Ny death certificate

Where plaintiffs alleged personal injury and wrongful death causes of action on behalf of their deceased husbands, the New York State Supreme Court was asked to approve applications for settlement the plaintiffs reached with several defendants.

Judge Raymond J. Cornelius reviewed the facts and law in Carol Cupo, personal representative of the estate of Patrick Cupo, deceased, and individually as the surviving spouse of Patrick Cupo; Frances Balch, as personal representative of the estate of Orlo J. Balch, deceased, and individually as the surviving spouse of Orlo J. Balch; Alma Gene Hitzke, as personal representative of the estate of Herbert W. Hitzke, deceased, and individually as surviving spouse of Herbert W. Hitzke v. Babcock Borsig Power, Inc., formerly known as DB Riley, Inc., formerly known as Riley Stoker Corp.; Certain-Teed Corp., formerly known as Certain-Teed Products Corp.; Cleaver-Brooks Co.; Combustion Engineering, Inc.; Foster Wheeler LLC; Garlock Inc.; General Electric Co.; Georgia-Pacific Corp.; Insulation Distributors, Inc.; Quigley Co., Inc., a subsidiary of Pfizer, Inc.; R.E. Hebert and Company, Inc.; Ridge Construction Corp.; Rochester Industrial Insulation, Inc.; The Flintkote Co.; Viacom Inc., successor by merger to CBS Corp., f/k/a Westinghouse Electric Corp., concluding that such approval should be denied based upon defects in the original complaints.

The Pleadings

In 2002, plaintiffs filed the above captioned asbestos related personal injury and wrongful death action and also filed a request for judicial intervention (RJI) with the county clerk. The defendants are several companies that manufacturer and/or distribute asbestos products.

Each of the three individuals who allegedly sustained injuries as a result of exposure to asbestos are now deceased. The complaint seeks money damages as the result of pain and suffering allegedly incurred by each one of the decedents prior to their deaths. Each plaintiff surviving spouse has made an individual claim for loss of consortium, which would be dependent upon the respective personal injury claims.

In the caption of the complaint and in the complaint, each plaintiff spouse has been designated as a personal representative of each deceased husband's estate in the wrongful death causes of action.

The Law

According to Section 1-2.13 of the Estates, Powers and Trusts Law of New York, a personal representative is defined as a person who has received letters to administer the estate of a decedent.

A wrongful death cause of action is created solely by statute, explained Judge Cornelius, citing EPTL Section 5-4.1[1]. 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.

The statute further provides that the action must be commenced within two years of the decedent's death, and in the event of resolution by settlement, court approval of the settlement is required. See EPTL Section 5-4.6, which states, in pertinent part: ... the court may ... (1) approve in writing a compromise ... transfer the action to the surrogate's court ... or (2) disapprove the application.

The authority and responsibility for approval [of a wrongful death settlement] is conferred solely upon Supreme Court ... to resolve fairness and reasonableness of the settlement, explained Judge Cornelius, citing Pollincina v. Misericordia Hospital, 82 NY2d 332 (1993).

Personal Injury, Wrongful Death Litigation

The court observed that it is not uncommon for 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.

However, the case management system accommodates this situation by making provision for a preliminary approval. If preliminary approval is granted by the court, the case is marked off of the trial calendar and plaintiff can proceed to submit a formal application for approval of the settlement.

Jury selection for the case at hand was set for May 21. A note of issue and certificate of readiness was filed in February.

Request For Settlement Approval

On May 18, preliminary approval was sought for settlements of wrongful death claims in the Cupo and Hitzke matters. [Note, the Balch litigation was dismissed on application of Mrs. Balch.]

In regard to the Cupo case, the letter from plaintiffs' counsel disclosed settlement with seven defendants, and admitted that Mr. Cupo had an extensive history of smoking, died of smoking related lung cancer, that plaintiff's expert was unable to find any definitive asbestos related disease, making causation almost impossible to prove.

The letter also disclosed that Mrs. Cupo had never been granted letters testamentary and that there were two children from a prior marriage that were among the distributees of Cupo's estate.

In regard to Mr. Hitzke, plaintiff's counsel acknowledged that he died of thyroid cancer, unrelated to asbestos exposure. The letter for settlement indicated that there was no viable wrongful death claim.

Related documents showed that Mr. Hitzke had died prior to the action being filed and that Mrs. Hitzke had not been appointed as personal representative until much later (March 2004). Therefore, at the time of the commencement of the action, a personal representative had not been appointed for the estate, Judge Cornelius noted.

Preapproval Denied By Court

A May 19 letter was sent to plaintiffs' counsel, with a copy to defendants' counsel, stated that the court was unable to grant preapproval to the proposed settlements in the Cupo matter, and suggested that counsel consider a motion to discontinue the wrongful death cause of action in regard to the Hitzke matter.

[T]he amount of settlement was relatively small, and unlike the Cupo case, counsel was unequivocal in stating that plaintiff could not establish causation, wrote Judge Cornelius. Absent objection on behalf of a defendant, the entire settlement [for Hitzke] could then be allocated to the personal injury and loss of consortium claims, and would not require approval of the court.

A Look At Precedential Cases

Reviewing cases involving commencement of wrongful death and personal injury actions prior to the appointment of a personal representative, the court discussed the outcome in three different Court of Appeals decisions.

In Goldberg v. Camp Mikan-Recro, 42 NY2d 1029 (1977), where the plaintiff filed a wrongful death action then attempted to amend the pleading after being appointed personal representative, the court declined to apply CPLR Section 203(e) because 'there was no pre- existing action to which it could relate back,' wrote Judge Cornelius.

George v. Mt. Sinai Hospital, 47 NY2d 170 (1979) involved a malpractice claim commenced in the name of a plaintiff who died prior to the service of the summons and complaint upon the defendant. Thereafter, counsel sought to serve defendant's counsel with an amended summons, which named the administratrix as plaintiff. The parties stipulated to dismissal of the first action, and although the statute of limitations had expired, the court ruled that the plaintiff could take advantage of CPLR Section 205(a) and recommence the action within six months after such dismissal, the court wrote. Although the personal injury action survived the injured party's death ... that dismissal was, nevertheless, the appropriate remedy for such action being brought or continued by someone other than the personal representative.

In another case, the Court of Appeals considered whether the six month extension, under CPLR Section 205(a) should be made available to a plaintiff's wrongful death action, which had been previously dismissed for lack of a duly appointed administrator. The plaintiff had initially commenced a medical malpractice action, relating to her spouse's personal injuries and wrongful death, and denominated herself as the 'proposed administratrix,' Judge Cornelius stated in regard to Carrick v. Central General Hospital, 51 NY2d 242 (1980).