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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
CAROLYN RICKARD, ADMINISTRATRIX IN THE SUPERIOR COURT OF
OF THE ESTATE OF WILLIAM RICKARD, PENNSYLVANIA
DECEASED,
Appellant
v.
AMERICAN NATIONAL PROPERTY AND
CASUALTY COMPANY,
Appellee No. 774 WDA 2015
Appeal from the Order Entered April 28, 2015
In the Court of Common Pleas of Allegheny County
Orphans' Court at No(s): 6805-2014
BEFORE: GANTMAN, P.J., BENDER, P.J.E., and SHOGAN, J.
DISSENTING MEMORANDUM BY SHOGAN, J.: FILED AUGUST 09, 2016
I respectfully dissent on two bases.
Sometime prior to November of 2012, William Rickard (“the
Deceased”) filed for bankruptcy.1 On November 16, 2012, the Deceased’s
automobile was struck from behind on his way to work, rendering him
paraplegic. At the time of the accident, the Deceased occupied his personal
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1
As noted by the Majority, the record below is sparse. Majority
Memorandum at 3 n.1. Like the Majority, I have not cited to the location of
the certified record for many facts and conclusions, but I have utilized a
combination of attachments to documents, briefs, and the reproduced record
to provide explanation.
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vehicle and had $250,000 in underinsurance coverage through American
National Property and Casualty Co. (“ANPAC”).
While the Deceased was alive, he made a claim for underinsured
benefits to ANPAC for the injury he sustained in the accident. As noted, the
Rickards were debtors in bankruptcy, a bankruptcy which preceded the
accident. The bankruptcy court appointed separate counsel to litigate the
law suit, retaining the right to approve the settlement while the matter was
in bankruptcy. ANPAC issued a check for the full coverage amount on
January 13, 2014, which appointed counsel placed in his safe. At that point,
the Western Pennsylvania Teamsters Welfare Benefit Fund (“the Fund”), of
which the Deceased was a member, asserted a lien for the medical benefits
it paid out for his treatment against any recovery by the Deceased for
personal injury sustained in the accident.
On October 20, 2014, the bankruptcy court refused to approve the
settlement or distribution before it, nor did it make any distribution on its
own. Two days later, October 22, 2014, William Rickard died, allegedly from
the injuries he sustained. The next day, October 23, 2014, because there
was no settlement, no distribution, and no living payee, counsel returned the
ANPAC check. The bankruptcy proceedings terminated a week later on
October 29, 2014, when the Rickards’ case was dismissed from bankruptcy
with no settlement or distribution having been made.
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Carolyn Rickard, Appellant, then submitted a wholly new claim for
underinsurance benefits to ANPAC pursuant to the Pennsylvania Wrongful
Death Act, 42 Pa.C.S. §8301, on behalf of herself and the Deceased’s
daughter, Sarah Rickard. Under this wrongful-death claim, a second check
made payable to counsel and Appellant issued.
Upon receipt of the ANPAC check issued on the wrongful death claim,
Appellant filed a petition for distribution before the common pleas court
pursuant to Allegheny County Local Rule 2039 seeking distribution of
underinsurance funds she received. The common pleas court determined
that it was bound by collateral estoppel because the “issue before it [is]
virtually identical to the issue decided by” the bankruptcy court. Trial Court
Opinion, 4/28/15, at unnumbered 2. The Majority agrees. Majority
Memorandum at 5. I do not.
First, Pennsylvania courts have long recognized that a wrongful death
action is separate and distinct from a survival action. Pisano v.
Extendicare Homes, Inc., 77 A.3d 651 (Pa. Super. 2013). “[W]hile
wrongful death actions are derivative of decedent’s injuries, they are not
derivative of decedent’s rights, and therefore belong to the decedent’s
beneficiaries as opposed to the deceased individual.” MacPherson v.
Magee Memorial Hosp. for Convalescence, 128 A.3d 1209, 1226 (Pa.
Super. 2015) (citing Pisano, 77 A.3d at 660). A survival claim and a
wrongful death claim are separate and distinct even though they originate
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from the same wrongful act. As we explained in Pisano, under the
Pennsylvania wrongful death statute, recovery passes to the limited group of
beneficiaries defined in 42 Pa.C.S. § 8301(b), “the spouse, children or
parents of the deceased.” Id.
An action for wrongful death may be brought by the personal
representative of those persons entitled to receive damages for
wrongful death under the statute. Tulewicz v. S.E. Pa.
Transp. Auth., 529 Pa. 588, 596, 606 A.2d 427, 431
(1992). . . . Wrongful death damages are established for the
purpose of compensating the spouse, children, or parents of a
deceased for pecuniary loss they have sustained as a result of
the death of the decedent. Tulewicz, 529 Pa. at 597, 606 A.2d
at 431. . . .
A survival action, on the other hand, is brought by the
administrator of the decedent’s estate in order to recover the
loss to the estate of the decedent resulting from the tort.
Tulewicz, 529 Pa. at 597, 606 A.2d at 431. . . .
These two actions are designed to compensate two
different categories of claimants the spouse and/or members of
the decedent’s family for wrongful death of the decedent, and
the decedent herself through the legal person of her estate.
Tulewicz, 529 Pa. at 597, 606 A.2d at 431
Kiser v. Schulte, 648 A.2d 1, 4 (Pa. 1994) (some citations omitted). Thus,
in a wrongful death suit, claims by the statutory beneficiaries are brought for
and on behalf of the statutory beneficiaries to obtain compensation for their
loss resulting from the deceased’s death. Because the claims are separate
and distinct, and because the wrongful death action “bears no relation to the
damages recoverable by a decedent who sues for the injury while living,”
Stegner v. Fenton, 40 A.2d 473, 475 (Pa. 1945), I disagree with the trial
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court and the Majority. The Deceased’s contractual obligation to the Fund
did not transfer to the wrongful-death claim.
Second, I also disagree that collateral estoppel applies.
Collateral estoppel is applicable when the issue decided in a prior
adjudication is identical to that presented in the later action;
there was a final judgment on the merits; the party against
whom the doctrine is asserted was a party to the prior
adjudication or was in privity with such a party; and the party
against whom it is asserted had a full and fair opportunity to
litigate the issue in the prior adjudication.
John T. Gallaher Timber Transfer v. Hamilton, 932 A.2d 963, 967–968
(Pa. Super. 2007).
In the present case, bankruptcy counsel asked the bankruptcy court to
approve the settlement involving a living client in receipt of medical benefits
from the Fund, but the bankruptcy court refused. In re: William J.
Rickard and Carolyn M. Rickard, Bankr. No. 10-24821-JAD (Bankr. W.D.
Pa., filed October 20, 2014). Thus, there was no settlement. Furthermore,
there currently is no bankruptcy action pending. William Rickard has died,
but his survival action continues. Moreover, Appellant and the Deceased’s
minor daughter have discrete claims under the Pennsylvania Wrongful Death
Statute, and these claims did not accrue until after the bankruptcy court’s
opinion and order.
The issue before us is whether a wrongful death beneficiary’s recovery
under the Pennsylvania Wrongful Death Act is subject to a subrogation claim
for benefits paid on behalf of the decedent for medical treatment during the
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decedent’s lifetime. This issue was not before the bankruptcy court, nor
could it have been, as all of the relevant bankruptcy proceedings occurred
during the Deceased’s lifetime. Thus, under the first prong of the test for
collateral estoppel, the issue decided in the bankruptcy court is not identical
to that presented herein.
The second prong requires a final adjudication on the merits. A
motion to approve settlement was before the bankruptcy court, and the
court denied it. The Deceased’s death two days later gave rise to a wholly
new claim, and seven days after that the debtors’ case was dismissed from
bankruptcy. There was no settlement, no determination on disbursement,
and the bankruptcy court did not address the merits of whether the Fund’s
subrogation lien attaches to a wrongful death recovery.
The third prong requires that the party against whom the doctrine is
asserted was a party or in privity with a party in the prior case. Sarah
Rickard, the Deceased’s minor daughter, was not a party to the bankruptcy
proceedings. As a statutory beneficiary, her right to recovery is separate
and distinct from her mother’s claim.
Regarding the fourth prong, it is clear that no right to recovery of
wrongful death benefits had accrued either to Appellant or Sarah Rickard
prior to the entry of the bankruptcy court’s order. Therefore, neither one
had any opportunity to litigate the issue of whether the Fund’s lien attached
to their recovery.
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I would conclude that the issue the Fund sought to preclude the
common pleas court from deciding was not before the bankruptcy court,
could not have been brought before the bankruptcy court, and was
therefore, not decided by the bankruptcy court. Therefore, in my view,
there is no foundation for the doctrine of collateral estoppel to have been
applied in this case. For these reasons, I dissent, and would remand to the
common pleas court.
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