A Second Bite at the Apple? Recovery for Wrongful Death After Settling an Underlying Personal Injury Claim

California has a complex statutory scheme to compensate family members for the wrongful death of a loved one. The wrongful death statutes generally allow for surviving family members to recover for losses they sustain as a result of the loved one’s death. A question raised by this statutory scheme, however, is what happens to the family members’ wrongful death claim after the settlement of a personal injury lawsuit previously filed by their loved one? We examine that question here through the following case sample:

Jane Doe, a wife and mother of 2 in her mid-30s, suffers liver failure, requiring a transplant, allegedly as a result of her consumption of diet pills. Jane Doe files a lawsuit as the sole plaintiff in California state court against the manufacturers, distributors, and retailers of the pills. Before trial, Jane Doe settles her lawsuit. The settlement agreement is signed by Jane Doe, but not her husband nor her children as they were not parties to the lawsuit. The release states that the settling parties intend to release all past, present and future claims – including wrongful death claims potentially made by Jane Doe’s family members. Jane Doe then voluntarily dismisses her lawsuit with prejudice. Jane Doe dies a few years later from kidney failure, a side effect of taking required medication following her liver transplant. Her family members file a wrongful death lawsuit in California state court against the same defendants that Jane Doe sued in her personal injury lawsuit.

The law in California is that a wrongful death claim is a separate and distinct right belonging to the family members. A wrongful death claim does not arise until the death of the family members’ loved one. Unlike some other states, the wrongful death statutes in California create an entirely new cause of action in favor of the family members, based upon their own monetary injury suffered as a result of the loss of their loved one. Types of damages available under the wrongful death statutes include, among others, medical and funeral expenses associated with the loved one’s death, loss of the loved one’s financial support, loss of companionship and loss of care. California courts have consistently maintained this rule and have validated it in a variety of circumstances. There is a long line of cases that hold that a personal injury plaintiff, i.e., Jane Doe, has no right to waive a wrongful death claim on behalf of her family members, i.e. Jane Doe’s husband and children, who are neither participants in the underlying lawsuit nor signatories to the settlement agreement.

Therefore, in the case sample above, the settlement agreement signed by the parties in Jane Doe’s personal injury lawsuit is likely insufficient to prohibit the filing of a wrongful death claim by Jane Doe’s husband and children for the following reasons. First, when Jane Doe’s personal injury lawsuit was settled, she was still alive. Therefore, her family members’ wrongful death claim had not yet arisen. In addition, Jane Doe’s family members were not parties to her personal injury lawsuit and they did not sign the settlement agreement.

Should defendants find themselves faced with this situation, however, there are potential legal defenses which may be applicable to subsequently prevent wrongful death plaintiffs from getting “a second bite at the apple.” Plaintiffs in wrongful death lawsuits, i.e., Jane Doe’s family members, are subject to the same defenses which could have been asserted against the deceased loved one, i.e., Jane Doe. In addition, it may be possible to obtain a release of potential wrongful death claims from the family members as part of an overall settlement of the underlying lawsuit.

If the release is by a minor, however, it will be necessary to obtain court approval of a minor’s compromise. These are options defendants should consider when settling claims for personal injuries that have the potential to shorten the underlying plaintiff’s life expectancy.