Metropolitan News-Enterprise


Wednesday, January 11, 2012


Page 1


C.A. Revives Wrongful Death Action in Motor Vehicle Collision

Settlement With One Sibling Did Not Bar Others From Suing, Justices Say


By SHERRI M. OKAMOTO, Staff Writer


The Court of Appeal for this district has ruled that five minor siblings, whose adult half-sister had secured an insurance settlement for the wrongful death of their mother by claiming to have been the sole heir of the decent, can pursue their own wrongful death action against the insurer for damages.

Div. Five on Monday explained that the guardian ad litem for Deon, Diamond, Damian, Desmen and Dezaray Moody was not barred by the Code of Civil Procedure’s so-called one-action rule from suing Permanent General Assurance Corporation even though the company had obtained a “Release of All Claims” in settling a claim filed by Corisha Brown over the death of Corinthia Hood.

Hood died in a head-on collision between the automobile in which she was a passenger and another insured by Permanent General. After the accident, Brown retained Encino attorney Gregory Yates, who tendered a wrongful death claim to the insurance company on Brown’s behalf.

Permanent General’s attorney responded by letter, offering Brown’s claim for the full policy limits of $100,000. In this letter, the insurance company asked that Yates provide the identities of any and all of her mother’s heirs.

Brown allegedly represented to Yates that she was Hood’s sole heir, and Yates relayed this information to Permanent General. Yates also told the insurance company that no estate was being opened for Hood, and that be settling with Brown, Permanent General would be settling all claims with all of Hood’s surviving heirs.

Standard Release

The insurance company then sent a “Release of All Claims” to Yates, which contained Permanent General’s standard release language and required that Brown execute it as the “sole surviving heir of [Hood].” Brown signed the document before her half-siblings filed their wrongful death suit against the insurance company.

Permanent General filed a motion for summary judgment on the complaint, asserting that the one-action rule, which precludes multiple wrongful death actions against the same defendant by heirs of a decedent, barred the action. Los Angeles Superior Court Judge William P. Barry agreed and granted the motion.

Writing for the appellate court, Justice Richard M. Mosk concluded that the one-action rule does not apply to prelitigation settlements.

The justice explained that the “one-action rule operates as a procedural protection that arises only after a tortfeasor has been sued in a wrongful death action requiring the joinder of all heirs,” and so for a defendant to avail itself of the benefit of the rule, it “must first have been subjected to potential liability in a previous wrongful death action.”

He reasoned that the statutory definition of an “action” as “an ordinary proceeding in a court of justice by which one party prosecutes another for the declaration, enforcement, or protection of a right, the redress or prevention of a wrong, or the punishment of a public offense” suggests that “the action referred to in the one-action rule is a civil suit for wrongful death brought pursuant to Code of Civil Procedure section 377.60.”

Insurance Settlement

Since Brown did not bring a wrongful death suit, but rather tendered a claim on her own behalf to Permanent General which the carrier voluntarily settled, Mosk said “that claim and voluntary settlement cannot fairly be characterized as a civil suit or action for wrongful death to which the one-action rule applies.”

He acknowledged that “the claims adjustment process required Brown to be honest with respect to the material representations she made,” but noted that “there is no statutory or decisional procedural requirement that all of mother’s heirs be joined in or made part of either the claims or settlement process.”

If Permanent General wanted the procedural protections of the one-action rule, Mosk suggested that “they should have required Brown to file a wrongful death action” before the settlement.

Had the insurer done so, Mosk said, Brown would have been under a legal duty to join her half-siblings, and if she “failed to comply with the wrongful death statute and join the minors, she would have been exposed to liability to them under that statute if they were omitted from a settlement of the action.”

Mosk, joined by Presiding Justice Paul Turner and Justice Orville A. Armstrong, thus ruled that “[t]he minor plaintiffs should not be stripped of their wrongful death claims against defendants based on a private deal worked out between an insurance adjustor and a less than candid heir before any litigation had been commenced.”

 The siblings were represented on appeal by Minh T. Nguyen of Jeffrey S. Pop & Associates. Dennis B. Kass, and Kevin H. Louth of Manning & Kass, Ellrod, Ramirez, Trester served as defense counsel.

The case is Moody v. Bedford, 12 S.O.S. 100.


Copyright 2012, Metropolitan News Company