Metropolitan News-Enterprise


Wednesday, September 28, 2005


Page 1


Ruling Giving Widow Little of Wrongful Death Settlement Upheld

Dissenter Warns Decision Will Import ‘Mudslinging Fault Divorce’ Into Allocation Proceedings


By DAVID WATSON, Staff Writer


The Fourth District Court of Appeal has upheld a judge’s apportionment of 90 percent of a wrongful death settlement to the decedent’s adult daughter, with only 10 percent going to the widow, provoking a strong dissent from Div. Three’s presiding justice.

Presiding Justice David G. Sills warned that by endorsing the trial judge’s reliance on evidence that Raymond Corder planned to divorce his wife of eight months, the majority was “essentially importing mudslinging fault divorce into wrongful death award allocation.”

Sills also argued that Orange County Superior Court Judge Randell L. Wilkinson’s ruling, which gave Corder’s adult daughter Lisa all but $110,000 of a $1.1 million settlement with a manufacturer whose equipment the crane operator was using when he was killed in a construction accident, resulted in the daughter collecting more money than she could have received as an individual plaintiff.

Marriage on ‘Verge’

In apportioning the settlement, Wilkinson found on the basis of conflicting evidence that Corder’s eight-month marriage to Shaoping Corder was “on the verge of ending” at the time of his death. He cited Corder’s “belief, expressed to several persons, that his wife was working as a prostitute against his wishes.”

Writing for himself and Justice Kathleen O’Leary in an opinion filed Monday, Justice Raymond Ikola rejected Shaoping Corder’s contention that the trial judge lacked power under Code of Civil Procedure Sec. 377.61 to apportion settlement proceeds among competing plaintiffs. The statute imposes a duty on trial judges to apportion lump sum settlements as well as jury awards, Ikola said.

Nor, the justice said, did the judgment Wilkinson issued after the apportionment proceeding violate the “one judgment rule,” even though a jury trial was conducted on the claims against other defendants.

But most of Ikola’s majority opinion, and nearly all of Sills’ dissent, consisted of a discussion of an issue Ikola said Shaoping Corder — known as Sherry — did not even raise in her appeal: the propriety of Wilkinson’s consideration of evidence Raymond Corder planned to divorce his wife.

Sills argued that such evidence was “analogous” to evidence of a surviving spouse’s remarriage. Such evidence, he said, has been barred as too speculative.

Ikola responded:

“Although Sherry never argues that evidence of Raymond’s intent to divorce should have been excluded on the same basis courts exclude evidence of a surviving spouse’s actual or intended remarriage, we nevertheless have considered that potential argument because the dissent raised it; and we reject it.”

Evidence about remarriage would not only be speculative, it would be “relevant only with respect to mitigation of damages” and could unfairly benefit a wrongful death defendant, Ikola said.

He added:

“None of these considerations are present in the instant apportionment proceeding. The evidence of Raymond’s intent to divorce was offered to show his disaffection for Sherry at the time of his death. The evidence was relevant to the amount of damage incurred, not its mitigation.”

Case Distinguished

He distinguished Changaris v. Marvel (1964) 231 Cal.App.2d 308, a case in which children of a prior marriage challenged the widow’s right to a share of a wrongful death award by attacking the validity of her Tijuana marriage to their father. The court in Changaris held that the children could not, after failing to object to the widow’s participation as a plaintiff, attack her right to a share of the award obtained partly as a result of that participation.

Quoting the language of Changaris, Ikola wrote:

“There is no evidence in the record to support a finding that Lisa launched a belated attack’ upon Sherry’s status as a rightful heir, not entitled to share in the recovery. To the contrary, the opposite inference is more easily drawn. On the same date the settlement stipulation with the settling defendant was signed by plaintiffs, Lisa and Sherry, through counsel, entered into their own stipulation agreeing to a further apportionment trial at which the parties would be entitled to call additional witnesses not previously disclosed. The natural inference to be drawn is that instead of relying on either plaintiff’s acquiescence to the amount demanded by the other, the plaintiffs agreed to resolve their dispute in the subsequent apportionment proceeding.”

But Sills argued that Changaris, “though one would never realize it from the majority opinion, is closely similar to the case before us.”

He declared:

“The same tactic of adult children attacking the character of a widow after a large wrongful death fund was initially established on the basis of her pecuniary interest in the dead husband’s earnings was attempted in Changaris—.There, however, both the trial court and the appellate court rejected it for what it was: opportunism.”

Wilkinson, Sills said, should not have rejected Shaoping Corder’s offer to prove, through the testimony of the equipment company’s lawyer, that the settlement offer was based largely on her presence as a plaintiff in the case.

The presiding justice queried:

“What if the decedent’s wife had predeceased him and the only plaintiff in the wrongful death action was the adult daughter? Does anyone in his or her right mind think that the equipment manufacturing company’s insurer would not have fought hard to limit the award to an amount much smaller, given that the adult daughter had no legal right of support, wasn’t being supported by her father at the time of his death as a matter of voluntary largesse, and at best had only the expectation that she would inherit what her father might have saved from his earnings over his living expenses?”

An award of almost $1 million to an adult daughter in Lisa Corder’s circumstances would likely be struck down by an appellate court as excessive under the authority of Ure v. Maggio Bros. Co., Inc. (1938) 24 Cal.App.2d 490, Sills argued, pointing out that only “pecuniary” damages — not damages for emotional distress — are permitted in wrongful death cases.

Wilkinson’s ruling, Sills contended, was “[b]ased on irrelevant calumnies about the widow’s character, and unacted-upon supposed intentions of the husband at the time of his death” and resulted in “a profound injustice.”

He elaborated:

“It—appears that, in net effect, the trial judge imposed on the widow a ‘fault divorce’ that neither she nor her deceased husband had ever sought and certainly never took any concrete steps to effect. Having granted that de facto divorce, the trial judge then felt free to award the great bulk of a wrongful death award — an award based on the widow’s pecuniary expectations in her husband’s future income, to an adult daughter who had, at the time of death, only the most minimal expectations of receiving anything of pecuniarily measurable value from her father. In essence, the trial court converted a fund based on the deceased’s lifetime earnings and the legal duty to support his spouse into a fund that was based on the emotional distress of the daughter in the loss of her father, and allocated almost all of that fund to the daughter. Our system of law is better than this result....”

The majority’s ruling, Sills predicted, will encourage antagonistic survivors to turn allocation proceedings into “a free-for-all smackdown as to who the decedent loved the most,” with judges given “almost unlimited power to allocate wrongful death damages according to the most extremely subjective factors.”

The presiding justice continued:

“The majority thus opens the door for the kind of unseemly internecine mudslinging traditionally associated with fault divorce. Allocation of wrongful death award proceedings can now become mudslinging contests, with relatives of the deceased heaping all sorts of salacious calumnies on rival claimants. Indeed, the sheer lopsidedness of this award is explicitly explained by the fact that the trial court believed the calumnies leveled at the wife, and decided to punish her for them. In that respect, the trial judge allocated the fund as if California’s no-fault divorce law had never been enacted.”

Attorney Joseph D. Davis of Davis & Heubeck in Los Angeles represented Shaoping Corder on appeal, while Ronald E. Harrington of Newport Beach represented Lisa Corder.

The case is Corder v. Corder, 05 S.O.S. 4416.


Copyright 2005, Metropolitan News Company