Patrick Graham v. Robert Asbury , 234 W. Va. 286 ( 2014 )

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 2014 Term
_______________ FILED
October 22, 2014
released at 3:00 p.m.
No. 13-1244 RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
_______________ OF WEST VIRGINIA
PATRICK GRAHAM, as Executor of
the Estate of HELEN GRAHAM;
YOLANDA GRAHAM, JUDY MCNAIR,
BEVERLY RILING, BARBARA LAXTON, and
FRANCES MIKLES, Jointly as
Daughters/Beneficiaries of
HELEN GRAHAM
Petitioners
v.
ROBERT ASBURY,
Respondent
____________________________________________________________
Appeal from the Circuit Court of Raleigh County
The Honorable John A. Hutchison, Judge
Civil Action No. 10-C-879-H
AFFIRMED
____________________________________________________________
Submitted: September 30, 2014
Filed: October 22, 2014
Paul Stroebel, Esq. Pamela A. Lambert, Esq.
Stroebel & Johnson, PLLC Karen S. Hatfield, Esq.
Charleston, West Virginia Lambert Law Offices
Counsel for the Petitioners Gilbert, West Virginia
Counsel for the Respondent
JUSTICE KETCHUM delivered the Opinion of the Court.
SYLLABUS BY THE COURT
For purposes of awarding wrongful death damages under W.Va. Code § 55­
7-6(b) [1992], the determination of whether a spouse, children (including adopted
children and stepchildren), brothers, sisters, and parents are “surviving” is made by
determining whether they were alive at the time of the wrongful death decedent’s demise.
Justice Ketchum:
In this appeal, we consider whether the estate of a distributee under the
West Virginia wrongful death act may share in the proceeds of a wrongful death
settlement when the distributee, an adult child of the wrongful death decedent, survived
the decedent but died before the wrongful death lawsuit was settled and the settlement
proceeds were distributed.1 The circuit court concluded that under the West Virginia
wrongful death act, W.Va. Code § 55-7-6(b) [1992], the distributee’s estate was entitled
to a share of the wrongful death settlement proceeds because the distributee’s right of
action vested upon the decedent’s death, rather than at the time the wrongful death
settlement proceeds were distributed.
After review, we agree with the circuit court and affirm its ruling.
1
We have identified persons eligible to recover under our wrongful death act as
“distributees.” We note that some previous opinions from this Court have referred to
such persons as “beneficiaries.” However, such persons eligible to recover pursuant to
our wrongful death act are actually “distributees,” and we therefore use the term
“distributee.”
1
I.
FACTUAL AND PROCEDURAL BACKGROUND
Eighty-six-year-old Helen Graham died on March 19, 2010. She was
survived by seven adult children.2 On September 20, 2010, Patrick Graham, as executor
of Mrs. Graham’s estate, filed a wrongful death lawsuit against Raleigh General Hospital
asserting that Mrs. Graham’s death was the result of medical negligence. Approximately
three months after the wrongful death lawsuit was filed, one of Mrs. Graham’s adult
children, Betty Asbury, died.3
In July of 2012, a settlement agreement was reached in the wrongful death
lawsuit brought by Mrs. Graham’s estate against the hospital. Counsel for Mrs.
Graham’s estate filed a “petition for approval of settlement” with the circuit court. This
petition listed two siblings and six adult children4 as the “known potential beneficiaries of
Helen Graham as set forth in the West Virginia wrongful death statute.” The settlement
approval petition made no mention of Betty Asbury (Mrs. Graham’s deceased adult
2
The seven adult children that survived Mrs. Graham are Patrick Graham,
Yolanda Graham, Judy McNair, Beverly Riling, Barbara Laxton, Frances Mikles, and
Betty Asbury.
3
Respondent Robert Asbury, Betty Asbury’s husband, was the administrator of
Betty Asbury’s estate.
4
The two siblings listed in the petition were Margaret DeMezzo and Eli Furo, Jr.
The six adult children listed in the petition were Patrick Graham, Yolanda Graham, Judy
McNair, Beverly Riling, Barbara Laxton, and Frances Mikles.
2
child), nor did it state that Betty Asbury’s estate had a potential claim under the wrongful
death statute, W. Va. Code § 55-7-6(b).
Mrs. Graham’s estate provided notice of the settlement hearing to Mrs.
Graham’s two siblings and to her six surviving children. However, Mrs. Graham’s estate
did not provide notice of the settlement approval hearing to the administrator of Betty
Asbury’s estate, Robert Asbury. The lawyer who filed the wrongful death lawsuit later5
explained his interpretation of the statute and his decision not to provide notice of the
settlement hearing to Mr. Asbury:
[I]t is true that Mr. Asbury did not get notice of the hearing.
He did not get notice of the hearing because we did not
believe that he was a – even a potential beneficiary under the
statute. If we, or if I, believed that he was, I certainly would
have provided him notice. . . .
I do want the Court to be aware that at no time did any of the
other siblings or Mr. Graham indicate that they wanted Mr.
Asbury excluded from the settlement. It was really a matter
of my review of the statute, my reading in the statute that he
is not a potential beneficiary, and as a result, he was not
notified.
During the settlement hearing, there was no mention of Betty Asbury or of
her estate’s potential claim under the wrongful death act. On July 23, 2012, the circuit
5
This explanation was provided to the circuit court during a hearing in February
of 2013.
3
court entered an order approving the settlement agreement and awarding equal shares of
the settlement proceeds to Mrs. Graham’s six surviving children.6
On September 28, 2012, Mr. Asbury, as administrator of Betty Asbury’s
estate, filed a “Motion to Set Aside Settlement as Invalid or in the Alternative Motion
Seeking Court Ordered Distribution of Wrongful Death Proceeds Pursuant to West
Virginia Code § 55-7-6.” During a hearing on this motion, Mr. Asbury stated that he was
not asking the court to set aside the settlement agreement. Instead, he was asserting that
the estate of Betty Asbury had a right to share in the wrongful death settlement proceeds.
Mr. Asbury argued that because Betty Asbury was alive at the time of her mother’s death,
Betty Asbury’s estate was entitled to share in the proceeds of her mother’s wrongful
death settlement.
By order entered on October 21, 2013, the circuit court ruled that Mr.
Asbury, as the administrator of the estate of Betty Asbury, was entitled to share in the
proceeds of the wrongful death settlement because Betty Asbury was alive at the time of
her mother’s death. The circuit court concluded that the wrongful death statute, W.Va.
Code § 55-7-6(b),
clearly provides that the court may distribute damages to the
surviving children, and this Court is aware of no West
Virginia law which would require a [distributee] to survive
6
Mrs. Graham’s siblings did not attend the settlement hearing and did not request
a share of the settlement proceeds. The settlement amount is confidential.
4
the date of resolution of outside claims against the decedent’s
estate in order to receive a share of those damages.
Based on this finding, the circuit court ordered that the wrongful death
settlement proceeds be divided into seven equal shares, with six shares going to the
surviving children, and one share going to Mr. Asbury, as administrator of the estate of
Betty Asbury. Following the circuit court’s ruling, the six surviving children of Mrs.
Graham (“petitioners” or “six surviving children of Mrs. Graham”) filed the present
appeal with this Court.
II.
STANDARD OF REVIEW
This Court set forth the standard for reviewing the findings and conclusions
of a circuit court in Syllabus Point 2 of Walker v. West Virginia Ethics Commission, 201
W.Va. 108, 492 S.E.2d 167 (1997), as follows:
In reviewing challenges to the findings and
conclusions of the circuit court, we apply a two-prong
deferential standard of review. We review the final order and
the ultimate disposition under an abuse of discretion standard,
and we review the circuit court’s underlying factual findings
under a clearly erroneous standard. Questions of law are
subject to a de novo review.
With this standard in mind, we proceed to consider the parties’ arguments.
5
III.
ANALYSIS
On appeal, the six surviving children of Mrs. Graham argue that the circuit
court erred by ruling that under W.Va. Code § 55-7-6(b), a distributee’s right to recover
damages vests upon the decedent’s death, rather than at the time the proceeds recovered
in a wrongful death action are distributed. They argue that because Betty Asbury died
before the settlement proceeds were distributed, she is not a distributee under the statute.
W.Va. Code § 55-7-6(b) is contained in West Virginia’s wrongful death act, W.Va. Code
§ 55-7-5 [1931] et seq. We begin our analysis with a brief examination of the act.
The West Virginia wrongful death act, W.Va. Code § 55-7-5 to -8a, allows
a cause of action “[w]henever the death of a person shall be caused by wrongful act,
neglect, or default, and the act, neglect or default is such as would (if death had not
ensued) have entitled the party injured to maintain an action to recover damages in
respect thereof[.]” W.Va. Code § 55-7-5. In Bradshaw v. Soulsby, 210 W.Va. 682, 688,
558 S.E.2d 681, 687 (2001), this Court interpreted W.Va. Code § 55-7-5 to mean that in
order “[t]o maintain an action for wrongful death, a beneficiary must show two specific
elements: that a person has died, and that the death was caused by a wrongful act, neglect
or default.”
This Court has stated that the “purpose of the wrongful death act is to
compensate the beneficiaries for the loss they have suffered as a result of the decedent’s
death.” White v. Gosiene, 187 W.Va. 576, 582, 420 S.E.2d 567, 573 (1992). The
6
wrongful death act is a remedial statutory scheme. “Because the wrongful death act
alleviates the harshness of the common law, it is to be given a liberal construction to
achieve its beneficent purposes.” Syllabus Point 6, Bradshaw v. Soulsby, supra.7 With
this background in mind, we turn to the parties’ arguments.
The issue presented is whether the circuit court correctly determined that
under W.Va. Code § 55-7-6(b), a distributee’s right of action vests upon the decedent’s
death, rather than at the time the proceeds recovered in a wrongful death action are
distributed. The relevant facts are undisputed—Betty Asbury survived her mother (the
subject decedent) and was alive at the time the wrongful death lawsuit was filed, but died
prior to the settlement of the lawsuit and the distribution of the settlement proceeds. The
parties offer differing interpretations of whether, under this factual scenario, Mr. Asbury,
as administrator of Betty Asbury’s estate, is entitled to share in the settlement proceeds.
Our resolution of this issue requires us to analyze W.Va. Code § 55-7-6(b). It states:
7
In accord, Farley v. Sartin, 195 W.Va. 671, 680, 466 S.E.2d 522, 531 (1995)
(“[O]ur prior decisions . . . firmly established that W.Va. Code, 55-7-5, is a remedial
statute and should be liberally construed.”); Martin v. Smith, 190 W.Va. 286, 292, 438
S.E.2d 318, 324 (1993) (“West Virginia's wrongful death statute is remedial, and is
liberally construed to effect the Legislature’s intent.”); Baldwin v. Butcher, 155 W.Va.
431, 184 S.E.2d 428 (1971); City of Wheeling ex rel. Carter v. Am. Cas. Co., 131 W.Va.
584, 590, 48 S.E.2d 404, 408 (1948) (“The statute, being remedial, should be liberally
construed.”); Wilder v. Charleston Transit Co., 120 W.Va. 319, 322, 197 S.E. 814, 816
(1938) (“The policy of the statute is remedial and not punitive.”); Richards v. Riverside
Iron Works, 56 W.Va. 510, 515, 49 S.E. 437, 438 (1904) (“The statute is remedial, and
should be construed liberally for the purpose of carrying out the legislative intent.”).
7
(b) In every such action for wrongful death, the jury,
or in a case tried without a jury, the court, may award such
damages as to it may seem fair and just, and, may direct in
what proportions the damages shall be distributed to the
surviving spouse and children, including adopted children
and stepchildren, brothers, sisters, parents and any persons
who were financially dependent upon the decedent at the time
of his or her death or would otherwise be equitably entitled to
share in such distribution after making provision for those
expenditures, if any, specified in subdivision (2), subsection
(c) of this section. If there are no such survivors, then the
damages shall be distributed in accordance with the
decedent’s will or, if there is no will, in accordance with the
laws of descent and distribution as set forth in chapter forty-
two of this code. If the jury renders only a general verdict on
damages and does not provide for the distribution thereof, the
court shall distribute the damages in accordance with the
provisions of this subsection.
(Emphasis added.)
The six surviving children of Mrs. Graham argue that under the plain
language of W.Va. Code § 55-7-6(b), a “surviving” child of the wrongful death decedent
“must survive to the distribution date to receive a share of the proceeds. Mrs. Asbury did
not survive until that date. Thus, Mr. Asbury has no entitlement to a share of those
damages.” Conversely, Mr. Asbury argues that the plain language of the statute supports
the circuit court’s finding that a “surviving” child’s right of action under the statute vests
at the time of the wrongful death decedent’s death, and does not require such a distributee
to survive to the distribution date.
Our resolution of this issue begins with a review of our rules of statutory
construction. This Court has held that in deciding the meaning of a statutory provision,
“[w]e look first to the statute’s language. If the text, given its plain meaning, answers the
8
interpretive question, the language must prevail and further inquiry is foreclosed.”
Appalachian Power Co. v. State Tax Dep’t of West Virginia, 195 W.Va. 573, 587, 466
S.E.2d 424, 438 (1995); see also Syllabus Point 2, Crockett v. Andrews, 153 W.Va. 714,
172 S.E.2d 384 (1970) (“Where the language of a statute is free from ambiguity, its plain
meaning is to be accepted and applied without resort to interpretation.”); and Syllabus
Point 2, State v. Epperly, 135 W.Va. 877, 65 S.E.2d 488 (1951) (“A statutory provision
which is clear and unambiguous and plainly expresses the legislative intent will not be
interpreted by the courts but will be given full force and effect.”).
Additionally, this Court has held that “[a] statute is open to construction
only where the language used requires interpretation because of ambiguity which renders
it susceptible of two or more constructions or of such doubtful or obscure meaning that
reasonable minds might be uncertain or disagree as to its meaning.” Sizemore v. State
Farm Gen. Ins. Co., 202 W.Va. 591, 596, 505 S.E.2d 654, 659 (1998) (internal
quotations and citation omitted.) With these rules of statutory construction in mind, we
turn to W.Va. Code § 55-7-6(b).
The present dispute centers around the parties’ conflicting interpretations of
the word “surviving” contained in W.Va. Code § 55-7-6(b). As this Court recognized in
West Virginia Health Care Cost Review Authority v. Boone Memorial Hosp., 196 W.Va.
326, 472 S.E.2d 411 (1996), “[i]t is a fundamental principle of statutory construction that
the meaning of a word cannot be determined in isolation, but it must be drawn from the
context in which it is used.” Id. at 338, 472 S.E.2d at 423.
9
The word “surviving” in W.Va. Code § 55-7-6(b) is contained in a
sentence identifying two categories of distributees under the wrongful death act: (1)
persons in a specific familial relationship to the decedent irrespective of financial
dependence (“surviving” spouse, children, including adopted children and stepchildren,
siblings, and parents), and (2) any other persons who were financially dependent on the
decedent at the time of the decedent’s death. (Emphasis added.) The statute does not
favor one category of distributees over the other; it simply states that a jury or a court
may award wrongful death damages to the persons identified in those two categories.
Under the petitioners’ suggested construction of the statute, a distributee in
the first category (“surviving” family member) must survive until the date of distribution
to receive an award of wrongful death damages. Thus, according to the petitioners, the
class of distributees in the first category is not fixed at the time of the decedent’s death
and may continue to change until the date the damage award is distributed. This
construction of the statute creates a substantial difference between the first (“surviving”
family members) and second (persons financially dependent on the decedent) categories
of distributees. The statute states that persons in the second category are identified based
on their relationship to the decedent at the time of the decedent’s death. Thus, the right
of action for distributees in the second category vests upon the death of the decedent and
such class of distributees is fixed at that time—upon the death of the decedent.
After review, we find no support for the petitioners’ suggested construction
of W.Va. Code § 55-7-6(b). The plain language of the statute indicates the Legislature’s
10
intent to treat both categories of distributees in an equal manner. W.Va. Code § 55-7­
6(b) does not prioritize the two categories of distributees for distribution; rather, it places
a distributee in the first category (“surviving” family member of the decedent) on equal
footing as a distributee in the second category (a person who was financially dependent
on the decedent at the time of the decedent’s death). Similarly, the circuit court’s
construction of the statute—that the right of action for a “surviving” family member in
the first category refers to a family member who is “surviving” at the time of the
decedent’s death—results in both categories of distributees being ascertainable and fixed
at the time of the decedent’s death. Further, under the circuit court’s ruling, the rights of
distributees in both categories to receive a wrongful death damage award vests at the
same time: upon the death of the decedent.
Additionally, a previous case from this Court addressing the wrongful death
act supports the conclusion that a distributee’s right to receive damages in a wrongful
death action vests at the time of the decedent’s death, rather than at the time the wrongful
death damages are distributed. This Court discussed whether a wrongful death action
brought by a distributee is extinguished upon the death of such distributee in Adams v.
Sparacio, 156 W.Va. 678, 196 S.E.2d 647 (1973). While the wrongful death statute has
been amended since Adams was decided, the Court’s general discussion of the effect of a
distributee’s death prior to the resolution of a wrongful death action provides guidance on
11
the issue in the present case.8 The Court in Adams held that when a distributee died
during the pendency of a wrongful death action, the action survived to the distributee’s
estate. Specifically, Syllabus Point 7 of Adams states, in relevant part: “An action for
wrongful death, being one created for the benefit of the distributee of the deceased, does
not abate with the death of such distributee[.]”9
Based on all of the foregoing, we hold that that for purposes of awarding
wrongful death damages under W.Va. Code § 55-7-6(b) [1992], the determination of
whether a spouse, children (including adopted children and stepchildren), brothers,
sisters, and parents are “surviving” is made by determining whether they were alive at the
time of the wrongful death decedent’s demise. Applying this holding to the present case,
8
For a comprehensive review of West Virginia’s wrongful death act and the
numerous statutory changes to the act, see McDavid v. U.S., 213 W.Va. 592, 584 S.E.2d
226 (2003).
9
The full text of Syllabus Point 7 of Adams is as follows:
An action for wrongful death, being one created for the
benefit of the distributee of the deceased, does not abate with
the death of such distributee and if the distributee be a
dependent distributee, the administrator who instituted the
action may proceed therewith and recover for the estate of the
deceased dependent distributee any financial or pecuniary
loss suffered by him up to the moment of his death.
The Court’s holding in Adams is consistent with the prevailing view on this issue:
“The prevailing view is that the cause of action vests in the beneficiary immediately upon
the wrongful death, becomes his property, and survives to his representative.” W. Prosser
& W. Keeton, Prosser and Keeton on the Law of Torts, 948 (5th ed. 1984) (footnotes
omitted).
12
we find that the circuit court correctly determined that Mr. Asbury, as administrator of
Betty Asbury’s estate, was entitled to share in the proceeds10 of the wrongful death
settlement award because Betty Asbury was alive at the time of her mother’s death.11
10
The petitioners argue that the circuit court erred by awarding Mr. Asbury, as the
administrator of the estate of Betty Asbury, an equal share of the wrongful death
settlement proceeds. W.Va. Code § 55-7-6(b) provides “the court may award such
damages as to it may seem fair and just, and, may direct in what proportions the damages
shall be distributed[.]” Given the wide discretion afforded to circuit courts in this statute,
we find that the circuit court did not abuse its discretion by awarding an equal share of
the wrongful death settlement proceeds to Mr. Asbury, as administrator of the estate of
Betty Asbury. While we find the circuit court did not abuse its discretion in awarding
Mr. Asbury, as the administrator of the estate of Betty Asbury, an equal share in the
present case, we emphasize that, in general, a circuit court is not required to award equal
shares to all persons who are distributees under the wrongful death act. Instead, pursuant
to W.Va. Code § 55-7-6(b), a circuit court or jury has wide discretion to award wrongful
death damages “in . . . proportions” that “may seem fair and just” under the facts of a
particular case.
11
The petitioners also argue that the circuit court erred because Mr. Asbury, as the
administrator of the estate of Betty Asbury, lacked standing to intervene in this case
because Betty Asbury’s estate had been closed prior to the distribution of the wrongful
death settlement proceeds. Under the facts of this case, we find no merit in this
assignment of error. First, the estate of Betty Asbury could have remained open if
counsel for Mrs. Graham’s estate had complied with W.Va. Code § 55-7-6 and provided
the statutorily required notice to Mr. Asbury, as administrator of the estate of Betty
Asbury, informing him that Betty Asbury’s estate was a potential distributee of the
wrongful death settlement. Further, when Mr. Asbury filed his “Motion to Set Aside
Settlement as Invalid or in the Alternative Motion Seeking Court Ordered Distribution of
Wrongful Death Proceeds Pursuant to West Virginia Code § 55-7-6,” any recovery Betty
Asbury’s estate could receive was contingent on the circuit court’s determination of
whether Betty Asbury was a distributee under W.Va. Code § 55-7-6. Thus, Mr. Asbury
had no settlement proceeds to administer in Betty Asbury’s estate, and no need to reopen
the estate, prior to the circuit court’s ruling that the estate was entitled to a share of the
wrongful death damages.
13
IV.
CONCLUSION
The circuit court’s October 21, 2013, order is affirmed.
Affirmed.
14