Acquafredda, Matter of
| Decision Date | 19 April 1993 |
| Citation | 596 N.Y.S.2d 839,189 A.D.2d 504 |
| Parties | In the Matter of Nancy Ann ACQUAFREDDA, etc., Appellant; John M. Czygier, Jr., etc., Respondent. |
| Court | New York Supreme Court — Appellate Division |
O'Connor and Hayes, P.C., East Rockaway (James E. Hayes, John R. O'Connor, and Robin Mary Heaney, of counsel), for appellant.
Gatz, Arnoff & Czygier, Riverhead (John M. Czygier, Jr., pro se, of counsel), for respondent.
Before MANGANO, P.J., and ROSENBLATT, RITTER and SANTUCCI, JJ.
On this appeal we are called upon to review a decree of the Surrogate relative to the distribution of the proceeds of a wrongful death action, and to undertake the first appellate review of the so-called "Kaiser formula" ( Matter of Kaiser, 198 Misc. 582, 100 N.Y.S.2d 218). The decedent was survived by his wife and their two infant children.
The Surrogate ruled that the proceeds be divided in equal one-third shares among the decedent's widow and the two children. The widow has appealed, asserting that the Surrogate erred in making that allocation and asks us to direct distribution according to the formula enunciated in Kaiser. In essence, under that formula each distributee would receive a percentage of the award in arithmetic proportion to the number of years of dependency for which that distributee would have looked to the deceased for support. 1 If Kaiser were applied, the widow's share would be 56.14%, the older child would receive a 20.74% share, and the younger child a 23.12% share.
EPTL 5-4.4 governs the distribution of the funds received. The statute requires that the moneys be distributed to those entitled (in this case the widow and two children) "in proportion to the pecuniary injuries suffered by them" (EPTL 5-4.4[a][1].
For reasons that follow, we conclude that there is no imperative for the automatic application of Kaiser, that the Surrogate is vested with discretion and with equitable powers as to the proportional allocation of wrongful death proceeds, and that the Surrogate did not improvidently exercise his discretion in declining to utilize the Kaiser formula.
We note at the outset that the Kaiser formula is not mandated by statute. EPTL 5-4.3(a) and 5-4.4(a)(1) and its predecessors contemplate that the class of people entitled to share in the recovery are to do so according to their proportional losses, but the statute does not recite any particular formula. The statutory provisions are, in pertinent part, as follows:
Since 1950, the so-called Kaiser rule has lived almost entirely in the domain of the Surrogate's courts, where it has undergone extensive scholarly discussion, some deferential, some disapproving.
The criteria for apportioning wrongful death proceeds (and the arguments for or against the so-called Kaiser approach) are best understood in the light of their origins and development. The question of allocation is not easily understood in historical isolation, considering that our legal system, until the mid-nineteenth century, did not even recognize the concept of a wrongful death action, let alone the distribution of its proceeds.
At common law, a person who received a personal injury could proceed against the tortfeasor, but if the tortfeasor died before the injured plaintiff recovered for the tort, the plaintiff's cause of action died as well. Conversely, if the injured person died before gaining a judgment against the tortfeasor, the cause of action terminated. The common law recognized no independent cause of action on behalf of the victim's heirs or dependents for their loss at the victim's death (see, Prosser and Keeton, Torts, §§ 125A, 127, at 940, 945 [5th ed]. As a tort recovery was thought to be a matter of personal vengeance and punishment between the transgressor and victim, death erased the basis of a civil action between them. Under that view, the legal successor of the person killed "was neither the wronged nor the wrongdoer", and was therefore thought to have no personal involvement in the wrong (see, Smedley, Wrongful Death--Bases of the Common Law Rules, 13 Vand L Rev 605, 608 [1960].
As adherents of the common law, the New York courts denied recovery for wrongful death (before the statutory change) as explained in an early opinion of the New York Court of Appeals (see, Whitford v. Panama R.R. Co., 23 N.Y. 465, 470, 475-476; see also, Green v. Hudson River Railroad Co., 28 Barb 9, aff'd, 2 Abb Ct. App 277, aff'd, 2 Keyes 294; see also, Sharrow v. Inland Lines, 214 N.Y. 101, 103-104, 108 N.E. 217). To overturn the common-law restriction, it was necessary to enact legislation in the form of wrongful death statutes 2 (see, Annotation, Modern Status of Rule Denying a Common-Law Recovery for Wrongful Death, 61 ALR3d 906) to compensate the aggrieved families for their pecuniary loss as a result of persons killed by wrongful act, thus creating a new and distinct cause of action in favor of certain designated beneficiaries (Malone, The Genesis of Wrongful Death, 17 StanLRev 1043, 1051 [1965]. This concept began with Lord Campbell's Act of 1846 (9 & 10 Vict ch 93). 3
Following Lord Campbell's Act, every State Legislature enacted statutory remedies for wrongful death (see, Prosser and Keeton, Torts, at 945 [5th ed]; see also, Cooley, Torts § 211, at 108 [4th ed]. The statutes varied widely throughout the United States, and still do. Notably, there has been no single approach to measure or apportion damages (4 Harper, James and Gray, The Law of Torts, § 24.2, at 459, et seq. [2d ed]; 2 Sedgwick on Damages, § 571 et seq. [9th ed]; Restatement [Second] of Torts § 925).
One year after Lord Campbell's Act broke with the common law, the New York State Legislature enacted New York's wrongful death statute (L.1847, ch. 450) which tracked the English version, with one important difference. Whereas Lord Campbell's Act provided that "the Jury may give such Damages as they may think proportioned to the Injury resulting from such Death to the Parties respectively for whom and for whose Benefit such Action shall be brought" the New York version required that the amount recovered "be distributed to such widow and next of kin in the proportions provided by law in relation to the distribution of personal property, left by persons dying intestate" (New York State Legislature L.1847, ch. 450).
The New York statute gave the courts no room to exercise discretion in allocating recoveries. The distribution was automatic, as in intestacy, and impervious to the respective pecuniary deprivations of the beneficiaries (Matter of Snedeker v. Snedeker, 164 N.Y. 58, 58 N.E. 4).
After some amendment (L.1849, ch. 256; L.1870, ch. 78 [], the statute became part of the former Code of Civil Procedure §§ 1902-1904 (L.1880, ch. 178), and then the former Decedents Estate Law §§ 130-133 (L.1920, ch. 919), with ensuing changes relative to the class of beneficiaries, but leaving intact the provision that moneys recovered be distributed as in intestacy. Interpreting this provision, the courts often felt constricted, having no discretion to weigh individual losses, except in cases that arose under Federal statutes (see, Taylor v. Taylor, 232 U.S. 363, 34 S.Ct. 350, 58 L.Ed. 638).
In the 1930's the most severe decisional criticism came from Kings County Surrogate Wingate, who described the inequity of intestacy distribution in a wrongful death case in which the deceased's husband was 80 years old, so that his wrongful death statutory share was fixed inappropriately high, given that his future "dependency" was vastly less than the two children with whom he shared equally (see, Matter of Aronowitz, 151 Misc. 746, 272 N.Y.S. 421; see generally, Matter of Uravic, 142 Misc. 775, 255 N.Y.S. 638; Matter of DeMartino, 142 Misc. 785, 255 N.Y.S. 650; Matter of Klein, 162 Misc. 589, 295 N.Y.S. 197).
In 1949, the State of New York Law Revision Commission observed that the Legislature had obviously intended to compensate those who suffer pecuniary injuries, but provided that the distribution be made to statutory distributees without reference to pecuniary injury. The Commission called distribution by the rules of intestacy "illogical and unjust" (1949 Report of NY Law Rev Commn, at 226) The Commission found that "the principal defect in the present law is the requirement that damages for wrongful death must be distributed to the surviving spouse and next of kin of the decedent in the proportions fixed by the law of intestate succession ( [former] Decedent Estate Law, Section 83), and not in accordance with the pecuniary injury of the decedent's dependents" (Report, supra, at 233).
From the century-long period between the enactment of our first wrongful death statute until the Law Revision Commission study, the courts in New York had been allocating the shares in accordance with intestacy distribution, and we note that courts in some other states still do (see, Annotations, Division Among Beneficiaries of Amount Awarded by Jury or Received in Settlement Upon Account of Wrongful Death, 171 ALR 204; 112 ALR 30; 14 ALR 516), but...
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