This is the last 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 second 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. This final section contains recommendations for how wrongful death cases should be handled to maximize the total recovery for the families of victims of wrongful death accidents.
Go to start of article, Maximizing Total Recovery in Wrongful Death and Survival Actions
III. Practice Pointers
The difference between causes of action for wrongful death and for survival in multiple-defendant cases permits counsel to maximize the net recovery for the plaintiff. This occurs where the defendant does not receive a set-off from the jury verdict in the full amount of the pretrial settlements. This can happen in essentially two ways: (1) where the plaintiff successfully allocates pretrial settlements in such a manner that after the verdict, the non-settling defendants do not receive set-offs for the full amount of the pretrial settlements and (2) where the circumstances of the case make proceeding to verdict under only one cause desirable, the plaintiff can allocate a portion of the pretrial settlement proceeds to the cause which will be voluntarily dismissed, thereby denying the defendant a set-off for the full amount of the pre-trial settlements.
In order to effectively maximize the net recovery to the plaintiff, counsel must make a concerted effort early in the case to evaluate the value of the wrongful death action and the value of the survival action. The elements of damages for these causes of action are distinct, as are the evidentiary elements which establish the proof needed to establish the damages. Careful assessment of the separate causes of action should establish that at least in the preliminary stage, one of the causes of action is more valuable than the other or is more easily proved than the other. Once this assessment is made, efforts should be made to allocate as much of the pretrial settlements as possible to the less valuable or legally more difficult claim with the notion that either the jury will return a verdict in an amount less than the amount allocated or that the claim will be voluntarily dismissed prior to closing arguments.Once an assessment is made with respect to the different causes of action, and as soon as enough discovery is completed to ensure that a good liability case has been established against all of the defendants, the plaintiff should take the initiative with respect to settlement negotiations. Because Muro teaches that nonsettling defendants do not have to right to participate in settlement negotiations, the plaintiff should make the allocation an express part of the negotiations. Readel also gives the plaintiff the initiative in establishing the allocation by placing the burden on the defendant to show that the proposed allocation is not fair and reasonable. Settlement negotiations should also be started earlier rather than later, as an early allocation gives the plaintiff a better opportunity to plan the nature of proofs to be offered in support of the most favorable allocation. Further, since Readel makes clear that the defendant does not have the right to call witnesses in an evidentiary hearing to determine the proper allocation, but rather that a hearing is properly conducted based on affidavits and review of deposition transcripts, the plaintiff is in a better position to control the allocation of the settlement when there is less proof in the hands of the nonsettling defendants. For all of these reasons, early movement toward settlement is a key for maximizing the total net recovery.
Consideration should also be given to dropping either the wrongful death or the survival action prior to trial in order to minimize the set-off and maximize the recovery. Why would a plaintiff want to drop one of the causes of action? If there is a decision made to ultimately dismiss one of the causes of action, this decision should be made early but implemented late. This would be based on consideration of the kinds of evidence which must be introduced by the plaintiff and which could be introduced by the defendant. A survival action might be dismissed where the evidence of conscious pain and suffering is thin or very difficult to differentiate from the underlying illness or condition which is the subject of a medical malpractice action. A wrongful death case might be dismissed where proceeding with it would entitle the defendant to introduce uncomplimentary evidence regarding the decedent (e.g., a history of drug or alcohol abuse, frequent unemployment, criminal convictions, etc.) or his or her relationship with the next of kin. Obviously, no cause of action should be voluntarily dismissed where there is some question about the nature of the damages in the remaining cause of action. It would never be desirable to proceed to trial on only one cause of action and have the defendant receive a verdict or a set-off for the full amount of the verdict.
Foster I and Foster II demonstrate that it is possible, through skillful handling of pretrial settlements in wrongful death and survival actions in multiple defendant cases, to yield a total recovery in excess of the final verdict returned by the jury, despite prohibitions against double recovery. By making an early assessments of the merits of the different causes of action and their respective values and by taking the initiative in settlement negotiations, the plaintiff can help improve the ultimate chances of recovering an amount that may be in excess of the jury verdict.
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.