Wharff v. Rohrback

• Citation: 152 Or.App. 68,952 P.2d 87
• Decision Date: 07 January 1998
• Docket Number: C-13514
• Parties: In the Matter of the Estate of Marlisha Rohrback, Deceased. Timothy WHARFF and Julie Limbocker, Appellants, v. Marleeta ROHRBACK, Respondent. 95; CA A96486.
• Court: Court of Appeals of Oregon

Page 87

952 P.2d 87

152 Or.App. 68

In the Matter of the Estate of Marlisha Rohrback, Deceased.

Timothy WHARFF and Julie Limbocker, Appellants, v. Marleeta ROHRBACK, Respondent.

95C-13514; CA A96486.

Court of Appeals of Oregon.

Argued and Submitted Nov. 6, 1997.

Decided Jan. 7, 1998.

Les Swanson, Jr., Portland, argued the cause for appellant. With him on the briefs was Carl M. Swanson.

Greg Noble, Salem, argued the cause and filed the brief for respondent.

Before De MUNIZ, P.J., and HASELTON and LINDER, JJ.

De MUNIZ, Presiding Judge.

Appellants ¹ appeal an order of the probate court denying their motion to remove Marleeta Rohrback (respondent), mother of the decedent Marlisha Rohrback, as personal representative of the estate. We reverse.

The primary beneficiary of the estate is Sonja Rohrback, infant daughter of Marlisha. The only asset of the estate is the wrongful death claim being pursued by respondent arising out of the October 30, 1995 accident that killed Marlisha. The accident occurred about 2:00 a.m. on Interstate 5 near Albany. Respondent was driving a Toyota car northbound; Marlisha, who was 15, was in the front passenger seat holding her baby. In the back seat were respondent's boyfriend, Walter Stewart, and Randy Zink, Marlisha's boyfriend. They were returning from a trip to Reno.

Respondent's version of the accident was that the car was acting up and that the baby spit up. Marlisha undid her seat belt to tend to the baby, and respondent heard Stewart yell, "Look out, hold on." Respondent looked in the rearview mirror and saw a semi-truck coming. The truck hit the Toyota, knocking it off the road. The car rolled over several times, and Marlisha was thrown from the car and killed. The driver of the truck, Wesley Stone, fled the scene, drove several miles and then left the freeway to make an anonymous 911 call to report the accident. It took about 30 minutes for respondent and the other survivors to stop a passing vehicle and call emergency personnel. Stone was arrested about 10 miles north of the accident scene.

An officer found respondent's purse at the scene of the accident. The purse contained a black case with three marijuana pipes with marijuana residue, two baggies and a snort straw, all with methamphetamine residue, and razor blades. Respondent said that the black case did not belong to her, that Stewart found it in a bathroom at a rest stop and that it must have rolled into her purse when the car rolled over.

Less than three hours before the accident, Stone had been cited for speeding. After his arrest, it was learned that he had made false entries in his log and had violated the number of hours he was to drive his truck. Numerous medications were found in his cab, including Dayquil and Sudafed. The results of a urine test were positive for methamphetamine.

Stone was prosecuted for leaving the scene of an accident and manslaughter. He was convicted of leaving the scene and of criminally negligent homicide. ² In preparation for Stone's criminal trial, the report of the state's accident reconstruction expert stated that the accident occurred in the slow, right-side lane of the freeway, that respondent's car was probably beginning to turn off the freeway at the point of impact and that it was traveling between 34 and 44 miles per hour.

On November 16, respondent was appointed personal representative, and she filed a wrongful death action. ³ Following a year of negotiations, an agreement was reached on December 4, 1996, settling the claim for $450,000, including approximately $42,000 for respondent. ⁴ On December 6, appellants filed their motion to remove respondent as personal representative.

As described more fully below, appellants asserted that, because of respondent's potential culpability in the accident, she could not objectively evaluate whether the estate should bring a separate personal injury action against her, nor could she objectively evaluate the proposed settlement, including any allocation and distribution of settlement proceeds to her as a beneficiary of the estate. The probate court denied that motion. Pending this appeal from the denial, the probate court has deferred approving the proposed settlement.

We review the denial of appellants' motion for abuse of discretion. In re Faulkner's Estate, 156 Or. 23, 27, 65 P.2d 1045 (1937). The personal representative of an estate has a fiduciary duty to the beneficiaries of the estate. ORS 114.265. The personal representative must be in a position to act indifferently in matters of the estate, In re Estate of Mills, 22 Or. 210, 212, 29 P. 443 (1892), and a conflict between the interest of the personal representative in a personal capacity and the interest of the estate may be a basis to remove a personal representative. See Vander Galien v. Vander Galien, 47 Or.App. 233, 236, 614 P.2d 127 (1980) (evidence showed that a conflict was likely to arise between interest of mother in her personal capacity and interest of estate and wife as heir that, coupled with wife's statutory preference, justified removal of mother and appointment of wife). Whether a personal representative should be removed must be decided on the particular facts of the case. In re Elder's Estate, 160 Or. 111, 117, 83 P.2d 477 (1938). The question is whether there is a substantial and bona fide claim of interest in the estate adverse to the interest of the personal representative. In re Faulkner's Estate, 156 Or. at 28, 65 P.2d 1045. Consistently with those precedents, we conclude that a court's refusal to remove a personal representative with a substantial and bona fide conflict of interest constitutes an abuse of discretion.

Appellants contend here that, because of respondent's role in the accident, there was, and is, a real conflict between respondent's personal interest and those of the estate and the infant beneficiary. They argue, particularly, that the conflict prevents respondent from deciding, in an "indifferent manner," whether (1) she, as personal representative, should make a claim against herself for contributing to the accident, in that she was driving a malfunctioning and disabled vehicle at a slow rate of speed and in failing to keep an adequate lookout under the circumstances; (2) she should receive a portion of the proposed settlement or eliminate or reduce her settlement; and (3) she should settle out-of-court with the trucking company, thereby avoiding the issue of her own possible responsibility for the accident, or go to trial and seek punitive, as well as "adequate" compensatory, damages. ⁵

Respondent argues that any "conflict" is illusory and that, in all events, given the comparative costs and benefits of her removal, the court's denial of appellants' motion was within the range of reasonable discretion. In asserting that there is, in...