Son Pursues Wrongful Death Suit Although Husband Had Reached Out of Court Settlement

Posted by Jeremy Rosenthal | Jan 26, 2017 | 0 Comments

The majority of wrongful death cases do not enter the trial phase. There are typically opportunities for reaching a settlement agreement; although it may require some significant negotiation. In a Colorado Appeals Court case, the plaintiff challenged the interpretation of the Colorado Wrongful Death Act as it relates to settlement agreements.

Barnhart v. American Furniture Warehouse (AFW)

Matthew Barnhart appealed a court's ruling for summary judgment on a wrongful death claim. This began when his mother was killed after an accident in AFW's store. His father, prior to filing suit, was approached by AFW's insurer and settled the claim for $400,000, after which he signed a release of claim to finalize the agreement. Matthew (son) proceeded to file a suit against AFW, which the district court said was barred under the Act's limitation of “only one civil action” per wrongful death claim decedent.

Wrongful Death Act

  • The surviving spouse has rights exclusively for bringing actions in the 1st year after death.
  • In the 2nd year, either a spouse or heirs may bring a civil suit.
  • Only a single civil action to recover damages may be brought for a single decedent.
  • An action is defined as a civil or criminal proceeding.
  • Colorado courts state that the single civil action provision is to prevent multiple suits for a lone decedent's death.

Barnhart's Interpretation

Mr. Barnhart's surprising challenge comes after his father settled a claim on his mother's death before formally filing a lawsuit. He raised the issue whether a settlement before a suit is filed is an “action”. The court believes an “action” is subject to court interpretation. In his opinion, a settlement would not be a civil action unless executed within the course of a suit. Barnhart felt the General Assembly's intention was not to apply the provision to pre-litigation agreements.

Relative Case Law

This scenario was unprecedented in Colorado; however, Tennessee and Missouri had previously ruled that settlements executed outside of court by the correct beneficiary bound subsequent beneficiaries. Tennessee's ruling stated a signed release from the surviving spouse does bind the decedent's other heirs. Barnhart countered by attempting to distinguish TN and MO statutes based on upon usage of the word “may”. The TN statute says “damages may be sued for”, and the MO statute reads “a wrongful death action may be instituted”. In Colorado, the wording is “damages shall be sued for and recovered”.

Appeals Ruling

The court found that the beneficiary with exclusive right to action can settle a claim, in or outside of a suit, binding to all additional beneficiaries. In fact, this would be in accordance with the court's support for rapid dispute resolution. Further, the usage of “shall” could also mean “could”, “should”, “may” etc.

Wrongful Death Attorney in Denver

The Law Firm of Jeremy Rosenthal approaches all actions of personal injury or wrongful death fully prepared to go to trial if necessary. The firm's commitment to securing the highest possible compensation for Colorado injury victims requires this decisiveness. Make the call to the office today to review your case.

About the Author

Jeremy Rosenthal

Attorney Jeremy Rosenthal is dedicated to helping his clients seek just compensation for their injuries regardless of the lengths he has to go to or the distances he may have to travel in order to get it.


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