Decedent’s personal injury settlement did not become wrongful death proceeds after his death.

Where decedent had filed a personal injury and loss of consortium case in West Virginia, settled that case, and then received a portion of the settlement proceeds before his death, the Court of Appeals affirmed dismissal of this Tennessee case filed by decedent’s heirs “seeking to have the settlement proceeds received pursuant to the West Virginia litigation characterized as wrongful death proceeds.”

In Welch v. Welch, No. M2021-00081-COA-R3-CV (Tenn. Ct. App. Dec. 10, 2021), plaintiffs were the heirs of decedent, who had previously died of mesothelioma. Before his death, decedent filed suit for personal injury and loss of consortium in West Virginia. That suit was settled, and decedent received several distributions from the settlement proceeds before he died.

After decedent’s death, plaintiffs filed this suit in Tennessee, attempting to have the remaining settlement proceeds distributed as wrongful death proceeds rather than having them distributed under decedent’s will. The trial court dismissed the action, finding that the settlement of the personal injury case “very clearly intended to foreclose upon any future wrongful death funds related to the mesothelioma litigation,” and the Court of Appeals affirmed the dismissal.

In its short analysis, the Court of Appeals noted that although plaintiffs would be “entitled to share in proceeds from a wrongful death action pursuant to Tennessee law,” the record showed that there were “no wrongful death proceeds in relation to Decedent.” (internal citation omitted). The Court explained:

Here, Decedent brought suit in West Virginia for personal injury and loss of consortium. Decedent himself ultimately accepted a settlement in lieu of further litigation. The monies received as part of Decedent’s settlement in the West Virginia matter therefore represent compensation for his claims for personal injury and loss of consortium. Decedent was, obviously, still living at the time of his reaching a settlement in the West Virginia litigation. … As we perceive it, any potential cause of action for Decedent’s wrongful death was extinguished when he resolved his personal injury case during his lifetime by way of settlement. Accordingly, Decedent’s personal representatives, or beneficiaries, had no cause of action for his wrongful death because Decedent foreclosed on that opportunity in reaching a settlement.

Dismissal was therefore affirmed.

This case was essentially a way to attempt to contest a will and gain a portion of decedent’s settlement proceeds. As this opinion shows, however, a fully settled personal injury claim will not be recharacterized into a wrongful death action after the death of the original litigant.

Note:  Chapter 108, Section 3 of Day on Torts: Leading Cases in Tennessee Tort Law has been updated to include this decision.

Day on Torts: Leading Cases in Tennessee Tort Law contains  summaries of leading cases on over 500 topics and citations to more than 1500 additional cases.  The 500,000+ word book  (and two others, Tennessee Law of Civil Trial and Compendium of Tennessee Tort Reform Cases) is available by subscription at and is continually updated as new decisions and statutes impact Tennessee law.  Click on the link to see the book’s Table of Contents.

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