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Sister granted 25% of wrongful death recovery years after widow failed to provide notice of settlement

Trudy Butcher filed a wrongful death action against MVA Contracting Corporation, arguing that her husband died in a work-related accident caused by the Defendant's negligence.  Ultimately, she secured a settlement of 1.1 million dollars, and in 2005 the Court awarded the bulk of the settlement (all but $5,000.00) to the widow.  Deanna Zalba, the decedent's sister filed a motion in 2009 to set aside the Court's award.  In her motion, she argued that she had recently learned of the settlement, that she had never received the notice required by the Wrongful Death Act, and that she was entitled to a share of the recovery.

A hearing was held in 2010, at which time the lawyer for the widow acknowledged that he negligently failed to provide the sister with notice of the settlement or the hearing to approve it and to allocate the proceeds.  The judge then took testimony from the widow and sister about the nature of the sister's relationship with the decedent.  The judge concluded that justice required him to overturn the prior order, even though more than one year had passed, and he awarded 25% of the settlement to the sister.  He concluded that while the siblings' relationship had suffered a temporary strain, overall the family was close and the relationship was strong.  On that basis he awarded the sister the above-mentioned 25% and the widow appealed.

After careful consideration of the language of the Death Act, the Court Rules governing relief from an Order or Judgment, and the case precedent, the appellate judges concluded that the lower court's decision was sound.  It noted that even though four years elapsed after the date of the judgment, before the sister sought relief, her delay was caused by the widow/fiduciary's failure to notify her of her rights as explicitly required under the Act.  Furthermore, the exceptional circumstances required late amendment for justice to be served.  Ultimately, the widow suffered no prejudice and her rights were no different than they would have been if she had properly notified the sister of her rights on a timely basis.

Thompson O’Neil, P.C.
309 East Front Street
Traverse City, Michigan 49684
Toll Free: 1-800-678-1307
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