This is the third of four web pages which reprints an article which Mr. Doyle wrote for Trial Journal, the legal journal published by the Illinois Trial Lawyers Association. The article addresses means by which careful handling of wrongful death settlements can increase the total amount recovered by the families of victims in wrongful death accidents. The first section introduces the difference between wrongful death and survival actions and discusses briefly how these can be handled to maximize the total recovery to the family. The next section discusses case law regarding the allocation of wrongful death and survival claims in settlements. This section summarizes the legal principles regarding allocation of wrongful death and survival claims in settlements. Finally, there are recommendations for how wrongful death cases should be handled to maximize the total recovery for the families of victims of wrongful death accidents.
Foster I and Foster II demonstrate the potential in multiple-defendant cases with both wrongful death and survival claims of achieving a total recovery in excess of the jury verdict. The verdict was for $2,350,000 for wrongful death and $575,000 for survival. The pre-trial settlements amounted to $2,750,000, which was used to set-off the entire verdict for the wrongful death claim. However, none of the pre-trial settlements allocated to the survival action. Therefore, between the $2,750,000 pretrial settlement and the $575,000 verdict on the survival action, the total net recovery to the plaintiff was $3,325,000, an amount that exceeded the total verdict awarded by the jury.
Foster II also stands for the proposition that where there is a pretrial settlement of a wrongful death claim, the set-off is applied to the entire amount of the settlement without respect to how the settlement was allocated amongst the various beneficiaries of the wrongful death claim.
The Patch and Readel decisions show that the trial court has an affirmative obligation to make some assessment of the allocation of the pretrial settlement. Once this determination is made, it is subject to review only for abuse of discretion.
Readel places the burden on the nonsettling defendants to show that the allocation proposed by the settling parties is not fair and reasonable. The procedure by which the trial court determines a fair and reasonable allocation between wrongful death and survival actions is committed to the discretion of the trial court. Readel makes clear that the nonsettling defendant does not have a right to an evidentiary hearing at which the plaintiff is subject to being called as a witness and is subject to adverse examination. Readel also indicates that a sufficient basis for this determination would be discovery materials and affidavits. The holding of Muro that the nonsettling defendants do not have a right to participate in negotiations over the allocation between the wrongful death and survival claims shows that the plaintiff has the initiative with respect to establishing a starting point for the allocation between the wrongful death and survival claims.
Hansen is a case likely to be cited by defendants in future cases where the plaintiff successfully allocates pretrial settlements in such a manner that the nonsettling defendants do not receive a set-off for the full amounts of the pretrial settlements. The case appears to be somewhat of an anomaly because while Foster I and Foster II clearly permit such a result, the plaintiff conceded the issue on appeal. Plaintiff’s counsel should be prepared to argue that in light of the plaintiff’s concession on this issue, the Hansen decision is not truly precedential and that the Foster I and Foster II decisions are controlling.
We are pleased to offer a FREE book which Mr. Doyle has written to assist families of victims of wrongful death accidents. In it, we answer many of the basic questions that families have concerning their rights in a very difficult situation. To obtain a free copy of the wrongful death book, either follow the link, click on the image on the right side of this page, or call our office at (312) 263-1080 to request a copy of the book.