the trial calendar, and a plaintiff is then permitted to submit formal application for approval of the wrongful death action within a period of 60 days, thereafter.
Days before the scheduled trial date, the court received a letter from plaintiffs’ counsel, dated 18 May 2004, whereby preliminary approval was sought for settlements of wrongful death claims. The letter indicated that one of the claimants(1st claimant) had died at the age of 81 from thyroid cancer, which, according to plaintiff’s expert, was unrelated to asbestos exposure, and further stated that there was “no viable wrongful death claim.” The court was also provided with a copy of the death certificate, and letters testamentary, which revealed that the claimant had died prior to the commencement of the action on 14 July 2001, and that no personal representative had been appointed until 1 March 2004. The letter further stated that the other claimant(2nd claimant), who had an extensive smoking history, died of smoking related lung cancer, and that plaintiff’s expert was unable to find any “definitive” asbestos related disease. Therefore, according to counsel, causation would have been “almost impossible” to establish at trial. The letter also disclosed, for the first time, that the other claimant had never been granted letters testamentary, and that there were two children, from a prior marriage, who, in addition to herself, would be distributees. Efforts had been made by the estate attorney to secure consents to the appointment of the other claimant’s wife as a personal representative but the children had not responded to the telephone messages. Consequently, the attorney intended to attempt contact with the children one more time and if unsuccessful, to proceed by way of citation.
A New York Injury Lawyer said that on 19 May 2004, a letter was sent to plaintiffs’ counsel, with a copy to defendants’ counsel, which stated that the court was unable to grant preapproval to the proposed settlements in the matter of the 1st claimant, and suggested that, counsel consider a motion to discontinue the wrongful death cause of action. It should be noted that the 2nd claimant’s wife has been substituted as a plaintiff by order, dated 2 April 2004, and there had been no previous motion to dismiss based upon lack of capacity to bring the lawsuit. In addition, the amount of settlement was relatively small, and unlike the 2nd claimant’s case, counsel was unequivocal in stating that plaintiff could not establish causation. Absent objection on behalf of a defendant, the entire settlement could then be allocated to the personal injury and loss of consortium claims, and would not require approval of the court. A motion for discontinuance of the wrongful death claim in the 1st claimant’s matter was made returnable on May 21, 2004, which was also the scheduled trial date. However, plaintiff’s counsel elected not to proceed by order to show cause, but rather, upon one day’s notice of motion and without stating the basis for the application.
In the present case, the defendants, who have entered into settlement agreements, have not made motions to dismiss either the personal injury or wrongful death causes of action. Although it is not apparent whether any of these defendants had previously been aware of the lack of capacity of each plaintiff to bring these actions as a “personal representative,” a motion to dismiss upon this ground, should have been made prior to the service of the answer, or alternatively, asserted therein. In regard to the wrongful death claims, the appointment of a personal representative is an essential element, and summary judgment, which does not contain any similar time constraints, may be an appropriate remedy. Arguably, one of the claimant’s wife, having been appointed a personal representative following commencement of the action and substituted as plaintiff, may possess authority to make a motion to dismiss the wrongful death claim. Again, it should be emphasized that the wife’s capacity to commence the lawsuit has not been challenged by a motion for dismissal of the complaint.
On the issue whether the court should grant approval of a settlement in a wrongful death action, which lacked a duly qualified personal representative both at the time of commencement and at the time of application for such approval, the plaintiff not only lacked capacity to commence the personal injury and wrongful death causes of action, but in regard to the latter, the lack of a personal representative renders the claim further defective because such appointment is an essential element and condition precedent to the claim itself. Thus, by making the application for approval, counsel, in effect, is asking that the court’s imprimatur be placed upon the settlement of a defective claim. In any event, there has been no substitution of a personal representative, and the court lacks jurisdiction to rule upon any motion. Furthermore, from the perspective of plaintiffs’ counsel, there is no legal entity who could be represented as a client.
Conversely, defendants, who receive releases in exchange for payment of monies, would not be protected from additional, future claims. Based upon all these considerations, there should be a denial of the application for settlement of the wrongful death action, as otherwise authorized by the laws.
As a result, the applications for approval of settlements of the wrongful death claims in the both cases are denied, and the motion to discontinue the wrongful death claim in the 1st claimant’s case is denied, without prejudice.
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