Solo Practice

Joinder of Wrongful Death and Survival Actions: Distribution of Settlement Proceeds

By R. Garrett Worley III

SMITH v. MCCURDY
Kentucky Court of Appeals
2007-CA-001239
Rendered March 28, 2008

This case involved a dispute between sisters Diana Smith and Denica McCurdy over the proceeds of a settlement reached in an action premised on the maltreatment of their deceased mother, Thelma Nanney, in a nursing home. McCurdy was the sole beneficiary under Nanney’s Last Will and Testament. Preliminarily, the Court of Appeals observed that under Kentucky law, all settlement proceeds derived from a survival action pass through the estate, but proceeds from a wrongful death action are distributed according to the provisions of KRS 411.130. In sum, Smith would be entitled to recover proceeds from a wrongful death action, but not a survival action.

Smith argued that wrongful death and survival claims were joined, as permitted by KRS 411.133, in the action brought by McCurdy against the nursing home. The resulting settlement did not specify what amount, if any, was paid to settle the wrongful death claim. As KRS 411.133 does not provide for distribution of proceeds for joinder of wrongful death and survival claims, Smith contended that the distribution method provided in KRS 411.130 controlled. Consequently, Smith argued, she was entitled to a portion of the settlement proceeds.

McCurdy argued that the settlement proceeds were not intended as payment for the wrongful death claim, noting that since Nanney was 82 years-old at the time of her death and unable to earn income, the facts did not support a claim for wrongful death. The Kentucky Court of Appeals agreed, observing that “damages flow naturally from the wrongful death of a person unless there is evidence from which the jury could reasonably believe that the decedent possessed no power to earn money.” Citing Turfway Park Racing Ass’n v. Griffin, 834 S.W.2d 667, 671 (Ky. 1992). Consequently, Smith was not entitled to any part of the settlement proceeds.

The Court of Appeals next briefly addressed Smith’s contention that, where a settlement is reached in an action joining a survival claim with a nonviable wrongful death claim, settlement proceeds should be distributed according to KRS 411.130 (governing wrongful death claims) since KRS 411.133 (permitting such joinders) lacks a distribution provision. The court rejected this theory, noting that “KRS 411.133 only omits the prior obligation to elect remedies and now allows wrongful death claims and survival actions to be jointly pled. Obviously, this cannot eliminate the inherent necessity for the elements of either causes of action to be met for a recovery.” Thus, “there is no merit to an argument regarding how proceeds for a non-existent recovery should be distributed.” In other words, mere joinder of the nonviable wrongful death claim with a survival claim does not entitle statutory beneficiaries under KRS 411.130 to proceeds obtained from the survival claim.

Full post as published by Garrett Worley's Blawg on June 18, 2008 (boomark / email).