Matter of Lodovichetti
Annotate this CaseDecided on December 10, 2007
Sur Ct, Dutchess County
Matter of the Estate of Richard A. Lodovichetti, Deceased.
92065/2002
TO:
JOSEPH V. CERVONE, ESQ.
SAYEGH, CERVONE & MaCKAY, P.C.
Attorneys for Petitioner
Summerlin Plaza
942 Route 376, Suite 201
Wappingers Falls, New York 12590
THOMAS E. DIETZ, ESQ.
DIETZ & DIETZ, LLP
Special Counsel for Petitioner
Two Cannon Street, Suite 207
Poughkeepsie, New York 12601
DONALD CAPPILLINO, ESQ.
CAPPILLINO & ROTHSCHILD, LLP
Guardian Ad Litem Seven Broad Street
P.O. Box 390
Pawling, New York 12564-0390
James D. Pagones, J.
The administratrix petitions this Court for an order to compromise and settle a certain wrongful death claim and authorizing a structured settlement along with payment of attorney's fees and disbursements.
The relevant facts are not in dispute. On October 12, 2002, Richard Lodovichetti was killed in an automobile accident. Petitioner Therese Lodovichetti was appointed administratrix of his estate on December 16, 2002. In that capacity, she instituted an action on or about April 19, 2004. The instant petition asserts that the defendants have offered to settle the action for a total of five million dollars.
The decedent was survived by petitioner (his wife) and four children, Richard, d/o/b: 12/25/90; Michael, d/o/b: 03/01/93; Nicholas, d/o/b: 07/06/95; and, Francis, d/o/b: 01/23/99. The petitioner has submitted three separate proposals for a structured distribution of the proceeds of the settlement of the wrongful death action.
EPTL §5-4.4(a)(1) requires the court to determine the manner of distribution of wrongful death proceeds in proportion to the pecuniary injury suffered by each distributee. Courts have relied extensively upon the formula set forth in Matter of Kaiser, 198 Misc. 582 [1950] to determine the appropriate distributive share. However, it has been held that "there is no imperative for the automatic application of Kaiser (and) the surrogate is vested with discretion and with equitable powers as to the proportional allocation of wrongful death proceeds." (Matter of Acquafredda, 189 AD2d 504, 505 [2d Dept. 1993].)
It has been held that:
"the essence of the cause of action for wrongful death in this State is that the plaintiff's reasonable expectancy of future assistance or support by the decedent was frustrated by the decedent's death. Loss of support, voluntary assistance and possible inheritance, as well as medical and funeral expenses incidental to death, are injuries for which damages may be recovered. (citations omitted.)(Gonzalez v. New York City Housing Authority, 77 NY2d 663, 668 [1991].) [*2]
Pecuniary injuries are usually established by evidence of "the age, health and life expectancy of the decedent at the time of the injury; the decedent's future earning capacity and potential for career advancement; and the number, age and health of the decedent's distributees." (John v. MBSTOA, 71 NY2d 198 [1988].)
This court has examined each of the proposed structured settlements in the context of existing statutory and decisional authority. Option 1 provides equal sums to be used to purchase the annuity for each of the decedent's four sons. While each annuity premium would be the same, the guaranteed payouts and expected payouts differ for each because of their differing ages. Option 1 makes specific provision for a college education fund for each of the decedent's sons which fund increases for the younger children in anticipation of increased college expenses. Option 2 represents a Kaiser proportionate allocation. Option 3, which is urged by the petitioner and the law guardian has substantially different annuity premium costs among the sons but is structured in such a way that the guaranteed payouts and expected payouts for each of the children are equal. This is accomplished, in part, by providing a college education fund in an equal amount for each child and does not take into consideration increasing costs as the younger children enter college. Based on all of the circumstances presented, I find that the most appropriate structure for the net settlement proceeds in this action is defined by option 1 which strikes a fair balance between an equitable distribution of the net proceeds and each son's reasonable expectancy of future assistance or support from decedent.
The court notes that there is no provision in the proposed settlement requiring the defendants to guarantee the structured settlement. I find that such a requirement is necessary in the event that the company through which the structured payments are underwritten becomes insolvent. Therefore, it is ordered that approval of this settlement is contingent upon the defendants, or their insurance carriers, guaranteeing payment as set forth in option 1.
The court has reviewed the costs and disbursements in the amount of $25,000.00 sought by plaintiff's counsel. These include a request for approval of fees paid to attorney James Gaston on April 3, 2004 to draft pleadings for an anticipated but never realized action in the State of Connecticut. Those legal fees, totaling $3,675.00, are not properly charged as a disbursement in this action as the plaintiff had entered into a comprehensive retainer agreement for legal services and these fees must be considered a part of those services that are chargeable to the plaintiff's attorney of record as a fee sharing arrangement. The plaintiff's counsel has also billed $150.00 for "express mail" costs. I find that these costs are routine office overhead expenses and are not properly chargeable as a disbursement. Counsel has also included an expense of $750.00 payable to the law firm of Dietz & Dietz, attorneys for the administratrix in this estate proceeding. Those fees are not properly charged as a disbursement in the wrongful death action. I find that $4,575.00 of the plaintiff's stated disbursements are not properly charged as a disbursement of the wrongful death action and it is ordered that those expenses are disallowed. It is further ordered that the plaintiff's attorney shall be reimbursed for allowable costs and disbursements in the action in the total amount of $20,425.00. It is ordered that the plaintiff's counsel shall recompute the amount of net proceeds available to the distributees after the payment of attorney's fees and allowable expenses.
The guardian ad litem has submitted an itemized statement of services indicating that he expended 19.2 hours representing the four children who are distributees herein. I find that all of [*3]those services were reasonable and necessary to fulfill the responsibilities of guardian ad litem. I find further that the attorney's hourly compensation of $300.00 is reasonable for attorneys with his experience and expertise in this geographic area. Therefore, it is ordered that guardian ad litem fees in the amount of $5,760.00 are hereby approved and it is further ordered that such fees shall be paid by the administratrix from estate assets within twenty days of the date of this order.
It is further ordered that the administratrix is authorized to compromise and settle the claim for wrongful death as outlined in option 1 and any restriction on the letters of administration issued to her are hereby removed for that purpose. It is ordered that such authority is specifically conditioned on the defendants or their insurance carriers guaranteeing payment as set forth in option 1. It is further ordered that subject to the recalculations ordered above, the administratrix is authorized to pay attorney's fees along with approved disbursements to the firm of Sayegh, Cervone and MacKay.
The petitioner is directed to submit a decree consistent with this decision and order on notice to the guardian ad litem and attorney for the estate.
The Court considered the petition with exhibits and the report and affirmation of the
guardian ad litem.
The foregoing constitutes the decision and order of the Court.
Dated:Poughkeepsie, New York
December 10, 2007
ENTER
HON. JAMES D. PAGONES, S.C.J.
120507 decision & order
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