H & H settled a challenging wrongful death case recently and overcame some unique factual and legal issues to maximize recovery for the client.
The case involved a couple who had been living together for over 50 years in an unmarried domestic partnership. The two partners had reciprocal estate plans and the surviving partner was the sole beneficiary and personal representative of the decedent’s estate. The decedent had no children and was survived by three elderly siblings who were somewhat disconnected. The decedent was a senior citizen who recently completed treatment for colon cancer. Hamilton & Hamilton represented both the Estate and the Partner individually.


FACTS


After enjoying a dinner out, shortly after 9:00 p.m. the decedent and partner parked at the curb of a two lane thoroughfare. Decedent exited the vehicle and crossed the street to enter a market to grab a few items. After going to the market, Decedent walked back towards her car. Tragically, Decedent was never able to make it back to her car. After crossing two traffic lanes plus two bike lanes, within inches of reaching her driver’s side door, Decedent was suddenly and without warning struck and gravely injured by the operator of a motor vehicle, who plaintiff contends, was travelling in the bike lane. During this tragic accident, Decedent’s partner was sitting in the front passenger’s seat of Decedent’s vehicle and witnessed the horrific and violent impact. As a result of the impact, Decedent underwent extensive medical treatment for blunt force trauma to the head, torso, & extremities, and survived for over 12 hours, sadly succumbing to the injuries in the late morning hours the following day.


CHALLENGES OVERCOME


The beneficiaries as set out in Mass. Gen. L. c. 229, § 1 are the spouse and children of a married decedent, or the next of kin of an unmarried decedent. The statutory beneficiaries set out in Mass. Gen. L. c. 229, § 1 are exclusive, and no other persons may share in the recovery under Section 2 of the statute. Because the decedent and domestic partner were not married, the Partner was not a “statutory beneficiary” under the Wrongful Death statute. Mass. Gen .L. c. 229, § 1 et seq. This posed a challenge in making a prima facie case under the statute while trying to find an equitable solution to recover damages on behalf of the person most dear to the decedent. Counsel for the plaintiff made the claim viable by locating the surviving siblings of the decedent and establishing that they were “next of kin” under the statute. Once over this threshold, Plaintiff’s counsel strongly argued that there was a substantial value to the conscious pain and suffering component under G.L. c. 229 § 6 as the decedent lived for 12 hours after the accident. The wrongful death statute provides that amounts recovered under Section 6 are payable into the estate and treated as an estate asset. Once the proceeds became an asset of the estate, they were properly payable to the partner as the sole beneficiary of the estate. Plaintiff’s counsel also successfully navigated the claims of the surviving next-of-kin, whose relationship with the surviving partner was somewhat strained. Plaintiff’s counsel recovered a portion of the wrongful death proceeds in trust on behalf of the next of kin and distributed undisclosed amounts to them.


Last, Plaintiff’s counsel also successfully argued a “bystander claim” for negligent infliction of emotional distress on behalf of the surviving partner who witnessed the entire accident and its aftermath. As a proximate result of witnessing the accident, the surviving partner suffered from symptoms of post-traumatic stress including depression, sleeplessness and anxiety. This portion of the case was resolved for an undisclosed amount.

Elderly man injured on the job while employed by the Commonwealth of Massachusetts. After the Commonwealth denied additional benefits, Hamilton & Hamilton appealed the decision and was successful in obtaining retroactive benefits, liquidated damages and accidental disability benefits for their client.

Man injured at work on loading dock by forklift. Injury to foot and back requiring physical therapy.   After investigation and negotiations with both the worker’s compensation insurance carrier and the liability insurance carrier, Hamilton & Hamilton negotiated a settlement on behalf of the client.

Elderly woman fell at Boston’s Logan International Airport while attempting to board a Delta flight injuring her knee requiring stitches and home health care services and therapy for several weeks. Resolved by confidential settlement.

Man injured at gym when weight machine cable snapped sending man backward injuring his lower back. Hamilton & Hamilton filed a law suit in Superior Court against gym owner, gym equipment manufacturer, and maintenance company. During discovery, it was revealed that the piece that failed was an after-market item with no identification of the manufacturer. Despite problems with pre-existing injuries and the inability to determine the manufacturer of the piece that failed, Hamilton & Hamilton achieved a sizable settlement to help enable the client to resume his life and meet his financial obligations after being out of work for quite some time.

Woman injured in grocery store when a careless employee left a flat bed stocking cart directly behind her. Woman fell over cart injuring her arm and elbow requiring surgery. Despite several legal and evidentiary hurdles, Hamilton & Hamilton achieved a substantial settlement on our client’s behalf.

Woman in rear-end car accident injures shoulder requiring short course of physical therapy therapy. Hamilton & Hamilton achieved a settlement of just under the full policy limits in a short period of time

Drunk driver under influence of alcohol and drugs crashed and rolls sports car killing the passenger of his vehicle. Family of the passenger hired Hamilton & Hamilton to pursue the driver for wrongful death. After initial attempts to settle were unsuccessful, Hamilton & Hamilton filed a lawsuit to pursue the driver. After several depositions and motions for financial disclosure, Hamilton & Hamilton negotiated a settlement for the maximum insurance policy limits plus an additional six figure personal contribution from driver.

A young girl was bitten on her face by Akita dog while attending a neighborhood party.   Some relatively minor facial scarring. After receiving insufficient initial offer of settlement, Hamilton & Hamilton filed suit. After a full day mediation, the case settled for a structured settlement value of well over six figures.

Elderly patient is thrown off of hydraulic platform lift on nursing home transport vehicle breaking her hip requiring surgery leading to a post operative infection. Hamilton & Hamilton’s investigation reveals that driver violated several safety regulations and failed to take proper precautions. Confidential settlement amount

Elderly driver hit by pizza delivery car injuring her knee requiring surgery. Pizza parlor denied liability and Hamilton & Hamilton filed a law suit against the driver and pizza parlor. Hamilton & Hamilton’s investigation revealed that the driver was delivering pizza at time of accident and pizza parlor was responsible. After initiating the law suit the matter was resolved for well over six figures.