The “USE” Plaintiff (Continued from page 13)
in Maryland2 , the underlying principles
supporting this exception to the Ameri- can Rule seem equally applicable to the “free ride” “use” plaintiff in a wrongful death case. Less clear, however, is how successful a plaintiff ’s attorney would be in defending against an ethical com- plaint based on collecting an attorney’s fee from an unrepresented party based on the Common Fund Doctrine in the absence of either a signed retainer agreement or court order. Until more appellate light is shed on this issue, a Maryland attorney should not deduct from a wrongful death settlement either an attorney fee or proportionate costs and fees in the absence of either the aforementioned signed retainer agree- ment or court order. The conflict issues are magnified in
any settlement of the claim. Where the case is ultimately tried, the jury verdict allocates the wrongful death award among each individual beneficiary which alleviates any conflict as to their respective entitlements. Settlement of the same case may be a completely dif- ferent proposition. A claim for wrongful death cannot be settled without either the consent of all beneficiaries or the ap- proval of the court.3
See Walker v. Essex,
318 Md. 516, 569 A.2d 645 (1990) As a practical matter, defense coun-
sel and the insurers will almost always insist that all primary and secondary beneficiaries be identified and made a part of every wrongful death suit. In ad- dition, defense counsel and insurers will also require that all potential plaintiffs execute a release as part of any settle-
2
But see Kline v. Eyrich, 69 S.W.3d 197 (Tenn. 2002) where the common fund doctrine was applied to a wrongful death action.
3
The author of this article is unaware of any approval given by a court of a settlement in a wrongful death case without either the consent or some provision for all of the beneficiaries. And, given the public policy of avoiding multiple suits, it is unlikely that such approval can or will be given.
Fall 2008 Trial Reporter 15
ment of the case. Remember that the case law, Walker v. Essex; the wrongful death statute (section 3-904 (f)); and Rule 15-1001 bolster the position that defense counsel and the insurers have a legal right to insist that everyone be accounted for and that each party sign off before settlement of any case. In order to settle a wrongful death case
then in most instances the consent of all beneficiaries must be obtained whether represented or not. More importantly, settlement also requires counsel for the plaintiff to secure an agreement between the beneficiaries he or she represents that either specifically agrees to their respec- tive shares of any settlement or, in the alternative, agrees to resolve this issue separately at a later date. See the discus- sion of Scamardella v. Illiano, 126 Md. App. 76, 727 A.2d 421 (1999), that fol- lows. It does not take much imagination or experience to identify the problems that might arise with these requirements. You represent the current wife and two children. However, there is a former wife with two other children whom you do
not represent. Another example is where you represent all the beneficiaries, but they cannot agree on their respective shares because of long-standing family hostilities. Yet another example is where one of the “use” plaintiffs is under a legal disability and has no guardian or court appointed representative to give consent. The above list is hardly exhaustive of the potential problems. The case of Scamardella v. Iliano,
126 Md. App. 76, 727 A.2d 421 (1999) provides some instruction.4
In Sca-
mardella, there was a tragic motor vehicle collision where the defendant driver crossed the centerline causing a head on collision with another vehicle operated by a young wife traveling with her infant daughter and mother. The young wife was killed and her mother severely injured. The infant escaped injury. The husband (individually, as Parent and Next Friend, and as Personal
4
The author of this article was counsel for Appellee at trial and on appeal.
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