Arnold v. Turek

Citation185 W.Va. 400,407 S.E.2d 706
Decision Date03 July 1991
Docket NumberNo. 19856,19856
CourtSupreme Court of West Virginia
PartiesJames ARNOLD and Rebecca Paugh, Personal Representatives of the Estate of Jack Turek, Deceased; Charles Arnold and Paula Arnold, Guardians of Heidi Turek, an Infant/Incompetent; and Robert Patrick Arnold, Committee for Frances Arnold (Turek), Petitioners, v. Heidi L. TUREK, an Infant/Incompetent; and Frances V. Turek, a Person Unable to Manage her Business Affairs; Diane Potter and Rosalie Darby; said Persons being the Heirs at Law of Jack Turek, Respondents.

Syllabus by the Court

1. The legislature amended W.Va.Code, 55-7-6 and 55-7-7 in 1989. The amendments deleted provisions which specified relatives and dependents who were entitled to share in a wrongful death damage award. The legislature also removed the right of the jury or the court to distribute damages in such amounts and proportions as the court finds to be fair, just and equitable. Instead, the net proceeds of a wrongful death damage award must now pass in accordance with the decedent's will or, if there be no will, in accordance with the laws of descent and distribution.

2. With regard to the distribution of a wrongful death settlement, W.Va.Code, 55-7-7 (1989), directs a judge to distribute the settlement in accordance with the decedent's will or, if there be no will, in accordance with the laws of descent and distribution. Thus, the legislature has taken away the discretion of the court to allocate a greater share of wrongful death proceeds based on an individual's degree of dependency, relationship, or loss, which existed prior to the 1989 amendments to the Wrongful Death Act.

3. Sums recovered for reasonable funeral, hospital, medical and other expenses are required to be set forth separately, and any amount recovered for such expenses shall be so expended by the personal representative. W.Va.Code, 55-7-6(c)(2) (1989). All other damages recoverable under W.Va.Code, 55-7-6(c)(1) (1989), are "net damages" which are to be distributed in accordance with the decedent's will or by intestate distribution.

4. " 'A statute is presumed to operate prospectively unless the intent that it shall operate retroactively is clearly expressed by its terms or is necessarily implied from the language of the statute.' Syllabus Point 3, Shanholtz v. Monongahela Power Co., , 270 S.E.2d 178 (1980)." Syllabus Point 2, State ex rel. Manchin v. Lively, 170 W.Va. 672, 295 S.E.2d 912 (1982).

5. Statutory changes in the manner and method of distributing the proceeds of a judgment or settlement for wrongful death will not be given retroactive effect, and the statute in effect on the date of the decedent's death will control.

6. "In an action for wrongful death, a release executed by the beneficiaries under the statute, Code, 55-7-5, prior to the institution of the action, is, in the absence of fraud, duress or other invalidating defects, a bar to recovery." Syllabus Point 1, Carroll v. Fetty, 121 W.Va. 215, 2 S.E.2d 521, cert. denied, 308 U.S. 571, 60 S.Ct. 85, 84 L.Ed. 479 (1939).

7. All of the eligible beneficiaries may, by a written agreement, compromise a wrongful death claim and allocate the share to be paid to each. Such a settlement agreement will be binding in the absence of fraud, duress, or other invalidating factors.

John W. Cooper, Cooper & Preston, Parsons, for petitioners.

Pat A. Nichols, Parsons, for respondent Heidi L. Turek.

Matthew H. Fair, Elkins, for respondent Frances V. Turek.

MILLER, Chief Justice:

This case involves two certified questions. The first question relates to the distribution of proceeds from the settlement of a wrongful death action. The second question involves whether monies obtained by two beneficiaries who are mentally impaired may be placed in a joint trust to be used for their benefit.

The relevant facts found by the circuit court are that on April 10, 1989, Jack Victor Turek was killed in Davis, Tucker County, when he was struck by a dump truck owned by Fairfax Sand and Crushed Stone. He had no will and was survived by Frances V. Turek, his widow, and Heidi L. Turek, their minor daughter, with whom he resided. The decedent also had two adult daughters with whom he had little contact by a former marriage.

Frances Turek is moderately impaired intellectually and is not employed, although she may be able to obtain gainful employment with some specialized training and vocational counseling. She was deemed by the court competent to make a will, but sufficiently mentally handicapped not to be able to manage her financial affairs. Her brother, Robert Patrick Arnold, has been appointed committee to manage her business affairs. Because of her medical problems, it is anticipated that she may have substantial future medical expenses.

Heidi Turek was sixteen years old at the time of her father's death. She is severely and permanently mentally retarded. The circuit court found that the nature of her mental disabilities will require extraordinary expenditures in the future, including psychological counseling, placement in a group home and/or developmental training center, special education, and vocational training. In addition, she suffers from visual and dental problems which will likely require medical expenditures in the future. Her guardians are her aunt and uncle, Paula and Charles Arnold.

James Arnold and Rebecca Paugh were appointed as the personal representatives of the estate of the decedent. They negotiated a settlement of the wrongful death claim in the amount of $400,000. They also entered into a written agreement with Mr. Turek's two adult daughters in which each agreed to accept the sum of $41,000 in settlement of her wrongful death claim, subject to the court's approval.

After obtaining the approval of Frances Turek's committee and Heidi Turek's guardians, the personal representatives of the estate petitioned the Circuit Court of Tucker County for ratification of the agreed upon arrangement and for distribution of the funds remaining after deduction of costs and attorney's fees. The circuit court approved the settlements and the attorney's fees and costs. The court ordered the remaining $248,000 placed in a joint trust with a spendthrift clause for the benefit of both Frances Turek and Heidi Turek. The circuit court then certified to this Court the questions discussed below.

I. DISTRIBUTION OF WRONGFUL DEATH PROCEEDS

The first certified question asks whether, pursuant to W.Va.Code, 55-7-6 (1989), and W.Va.Code, 55-7-7 (1989), a court may deduct damages awarded for loss of income or of the services, protection, care, and assistance provided by the decedent from the amount of the settlement before distributing the proceeds to those entitled to recover for the wrongful death. 1

W.Va.Code, 55-7-6(b) and (c) (1989), set forth the amount and distribution of damages in a wrongful death action tried by a jury or by a judge sitting without a jury. W.Va.Code, 55-7-6(b), specifies that in the latter case, the court,

"after making provision for those expenditures, if any, specified in subdivision (2), subsection (c) [§ 55-7-6(c)(2) ] of this section, shall direct that the remaining net damages be distributed in accordance with the decedent's will or, if there be no will, in accordance with the laws of descent and distribution as set forth in chapter forty-two [§ 42-1-1 et seq.] of this code." 2

W.Va.Code, 55-7-6(c)(1), lists the factors that may be considered in awarding damages in such actions, including sorrow, mental anguish, loss of solace, expected loss of income and of the services, protection, care, and assistance provided by the decedent, expenses for the care, treatment, and hospitalization of the decedent, and reasonable funeral bills. 3 W.Va.Code, 55-7-6(c)(2), requires the verdict to state separately the amount of damages awarded for "reasonable funeral, hospital, medical and said other expenses incurred as a result of the wrongful act, neglect or default of the defendant ... which resulted in death[.]" 4

W.Va.Code, 55-7-7 (1989), makes similar provision where a claim for wrongful death is disposed of by compromise and settlement of the parties. The statute states, in relevant part:

"Upon approval of the compromise, the court shall apportion and distribute such damages, or the compromise agreed upon, after making provisions for those expenditures, if any, specified in subdivision (2), subsection (c), section six [§ 55-7-6(c)(2) ] of this article, in the same manner as in the cases tried without a jury." 5

It is undisputed that this provision and W.Va.Code, 55-7-6(b), anticipate that the expenses listed in W.Va.Code, 55-7-6(c)(1)(C) and (D), will be deducted from the total amount of the verdict or settlement before distribution of the net proceeds to those entitled to recover. The circuit court concluded, however, that an ambiguity existed as to whether the damages identified in W.Va.Code, 55-7-6(c)(1)(B), for loss of income and services of a decedent, should be treated in the same way and distributed to the appropriate beneficiaries. Stated another way, the question is whether those items of damages listed in W.Va.Code, 55-7-6(c)(1)(B), should be deducted from the total award or settlement and passed directly to those designated parties who suffered the loss or should be included in the net proceeds to be distributed in accordance with the testator's will or by intestate succession.

The answer to this question lies in an analysis of the recent amendments to the Wrongful Death Act. 6 We have traditionally held that where a statute is amended to use different language, it is presumed that the legislature intended to change the law. We spoke to this concept in Syllabus Point 2 of Butler v. Rutledge, 174 W.Va. 752, 329 S.E.2d 118 (1985):

" 'The Legislature must be presumed to know the language employed in former acts, and, if in a subsequent statute on the same...

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