29.5 Single Action (Wilmot v. Wilmot).

JurisdictionArizona

29.5 Single Action (Wilmot v. Wilmot). The Wrongful Death Act contemplates that the wrongful death claims for all statutory beneficiaries are to be consolidated in a single action.31 One plaintiff or group of plaintiffs brings the lawsuit “for and on behalf of the surviving husband, wife, children or parents.”32 Some or all of the beneficiaries can be plaintiffs, but regardless whether or not all of them formally join the suit, the plaintiff represents all the statutory beneficiaries who have a “legal right to be compensated.”33 And at the conclusion of a successful action there is “one judgment, the proceeds of which are held by the statutory plaintiff as trustee for the persons on whose behalf the suit was brought.”34

The scope of the duties owed by a wrongful death plaintiff (and his or her counsel) to the other statutory beneficiaries was described in Wilmot v. Wilmot .35 In Wilmot, a widow brought a wrongful death claim for her husband’s death, alleging medical malpractice against a physician and his employer.36 Both she and her attorney knew that the decedent had six adult children from a prior marriage, but because the adult children had very little contact with the decedent they had not even learned of their father’s death at the time the lawsuit was filed.37 At some point, the children became aware of their father’s death and the lawsuit, and there was contact between plaintiff’s counsel and a lawyer representing at least one of the children prior to the plaintiff and the defendants agreeing to a settlement which released all claims but did not provide any recovery for the children.38 But neither the children nor their lawyer were told of the settlement or asked to consent to it.39 The plaintiff and defendants moved the trial court for approval of the settlement without giving notice to the children or their counsel, and the trial court approved the settlement and denied the children’s subsequent motion seeking to have the settlement thrown out.40

The Arizona Supreme Court reversed the denial of the motion to vacate the settlement.41 It held that a statutory plaintiff in a wrongful death action owed fiduciary duties to the other statutory beneficiaries42 “both in conducting and settling the action and making distribution of proceeds to each of the other beneficiaries at the conclusion” of the case.43 These duties included giving notice to all beneficiaries of a potential settlement and soliciting their consent to it, “even if such consent is...

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