There are some relations that are not entitled to wrongful death settlement monies. An ex-wife may fall into that category.

A recent case in West Virginia resulted in a decision by the West Virginia Supreme Court that the ex-wife of a man who lost his life in a motorcycle accident was not entitled to any proceeds from his estate.

As it turned out, the decedent’s estate was able to negotiate $300,000 on a successful wrongful death lawsuit. All of it was deemed to be paid to the man’s estate, for eventual dispersal to his heirs. The will did not make it to probate, because the man’s ex-wife said he owed her at least $50,000 for unpaid child support.

The issue was not that the man was not paying his support. He had started paying the required monthly amount in 2003. At the time he died, the children were adults and he had no further obligations to support them.

The language of the wrongful death statute in West Virginia states only an individual who was financially dependent on the deceased could file a claim to any proceeds from the estate, and that included someone who was not a relative of the deceased.

In this instance, the court decided the ex-wife was not a relative and furthermore, was not financially dependent on the man. She sent any money she did get from him in the form of child support to her adult children, keeping none back for herself. In short, the court indicated she did not need the money and therefore was not entitled to a share of the wrongful death proceeds.

In filing a wrongful death lawsuit in Texas, the plaintiff needs to know precisely what rules may apply to them. Without a clear understanding of how the Texas statute reads, the family may be surprised to find out that proceeds may have to be divided in a certain manner.

Generally, in Texas, wrongful death claims may only be brought by the surviving spouse, children and parents of the deceased. Additionally, some claims may belong to the deceased’s estate. But this West Virginia case is an example of some of the nuances that make pursuing claims so difficult.

Getting a settlement is only half the battle and you need a competent Austin wrongful death lawyer to guide you through the process.

Posted on: June 12, 2013 | Tagged

West Virginia Supreme Court Justice Criticizes Tort Reform

Last week, West Virginia Supreme Court justice Larry Starcher railed against West Virginia’s tort reform. In recent years, West Virginia has passed medical malpractice tort reform measures that require plaintiffs to provide pre-suit expert reports saying that the claim has merit. The reforms also have caps on damages.

Because plaintiffs want to avoid these requirements, there is often a fight about whether the claims are medical malpractice claims subject to the tort reform laws. In the recent West Virginia case, the plaintiffs were suing the manufacturer of contaminated sutures and the medical providers that administered them. The court ended up holding that the claims were health care liability claims subject to the act.

In a dissent, Justice Starcher wrote:

I dissent to express my hope that, in the future, the court or the Legislature will recognize the absurd and unconstitutional effects of the (reform) and either strike down or repeal (the reform in its entirety.

Application of the (reform) to the instant case clearly demonstrates the absurdity of the (act), and demonstrates why the Legislature should exercise restraint when it attempts to meddle with centuries-old common law principles.

Sadly, Texas courts have had no trouble finding that the Texas medical malpractice act applies in what would seem absurd situations. The snowball started in 2005 with the Texas Supreme Court’s decision in Diversicare v Rubio, where the court held that the Texas medical malpractice laws applied when a nursing home resident sued a nursing home after the resident was sexually assaulted by another patient (who had a history of sexual assault).

In 2007 alone, Texas appellate courts have used the Rubio case to find that the Texas medical malpractice reforms covered claims by a patient who was sexually assaulted during an exam (Vanderwerff v. Beathard – Dallas court of appeals), by a patient who was injured when the bed she was sleeping in collapsed (Christus Health v. Beal – Houston), by a patient who fell while getting out of bed because the foot of the bed he was using to help himself get up fell apart (Marks v. St. Lukes Episcopal Hospital – Houston), and by a patient suing a doctor for disclosure of confidential information (Sloan v. Farmer – Dallas).

Each of these cases results in a strange anomaly. If a third party visitor to a hospital or doctor’s office is sexually assaulted by another patient or a staff member, that visitor has an assault claim. But a patient is limited to a medical malpractice claim. Similarly, if a visitor goes to see someone in the hospital and is sitting on a bed and it collapses, that visitor has a products liability or premises defect claim. But, again, a patient is limited to a medical malpractice claim. In each case, the stranger receives more protection from the law than the actual patient.

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Arbitration and the Godless Bloodsuckers

We have often written about problems with mandatory arbitration, but even we were shocked by the allegations made by Richard Neely, a former justice of the West Virginia Supreme Court, about the National Arbitration Forum, one organization that provides arbitrators for commercial disputes, in his article, Arbitration and the Godless Bloodsuckers.  Neely describes his solicitation to be an NAF arbitrator after he was no longer on the bench. Once he was assigned two cases, he discovered how insidious the process could be. For example, the arbitration company sent him a judgment form already filled out so that all he had to do was check the appropriate box for the credit card company to win and then sign his name. Not surprising, after he failed to award the credit card company all that they sought in the arbitration, he never received another case from NAF.

Neely is not the only person to criticize NAF. The Trial Lawyers for Public Justice have filed motions to strike the NAF from serving as arbitrators, citing things like NAF advertisements promising to reduce corporate customers’ bottom lines if they choose the NAF to arbitrate their disputes and close ties between NAF and various corporate entities that routinely use the NAF.

This type of information should be a wake-up call for consumers. Too often, consumers blindly agree to arbitration agreements without thinking.  Instead, consumers need to really read the agreements they enter into to look not only for mandatory arbitraiton clauses, but other issues as well.

If consumers do agree to mandatory arbitration agreements, they need to pay attention once disputes arise.  Too often, consumers get notice of an arbitration (and even lawsuits) and fail to respond.  The result is a default judgment entered against the consumer for the complete amount of the debt, and often additional fees.  Because arbitration awards are extremely difficult to overturn, consumers lose their rights to put their best foot forward on their claims.

We once again emphasize that not all arbitrations are bad. We routinely recommend voluntary arbitration when it fits the situation. But mandatory arbitration agreements present many dangers to consumers.

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Schuelke Law maintains offices in Austin, Texas. However, our attorneys and lawyers represent clients throughout the state of Texas, including Dallas, Houston, San Antonio, Forth Worth, El Paso, New Braunfels, San Marcos, Kyle, Buda, Round Rock, Georgetown, Lockhart, Bastrop, Elgin, Manor, Brenham, Cedar Park, Burnet, Marble Falls, Temple and Killeen. By Brooks Schuelke

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