Under Missouri law (RSMO 537.080), wrongful death settlements must be judicially approved. This is true no matter if the case settled out of court or if resulted in a jury trial. The petition filed is called a Motion for Approval of Wrongful Death Settlement. This paperwork is are prepared by the lawyer for the insurance company with the assistance of plaintiff’s counsel. Typically, the insurance company will pay for the filing fees of the Motion.
Once the paperwork is filed, the court clerk will assign the proceedings to a specific judge and division. Both parties must then request that a hearing be set on a certain date to approve the settlement paperwork. The parties try schedule this hearing within 30 to 90 days of filing, although the availability of both parties and the time available on the judge's docket could add more time to this general rule.
I typically like to meet at the courthouse an hour or so before the hearing to review the Motion with my client. I do this to make sure that my client is comfortable with the process before going on the stand to testify. There should be no surprises at this hearing. It is not adversarial. The answer to all the questions the plaintiff answers should already be in the motion filed with the court.
To get the wrongful death settlement approved, the Motion should say, and the plaintiff should testify to, the following:
- That the Plaintiff is “insert specific relation to” the deceased;
- That the Plaintiff maintain a claim or lawsuit for wrongful death because “…”
- That the Plaintiff participated in the filing of a wrongful death claim and litigated the case;
- That the Plaintiff believes that the Court approved of the settlement as it would be in the best interest of the case and parties;
- The Plaintiff shall identify all of the parties that are entitled to distribution from the settlement under Missouri law;
- That the Plaintiff retained counsel to represent them who pursued this case and did so on a contingency fee contract;
- That the Plaintiff understands that if they settle the case and if the Court approves the settlement, that the case will be completely closed and no further relief may be had from the released parties;
- That if the Court approves the settlement, the Plaintiff will not be able to have a jury trial in the case and that a jury could have awarded more or less than the settlement amount;
- That the Plaintiff desires that the Court approve of the settlement;
- That the court enter an order approving the settlement, payment of attorney’s fees and expenses, and that the remainder by distributed to beneficiaries.
The Plaintiff’s attorney will ask the first round of questions. If they missed anything, the Defense attorney will ask any questions that they wish to put on the record. Finally, the judge will ask questions, if they have any, prior to approving the settlement. No mater who asks the questions, the Plaintiff should not be concerned about “messing the hearing up” as the process is geared toward creating a record of the facts, not preventing the Plaintiff from receiving the settlement.
The Plaintiff bringing the lawsuit or claim is the only one that is usually asked to testify. The judge typically does not ask for the other beneficiaries to testify or even be present at the hearing unless there is a dispute among them. From my experience, the insurance company will bring the actual settlement checks to the hearing if the attorney requests that they do so. Otherwise the Plaintiff may have to wait 30 days to receive the settlement funds.
Generally, the Plaintiff in a wrongful death case is the closest family relative to the deceased. This is usually a spouse, parent, child, or sibling, but can be extended relatives if others are incapacitated or deceased. Your attorney should ask for the deceased’s Last Will and Testament prior to the filing of the Motion For Approval. The identity and legal justification for each beneficiary should be clearly listed in the Motion to ensure that the judge knows of all the possible beneficiaries at the time of the hearing. If the judge is not clear about this, they could ask that the Motion be re-filed and continue the hearing date until all beneficiaries identified.
What if those entitled to settlement do not agree on how the money should be split? This issue could arise if the deceased died without a will, leaving an opening for a dispute among beneficiaries as to who is entitled to the money. The same process would be followed but instead of a request for immediate distribution, the Plaintiff's attorney would likely ask the Court to put all beneficiary proceeds into a trust. Any dispute between the beneficiaries would then have to be resolved by a separate probate lawsuit. After an order is obtained from that case, the beneficiaries would return to the division the wrongful death settlement was approved in and request that the funds be distributed according to the final order from the probate lawsuit. As with most things in life, if you are able to agree on things prior to going to court, you may be better off.
