Wrongful Death/Omitted Heirs (UTLA)  

The following discussion is reprinted with permission from the Utah Trial Lawyers’ Association Listserve, a valuable resource for litigators.  Contact Amanda Jesperson at amanda@utla.org or 801-5317514.

From HA

Isn't it possible to bring a wrongful death action on behalf of an individual heir and not on behalf of the estate?  I represent the mother of  an adult daughter who died single and without children. The only other heir is the father who had little to do with the daughter.  The mother was appointed personal representative for the purpose of getting medical records. However, I'd prefer to file the action on her behalf alone, rather than on behalf of the estate, to avoid litigation later over the division of proceeds. If the father wants to intervene or bring a separate action and consolidate, fine, but he should have to prove he's entitled to damages.

My client and I should not have to do the defendants' job of proving he's not entitled to damages later on in probate. Utah Code Ann. §78117 says that a wrongful death action may be maintained by the "heirs" or the "personal representatives" for the benefit of the heirs. Some attorneys have told me, however, that if I bring the action for less than all the heirs, the case could be dismissed for failure to join an indispensable party.  What Rule 19 actually says, however, is that the case is dismissed only if the party can't be made a party (e.g., no personal jurisdiction, I assume). Otherwise, the court orders that he be made a party.  Then whose burden is it to get that party joined?  The original plaintiff or the defense?  Has anyone run into this?

From FC

This is a tricky one. It is possible to sue in behalf of only one heir.  But the defendant may (and should, if they know what they are doing) require the "omitted" heir to sign off on any settlement. So that might put you back to square one.

Father CANNOT bring a separate action under the WD oneaction rule. See > Oxendine v. Overturf, 1999 UT 3, 973 P.2d 413 and Oxendine v. University > Medical Center, 973 P.2d 417, 1999 UT 4.

If Mother brings as PR, she has fiduciary duties to the "omitted" heirs in the absence of a conflict and notice as set forth in Oxendine. If she is actually the PR and is claiming to be "just an heir" in the WD action, she  may be buying trouble.

But if Mother can bring the WD action JUST as an heir, and not as PR in  behalf of all the heirs, I suppose she theoretically does not have to bother with Father. But then, as I said, the defendant (unless they are blockheads) will require the Father to sign off on the deal or take the risk that he would be entitled to nothing anyway.

The survival action is entirely different and is brought for the damages (medical expenses, wages, general damages before death) of the decedent and  is the claim of the estate. It is usually brought by the PR for the estate but 781112(1) indicates it may also be brought by the "heirs" (presumably  for the benefit of the estate.)

Be very careful of the limitations issues! The limitations periods starts to run from the date of discovery of negligence of the decedent NOT the date of death. (In other words, it's possible to lose a WD action to the  limitations period even before it existed; that is, on the date of death.) Jensen v. IHC Hospitals, Inc., 944 P.2d 327 (Utah 1997). Also look at  781237 on the oneyear period for survival actions; who knows what this  means in a med mal case but read Jensen v. IHC, fn. 3.

From EH

At the risk of being redundant, let me add a couple of thoughts to F's cogent comments (say that fast 3 times).

Whether you want to or not, your client probably represents all the heirs (thus, daddy too). The cases say any heir bringing a wrongful death claim does so as a fiduciary/trustee on behalf of all heirs. There are practical considerations for WANTING to have daddy in the mix, rather than letting him intervene through separate counsel (and maybe mess with your schedule, your tactical approach to the case, muddle with the liability issues and discovery, etc.)

However, there is a recent case (the name of which escapes me) which makes the single action/fiduciary rule a little less clear, without overruling it. Someone out there smarter than me (yes, that would be all of you) may recall the case name where the case was settled by all heirs except the mother, who had little interaction so wasn't thought to have much of a claim.  She filed a separate suit, which was resisted on the notion that the heirs that settled had her share, too, and she should go after them, not the defendant. The court upheld her right to pursue a separate action. It doesn't make sense to me, but it's out there so you should be aware of it.

For that reason, F's prediction that the defendant won't settle w/o the father in the mix is right, since they are otherwise exposed (and exposing the insured) to repetitive litigation.

Final note the estate is NOT the proper party to bring the wrongful death claim (as distinct from the survival action). There is a case on point (again, no name for you) that clarifies that either an heir or the Personal Representative of the Estate on behalf of the heirs  may bring the claim, but the Estate itself is not a proper entity to bring a wrongful death claim.

From NA

My experience is that the route you take depends on whether all of the heirs truly have a legitimate claim.

If the omitted heir has been estranged from the deceased person, they probably have little or no claim.  In that situation, I filed a complaint in which the estranged heir was not a party but was mentioned in the complaint. I then sent a letter and copy of the complaint to the estranged heir. The letter explained that we thought he wasn't entitled to anything and why and told him to seek other counsel if he disagreed.  In that case, the estranged heir never made a claim and Farm Bureau was satisfied with the fact that he was personally served with a copy of the complaint and told that if he did not make an appearance he might lose all rights.

On the other hand, if you have two heirs that have legitimate arguments that they deserve something but they can't get along, you've got a nightmare on your hands. Good luck.

From MD

For what its worth, if I represented the father and you were successful in obtaining compensation on behalf of the mother as an heir, I would consider bringing suit against the mother, in her capacity as personal representative of the estate, for breach of her fiduciary duties to the father in not commencing the action on behalf of the heirs.  Keep in mind also that in the comments to Rule 1.2 of the Rules of Professional Conduct, "where the client is a fiduciary, the lawyer may be charged with special obligations in dealings with the beneficiary."  Thus, the lawyer may also expose herself to liability if, in representing a PR who has fiduciary duties to heirs, participates in doing an end run around one of the heirs.

From HA

My understanding of the case law is that only a personal representative  who brings an action on behalf of the estate has a fiduciary duty to the other heirs. I don't believe it says an individual heir who brings an action has a duty to any other heirs. Also, if the statute of  limitations has run when the case is settled, the defendants wouldn't have exposure to any other heirs, would they?  So why would they need to sign off?  You're right, the estate is not the proper party.  That was  just an abbreviated way to say "on behalf of the personal representative  on behalf of the estate." I will reread Oxendine and Haro. Thanks for your input.

From FC

I was leaning towards HA on this one, guys but a little research has changed my mind. Why would an heir (assume for the moment that she was never the personal representative) have any fiduciary duty to the other heirs to ensure that their interests are represented?  Oxendine (#1 917 P.2d 417) says that the personal representative has a fiduciary duty and all of us agree with that.  But what about just a plain old heir who sues for herself only and not for anyone else's benefit?

78117 says that "his heirs, or his personal representative for the benefit of his heirs, may maintain an action [for wrongful death]." The statute implies that only the PR has a duty to others.

Oxendine only talks about the personal representative's fiduciary duty, not the plaintiff heir's duties to the other heirs. 973 P.2d at 420. But then it cites cases that discuss the concept that wrongful death damages are awarded "in trust for all of the heirs" (regardless of whether the action is brought by the PR is the implication.)

Tracy v. University Hospital, 619 P.2d 340 (Utah 1980) has some troubling language.  In that case two sisters sued for their mother's death but left out a third sister. It's not clear whether either of the two plaintiffsisters were personal representatives or not. But the court made this observation:

"It is also to be observed that applicant's interests in the outcome of the pending litigation are not jeopardized by the refusal of the trial court to permit her intervention. Under Utah law, a wrongful death action is maintained on behalf of all of the heirs of the deceased. [citing 78117] As such, those named as parties to the action recover any damages awarded in trust for all the heirs, be they named as parties to the action or not. Applicant thus has rights in any recovery resulting from the action being pursued by her sisters, which rights can be asserted, if need be, by a separate action for contribution." 619 P.2d at 343

Then the Oxendine court also cited Switzer v. Reynolds, 606 P.2d 244 (Utah 1980), which contains this language:

"Under the wrongful death statute, there is but a single cause of action, viz., it arises from a particular wrongful act for which there can be but one claim against the tortfeasor for damages. Whether the action be prosecuted by the personal representative or one or more of the heirs, it is for the benefit of all the heirs, and all heirs are bound thereby. In this single action the full value of the life of deceased is determined and recovered, and the wrongdoer cannot be compelled to respond again for the damages."

Both Switzer and Tracy take that language from the 1924 decision in Parmley v. Pleasant Valley Coal, 228 P. 557 (Utah 1924). This is the killer. Parmley says this:

"It will be observed that our statute provides that, where the action is brought by the heirs (and the word "heirs" here includes the widow) or by the personal representative of a deceased person, the action must be for the benefit of all the heirs. Under the terms of the statute we think no one will deny that if a personal representative brings the action all the heirs are bound. For the very same reason all are bound if one or more of the heirs bring it, because in either event the action is prosecuted for the benefit of all the heirs. True it is that in case the heirs bring the action all the heirs should be made parties, while that is not necessary, perhaps, where the personal representative sues."

"Nor is the omitted heir, if there be one, without a remedy. If damages are recovered, each heir is entitled to his proportionate share, whether he was a party to the action or not, and, if his share is withheld from him, he may always sustain an action against his coheirs for contribution. If, upon the other hand, any number less than the whole number of heirs bring the action and willfully conceal the fact that there are other heirs, then those who recover damages are liable to the excluded heirs for their proportionate share of the estate, and may be liable for such further damages as the latter may have sustained. "

So, the bottom line is, watch it. Assuming Parmley is still good law (and it was interpreting the same statutory language) the single heir still has the obligation to prosecute for ALL of the heirs, despite what 78117 seems to say.

I hope I am wrong on this and that someone will enlighten me.

From CN

I  agree that there are practical reasons for representing all the heirs, and there are two ways to handle a set of heirs that cant get along; 1. represent all of them in the wrongful death action, then when it comes to divvying up the booty, make each get separate representation; 2. represent only the ones you like and tell the others to get representation or make a pro se appearance. there are drawbacks to both approaches (having to split the contingency fee vs having to settle squabbles about how much to settle vs who is the "client" with whom you communicate) Having done one of these by route 2, i don’t think i would ever want to take route 1, and i'm not even sure its worth taking route 2 unless it's big money

From CN

I don’t think you are wrong on your interpretation of the wrongful death statute and the obligation of the heir to represent all the heirs. the logic of the statute would make any other result ridiculous, forbidding any excluded heir from recovery because he/she has a spat with the plaintiff heir. in addition to a claim for contribution, the excluded heir might have an action for conversion or fraud against either the lawyer of the plaintiff or the plaintiff heir. therefore, it seems wises to advise your plaintiff heir that he/she will just have to grin and bear the presence of the other heirs, at least in spirit.

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