R. Gregory McDermott
Jeffrey A. Holmstrand
McDermott & Bonenberger, PLLC
Wheeling, West Virginia
Attorneys for the Appellant,
Karen L. Postlewait
J. Thomas Madden, II
Madden Law Offices
Glen Dale, West Virginia
Attorney for the Appellee,
Wheeling, West Virginia
Attorney for the Appellee,
Robert P. Fitzsimmons
Don A. Yannerella
Michael C. Alberty
Marshall C. Spradling
Wheeling, West Virginia
Attorney for the Appellee,
Estate of Robert L. Postlewait
JUSTICE ALBRIGHT delivered the opinion of the Court.
JUSTICE MAYNARD dissents and reserves the right to file a dissenting opinion.
CHIEF JUSTICE STARCHER concurs and reserves the right to file a concurring opinion.
2. All of the eligible beneficiaries may, by a written agreement, compromise a wrongful death claim and allocate the share to be paid to each. Such a settlement agreement will be binding in the absence of fraud, duress, or other invalidating factors. Syl. Pt. 7, Arnold v. Turek, 185 W.Va. 400, 407 S.E.2d 706 (1991).
3. The language of West Virginia Code § 55-7-7 (1989) (Repl. Vol. 2000)
clearly contemplates and requires that all compromises of wrongful death actions be
submitted to the circuit court for approval. Even in instances where the only beneficiaries
to such a compromise are adults, the statute requires that such agreements be presented to
the circuit court for approval.
4. Although the role of the trial court in those wrongful death cases involving only adult beneficiaries, all of whom have consented to the terms of the settlement agreement, is necessarily limited, the trial court must still ascertain that each potential beneficiary has been included in the agreement and make inquiry regarding the presence of any factor that could potentially serve to invalidate the agreement.
5. An intervening cause, in order to relieve a person charged with negligence in connection with an injury, must be a negligent act, or omission, which constitutes a new effective cause and operates independently of any other act, making it and it only, the proximate cause of the injury. Syl. Pt. 16, Lester v. Rose, 147 W.Va. 575, 130 S.E.2d 80 (1963).
Appellant Karen L. Postlewait, widow of Robert L. Postlewait, appeals from
the October 17, 2002, order of the Circuit Court of Ohio County wherein the trial court
refused to approve her entitlement to settlement funds pursuant to a distribution agreement
reached in the wrongful death cause of action filed in connection with Mr. Postlewait's
(See footnote 1)
Mr. Postlewait died apparently as a result of a delayed diagnosis of serious head
injuries, which were sustained following a fall from Appellant's porch. While neither of the
other two beneficiaries objected to Appellant's receipt of her share of the settlement funds,
(See footnote 2)
the circuit court determined that it would be against the public policy of this State to allow
someone who contributed to another person's death to be compensated for their loss of the
deceased individual. Upon a full review of the record in this matter, we conclude that the
lower court committed error by not approving the distribution agreement upon the facts of
this case. Accordingly, we reverse and remand for entry of an order consistent with the
rulings in this opinion.
we were saying unkind words to each other, [and that] I pushed my husband away to shut the door. I did not see my husband fall, I did not see my husband roll across a three-foot porch down a stairway that is approximately 16 to 18 inches wide containing a banister on each side, two wooden steps, approximately 16 to 18 inches long, and hit concrete that is in front of my house. . . .
When I shut my door and I looked out three little windows that I have in my door, I seen my husband laying there, he was starting to get up. I asked my husband if he would like me to call 9-1-1, he said no. He was getting up, I put my arm around him (indicating) and I helped him into the house and sat him in the recliner. I went into the kitchen and I got something to clean his head off, a few washcloths and a towel, and I cleaned his head off. I told him, I said, Postie, I said, I think you need a stitch or two. It was just a little cut on his head (indicating).
He said, Oh, no. It's okay.
Mr. Postlewait slept in the recliner for the rest of the night while Appellant slept on the sofa. Mr. Postlewait did not seek medical assistance until January 2, 1997. On that date, he presented himself at Northwood Health Systems, exhibiting symptoms consistent with a brain injury. Dr. Manalac, the treating physician, testified that he verbally ordered a CAT scan (See footnote 4) of Mr. Postlewait's head on that date to rule out the possibility of internal bleeding. Although Dr. Manalac anticipated that the CAT scan would be performed within twenty-four hours, it was not administered until January 5, 1997.
When the CAT scan was finally performed, and intra cranial bleeding detected, it was too late to provide the medical attention required to save Mr. Postlewait's life. He died six days later. A wrongful death action was filed on January 4, 1999, through which the estate of Mr. Postlewait asserted a cause of action against various medical providers for their failure to timely diagnose and treat Mr. Postlewait for a skull fracture. Eventually, a 3.2 million dollar settlement was reached in connection with the wrongful death cause of action. Under the agreement, Appellant; Louise Postlewait, the decedent's mother; and Eric Postlewait, the decedent's son, were to receive settlement proceeds. Appellant's share of the funds was approximately $691,000.
When the distribution agreement was presented to the circuit court, the trial
court approved the settlement agreement and authorized the release of settlement funds to
(See footnote 5)
and Eric Postlewait. However, the trial court sua sponte refused to authorize
the release of settlement funds to Appellant. In concluding that Appellant was not entitled
to receive her share of the settlement money, the trial court reasoned that Mrs. Postlewait's
actions in causing her husband to fall off the porch contributed to his death. Consequently,
the lower court determined that since a jury had not had the opportunity to determine
whether Appellant's role in her husband's death should preclude her from a wrongful death
recovery, it was required to make this factual determination. In making its ruling, the circuit
court took judicial notice of certain facts
(See footnote 6)
that were purportedly part of the record in the
criminal case filed against Mrs. Postlewait for a misdemeanor charge of involuntary
manslaughter. Given the remedial nature of the wrongful death statute, the trial court
reasoned that Appellant was not entitled by law to the agreed upon compensation provided
for in the settlement of the wrongful death action involving her husband Robert L.
Postlewait based on her contributory role in her husband's death.
Arguing that the trial court abused its discretion in refusing to authorize the
distribution of all proceeds where all the adult beneficiaries, or their representative,
(See footnote 7)
each signed the settlement agreement, Appellant seeks a reversal of the circuit court's order
and distribution of funds pursuant to the agreement. Eric Postlewait, in his individual
capacity, agrees with the position of Appellant.
(See footnote 8)
In reviewing challenges to the findings and conclusions of the circuit court, we apply a two-prong deferential standard of review. We review the final order and the ultimate disposition under an abuse of discretion standard, and we review the circuit court's underlying factual findings under a clearly erroneous standard. Questions of law are subject to a de novo review.
With these standards in mind, we proceed to determine whether the lower court committed error in denying to Appellant distribution of settlement moneys set aside for her benefit.
Rather than squarely addressing our decision in Turek,
(See footnote 11)
the trial court looked
to the wrongful death statutes for authority to withhold its approval of the distribution
agreement. See generally W.Va. Code §§ 55-7-5 to _8 (Repl. Vol. 2000). As authority for
examining the distribution agreement, the trial court looked to the language of West Virginia
Code § 55-7-6 which provides that [i]n every such action for wrongful death the jury, or
in a case tried without the jury, the court, may award such damages as to it may seem fair
and just. W.Va. Code § 55-7-6(b) (emphasis supplied). Immediately following its
recitation of this statutory language,
(See footnote 12)
the lower court stated: Thus, the wrongful death
statute's compromise and settlement mechanism specifically contemplates court approval.
While we do not disagree with the lower court's deduction that court approval was required of the settlement distribution, we find distinct and explicit statutory authority for our conclusion. In a separate statutory provision that governs compromises of wrongful death claims, the following language is set forth:
The personal representative of the deceased may
compromise any claim to damages arising under section five
[§ 55-7-5] of this article before or after action brought. . . .
Upon approval of the compromise, the court shall apportion and
distribute such damages, or the compromise agreed upon, after
making provisions for those expenditures, if any, specified in
subdivision (2), subsection (c), section six [§ 55-7-6(c)(2)] of
this article, in the same manner as in the cases tried without a
W.Va. Code § 55-7-7 (emphasis supplied). Thus, court approval of compromise agreements is specifically contemplated in the wrongful death statutory scheme. See Stone v. CSX Transp., Inc., 10 F.Supp.2d 602, 604 (S.D. W.Va. 1998) (stating that [u]nlike other types of actions for damages, the wrongful death statute's compromise and settlement mechanism specifically contemplates court approval).
Confusion has apparently resulted from this Court's holding in Jordan v.
Allstate Insurance Co., 184 W.Va. 678, 403 S.E.2d 421 (1991), through which we required
court approval of any settlement agreements in a wrongful death action that involved the
claim of a minor. Ibid. at syl. pt. 1. Our holding in Jordan was based upon interpretation
of West Virginia Code § 55-7-7, as amended and in effect in 1982. The following statutory
language, which was instrumental to our decision in Jordan, provided that if any such
persons are incapable from any cause of giving consent, the personal representative may
compromise with the approval of the judge of the court wherein any such action has been
brought. W.Va. Code § 55-7-7 (1982). While that language is no longer included in the
current version of West Virginia Code § 55-7-7, its removal has no effect on our ruling in
this case. This is because both the 1982 version and the current version of West Virginia
Code § 55-7-7 contain additional language that distinctly addresses in an all encompassing
fashion the need to obtain court approval of a compromise or settlement in a wrongful death
action. Cf. W.Va. Code § 55-7-7 (1982) to W.Va. Code § 55-7-7 (1989) (Repl. Vol. 2000)
(recognizing that approval of compromise or settlement in wrongful death action is required
prior to distribution of proceeds).
To quell any lingering confusion over this issue, however, we wish to make
clear that the language of West Virginia Code § 55-7-7 clearly contemplates and requires
that all compromises of wrongful death actions be submitted to the circuit court for approval.
Even in instances where the only beneficiaries to such a compromise are adults, the statute
requires that such agreements be presented to the circuit court for approval. W.Va. Code
§ 55-7-7. Although the role of the trial court in those wrongful death cases involving only
adult beneficiaries, all of whom have consented to the terms of the settlement agreement, is
necessarily limited, the trial court must still ascertain that each potential beneficiary has been
included in the agreement and make inquiry regarding the presence any factor that could
potentially serve to invalidate the agreement.
To support its conclusion that an invalidating factor prevented Appellant from
receiving the settlement funds in issue, the circuit court focused either on facts that have
never been proven or by making certain improper legal assumptions. Mrs. Postlewait was
never charged with negligence in connection with her husband's death. None of the medical
providers ever attempted to bring her into the wrongful death cause of action. Morever, any
issue as to whether there were factual impediments to Mrs. Postlewait's entitlement to
recovery would have required jury resolution. See Syl. Pt. 2, Evans v. Farmer, 148 W.Va.
142, 133 S.E.2d 710 (1963) (holding that questions of negligence, contributory negligence,
proximate cause, intervening cause and concurrent negligence are questions of fact for the
jury where the evidence is conflicting or when the facts, though undisputed, are such that
reasonable men draw different conclusions from them).
To dispense with the unresolved factual issues presented by this case, the trial
court proceeded to take judicial notice of certain facts from Appellant's criminal trial on
the misdemeanor charge of involuntary manslaughter.
(See footnote 14)
In so doing, the trial court
exceeded the boundaries of matters that typically qualify as facts for purposes of judicial
notice. Under Rule 201 of the West Virginia Rules of Evidence, [a] judicially noticed fact
must be one not subject to reasonable dispute in that it is either (1) generally known within
the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination
by resort to sources whose accuracy cannot reasonably be questioned. W.Va.R.Evid.
201(b). Appellant argues, and we agree, that the kinds of 'facts' the lower court judicially
noticed do not come within the parameters of Rule 201.
(See footnote 15)
The trial court was similarly mistaken in suggesting that the slayer statute
found in West Virginia Code § 42-4-2 (1931) (Repl. Vol. 1997) would bar Appellant from
receiving her share of the settlement funds at issue. That statute provides, in pertinent part,
that [n]o person who has been convicted of feloniously killing another, or of conspiracy in
the killing of another, shall take or acquire any money or property, real or personal, or
interest therein, from the one killed or conspired against, either by descent and distribution,
or by will, or by any policy or certificate of insurance, or otherwise. . . . Id. The
provisions of the slayer statute make clear that a conviction is required to invoke its
provisions. Moreover, in McClure v. McClure, 184 W.Va. 649, 403 S.E.2d 197 (1991), we
held that [w]here there is no such conviction [under West Virginia Code § 42-4-2], then
evidence of an unlawful and intentional killing must be shown in a civil action. 184 W.Va.
at 650, 403 S.E.2d at 198, syl. pt. 2, in part. Because Appellant was never charged with an
intentional killing, but only involuntary manslaughter, the provisions of the slayer statute
simply could not be invoked to prevent her receipt of settlement funds under the facts of this
Given the signatures of three adults, the only known beneficiaries, to the
agreement, the trial court clearly abused its discretion in failing to approve the settlement
agreement disbursement as to Appellant. While the circuit court was statutorily required to
review the agreement and to approve or reject the same after determining whether there were
any impediments to its enforcement, it was not the function of the trial court to determine
that the public policy of this state proscribes Appellant's receipt of settlement funds absent
a specific finding of fault as against Appellant. See Bond v. Roos, 358 N.W.2d 654, 657
(Minn. 1984) (reversing trial court's decision to deny on public policy grounds mother's
receipt of settlement funds from wrongful death action brought for child's death where
mother was driver of one vehicle involved in accident which caused child's death based on
absence of admission of fault or judicial determination of fault). Furthermore, the lower
court committed error in taking judicial notice of matters, such as causation, that clearly
were subject to dispute and, therefore, not properly subject to judicial notice. See
W.Va.R.Evid. 201(b). Accordingly, under the record presented to this Court, we find no
basis for the lower court's failure to authorize release of Appellant's share of settlement
funds arising from the wrongful death action.
Based on the foregoing, we hereby reverse the decision of the Circuit Court
of Ohio County and remand this matter for entry of an order approving Mrs. Postlewait's
entitlement to receive her share of the settlement funds pursuant to the distribution
1) Robert L. Postlewait died as a result of a skull fracture
incurred when Karen Postlewait pushed him from her front
porch, causing him to fall and strike his head on the pavement.
2) The medical examiner stated in the certificate of death that the head injury was what caused Mr. Postlewait's death.
3) Mrs. Postlewait gave a written statement admitting that she pushed Mr. Postlewait off the porch and he hit his head and that there was blood on the sidewalk where his head struck the pavement.
4) On May 20, 1997 an indictment was returned against Karen Postlewait charging [t]hat on or about December 26, 1996, in
Ohio County, West Virginia, KAREN POSTLEWAIT
committed the offense of involuntary manslaughter, in that
she unlawfully did kill and slay one Robert Postlewait, by
committing a battery upon the said Robert Postlewait, by
pushing the said Robert Postlewait causing him to fall and strike
his head, against the peace and dignity of the State and in
violation of West Virginia Code 61-2-5.
5) On September 4, 1997, an Ohio County jury found Karen Postlewait guilty of the offense of involuntary manslaughter.
6) The presiding judge in the matter, the Honorable Arthur Recht awarded Karen Postlewait a new trial. The reason for the award of a new trial was not set forth in any written Court Order.
7) On January 8, 1998, an Ohio County jury found Karen Postlewait not guilty of the offense of involuntary manslaughter.