This is the first 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. This 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. The third 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.
I. Introduction
In multi-defendant cases where there is both a wrongful death and a survival count, careful handling of settlements with less than all of the defendants can yield a result which provides a greater total recovery for your client’s heirs and next of kin. This can occur when counsel structures settlements entered into with less than all of the defendants in a way that either (a) yields a settlement for the survival action or the wrongful death action which is in an amount greater than that finally awarded by the jury for one of those elements, or (b) structures the settlement in such a manner that it becomes feasible to voluntarily dismiss the weaker of the survival action or the wrongful death action, leaving only the stronger of the two claims for the jury’s consideration. This can minimize the amount of the set-off to which the defendants would otherwise be entitled from the action presented to the jury. The apportionment of the proceeds from settlements with less than all of the defendants is the key to maximizing the ultimate recovery.
The starting point for this discussion is an understanding of the difference between wrongful death and survival actions. A wrongful death action is brought by the representative of the estate on behalf of the next of kin for the pecuniary losses accruing to the next of kin as a result of the decedent’s death. The next of kin are statutorily defined, and they take without respect to whether the decedent had a will or whether the next of kin were provided for in the will. The survival action is for the conscious pain and suffering and for loss of earnings experienced prior to the death of the decedent. It is for the cause of action that accrued to the decedent prior to his or her death, and on the death of the decedent, the cause of action passes to his or her estate. To differentiate, the cause of action for wrongful death belongs to the next of kin for their losses resulting from the death; the cause of action for survival belongs to the estate of the decedent for losses prior to death.
A review of the applicable case law shows that careful handling of settlements of wrongful death and survival actions can yield a more favorable recovery for the heirs and next of kin with respect to set-offs of settlements against a jury’s verdict.
Continue to Part 2 of Maximizing Recovery in Wrongful Death and Survival Actions.
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.