South Carolina Lawyer
SC Lawyer, July 2006, #1.
Approval of wrongful death settlements and minor settlements in South Carolina
South Carolina LawyerJuly 2006Approval of wrongful death settlements and minor settlements in South CarolinaBy Shannon Furr BobertzMost attorneys will handle a minor or death settlement at some point in their careers. South Carolina law requires most minor settlements and all death settlements to be approved by either the probate or circuit court. This article is intended to help the average practitioner navigate these types of settlements.
I. Wrongful death settlements
South Carolina Code Section 15-51-41 requires all wrongful death/survival action settlements to be approved by either the probate court, circuit court or U.S. District Court. If the settlement is not approved by the appropriate court, the settlement is not enforceable. Peterkin v. Brigman, 319 S.C. 367, 461 S.E.2d 809 (1995). Generally, having a wrongful death settlement approved is not complicated, but there are requirements the practitioner needs to be aware of when preparing the documents for the court. There are two different ways to seek settlement approval from the court, depending on whether an action is currently pending between the parties.
A. No action is pending
If, prior to suit being filed, the personal representative settles the case directly with the defendant, South Carolina law requires court approval of the settlement. S.C. Code Ann. § 15-51-42(B). If no action is pending, any probate or circuit court can approve the settlement upon petition by the personal representative. S.C. Code Ann. § 15-51-42. The petition must be verified.
The petition should set forth the basic facts surrounding the death of the decedent and the pertinent facts surrounding the liability of the alleged wrongdoer. S.C. Code Ann. § 15-51-42 (B). For example, the petition would state "Defendant was driving a vehicle on August 10, 2003. Defendant ran a red light and struck a vehicle in which decedent was a passenger. Decedent was killed in the collision."
Second, the petition should state the amount of any insurance available to pay for the damages, as well as the terms of the proposed settlement. S.C. Code Ann. § 15-51-42 (B). The petition should state, for example, "Defendant had liability coverage limits of $25,000 per person and $50,000 per accident and, for a full and final release of the claim, Defendant will pay $25,000 to Decedent's estate." A copy of the settlement agreement or covenant not to execute should be attached as an exhibit to the petition. The terms of the settlement should also include the respective amounts the personal representative has chosen to allocate to the wrongful death and survival actions.
Third, the petition should set out the heirs at law or appropriate devisees of the estate and the statutory beneficiaries of the wrongful death action. The heirs at law are the heirs listed in the will. If there is no will, the heirs are decided by the laws of intestacy. The beneficiaries of the wrongful death action are the spouse and children. S.C. Code Ann. § 15-51-20. If there is no spouse or no children, the beneficiaries are the parents. S.C. Code Ann. § 15-51-20. If the parents predeceased the decedent, the beneficiaries are the heirs at law. S.C. Code Ann. § 15-51-20.
Finally, the petition needs to state the creditors of the estate, the amount of the claims and, if the personal representative has legal counsel, the amount of attorney's fees and costs. S.C...