After P and his wife sued multiple defendants for personal injury and loss of consortium from asbestos-related disease, P and wife settled with some defendants. P and wife then won a judgment against Elementis, a non-settling defendant. Elementis was entitled to, and was given, credit against the judgment for P and wife for the portion of the other defendants’ settlements attributable to settlement of their personal injury and loss of consortium claims, but not for the 20% of the settlements attributable to settlement of future wrongful death claims by P’s heirs. When the heirs sued Elementis for wrongful death, Elementis was not entitled to offset any of the prior settlements against the judgment in the heirs’ favor. P and wife did not own and so could not settle or release the wrongful death claims. Elementis could not show that the heirs had knowingly received any of the settlement proceeds, thus ratifying P’s and wife’s acting for them in settling the claims. Hence, the heirs were not bound by the settlement agreements and so the judgment in their favor was not subject to any offset for the prior settlements. The defendant’s appeal from a judgment in P’s favor on his claims for personal injury and his wife’s loss of consortium claim did not stay proceedings in the trial court, after P’s death, granting P’s heirs leave to file an amended complaint about wrongful death arising from the same events as the personal injury suit. Wrongful death is a separate claim and neither that claim nor the parties bringing it were involved in the appealed judgment, so the appeal did not stay proceedings on the new wrongful death claims. This case points out a critical problem in settling a personal injury action when the tortious injury is likely to lead to the plaintiff’s death, thus also triggering later wrongful death actions. Unless the plaintiff’s heirs join in the settlement agreement individually, they are not bound by it or any release of their wrongful death claims. Money paid the plaintiff to settle future wrongful death suits is worth only as much as the hold harmless agreement by the now-deceased plaintiff is. And non-settling defendants cannot take advantage of any setoff as against the wrongful death plaintiffs based on the earlier settlements with the plaintiff.
California Court of Appeal, Second District, Division 4 (Manella, P.J.); October 5, 2018 (published November 1, 2018); 28 Cal. App. 5th 862