Legal Question in Personal Injury in District of Columbia

Does One Allocate settlement Proceeds to Unasserted Claims

Father and Mother, residents of Florida filed personal injury and loss of consortium claims respectively, in DC court in an individual asbestos lawsuit. Father's injuries occurred in DC. Father died 3 weeks before trial and before any settlements. DC law permits separate wrongful death claim(WDC)to be prosecuted but decision was made not to add, to avoid losing trial date and desire to settle and avoid trial. Father's claim continued as survival claim brought by Mother, as Personal Rep. of estate. Settlements were reached with all defendants before judgement. Settlement agreements do not provide an allocation of settlement proceeds among claims. Must Mother petition court to determine the allocation or can she propose one and seek court approval? Are proceeds normally allocated to both asserted AND unasserted claims? She chose not to assert WDC but release included release from liability for asserted AND unasserted claims. If appropriate to allocate to WDC, is the amount an estimate of what would have been awarded had WDC been filed or lesser estimate of the value of the RELEASE from future liability? Mother and my Father's estate reside in FL. Does DC of FL have jurisdiction over the allocation? Who's law applies? Thanks.


Asked on 2/26/02, 3:29 pm

1 Answer from Attorneys
Michael Hendrickson Law Office Michael E. Hendrickson

Re: Does One Allocate settlement Proceeds to Unasserted Claims

You have asked a series of arcane and highly specific questions involving not only personal injury and tort law but also decedents' estates and heirship. For greater certainty than what I can provide in the answers below, I would consult with a D.C. practitioner who knows well the areas of the law referenced above.

With that proviso, I will venture the following

answers to your questions in their order of asking:

1).Assuming there was only one lawsuit filed jointly by your parents which asserted two claims(personal injury and loss of consortium), your mother, as a surviving claimant and settlement receiver as well as personal representative of your father's estate,should be able to negotiate a division of the settlment which, hopefully, would be satisfactory to all parties, including her deceased husband's heirs. If this can be worked out, the settlement agreed to for the estate could then be submitted to the Probate Court in Florida where,presumably, the father's estate is being settled and there would be no need for futher court involvement

2). Proceeds are not normally allocated between asserted and unasserted claims, although releases from liability, if properly prepared,will always

reference the latter in order to protect the respondent(s) offering the release from later

claims.Since the wrongful death claim was never actually asserted in a lawsuit, there is no need to speculate about what might have been recovered from it or to be concerned about allocation

of proceeds to a claim that was never properly asserted.

3.)Your last question regarding jurisdiction

(Fl. or D.C.)would need to be answered only in the event that the parties(including heirs,if any)

could not agree on a settlement allocation, and

the action to resolve this would in all probability lie with D.C.

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Answered on 2/27/02, 10:17 am


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