Torts: Wrongful Death Statutory Plaintiffs' & Beneficiaries' Rights & Obligations
Estate of Brady v. Tempe Life Care Village, Inc., No. 1 CA-CV 21-0339 (App. Div. I, October 4, 2022) (J. Thumma) https://www.azcourts.gov/Portals/0/OpinionFiles/Div1/2022/CV21-0339%20Brady%20OP.pdf
WRONGFUL DEATH BENEFICIARIES WHO IGNORE NOTICE OF WRONGFUL DEATH LAWSUIT AND DEADLINES TO SUBMIT CLAIM ARE BARRED FROM LATE ASSERTION OF CLAIMS/STATUTORY PLAINTIFFS' FIDUCIARY DUTY TO OTHER BENEFICIARIES IS TO ONLY PROVE LIABILITY & EACH INDIVIDUAL BENEFICIARY HAS AN INDEPENDENT OBLIGATION TO TIMELY PRESENT AND PURSUE THEIR INDIVIDUAL DAMAGE CLAIMS/WILMOT FIDUCIARY DUTY NOT BREACHED WHERE STATUTORY PLAINTIFF SETTLES ONLY HER CLAIM AND DOES NOT PURPORT TO SETTLE CLAIM FOR OTHER BENEFICIARIES
82 year old Richard Brady Sr.[Sr.] fell in the care of defendant skilled nursing facility and died shortly thereafter in the care of defendant hospice. Sr. only had a relationship with two of his eight children--Barbara and Patrick. Barbara became executor of Sr.'s estate. She sued defendants pursuant to Ariz. Rev. Stat. (A.R.S.) § 12-612(A) on behalf of Sr.'s estate, herself, Patrick and their six siblings.
Barbara and Patrick, through the same attorneys, sent certified mail, return receipt requested, to the other 6 children notifying them of the lawsuit, the fact they had the right to hire their own attorneys and pursue a claim but either way Patrick and Barbara's attorneys explained that they did not represent the other children and they needed to respond to the letter within 30 days advising if they did or did not want to participate in the lawsuit. One responded she did not want to participate, one letter was returned undeliverable and the remaining siblings ignored the letter.
Over two years later, and after the running of disclosure and discovery deadlines, and a trial date pending, defendants moved for summary judgment as to the 8 non-responding siblings. Notice of the motion was sent to the siblings whereupon 5 of them hired a lawyer who made an appearance ultimately making an untimely disclosure of damage evidence on their behalf. He also filed an opposition to defendants' motion for summary judgment. Following briefing and argument the trial court refused to allow for the late disclosure or consider it granting the motion for summary judgment.
Barbara and Patrick settled with the nursing home and tried the case against hospice. The jury awarded $155,000 to the estate, $830,000 to Barbara and $700,000 to Patrick. Fault was allocated 20% to hospice, 75% to the nursing home and 5% to Sr.
Three of the siblings [NRK] who lost on summary judgment bring this appeal. The Arizona Court of Appeals affirms the trial court.
The trial court complied with Rule 37 of the Arizona Rules of Civil Procedure in denying NRK's late disclosure, made within a month of trial, where the court expressly found NRK offered no excuse for their tardiness, that the delay was in fact “willful” in that they knew of the lawsuit “nearly from its inception,” instead laying in wait until all disclosures and discovery were complete and a motion for summary judgment filed, to come forward with a claim.
Summary judgment here was also appropriate. Under Arizona's Wrongful Death Statute and Wilmot v. Wilmot, 203 Ariz. 565, 569 (2002), Barbara, as statutory plaintiff, acted for all the other beneficiaries but only so far as establishing liability. Each individual beneficiary has their own independent obligation to pursue their individual damage claim. The only timely disclosure made regarding NRK's damages was Barbara's generic disclosure that if NRK were to make a claim they would testify as to the relationship they had with their father and how his death affected them. This was not an adequate disclosure to defeat a motion for summary judgment.
Finally, while Wilmot makes it clear that Barbara, as the statutory plaintiff, has a fiduciary duty to the other beneficiaries, here, unlike in Wilmot, Barbara, did not settle any of the other beneficiaries' claims. The question of whether or not Barbara otherwise breached a fiduciary duty to NRK was not pled and is not before the court.
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