Initiating a Wrongful Death Suit
A suit for wrongful death must be initiated by the executor or administrator appointed by the Probate Court. A wrongful death claim exists for the exclusive benefit of the decedent's next of kin. The surviving spouse, children and parents of the decedent are rebuttably presumed to have suffered a loss by virtue of the decedent's death. However, in some cases that presumption may actually be rebutted. A wrongful death claim may be based upon medical malpractice, or other medical negligence leading to the decedent's death, it may be based upon a claim of exposure to asbestos or other hazardous materials and, without excluding other causes, it may result from something as simple as a traffic accident.
Whether the suit for wrongful death is resolved by a jury verdict or a settlement, both must be presented to the Probate Court for its review, consideration and approval. The Rules of Superintendence enacted by the Ohio Supreme Court and the Local Rules of the individual Probate Court may control this process. Superintendence Rule 71 requires that the Probate Court consider applications to settle a wrongful death claim or to approve the verdict. The Probate Court has less discretion with the verdict, however, it still has the right to adjust the individual shares which a jury may award, without adjusting the total balance of their verdict. The Probate Court's role in a settlement is more broad.
Approving the Settlement
The Probate Court is responsible for approving the settlement in its gross sum. Once that is done, the Court is responsible for considering deductions to be made from that sum for the award of attorney's fees, its approval of reasonable and necessary litigation expenses and other costs, such as whether or not a fee should be awarded to the fiduciary for pursuing that claim. Once all of these deductions are allowed, the Court must then consider how the net distribution should be apportioned between the next of kin and claimants.
Anytime a minor is one of the next of kin claimants, the Court may appoint a guardian ad litem to represent the minor's interest. This may be important in larger settlements or verdicts where the minor stands on an equal footing with one of his parents who may be the surviving spouse. Additionally and in dealing with minor settlements, the Court is free to impose a wrongful death trust for the benefit of any minor under the age of 25. That is a trust created by the Court as Superior Guardian for all minors and under which the minor's share may be restricted in a trust for his future benefit.
At present, the Mahoning County Probate has enacted certain special Local Rules for handling asbestos related wrongful death claims. Literally hundreds of these claims have been filed through the Court and each claim usually involves several partial settlements as the counsel for the claimants works their way through a list of in excess of 250 asbestos defendant suppliers and distributors. The asbestos related claims have proven unlike other wrongful death claims in that the counsel for the claimants are required to follow several additional steps through the Probate Court so that the Court may insure that the information provided to the beneficiaries and the Court is accurate and that the money intended for their benefit is immediately deposited in an interest bearing account until the Court receives the applications to approve and distribute the wrongful death settlements.
Should you have any questions with respect to wrongful death claims, you may contact your Counsel or the Court.
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ELECTRONIC FILING PROCEDURES
TO ALL PROBATE PRACTITIONERS:
Today I issued a Judgment Entry (see attached) stating that effective December 1, 2020, the Court will not accept any electronic filing unless they are directed to one of the officially designated addresses:
1. Facsimile to 330-740-2325; and
2. Email to firstname.lastname@example.org.
It has been brought to my attention that several lawyers and staff are emailing documents directly to certain Court employees. The problem that this is causing is that those pleadings cannot be properly “tracked” and processed in a timely manner. The officially designated addresses are constantly monitored throughout the day by Deputy Clerks and are processed when received and officially time stamped. When pleadings are emailed to a specific Court employee, that employee may be off for an extended period of time due to illness or scheduled vacation time and no other Court employee has access to those documents.
Therefore, that is why it is imperative that you send all of your pleadings to the officially designated addresses so they are processed in a timely manner. You are free to reference in your cover letter/email who the pleading(s) should be directed to, but please only send to the officially designated addresses for consistency purposes.
Thank you for you cooperation and understanding during this very unique time.