Verdict - Winter 2012 - (Page 19)
there is nothing to worry about. If the decedent’s will prescribes that the husband and sons share equally in the estate, then there is no conﬂ ict because each son, and the surviving husband, is entitled to one-third of the recovery whether the money is recovered by the estate or recovered through the wrongful death claim.13 The same would be true if the decedent died intestate.14 Suppose, however, that the surviving husband is the sole beneﬁciary under the decedent’s will. Suppose that you settle the case and must decide what proceeds to allocate to what claim. Both claims have value because the decedent’s pain and suffering from the ﬁre will inure to the estate’s claim, and the decedent’s future earnings from the bookstore will inure to the wrongful death claim. Recall that you have duties to maximize both claims: you owe a duty to the husband as executor to maximize the estate’s claim, and a duty to the husband and sons to maximize the wrongful death claim. But it is in the husband’s interest to allocate most of the proceeds to the estate claim, where he is the sole beneﬁciary; and in the sons’ interest to allocate most of the proceeds to the wrongful death claim,
where they may share in the recovery. There is only so much money to allocate. You have a potential conﬂict. This issue has reached the Court of Appeals. In Home Insurance v. Wynn, the decedent in a car wreck was survived by his spouse, Mrs. Wynn, and four adult sons from a prior marriage.15 Mrs. Wynn was the sole beneﬁciary under the decedent’s will.16 She brought two claims under which she stood to retain all of the recovery (a claim on behalf of the estate and a loss-of-consortium claim) and one claim under which she would have to share any recovery with the decedent’s sons (a wrongful death claim).17 Mrs. Wynn’s lawyer settled the case for $650,000 against the at-fault driver’s liability insurer.18 The lawyer allocated half of the recovery to the wrongful death claim and half to the claims under which Mrs. Wynn would retain all of the recovery.19 However, the lawyer took a disproportionate majority of his fee out of the wrongful death proceeds—thereby beneﬁtting Mrs. Wynn at the expense of the decedent’s sons.20 Neither Mrs. Wynn nor her lawyer gave the sons any notice about the settlement, and when Mrs. Wynn received the wrongful death proceeds, she deposited all of them in a bank account bearing only her name.21 The sons did not
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Table of Contents for the Digital Edition of Verdict - Winter 2012
How I Obtained Justice for My Client
Jury Trends: Your Expert Overcame a Daubert Challenge, Now the Hard Part: Winning at Trial
Top 12 Things Your Legislators Want Trial Lawyers to Know and Do
Death Cases: What Duties are Owed and To Whom
A Georgia Super-Daubert Primer
Guest Editorial: The Elephant in the Room
Get Involved with TIP
Hot Coffee or Distorted: Has Justice Been Sold?
Interview with Tom Harper
Welcome New GTLA Members!
Verdict - Winter 2012
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