Lombardo v. Pollock

• Decision Date: 17 April 1974
• Docket Number: No. 2,CA-CIV,2
• Citation: 21 Ariz.App. 537,521 P.2d 636
• Parties: Shirley LOMBARDO, Petitioner, v. Elaine S. POLLOCK, as Guardian of the Estate of Lawrence D. Lombardo, a minor, and Hon. Richard N. Roylston, as Judge of the Superior Court In and For the County of Pima, Arizona, Respondents. 1612.
• Court: Arizona Court of Appeals

Page 636

521 P.2d 636

21 Ariz.App. 537

Shirley LOMBARDO, Petitioner, v. Elaine S. POLLOCK, as Guardian of the Estate of Lawrence D. Lombardo, a minor, and Hon. Richard N. Roylston, as Judge of the Superior Court In and For the County of Pima, Arizona, Respondents.

No. 2 CA-CIV 1612.

Court of Appeals of Arizona, Division 2.

April 17, 1974.

Rehearing Denied May 22, 1974.

Review Denied June 11, 1974.

Miller, Pitt & Feldman, P.C., by Stanley G. Feldman, Tucson, for petitioner.

Browning, Druke & Hawkins, by Carol Wilson Druke, Tucson, for respondent guardian.

OPINION

HOWARD, Judge.

A superior court order distributing the proceeds of a wrongful death settlement is the subject of this special action. We are of the opinion that, despite the existence of a remedy by appeal, our obligation 'to see that essential justice is done' warrants intervention by way of special action. See Caruso v. Superior Court, 100 Ariz. 167, 412 P.2d 463 (1966). The undisputed facts are as follows. Petitioner is the surviving spouse of Lawrence Lombardo who died on February 19, 1969. Lawrence D. Lombardo, a minor, is the only surviving child. Decedent was a resident of and was domiciled in the State of California, as were his spouse and child. At the time of his death, he was an employee of the Greyhound Bus Line but was present in the State of Arizona for the sole purpose of receiving medical treatment at the Southern Pacific Memorial Hospital, having been referred there from the Southern Pacific Employees' Clinic in Los Angeles.

After her husband's death, petitioner (on behalf of herself and the minor child) filed a wrongful death action against Southern Pacific Memorial Hospital, Inc., and a Tucson doctor, alleging negligence on the part of the defendants. The action was scheduled for trial in June, 1972, and on the day before trial petitioner entered into a settlement agreement with the defendants whereby the defendants agreed to pay $215,000 in settlement of all claims of all persons entitled to share in the recovery of damages for the death of Mr. Lombardo. Pursuant to court instructions and approval, petitioner accepted the $215,000 in full settlement of all claims and a hearing was conducted relative to distribution of said sum. (Respondent Pollock was appointed guardian of the estate of the minor.) Petitioner requested that the damages be distributed in accordance with the actual loss sustained by each of the beneficiaries entitled to share in the damage settlement and that the court determine and divide the settlement proceeds in accordance with such actual loss.

Evidence was presented to the court as to the actual loss sustained by each beneficiary and at the conclusion of the hearing, the court found that the minor beneficiary was damaged in the sum of $64,500 and the damages to the surviving spouse were $150,500. The court, however, concluded that under A.R.S. § 12--612(C) the settlement proceeds should be distributed in accordance with the law of intestate succession of California, the decedent's domicile. Since under California law the personal estate of a person dying intestate is distributed one-half to the surviving spouse and one-half to the surviving child, the court ordered petitioner to distribute $107,500 to herself and $107,500 to the minor's guardian.

Petitioner contends that since under the California statute a wrongful death recovery is not distributable according to the laws of intestate succession but rather according to the pecuniary loss of each beneficiary, see Changaris v. Marvel, 231 Cal.App.2d 308, 41 Cal.Rptr. 774 (1964); In re Riccomi's Estate, 185 Cal. 458, 197 P. 97 (1921), the subject distribution should also have been apportioned according to the respective losses of the beneficiaries which the lower court found to be 70%--30%.

Although we agree with the petitioner as to the recovery ratio, we find no reason to look to the California wrongful death statute to determine distribution of the wrongful death proceeds ¹ because there is no conflict between the result we reach and the result if the California statute were applied.

It is the general rule that damages recovered for wrongful death, whether by action, settlement or compromise, are to be distributed, apportioned, or disposed of in accordance with the provisions of the law of the state under whose statute the right to recovery accrued, i.e. ordinarily the law of the place where the death-causing injury occurred, as distinguished from the law of the decedent's domicile. Cherokee Laboratories, Inc. v. Rogers, 398 P.2d 520 (Okl.1965); see Annot. 92 A.L.R.2d 1129.

A.R.S. § 12--613 provides the measure of damages in an action for wrongful death: '. . . the jury shall give such damages as it deems fair and just with reference to the injury resulting from the death to the surviving parties who may be entitled to recover, . . .' This statute also protects the recovery from creditors' claims unless the wrongful death action is brought on behalf of the decedent's estate.

A.R.S. § 12--612 as it read at the time of decedent's death, provides in pertinent part:

'A. An action for wrongful death shall be brought by and in the name of the surviving husband or wife or personal representative of the deceased person for and on behalf of the surviving husband or wife, children or parents, or if none of these survive, on behalf of the decedent's estate.

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C. The amount recovered in an action for wrongful death shall be distributed to the parties provided for in subsection A and in the proportions provided by law for distribution of personal estate left by persons dying intestate.'

In Salinas v. Kahn, 2 Ariz.App. 181, 407 P.2d 120 (1965), rehearing denied 2 Ariz.App. 348, 409 P.2d 64 (1966) ², we indicated that the provision regarding distribution according to the laws of intestacy is controlling only when the action is brought for the benefit of the estate. We stated:

'. . . It seems to this court it may very well be argued that there is an obvious inconsistency between the new provisions for the assessment of damages (A.R.S. § 12--613) and the old provisions for the distribution of damages and that the 1956 Act implicitly amended the old provisions for distribution in the case when designated beneficiaries survive.' 3 Ariz.App. at 194, 407 P.2d at 133.

Arizona's first wrongful death statute was enacted in 1887, Rev.Stat.Ariz. §§ 2145--2155, essentially following the format of Lord Campbell's Act. To recover, it was necessary to allege and prove the existence of survivors and the amount of injuries sustained by them. Southern Pacific Company v. Wilson, 10 Ariz. 162, 85 P. 401 (1906). The Revised Statutes of 1901, Rev.Stat.Ariz.Civ.Code §§ 2764--2767, substantially changed the nature of the earlier Act. An action was created for the benefit of the decedent's estate, and the damages recoverable were distributed as assets of the estate according to the laws of intestacy. Southern Pacific Company v. Wilson, supra. The 1901 Act was subsequently adopted with minor modifications in 1913, 1928, and 1939. In 1956, the Act was changed and provided a right of recovery for the decedent's surviving spouse, children or parents, and if none survived, recovery on behalf of the decedent's estate. Although it provided for assessment of damages according to the...