Search This Blog

Wednesday, December 22, 2021

West Virginia Personal Injury Settlement Proceeds Could Not Be Recharacterized as Wrongful Death Proceeds When Deceased Died After His Personal Injury Suit Was Settled

The Tennessee Court of Appeals has issued its opinion in Welch v. Welch, No. M2021-00081-COA-R3-CV (Tenn. Ct. App. Dec. 10, 2021).  The syllabus reads: 

Prior to his death, the decedent brought suit for personal injury and loss of consortium in the Circuit Court of Kanawha County, West Virginia against more than seventy defendants after being diagnosed with mesothelioma. Ultimately, the parties in that matter reached a settlement. After informing the West Virginia court of the resolution of the matter, the case was closed by the court. Shortly thereafter, and prior to full disbursement of the settlement proceeds, the decedent died from mesothelioma. Several of the decedent’s heirs then brought the present action in Tennessee, seeking to have the settlement proceeds received pursuant to the West Virginia litigation characterized as wrongful death proceeds. The trial court dismissed the heirs’ action, and this appeal followed. We affirm the trial court’s dismissal. 

Here is a link to the slip opinion:

NOTE: Despite a creative legal argument made by the losing side, this is the correct decision.  Once the W. Va. personal injury case was settled, prior to the injured plaintiff's death, the proceeds became personalty, which in turn became property of the his probate estate on his death.  The significance of this fact is that those proceeds pass under his will and not under the laws of intestacy as wrongful death proceeds pass.  See Welch, No. M2021-00081-COA-R3-CV, slip op. at 3–6.  While the opinion does not address this issue directly, obviously the plaintiffs below stood to receive (more) money if the proceeds were declared to be wrongful death proceeds that passed outside of the probate estate and under the laws of intestacy.  See id.