Cleland v. U.S.

• Decision Date: 08 May 1989
• Docket Number: No. 88-5213,88-5213
• Citation: 874 F.2d 517
• Parties: Janice M. CLELAND, formerly Janice M. Godber, as Executrix of the Estate of Merlyn C. Godber, deceased, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 517

874 F.2d 517

Janice M. CLELAND, formerly Janice M. Godber, as Executrix of the Estate of Merlyn C. Godber, deceased, Appellant, v. UNITED STATES of America, Appellee.

No. 88-5213.

United States Court of Appeals,

Eighth Circuit.

Submitted Feb. 14, 1989.

Decided May 8, 1989.

Jeffrey L. Viken, Rapid City, S.D., for appellant.

Gary Allen, for appellee.

Before LAY, Chief Judge, HEANEY, Senior Circuit Judge, and FAGG, Circuit Judge.

LAY, Chief Judge.

Janice M. Cleland, executrix of her first husband's estate, appeals from a judgment of the district court dismissing her wrongful death suit against the United States. The decedent, Merlyn C. Godber, died February 13, 1980, in an airplane crash near Hot Springs, South Dakota, when flying as a passenger in a plane piloted by Charles M. Largent, III. The airplane was owned by Fall River Feedlots, Inc. (Feedlots).

Cleland, serving as executrix, filed an administrative claim against the FAA under the Federal Tort Claims Act, 28 U.S.C. Secs. 1346(b), 2671-2680 (1982 & Supp. IV 1986). This claim was denied on September 4, 1984. She subsequently settled the claim against Largent's estate and Feedlots. In that settlement, she received $325,000 which was distributed to her and her three adult children. The government asserts that she executed a general release which compromised all claims against any and all parties arising out of the plane crash. The government claims this bars further litigation in her suit against the United States. The district court granted summary judgment for the government on this basis and Cleland now appeals. We reverse and remand the case to the district court for further proceedings.

Several months after the administrative claim had been denied, Cleland filed suit against the United States asserting that the FAA had been negligent in failing to properly warn the pilot of bad weather conditions. She alleged that the failure to warn was a contributing factor in the proximate cause of the plane crash. The personal representatives of Largent and another passenger, Altringer, have previously litigated this issue before this court. See Norwest Capital Management & Trust Co. v. United States, 828 F.2d 1330 (8th Cir.1987), on remand, Largent v. United States, No. 83-5020 (D. S.D. Mar. 30, 1988). ¹

While the Norwest appeal was pending, the government and the executrix stipulated that they would be bound by the results of the appellate decision as to the findings of the government's negligence and proximate cause. Due to the stipulation, discovery was suspended on those issues.

On March 15, 1988, the United States moved to amend its answer to plead Cleland's November 5, 1984, release as an affirmative defense to its liability. Then, on March 22, 1988, the government moved for summary judgment, claiming that Cleland's release was framed in language which constituted a general release. The government asserted that Cleland had released not only Largent's estate and Feedlots, but also

all persons, firms, corporations, administrators, and executors from each and every claim, demand, action or cause of action, either at law or in equity, of every kind and description, which [she], as Executrix, now [has] or hereafter may have arising out of an accident on the 13th day of February, 1980, in Fall River County, South Dakota, as a result of the operation of an airplane owned by Charles Marcus Largent, III and operated by him for and on behalf of Fall River Feedlots, Inc.

Record at 71.

Cleland responded by filing a cross motion for partial summary judgment on the issue of the United States' liability to her, as Godber's executrix. On May 6, 1988, a hearing was held on the motions before the district court. ² The district court granted the United States' motions to amend and for summary judgment, and dismissed Cleland's complaint. This appeal followed.

The government asserts that the language of the release discharges any other potential defendants including the United States. The executrix argues that the release was not intended to compromise her claim against the government and that the wording of the release manifests a clear expression of releasing only Feedlots and the Largent estate. She argues that under the South Dakota Uniform Contribution Among Joint Tortfeasors Act, S.D.Codified Laws Ann. Sec. 15-8-17 (1984 & Supp.1988) that no other tortfeasors are to be released "unless the release so provides * * *."

This court reviewed a similar claim in Douglas v. United States Tobacco Co., 670 F.2d 791 (8th Cir.1982). There, the district court found that the operative language of the release discharging "all other persons, firms, corporations, associations or partnerships" constituted a release of all others under Arkansas law. This court agreed and barred plaintiff's claims against other joint tortfeasors. 670 F.2d at 795. Our holding in Douglas requires us to hold that the language of Cleland's release operates as a general release.

Therefore, under the terms of the release in issue, unless the release is held otherwise invalid, further claims against other joint tortfeasors are deemed barred.

The executrix asserts that she lacked authority under South Dakota law to release any party other than Largent and Feedlots. Under section 21-5-6 of the South Dakota statutes, unless all beneficiaries execute the release, a personal representative of an estate must seek approval of the appointing court for a wrongful death settlement. This statute reads:

Such personal representative may at any time before or after the commencement of a suit for wrongful death settle with the defendant the amount to be paid to him as damages for the wrongful death of the decedent. If such personal representative was appointed in this state and settlement is made before the commencement of a suit such settlement must have the approval of the court of the representative's appointment. If settlement is made at any time after the commencement of suit, whether before or after judgment therein, such settlement must have the consent and approval of the court wherein the action is pending; provided, however, that if the personal representative was appointed in this state he may make such settlement upon the consent and approval of either the court wherein the action is pending or the court of his appointment. If all the statutory beneficiaries are of full age and competent and consent in writing to the proposed settlement the same may be made at any time, before or after suit, without the consent of either court.

S.D.Codified Laws Ann. Sec. 21-5-6 (1987 & Supp.1988).

The November 1, 1983, application to the court was executed not only by the executrix, but by the three adult beneficiaries (the decedent's children). ³ These four petitioned to confirm a settlement with the following language: "the estate of the above named decedent has a cause of action against Bobbie Fae Largent, Executrix of the estate of Charles Marcus Largent, III, deceased, and Fall River Feedlots, Inc. * * *." Record at 66. The petition went on to request an order authorizing the executrix's settlement and "release [of] Bobbie Fae Largent, Executrix of the estate * * * and Fall River Feedlots, Inc., releasing them from all causes of actions, claims, and demands arising out of said wrongful death." Id. at 67 (emphasis added).

In the judgment approving and confirming the settlement dated November 2, 1984, the court authorized the settlement and gave judicial approval to the executrix to "release * * * any and all claims which might be asserted against the said Bobbie Fae Largent, Executrix of the estate of Charles Marcus Largent, III, deceased, and Fall River Feedlots, Inc. * * *." Record at 70. In the same decree, the court recited:

the settlement made by the Executrix of the estate of Merlyn C. Godber, deceased with the defendants, Bobbie Fae Largent, Executrix of the estate of Charles Marcus Largent, III, deceased, and Fall River Feedlots, Inc., for any and all claims, both known and unknown arising out of the death of said decedent, [is hereby] approved, confirmed and allowed.

Record at 69.

Thus, it is clear that the petition for the court's approval for settlement specified only Largent's estate and Feedlots. Similarly, the judgment authorizing and approving the settlement is not all inclusive of other parties as is the language of the release executed by the executrix. ⁴

Under South Dakota law there is no question that an executrix, representing the estate and its beneficiaries, acts in a fiduciary capacity. In South Dakota it is well established that the executrix is an officer of the court which appoints her. She is thus subject to its control and direction. It is likewise clear that the powers of a personal representative are generally those imposed by statute. In addition to section 21-5-6, see, e.g., S.D.Codified Laws Ann. ch. 30-18 (1984 & Supp.1988) (management of decedents' estates); S.D.Codified Laws Ann. Sec. 30-18A-1 (1984 & Supp.1988) (hearing and court approval required for independent administration of estate by administrator); S.D.Codified Laws Ann. Sec. 30-22-1 (1984 & Supp.1988) (court order required to sell estate property unless will directs otherwise); S.D.Codified Laws Ann. Sec. 30-22-7 (1984 & Supp.1988) (court order otherwise required for sale of property); S.D.Codified Laws Ann. Sec. 30-22-9 (1984 & Supp.1988) (sale of estate property must be justified by petition for order of sale of property). The state of South Dakota has patently sought to provide judicial process for the protection of estates and their beneficiaries. Accord Coe v. Covert, 214 Neb. 140, 144, 332 N.W.2d 699, 701 (Neb.1983) (construing South Dakota law).

Under section 21-5-6, the personal representative's authority to compromise a claim exists only by statutory grant. This court has previously encountered a case with a very similar factual scenario. That case dealt with the settlement of an infant's...