DocketNumber: No. 96 CA 107.
Citation Numbers: 704 N.E.2d 1, 123 Ohio App. 3d 216
Judges: FREDERICK N. YOUNG, Presiding Judge.
Filed Date: 8/22/1997
Status: Precedential
Modified Date: 1/13/2023
I respectfully dissent from the decision of the majority sustaining the first assignment of error, which I would overrule.
R.C.
The obligation imposed on an insurer by R.C.
Pursuant to R.C.
Though the personal representative is but a nominal party, any judgment rendered for the beneficiaries on a wrongful death claim must be in favor of the personal representative, in that capacity. The power to settle with a defendant in a wrongful death action is exclusively in the personal representative, who acts on behalf of all interested persons. Tennant v. State FarmMut. Ins. Co. (1991),
The personal representative is appointed by the probate court of the county in which the decedent resided at the time of death. If the personal representative receives an offer of settlement from the defendant in a wrongful death case, the personal representative must apply to the probate court to approve the proffered settlement and for an order to distribute the proceeds paid. Unless otherwise agreed by the beneficiaries, distribution of wrongful death proceeds must conform to the statute of decent and distribution. R.C.
In support of its motion for summary judgment, defendant-appellee State Farm presented a certified copy of a Standard Probate Form 14.2 that Barbara Mack filed in the Probate Court of Clark County on August 10, 1993, asking to distribute the proceeds of $100,000 offered by Sandra Ehrman's insurer in settlement of the wrongful death claim arising from the death of Fred Jagger. Because Jagger's beneficiaries would receive less than the shares to which each was entitled by law, each beneficiary executed a consent to the distribution proposed. The form indicates that Sandra Gibson agreed to accept $5,000 from the proceeds received by the personal representative in settlement of her *Page 233 wrongful death claim. State Farm also filed a certified copy of an order that the probate court entered on August 10, 1993, approving the settlement and distribution.
It is undisputed that the settlement approved by the probate court is complete. Because the settlement cuts off Ehrman's liability to Gibson, she is no longer "legally entitled to collect" damages from Ehrman on account of her father's death. That fact operates as a condition subsequent that terminates any prior duty imposed on State Farm by its contract with Gibson to provide underinsured coverage for the losses that Gibson suffered as a result of her father's death. Therefore, the trial court did not err when it granted summary judgment to State Farm on Gibson's claim. Accord Love v. Nationwide Mut. Ins. Co. (1995),
Judge Young has suggested that a settlement between the personal representative and the tortfeasor should not be binding on a beneficiary because the beneficiary is not a party to the settlement cutting off the tortfeasor's liability to him and because the existence and extent of the beneficiaries' underinsured loss cannot be known until the settlement is reached. I am not unsympathetic to that view. However, as the facts of this case demonstrate, a beneficiary is not necessarily unaware of the prospect of settlement or unable to object to it in the probate proceeding in a manner that will protect his interests. Any greater protections must, in my view, be afforded by the legislative branch, not judicially engrafted into a claim for relief that is wholly statutory or an obligation that is a creation of contract.
I would affirm the judgment of the trial court on the foregoing basis.