A. Damages – In an action instituted by the personal representative against a tort- feasor for a wrong which resulted in the death of the decedent, the personal representative may recover the funeral expenses of the decedent up to the amount allowed under § 8-106(b) of the Estates and Trusts Article in addition
to other damages recoverable in the action. EST. & TRUSTS § 7-401(y)(2)
1. Noneconomic Damages
a. Conscious pain and suffering (between the time of injury and the time of death)
b. Mental anguish, including pre-impact fright
2. Economic Damages
a. Funeral Expenses. EST. & TRUSTS § 7-401(y)(2)
b. Expenses, including medical expenses (between the time of injury and the time of death)
c. Loss of wages (between the time of injury and the time of death)
- Counsel Fee
1. Petition - An attorney is entitled to reasonable compensation for legal services rendered to the estate and/or the personal representative. Upon the filing of a petition in reasonable detail by the personal representative or the attorney, the court may allow a counsel fee to an attorney employed by the personal representative for legal services. The compensation shall be fair and reasonable in the light of all the circumstances to be considered in fixing the fee of an attorney. Est. & Trusts § 7-602(a)-(b)
2. Exceptions to Petition Requirement - Attorney’s fees may be paid without court approval if:
(a)(i) Each creditor, who has filed a claim that is still open, and all interested persons consent to the payment in writing;
(ii) The combined sum of commissions payments and attorney’s fees do not exceed amounts provided in § 7-601; and
(iii) The signed written consent form states the amounts of the payments and is filed with the register of wills; or
(b)(i) The fee is paid to an attorney representing the estate in litigation under a contingency fee agreement signed by the decedent or current personal representative;
(ii) The fee does not exceed the terms of the contingency fee agreement;
(iii) A copy of the contingency fee agreement is on file with the register of wills; and
(iv) The attorney files a statement with each account stating that the scope of the representation by the attorney does not extend to the administration of the estate. Est. & Trusts § 7-604(a)
III Wrongful Death Considerations for Estate Planner
A. Minimum Required Liability Limits –Automobile Insurance – Maryland presently requires liability insurance of no less than $30,000.00 per person and $60,000.00 per occurrence.
- Uninsured Motorist Coverage– It pays the insured if the “at fault” driver has no insurance or does not have enough insurance to pay the compensatory damages for bodily injury and property damage that the insured is legally entitled to recover on the claim. The amount of such coverage generally cannot be higher than the limits of liability insurance provided by the policy.
- Umbrella Policy – It provides liability insurance above the amount provided by the underlying policy(ies). For most homeowners, it provides additional coverage if someone gets injured on their property or by or in their insured vehicle(s). Some insurers will for little or no additional premium provide uninsured motorist coverage under the umbrella.
- Household Exclusion
1. Pre-2004 - Insurers through the “household exclusion” were able to limit insurance coverage on liability claims made by injured members of the insured’s family to the minimum required liability limits, which at the time were $20,000.00/$40,000.00. This resulted in the insured’s family members having less coverage riding with the insured than with a neighbor.
- Section 19-504.1 of the Insurance Article – Beginning in 2004, insurers can choose how to handle the “household exclusion” by:
- Providing household members the same coverage as it provides others on liability claims, i.e. remove “household exclusion”; or
b. Giving customers notice of the additional premium needed to be paid so that family members are treated the same as other claimants on liability claims.
IV Victim’s Family Comes to Estate Lawyer With Possible Wrongful Death Claim(s)
- Accept Sole Responsibility for Claims and Keep Entire Fee?
- Conflicts of Interest – Besides possible conflict with tortfeasor and/or tortfeasor’s insurer, there are conflicts of interest (i) between the wrongful death claimants on the allocation of the wrongful death recovery among them and (ii) between the wrongful death claimants as a group and the decedent’s estate on how much, if any, of a recovery is allocated to the estate’s survival action.
- Meeting Limitations and Notice Deadlines for the Claims
- Liens of Medical Providers – The attorney in many cases will have to deal with Medicare, Medicaid, hospital, Blue Cross/Blue Shield and/or workers compensation liens. Certain statutes, including Medicare, make the attorney personally responsible for his or her failure to properly protect the lien.
- Rules 1.5(c) of the Maryland Rules of Professional Conduct – A contingent fee agreement shall be in a writing signed by the client and shall state the method by which the fee is to be determined, including the percentage or percentages that shall accrue to the lawyer in the event of settlement, trial or appeal; litigation and other expenses to be deducted from the recovery; and whether such expenses are to be deducted before or after the contingent fee is calculated. The agreement must clearly notify the client of any expenses for which the client will be responsible whether or not the client is the prevailing party.
- Associate with Experienced Lawyer Having Joint Responsibility and Shared Fee?
- Rules 1.5(e) of the Maryland Rules of Professional Conduct –A division of a fee between lawyers who are not in the same firm may be made only if:
(1) the division is in proportion to the services performed by each lawyer or each lawyer assumes joint responsibility for the representation;
(2) the client agrees to the joint representation and the agreement is confirmed in writing; and
(3) the total fee is reasonable.
2. Confirm Agreement between Associated Lawyers on Division in Writing
C. No Responsibility and No Fee for the Claims?
.
- Acting as Personal Counsel for Defendant in Wrongful Death Case
- Review Insurance Policies and Make Sure of Timely Notice
B. Find competent counsel for traffic/criminal case
- Monitor insurance carrier’s defense of case – If necessary insurance counsel may need to be reminded about potential bad faith claim.
- Determine whether excess judgment is dischargeable in Bankruptcy—11 U.S.C.A. § 523(a)(9) provides that a discharge in bankruptcy does not discharge a debt for “death or personal injury caused by the debtor’s operation of a motor vehicle, vessel or aircraft if such operation was unlawful because the debtor was intoxicated from using alcohol, a drug, or another substance.”
- Prepare to Discuss Maryland’s Uniform Fraudulent Conveyance Act –It is found in Sections 15-201 to 15-214 of the Commercial Law Article
- Review beneficiary designations, life estates, trusts, wills, etc. of spouse, parents, et. al.
- Services provided with Respect to Survival Action.
A. Factors Relevant to Allocation – If giving advice on the amount, if any, to be allocated to estate consider all relevant factors, including: facts of the underlying claim (decedent’s pain, evidence that decedent likely aware of impending death, etc.), claims against and creditors of estate, the distribution of any residuary estate, the time and expense of “running part of recovery through the estate”, etc.
B. Advise Client of Time and Expense Associated with Disposition of Survival Action Recovery – Depending upon what has been filed, the Estate’s recovery may require the giving of notice, the conversion of the small estate, the filing of a fee petition and/or an administration account, etc. |
