Wilmot v. Wilmot

IN THE SUPREME COURT OF THE STATE OF ARIZONA
En Banc

CONNIE I. WILMOT, surviving spouse, on her ) Arizona Supreme Court
own behalf and on behalf of all who may have a ) No. CV-02-0130-PR
statutory right of recovery, )
) Court of Appeals
Plaintiff-Appellee, ) Division One
) No. 1 CA-CV 01-0359
DR WILLIAM T. EVANS, M.D. and DEBRA )
EVANS, husband and wife; EMERGENCY ) Maricopa County
PHYSICIANS, INC., an Arizona corporation, ) Superior Court
) No. CV00-002462
Defendants-Appellees, )
)
v. )
)
JEFFREY WILMOT, LESLIE KUMPF, ) OPINION
MICHELLE LAZEK, TERESA BALOGH, )
DOUGLAS WILMOT and DIRK WILMOT, as )
surviving children of decedent, Milton Wilmot, )
)
Appellants. )
__________________________________________)

Appeal from the Superior Court in Maricopa County
The Honorable Donald Daughton, Judge
REVERSED AND REMANDED

Memorandum Decision of the Court of Appeals, Division One
Filed March 21, 2002
VACATED

Barry L. Entrekin Phoenix
Attorney for Plaintiff-Appellee

Snell & Wilmer, L.L.P. Phoenix
By: Dora Fitzpatrick
Attorneys for Defendants-Appellees

Kevin L. Beckwith, P.C. Phoenix
By: Kevin L. Beckwith
Attorneys for Appellants
FELDMAN, Justice

¶1 Several months after Milton Wilmot died, his surviving wife brought a wrongful death

action under Arizona’s Wrongful Death Act, A.R.S.§§ 12-611 to 12- 613. The wife and her attorney

knew that decedent had six adult children from a previous marriage, yet they settled the case without

obtaining the consent of the children.

¶2 Those children challenged the settlement, asserting that by settling without their knowledge

and consent the wife breached a fiduciary duty owed to them as statutory beneficiaries. The trial judge

denied their motion to set aside an order confirming the settlement, and a majority of the court of appeals

affirmed. Wilmot v. Wilmot, No. 1 CA-CV 01-0359 (mem. dec.) (March 21, 2002). We granted review

to examine the nature and extent of the statutory plaintiff’s fiduciary obligations under the Arizona

statutes regulating actions for wrongful death.

FACTS

¶3 Milton Wilmot (“Decedent”) died in April 1999 while married to Connie Wilmot (“Wil-

mot”). In February 2000 Wilmot filed a wrongful death action under our statute, which provided in

relevant part:

A. An action for wrongful death shall be brought by and in the name
of the surviving husband or wife or personal representative of the de-
ceased person for and on behalf of the surviving husband or wife, children
or parents, or if none of these survive, on behalf of the decedent's estate.

***

C. The amount recovered in an action for wrongful death shall be
distributed to the parties provided for in subsection A in proportion to
their damages, . . . .

A.R.S. § 12-612(A) and (C) (1973).1 The action was originally brought as “Connie I. Wilmot, surviving

spouse, for and on behalf of herself.” (Emphasis added.)

1
The statute has been amended and now includes “child, parent or guardian” as survivors or
representatives who may bring a wrongful death action. A.R.S. § 12-612(A) (Supp. 2001).

2
¶4 Decedent had six adult children (“the children”) who lived on the east coast but had

been estranged from him since his divorce from their mother in 1980. Decedent did not attend any

of the children’s weddings, was not aware of the birth of his grandchildren, and it appears that the

children were still unaware of Decedent’s death a year after it occurred.

¶5 When counsel for Wilmot, Lance Entrekin, learned about the children, he had a telephone

conversation with one child, and through individual certified letters mailed to each child in August

2000, he advised the children of the pending action and of their “right to participate as a plaintiff in

a lawsuit.” He suggested that if they wished to participate they should “immediately hire an Arizona

attorney” and informed them that “failure to do so promptly could limit or foreclose your legal rights

in this matter.” The following month Wilmot filed an amended complaint changing the caption on

the pending action to “Connie I. Wilmot, surviving spouse, for and on behalf of all who may have

a statutory right of recovery.” (Emphasis added.)

¶6 The nature and extent of later contact between counsel is disputed, but in August 2000

there was contact between Entrekin and Pennsylvania counsel for at least one of the children (Pennsylvania

was the domicile of at least one of the children). By late January 2001, the children had been in touch

with an Arizona lawyer, Kevin Beckwith, and he and Entrekin talked on the telephone. With Wilmot’s

authorization, Entrekin and defense counsel in the tort case agreed on a settlement amount on February 12,

2001. Neither Beckwith nor the children were given prior notice of the amount of the settlement or

asked for their consent. Either before or after the actual settlement was reached but on the same day,

Entrekin received a letter from Beckwith advising him that contingent fee agreements had been forwarded

to the children for their signature. Despite receiving Beckwith’s letter, Entrekin moved for confirmation

of the settlement, and the tort defendants, who may or may not have known of Beckwith’s letter, joined

in the motion.

¶7 On March 12, 2001, following a hearing, the trial judge granted the joint motion by

Wilmot and the tort defendants to confirm the settlement. Beckwith, who had not appeared in the

action but was mailed a copy of the motion, was not given notice of the hearing. The following day

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Beckwith filed the children’s opposition to the motion to confirm and a motion to set aside the court

ruling enforcing the settlement. Wilmot argued that the opposition was not timely filed. The trial

judge denied the motion to set aside and dismissed the case with prejudice, thus foreclosing any claim

the children may have wanted to assert. The court of appeals affirmed. Wilmot, mem. dec. at ¶ 23.

DISCUSSION

¶8 The facts present questions about the right of a statutory plaintiff to compromise a wrongful

death action, the obligations statutory plaintiff’s counsel may owe to other beneficiaries, and the rights

of statutory beneficiaries known to the plaintiff as well as their obligations to act. Each of the questions

will be considered in turn.

¶9 The children contend that when there are statutory beneficiaries other than the named

plaintiff, Arizona’s statutory scheme imposes fiduciary duties on the plaintiff. They argue that Wilmot

breached the duty owed to them when she settled the claim without their consent. In the court of appeals

the children argued that the trial judge should have set aside the judgment under Rule 60 of the Arizona

Rules of Civil Procedure allowing relief from a final judgment “for any other reason [than those earlier

enumerated in the rule] justifying relief . . . .” Rule 60(c)(6), Ariz.R.Civ.P. The court held, however,

that the settlement was properly made without procuring the children’s consent because the children

had never objected to settlement or indicated that they wished to participate in the action. Wilmot,

mem. dec. at ¶¶ 17-18. Further, any failure to give the children proper notice of the hearing on the

motion to confirm was harmless; “if there was error in this case, it was of no effect” because the trial

judge later heard argument on the motion to set aside and determined there was no hardship or injustice

to the children. Id. at ¶ 22.

¶ 10 We are not bound “by the trial court's conclusions of law nor by findings that combine

both fact and law.” Scottsdale Princess Partnership v. Maricopa County, 185 Ariz. 368, 372, 916

P.2d 1084, 1088 (App. 1995). Questions of law are reviewed de novo. Gemstar Ltd. v. Ernst & Young,

185 Ariz. 493, 499, 917 P.2d 222, 228 (1996). Similarly, questions of statutory construction are issues

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of law reviewed de novo. Zamora v. Reinstein, 185 Ariz. 272, 275, 915 P.2d 1227, 1230 (1996). We

first turn to the operation of the statute.

A. Operation of the statute

¶ 11 The text of the wrongful death statute contemplates that claims by all statutory beneficiaries

be consolidated in a single action. The statute provides the action is to be brought by a designated

plaintiff “for and on behalf of the surviving husband or wife, children or parents . . . .” A.R.S. § 12-612(A)

(emphasis added). “A wrongful death action . . . is one action for damages with one plaintiff and one

judgment.” Begay v. City of Tucson, 148 Ariz. 505, 508, 715 P.2d 758, 761 (1986); see also Nunez

v. Nunez, 25 Ariz.App. 558, 562, 545 P.2d 69, 73 (1976) (“there is 'one action' for damages occasioned

by a wrongful death. There is also but one plaintiff, one of the persons designated by statute . . . .”).

¶ 12 Thus, the statutory plaintiff represents all other beneficiaries who have a “legal right

. . . to be compensated for their loss resulting from the victim's death.” Summerfield v. Superior Court,

144 Ariz. 467, 476, 698 P.2d 712, 721 (1985) (emphasis in original); A.R.S. § 12-612(A). Following

a successful action, there is “one judgment, the proceeds of which are held by the statutory plaintiff

as trustee for the persons on whose behalf the suit was brought.” Nunez, 25 Ariz.App. at 562, 545

P.2d at 73 (emphasis added). The statute then provides that damages will be “distributed to the parties

provided for in subsection A in proportion to their damages . . . .” A.R.S. § 12-612(C).

B. Fiduciary duty of the statutory plaintiff

¶ 13 Although an action could be brought by a personal representative with no stake in the

outcome, in most instances, as in the present case, the plaintiff is the surviving spouse or child and

is also a beneficiary, thus conducting the action and receiving the proceeds as both litigant beneficiary

and trustee. Id.; see also In re Millman’s Estate, 101 Ariz. 54, 63, 415 P.2d 877, 886 (1966). Thus,

fiduciary duties are clearly owed to the other beneficiaries, both in conducting and settling the action

and making distribution of proceeds to each of the other beneificaries at the conclusion.

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¶ 14 The present question concerns the extent of the fiduciary duties that arise before a judgment

is obtained. The plain language of A.R.S. § 12-612(A) tells us that the named plaintiff is acting “for

and on behalf of” all statutory beneficiaries. And, as noted, we have held that the plaintiff acts as the

representative of all the statutory beneficiaries. Summerfield, 144 Ariz. at 476, 698 P.2d at 721. Wilmot

represented herself as such by the new caption of the amended complaint, “Connie I. Wilmot, surviving

spouse, for and on behalf of all who may have a statutory right of recovery.”

¶ 15 The Millman case, which the children cite and Wilmot attempts to distinguish, is relevant

to this discussion. In Millman, a woman represented that she was the decedent’s legal wife and settled

a wrongful death claim without bringing legal action. But when she entered into the settlement she

knew the decedent had been previously married, never divorced, and that he had living children from

his legal marriage. We held the settlement was not valid because there was no notice of settlement

and the plaintiff was not the decedent’s legal wife and therefore not a statutorily designated plaintiff.

101 Ariz. at 65, 415 P.2d at 888. The children rely on Millman for the proposition that consent of

survivors is required before compromise. Wilmot attempts to distinguish the case, arguing that if there

is a proper plaintiff, Millman requires timely notice to beneficiaries and nothing more.

¶ 16 Neither reading by itself is sufficient. But Millman does tell us that a statutory plaintiff

who has a right to bring the action also has a right to settle a claim without bringing the action at all,

but the plaintiff “would be acting as a statutory trustee for the other beneficiaries . . . [and] would have

to get the consent of any other surviving relatives.” Id. at 63, 415 P.2d at 886 (emphasis added). Millman

also tells us that a settlement by one fraudulently presenting herself as a legal beneficiary “and without

notice” to legal beneficiaries is not res judicata to those beneficiaries. Id. at 64, 415 P.2d at 887. Unlike

the plaintiff in Millman, Wilmot was a legal claimant, representing other known legal beneficiaries,

and thus needed their consent to settle. Id. at 63, 415 P.2d at 886. We reject Wilmot’s invitation to

interpret Millman to hold that a proper statutory plaintiff may settle a claim or action after merely notifying

known or ascertainable beneficiaries that a claim is or may be pending. Such an interpretation would

be contrary to the statutory plaintiff’s fiduciary obligations.

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¶ 17 The court of appeals has described a fiduciary relationship as “something approximating

business agency, professional relationship, or family tie impelling or inducing the trusting party to

relax the care and vigilance he would ordinarily exercise.” Taeger v. Catholic Family & Community

Services, 196 Ariz. 285, 290 ¶ 11, 995 P.2d 721, 726 ¶ 11 (App. 1999) (emphasis added, citations

omitted). The common bond between the statutory plaintiff and the beneficiaries in our wrongful death

statute falls within that entire description, even when, as is the case here, the family tie is between

some statutory claimants and the decedent but not between the plaintiff and those statutory claimants.

The fiduciary relationship was created by statute, which both conferred power to and imposed responsibil-

ity on Wilmot. Because the fiduciary relationship existed, the children as beneficiaries were not required

to exercise “the care and vigilance [they] would ordinarily exercise” when in an adversarial situation.

Id.

¶ 18 But Wilmot argues that neither she not Entrekin did anything to give the children reason

to rely on a fiduciary relationship. Is the fiduciary duty owed even without reliance? Our wrongful

death statute does not clearly articulate the duties of the statutory plaintiff when acting “for and on

behalf of” other beneficiaries. However, our statutes do provide clarity on those requirements in a

similar situation, that of a personal representative acting to probate an estate. There, the requirements

for compromise of claims are precise:

The terms of the compromise shall be set forth in an agreement in writing
which shall be executed by all competent persons . . . having beneficial
interests or having claims which will or may be affected by the compro-
mise.

A.R.S. § 14-3952(1). Our case law reaches the same result. Very simply, when, in a representative

capacity, one asserts a claim or brings an action that affects claims of others — and in the present case,

could preclude them — any settlement made by the one conducting the matter for the benefit of others

must be agreed to by the others. Millman, 101 Ariz. at 63, 415 P.2d at 886. The consequence to claimants

or beneficiaries is virtually the same whether a claim or action is foreclosed by a statutory plaintiff

acting for other statutory beneficiaries or by a personal representative probating an estate. Because

7
the effect on those with valid claims in both instances is essentially the same, the duties imposed on

a statutory plaintiff who seeks to settle a wrongful death action are quite similar if not identical to those

imposed by statute on a personal representative. While consent from other beneficiaries does not

necessarily need to be a formal agreement as required by A.R.S. § 14-3952(1), the consent must be

expressly given or manifested.

C. Fiduciary duty of counsel for statutory plaintiff

¶ 19 The dissent in the court of appeals suggests that the “court should not approve a policy

that allows counsel of record to cut off the interests of those persons on whose behalf he appears . . . .”

Wilmot, mem. dec. at ¶ 24 (Barker, J., dissenting). We generally agree with that observation, and it

is certainly correct given the facts in this case: Wilmot’s attorney knew that other beneficiaries existed,

that those beneficiaries had contacted Arizona counsel, and that they were signing retainer agreements

that would enable their counsel to assert their claims.

¶ 20 We also agree with the dissent that Wilmot’s counsel could not act in an adversarial

capacity or, without their consent, cut off the interests of those beneficiaries. Indeed, as the dissent

noted, “it is not good policy to effectively endorse [such a] procedure . . . even if the individual [children]

did not expect counsel to represent him or her.” Id. at ¶ 25 (Barker, J., dissenting). Entrekin’s task

in representing Wilmot in her role as representative of all beneficiaries was to assist her in performing

her fiduciary duties, not in violating them. See Fickett v. Superior Court, 27 Ariz.App. 793, 558 P.2d

988 (1976) (holding that counsel for conservator had fiduciary duty to ward). Our courts have followed

this principle ever since. See, e.g., Paradigm Ins. Co. v. Langerman Law Offices, P.A., 200 Ariz. 146,

24 P.3d 593 (2001); Kremser v. Quarles & Brady, L.L.P., 201 Ariz. 413, 36 P.3d 761 (App. 2001);

Lewis v. Swenson, 126 Ariz. 561, 617 P.2d 69 (App. 1980).

¶ 21 Adopting the children’s argument would require us to hold that although the plaintiff’s

fiduciary duty prohibited settlement of the action without the beneficiaries’ consent, the lawyer for

the statutory plaintiff, who also owed a fiduciary duty to the beneficiaries, could settle without their

8
consent. We do not believe such a result is proper or possible. Gomez v. Maricopa County, 175 Ariz.

469, 857 P.2d 1323 (App. 1993); see also Garn v. Garn, 155 Ariz. 156, 161, 745 P.2d 604, 609 (1987).

Just as the plaintiff must conduct the action with full disclosure to the beneficiaries and obtain consent

for settlement from all, even if such consent is difficult to obtain, so too must the lawyer for the statutory

plaintiff act for all known beneficiaries unless those beneficiaries have indicated they do not wish to

assert a claim or participate in the action. If such indication or consent to settlement is not obtained,

then the action must be taken to trial, liability adjudicated, and damages of each participating beneficiary

determined, unless, of course, the defendant is willing to make separate settlement agreements with

individual claimants. At the conclusion of the action, whether by settlement and release or trial and

final judgment, the matter is precluded as res judicata to the beneficiaries who chose not to assert a

claim.

D. Statutory beneficiaries’ right to present their case

¶ 22 Simply because claims are consolidated in one action, as our statute provides, it does

not follow that the interests of the various beneficiaries are identical or that damages can be determined

other than by adding the sum of each beneficiary’s separate damages. This was recognized in Nunez.

Although there is but one plaintiff in a wrongful death action, the respec-
tive interests of the persons entitled to be compensated for the loss of
the decedent are different and in some circumstances, such as here, may
be conflicting. . . . [S]ince there is to be one trial on the issue of liability
and the damages sustained by the surviving spouse and the surviving
children, participation in the trial cannot be limited to one attorney.

25 Ariz.App. at 563, 545 P.2d at 74. Moreover, the individual representation of the unique interests

of separate beneficiaries results in a “single judgment [that is] a composite of [the beneficiaries’] respective

damages as determined by the trier of fact.” Id. at 562, 545 P.2d at 73 (emphasis added). Thus, each

beneficiary who chooses to assert and establish harm is to be compensated and the verdict is the sum

of each claimant’s damages. The judge should instruct the jury to “find the amount of damages sustained

by each beneficiary.” Id.

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¶ 23 These holdings are based on the text of the wrongful death statute, which awards “such

damages as [the jury] deems fair and just with reference to the injury resulting from the death to the

surviving parties who may be entitled to recover . . . .” A.R.S. § 12-613. That determination is possible

only after examination of each claim, a right denied the children in this case. Nunez, 25 Ariz.App.

at 563, 545 P.2d at 74.

E. Children’s failure to act in a timely manner

¶ 24 The court of appeals concluded that the children had not been prompt in their efforts

to participate in the wrongful death action and to appear by counsel in that action. Wilmot, mem. dec.

at ¶¶ 17-18. Thus, given the factual record, the court could not “say that the trial court erred in granting

Mrs. Wilmot’s motion for confirmation of settlement.” Id. at ¶ 18. We disagree and conclude that

the trial judge did err in his May 17, 2001 order granting Wilmot’s motion to confirm the settlement

and denying the children’s motion to set aside the settlement. We agree that the children and their

attorneys did not act with expedition. It was four or five months after receiving Entrekin’s letter before

the children contacted Arizona counsel, but some of the delay may be excusable. The record of communi-

cation between the parties is reminiscent of ships passing in the night, with one, and probably both,

failing to give appropriate signals to the other.

¶ 25 On August 3, 2000, Entrekin wrote the children to tell them he represented Wilmot

and informed them they were statutory beneficiaries with a right to representation. He told them that

if they did not contact him by August 25, he would assume they were not participating. The children,

who reside in New Jersey, New York, and Pennsylvania, discussed the letter. At least one of the children

contacted a Pennsylvania attorney, Pasquarelli, who was told some of the children wished to participate.

¶ 26 On August 15, 2000, Pasquarelli contacted Entrekin by telephone. On August 31,

Pasquarelli wrote to Entrekin, advising that at least two of the children wished to participate and requesting

that Entrekin advise Pasquarelli of any further action that might affect the children’s rights. Entrekin’s

affidavit claims he never received the letter because it was not properly addressed with the suite number

10
in his office building and was therefore probably returned to sender. Pasquarelli’s affidavit, on the

other hand, avows that the letter was never returned to him. We assume Entrekin never received the

letter but also assume the children had reason to believe they would be kept informed. Thus, the children

evidently took their time and did not contact an Arizona lawyer until January 26, 2001, when they

spoke with Beckwith.

¶ 27 Beckwith spoke with Entrekin on January 30, 2001 and was advised, he says, that Entrekin

had just returned from a settlement conference, that negotiations were nearly complete, but that the

case had not settled.2 Entrekin specifically requested that Beckwith not inform defense counsel of

his contact with the children so that the defense would not be aware of any hostility between Wilmot

and the surviving children prior to further proceedings. On February 8 Beckwith wrote to Entrekin

to indicate the children’s continuing interest and to say that he had sent fee agreements to the children

and would contact Entrekin again when they were signed and returned.

2
In his supplemental brief Entrekin gives a version of the conversation that is much more
favorable to Wilmot. But that version is supported only by a citation to one of Entrekin’s own briefs
in the court of appeals. That brief gives the same version in part, but it does not find support in the
record, except for Entrekin’s letter “memorializing the conversation” and dated the following day.
The brief says that Entrekin told Beckwith the case was “about to settle with payments to [Wilmot]
only. Beckwith acted as if he had no intent to participate or to appear in the lawsuit on behalf [of the
children whose] focus was on the probate claims.” (Emphasis added.) But Entrekin’s letter, to which
he cites in support of this argument, characterizes this conversation much differently. The letter, in
its entirety, reads:

This will confirm our conversation of yesterday, wherein you indicated
that you represent Leslie Kumpf and her five siblings and that they are
inquiring about the wrongful death suit and about some estate issues.
As I noted yesterday, the discovery in the wrongful death suit is complete
and we are in settlement negotiations, two months out from trial. With
regard to the estate issues, I did not handle that and my understanding
is that the estate is settled. As soon as possible, please let me know what
your client’s (sic) plans are, so that we can plan accordingly.

Plaintiff’s Motion for Confirmation of Settlement and for Sanctions, Feb 23, 2001, Exh. 3 (emphasis
added). A statement in the letter that they were in “settlement negotiations, two months out from trial”
is quite different from the statement in the brief that the action “was about to settle” and that Wilmot
was receiving the entire proceeds.

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¶ 28 Without further notice to Beckwith or the children, the case was settled by agreement

between Entrekin and defense counsel on February 12, the very day Entrekin received Beckwith’s

letter of four days earlier. Entrekin’s receipt of that letter was effective notice of their interest and

intent to participate and, if received before the settlement conference, should have served to delay the

settlement in order to obtain their consent to compromise. If, however, the letter was received after

the compromise was made, it should have delayed Entrekin’s motion to confirm until and unless consent

was obtained. However, it did neither, and when Beckwith found out about the settlement he demanded

that his clients receive a share.

¶ 29 Between February 20 and February 23, Beckwith faxed at least two letters to Entrekin

and apparently tried to call his office, but he received no reply. On February 23, Beckwith wrote a

letter to defense counsel to inform them of the children’s position, the same day that Entrekin filed

a motion for confirmation of settlement, a copy of which he sent to Beckwith. The motion was heard

on March 12, but no notice of the hearing was given to Beckwith or the children. Nevertheless, the

trial judge considered and granted the motion.3

¶ 30 The next day, when Beckwith learned the motion to confirm had been granted, he immedi-

ately filed a notice of appearance and a motion to set aside the order confirming settlement. He also

filed a response to the motion to confirm and a demand that a percentage of the damages be apportioned

to the children.4

¶ 31 Given all this — and more — in the record, it is possible to reach different conclusions

with regard to the children’s diligence. If this had been an adversarial proceeding between Wilmot

and the children, one might accept either side of the argument whether the children had acted diligently

3
It appears that the time for the children to respond to the motion to confirm may not have
expired on March 12, when the motion was heard and granted without notice to them.
4
At that time, and so far as we know now, neither Beckwith nor the children had been advised
of the settlement amount. Entrekin and defense counsel both aver that this lack of disclosure is attributable
to the policy of the latter’s law firm. We note what should have been obvious to all: a law firm’s so-called
policy cannot justify failing or refusing to inform the beneficiary of an action of the amount for which
the case has purportedly been settled.

12
and that their claims might therefore be prejudiced by their lack of diligence. But as the undisputed

facts show, there were indications throughout that the children wished to assert their claims and were

proceeding, albeit slowly, to appear through independent counsel. As we have noted, our wrongful

death statute does not permit Wilmot and her lawyer to act in an adversarial manner so as to preclude

the claims of the children: It was their obligation, rather, to maintain the action for the benefit of all

statutory beneficiaries.

¶ 32 As a practical matter, the children’s claims might have left less settlement money for

Wilmot if, as was quite possible and is generally the case, the defendants had offered a lump sum

settlement. Entrekin may have been correct in his opinion that the children would not be able to demon-

strate a compensable loss.5 But certainly, given the January contact with Beckwith before settlement

and the letter from Beckwith on the day of settlement, Wilmot and Entrekin had an obligation to inform

the children of the status of the case, of the settlement offers, and of their recommendation as to accep-

tance. It was also their fiduciary obligation to obtain the children’s consent to the settlement before

any binding acceptance. In either case, it was Entrekin’s obligation to assist Wilmot in performing

her fiduciary duties. Fickett, 27 Ariz.App. at 795, 558 P.2d at 990.

CONCLUSION

¶ 33 It was not within Wilmot’s power to take action, without consent, to terminate and dismiss

with prejudice the interests of the children, on whose behalf she was maintaining the action; thus, we

agree with the dissent that counsel of record also lacked that power. Wilmot, mem. dec. at ¶¶ 25 (Barker,

J., dissenting). Nor do we believe that Wilmot and Entrekin acted properly in appearing in court with

defense counsel and obtaining an order confirming the settlement without first giving the children,

through their Arizona lawyer, notice of the hearing on the motion to confirm. Thus, if the trial judge

5
The children present an explanation for their lack of contact with their father. There is no
need to extend this opinion to those allegations. Nonetheless, the sometimes opposing interests of
different beneficiaries explains again why all beneficiaries are entitled to representation and to present
their case. Nunez, 25 Ariz.App. at 563, 545 P.2d at 74.

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was informed of all these facts, he erred as a matter of law in confirming the settlement and dismissing

all claims with prejudice. If he was not so informed — and there are indications that such is the case

— he erred after learning these facts in later denying the motion to set aside the order of confirmation.

¶ 34 We hold that our wrongful death statute imposes fiduciary duties on a statutory plaintiff

acting, as he or she must, on behalf of all statutory beneficiaries. We cannot attempt to draw a bright

line applicable to the myriad factual situations that may and do present themselves. Suffice it to say

that a fiduciary duty of care requires that the statutory plaintiff and her lawyer act to protect the rights

and interests of all beneficiaries who seek or may seek to assert their claims. Because the proper method

of calculating damages for wrongful death is to compute the sum of the damages sustained by each

beneficiary, the orders confirming the settlement, dismissing the case with prejudice, and denying the

motion to set aside the settlement that had been reached without consent of the children must be vacated.

¶ 35 Therefore, the court of appeals’ decision is vacated, the orders confirming settlement

and denying the motion to set aside are also vacated, and the case is remanded to the superior court

for further action consistent with this opinion.

____________________________________
STANLEY G. FELDMAN, Justice

CONCURRING:

__________________________________________
CHARLES E. JONES, Chief Justice

__________________________________________
RUTH V. McGREGOR, Vice Chief Justice

__________________________________________
REBECCA WHITE BERCH, Justice

__________________________________________
MICHAEL D. RYAN, Justice

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