Defense Digest

Plaintiffs Lose Their Double Recovery In Wrongful Death And Survival Actions
By Barbara J. Davis, Esq.*

Plaintiffs had a victory of a double recovery in wrongful death and survival claims that was recently reversed by the New Jersey Supreme Court in Vassiliu v. DaimlerChrysler Corp., 178 N.J. 286 (2004).   The Association of Trial Lawyers of America ("ATLA") had been waiting for the right case to be heard before a trial court judge who would adopt their argument that survival and wrongful death claims should result in two separate "per person" limits of an automobile liability policy be paid.  The perfect case was Vassiliu. 

On June 24, 1995, Hristos Vassiliu was involved in a motor vehicle accident resulting in his death.  Claims were filed on behalf of the decedent for his conscious pain and suffering prior to his death and by the decedent's wife and child for their losses.  The tortfeasor had a $35,000 single limit policy that was offered and paid into the court.  The plaintiffs then sought UIM coverage that was available under policies issued by Prudential and Selective Insurance Company in the amount of $100,000 per person/$300,000 per accident. 

In the action brought by plaintiffs against the UIM carriers, the trial court adopted all of the plaintiffs' arguments, holding that "wrongful death actions and survival actions are treated as separate and distinct actions affording different damages to different parties, even though they may arise from the identical occurrence, the death of a family member for injuries suffered in a motor vehicle accident."  Thus, the trial court held that the plaintiffs would be entitled to the $100,000 policy limit for the wrongful death claim and a $100,000 policy limit for the survival action.  The Appellate Court affirmed the trial court decision and held that survival and wrongful death actions "each triggered a separate per person limit."  The plaintiffs' attorneys thought they found a new source of recovery.

However, the New Jersey Supreme Court disagreed.  The court held that survival and wrongful death actions are "derivative of and dependent on the decedent's injuries, including an unfortunate death, and are thus subject to a single per person limit under a policy of insurance."  The plaintiffs had argued that the language under the Prudential insurance policy did not specifically list "death" when describing the type of damages subject to the per person limit.  The plaintiffs, further, argued that the claims were being made by different parties under a wrongful death and survival action, even though the claims arose from the death of a family member from injuries suffered in a motor vehicle accident.  The Supreme Court found that the failure of the Prudential policy to refer to "death" as part of the damages was irrelevant as the insurance policy specifically stated coverage was provided "for all damages arising out of bodily injury". 

In determining that a plaintiff's survival and wrongful death actions are "derivative of and dependent on" the decedent's injuries, making the claims subject to a single "per person" limit under an insurance policy, plaintiffs have now seen an end to a double recovery under split limit policies.  The plaintiff's bar will now have to look for another creative argument for additional coverage. 

The plaintiffs also argued in Vassiliu that the UIM carriers were not entitled to a set-off for a settlement the plaintiffs had reached with DaimlerChrysler for $215,000.  The plaintiffs argued that under Bauter v. Hanover Ins. Co., 247 N.J. Super. 94 (App. Div. 1991), because DaimlerChrysler had settled the claim and not admitted any responsibility for the accident, the carriers could not reduce the UIM limits by the settlement amount.  The trial court in Vassiliu held that the UIM carriers were not entitled to a credit for the settlement as the policies issued by the carriers restricted reduction of the limits "only by sums paid by those responsible for the accident."  As DaimlerChrysler never admitted responsibility for the accident or the injuries suffered, and as DaimlerChrysler was not on the verdict sheet at the time of trial, the trial court held that the carriers could not reduce the $100,000 UIM limits by the $215,000 settlement.

The New Jersey Supreme Court  affirmed the appellate court's reversal on this issue.  The appellate court had ruled that, despite the language of the policies, N.J.S.A. 17:28-1.1 allows the UIM carriers to take a credit for other monies received and does not "require either the admission of fault or an adjudication of fault."  Further, the statute does not limit the credit to automobile tortfeasors.

The New Jersey Supreme Court ruled that the carriers were entitled to the full credit of the settlement from DaimlerChrysler, $215,000.  As plaintiffs had received more than the $100,000 UIM limit available under the policies, the plaintiffs claim for additional UIM benefits was moot.

The Vassiliu decision was a double victory for the insurance carriers and a double loss for the plaintiffs who lost not only the "extra" policy limit but also any claim to UIM benefits. 

*  Barbara, a shareholder in our Cherry Hill, NJ office, can be reached at (856) 414-6011 or bdavis@mdwcg.com.

 Sample Text