March 6, 2014 § 3 Comments
If you are going to do any wrongful death practice at all, you must familiarize yourself with the MSSC’s decision in the seminal case of Long v. McKinney, 897 So.2d 160 (Miss. 2004), reh den. April 7, 2005.
The decision clarifies many important concepts involved in wrongful death claims, including priority of jurisdiction, the distinction between heirs and wrongful death beneficiaries, allocation of attorneys fees, costs and expenses, representation, conflicts of interest, and control of litigation.
What is important in this case to the chancery practitioner, however, is Justice Dickinson’s exposition on the role of chancery court.
There is much confusion in the bar, and perhaps the bench as well, about exactly what is the proper role of chancery court in wrongful death. Justice Dickinson expounds:
¶59. Perhaps no aspect of wrongful death litigation is more misunderstood and misapplied than the role of the chancery court.[Fn 13] With respect to a wrongful death suit to be pursued in circuit court, chancery jurisdiction should be invoked for the following purposes:
Fn 13. The misunderstanding can be partly attributed to the Uniform Chancery Court Rules, which address petitions for authority to compromise, and petitions for allowance of attorney fees, in wrongful death suits. U.C.C.R. 6.10, 6.12. These rules apply only to wrongful death suits which require chancery jurisdiction. See discussion infra.
¶60. In the event the litigants wish to pursue a claim on behalf of the estate of the deceased, [Fn 14] such estate must, of course, be opened and administered through the chancery court. As is true in all estates administered through the chancery court, chancery approval is required for the appointment of the personal representative of the estate, whether executor, executrix, administrator or administratrix.
Fn 14. We recognize that, because of the limited recovery available to the estate in many cases, litigants may choose, with advice of counsel, to proceed without including a claim on behalf of the personal representative or the estate. As discussed infra, such decision should be made only after full disclosure to all who might benefit from the estate.
¶61. There is no general requirement under law that the personal representative obtain chancery approval to pursue the claims of the estate in the litigation. Nor is there a general requirement that counsel representing the personal representative and the estate in the litigation obtain prior chancery approval of such representation or the agreement for compensation of counsel. However, obtaining such prior approval is a widely accepted and wise practice.[Fn15] Such prior approval will, in most instances, avoid difficulty when the chancellor is approached for an order approving the accountings and the final distribution of estate proceeds, where such payments include compensation to counsel.
Fn 15. This is especially true where counsel representing the estate in the wrongful death litigation has not agreed, and does not intend, to represent the estate generally.
¶62. Where a recovery is had by the estate in the litigation, the proceeds must be administered and distributed though the chancery court in the same manner as other assets of the estate, and counsel for the estate must be paid from estate proceeds or assets, upon approval of the chancery court in the same manner as other debts and obligations of the estate. * * *
¶66. Frequently, wrongful death litigation will involve a minor, either as an heir of the estate, a wrongful death beneficiary, or both. In such cases, the representation of the minor’s interests, and any agreement for the payment of attorney fees from the minor’s share of proceeds, must be approved by a chancellor, as in other cases. [BCP Note: settlement of the minor’s claim must also be approved by the chncellor, in the same manner as any other minor’s settlement.]
Determination of wrongful death beneficiaries.
¶67. Section 11-7-13 provides that wrongful death litigation may be brought by the personal representative of the deceased or by any one or more of several statutory beneficiaries, for the benefit of all entitled to recover. Unless all persons entitled to recover join in the suit, those who do have a fiduciary obligation to those do not. Miss. Code Ann § 91-1-27 (Rev. 2004) provides for a chancery determination of the heirs at law of a decedent; that is, those who inherit in the absence of a will. Although our statutes mandate no specific procedure for the identification of wrongful death beneficiaries, a chancery court may make such determinations. Those bringing the action, together with their counsel, have a duty to identify the beneficiaries, and they should do so early in the proceedings. [Fn 16]
Fn 16. Recognizing that the lack of a specific procedural framework for determining wrongful death beneficiaries is a handicap for practitioners, this Court – in its continuing review of procedural rules – will address this need.
One of the biggest sources of confusion, in my experience, is the disconnect between the status of persons as heirs and as wrongful death beneficiaries. The categories overlap, but they are not the same. A person may be a wrongful death beneficiary, and yet not be an heir. You need to read and stidy the statutes to learn the difference and to be able to identify all of the individuals who must be included. Merely filing an action to determine and discover unknown heirs at law will not identify all the wrongful death beneficiaries.
From a chancellor’s perspective, I think the most important aspect of all is that of the minor’s settlement. You can make any agreement in circuit court about how to settle the wrongful death action, but you can not tie the hands of the chancellor as to whether the settlement is reasonable or adequate for the child(ren), or as the amount of fees to which it is subject, or to its amount.
January 30, 2014 § Leave a comment
The MSSC ruled last week that the child of an in loco parentis parent is not a wrongful death beneficiary under our statute.
The outcome would seem to be preordained, given that wrongful death is entirely a creature of statute, which must be strictly construed. Justice Randolph, writing for the majority in Estate of Smith v. Smith, handed down January 23, 2014, summed it up:
¶9. This Court has recognized the doctrine of in loco parentis for more than a century. Fortinberry v. Holmes, 42 So. 799, 799 (Miss. 1907). Specifically, the doctrine is defined as follows:
A person in loco parentis may be defined as one who has assumed the status and obligations of a parent without a formal adoption. The rights, duties and liabilities of one standing in loco parentis are the same as those of a natural parent. Whether the relationship exists is a matter of intention and of fact to be deduced from the circumstances of the particular case.
Farve v. Medders, 128 So. 2d 877, 879 (Miss. 1961).
¶10. In short, Halley is not a wrongful-death beneficiary because she is not Justin’s child, as defined in Mississippi Code Section 11-7-13. See Miss. Code Ann. § 11-7-13 (Rev. 2004). We strictly construe Section 11-7-13. Smith v. Garrett, 287 So. 2d 258, 260 (Miss. 1973). Moreover, this Court lacks the power to expand the definition of “child.” See Burley v. Douglas, 26 So. 3d 1013, 1020 (Miss. 2009). The relevant part of the statute is as follows:
. . . Damages for the injury and death of a married man shall be equally distributed to his wife and children . . . . The provisions of this section shall apply to illegitimate children on account of the death of the natural father and to the natural father on account of the death of the illegitimate child or children, and they shall have all the benefits, rights and remedies conferred by this section on legitimates, if the survivor has or establishes the right to inherit from the deceased under Section 91-1-15. [Citation omitted]
. . . Any rights which a blood parent or parents may have under this section are hereby conferred upon and vested in an adopting parent or adopting parents surviving their deceased adopted child, just as if the child were theirs by the full-blood and had been born to the adopting parents in lawful wedlock.
Miss. Code Ann. § 11-7-13 (Rev. 2004) (emphasis added). In addition to covering natural children, the statute includes express language that brings both adopted children and illegitimate children within the purview of “children.” The statute is silent as to in loco children. Since this Court must strictly construe the statute, we find that in loco children do not fall within the definition of children in Mississippi’s wrongful-death statute.
Justice Kitchens wrote an interesting dissent that would have reversed not based on the father’s status in loco parentis, but rather on the fact that the deceased father was not only the presumed father, but also that there had been “several separate judicial proceedings in which [he] had been recognized as Halley’s legal father,” and there had never been any judicial or extra-juducial disestablishment of parentage. ¶ 21 (emphasis in original).
This is another of those cases where a reader who is unacquainted with the case is left scratching his or her head over two apparently completely different readings and/or interpretations of what is in the record. If Justice Kitchens is right in his reading of the record, is Hallie not a wrongful-death beneficiary?
I have no quarrel with the majority’s application of the law to its statement of the facts, but I do wonder nowadays whether the 1907 language of Fortinberry is now hopelessly antiquated. In light of the third-party custody cases and, now, this case, can it be said accurately any more, a là Fortinberry, that “The rights, duties and liabilities of one standing in loco parentis are the same as those of a natural parent”?
June 28, 2012 § 1 Comment
In 1988, Catherine LePori gave birth to a son, Brandon, without benefit of marriage. In 2001, DHS filed an action against Alton Welch to establish paternity of the child. For reasons unexplained in the record, no judgment was entered until 2007. Those are the barebones facts that underlie the COA decision in LePori v. Welch, decided June 26, 2012.
We can deduce from the record that Alton never paid any significant child support during the pendency of or after that DHS suit, and that he did not develop any significant relationship with the boy.
In March, 2008, Brandon was was working in a sewer line when it caved in and he was killed. He was nineteen at the time.
In March, 2009, Catherine filed suit to terminate Alton’s parental rights posthumously, expressly for the purpose of preventing Alton from having any interest in a wrongful-death suit she had filed. Alton had filed a motion to intervene in the wrongful-death action.
The chancellor dismissed Catherine’s petition for failure to state a claim, and she appealed.
In its decision, the COA noted that the statutes providing for termination of parental rights (MCA 93-15-103, et al.), are concerned with the best interest of the child, not the parents or survivors. Thus, if the child is deceased the statute logically no longer applies. The court held that the statute is not to be applied posthumously.
Catherine argued that dismissal of her termination case would unjustly enrich Alton, whom, she alleged, had caused substantial erosion of the parent-child relationship. Judge Maxwell’s opinion pointed out, however, that MCA 91-1-15(3)(d)(i) provides that the natural father must have “openly treated the child as his, and ha[ve] not refused or neglected to support the child” in order to inherit. That code section is incorporated into the Wrongful Death Act (MCA 11-17-13).
Based on the code sections, Judge Maxwell pointed out that Catherine could have filed an action to determine Brandon’s heirs at law in his estate, and pled 91-1-15 as a basis to adjudicate that he had no interest. Or, Judge Maxwell noted, she could have pled the statute to argue against Alton’s motion to intervene in the circuit court action.
This is an interesting case that has implications beyond its apparently narrow focus. When you’re confronted with issues such as this, don’t get tunnel vision and limit yourself to one way to go. Keep your eye on the big picture and consider how all the component parts fit together.