Trail v. Hawley, 14388

• Citation: 163 W.Va. 626,259 S.E.2d 423
• Decision Date: 06 November 1979
• Docket Number: No. 14388,14388
• Court: Supreme Court of West Virginia
• Parties: Mary Dunn TRAIL et al. v. Helen HAWLEY, etc.

Page 423

259 S.E.2d 423

163 W.Va. 626

Mary Dunn TRAIL et al. v. Helen HAWLEY, etc.

No. 14388.

Supreme Court of Appeals of West Virginia.

Nov. 6, 1979.

Syllabus by the Court

Heirs, who will be the ultimate beneficiaries of a wrongful death award, may bring a declaratory judgment action against the personal representative of the decedent's estate to determine if the representative is acting in consonance with his or her fiduciary duty to the heirs when a real controversy over matters relating to the prosecution of a wrongful death action exists.

Thornhill, Kennedy & Vaughan, W. A. Thornhill, III, Beckley, for appellants.

Earl Carl Meadows, Jr., Beckley, Edward W. Cochran, Cleveland, Ohio, for appellee.

NEELY, Justice:

This case presents the question of whether the heirs ¹ of a deceased may bring a declaratory judgment action to determine if the deceased's personal representative is prosecuting a wrongful death action in consonance with her fiduciary duty to the heirs. We find that they may.

On 3 July 1978, Paul Dunn was killed in an automobile accident leaving as his heirs the petitioners, his sisters. Mr. Dunn left a will naming the appellee, respondent below, Helen Hawley, executrix. On 14 July 1978, the appellants, petitioners below, employed a law firm in Beckley, West Virginia to represent them in a wrongful death claim arising from Mr. Dunn's death. Helen Hawley apparently refused to work with that firm and instead hired her nephew, an Ohio lawyer, to handle the wrongful death claim. Appellants filed a declaratory judgment action in the Circuit Court of Raleigh County pursuant to W.Va.Code, 55-13-2 (1941) seeking judgment on the following questions: 1) whether the petitioners or the respondent have the right to employ an attorney to prosecute the wrongful death action; 2) whether the petitioners or the respondent have the right to control the negotiations of this claim and/or a settlement of the same; and, 3) whether the petitioners have the right to file through their attorney a wrongful death action in respondent's name as executrix. The lower court granted appellee's motion to dismiss for failure to state a claim upon which relief can be granted.

The only issue in the case before us is whether a justiciable controversy exists between the parties which would make a declaratory judgment action proper. While the Uniform Declaratory Judgments Act, W.Va.Code, 55-13-1 et seq. (1941) does not Expressly require a justiciable controversy as a condition precedent to its application, we have held that the issue to be determined must be potentially justiciable at some future time when the things sought to be avoided by the declaratory judgment action will have occurred. Robertson v. Hatcher, 148 W.Va. 239, 135 S.E.2d 675 (1964). Simply stated, for the purposes of a declaratory judgment action, a justiciable controversy exists when a legal right is claimed by one party and denied by another. Robertson, supra. One exists in the case before us.

It cannot be questioned that a wrongful death action, W.Va.Code, 55-7-6 (1976), must be brought by the personal representative of a decedent's estate; however, that representative serves not as a representative of the deceased but as a trustee for the heirs who will receive any recovery, Thompson v. Mann, 65 W.Va. 648, 64 S.E. 920 (1909). It follows, therefore, that the personal representative stands in a fiduciary relationship to the ultimate distributees and must act in their best interests. That disagreements over what is proper prosecution of a wrongful death action can lead to serious law suits after the damage is done should be obvious, as the case before us amply demonstrates: appellants wish to hire a law firm which they believe can procure them the largest possible recovery while the appellee wishes to hire her nephew, an Ohio attorney. Respondent...