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In Matter of Estate of Kenneth Pullen

Case No. 1-856 (IA Ct. App., Jan. 19, 2012)

Following settlement of a wrongful death action in Nebraska, four of the decedent’s surviving adult children appeal the Iowa district court’s distribution of wrongful death proceeds to his surviving spouse and other children. The district court held Iowa had the most significant relationship with the dispute and therefore Iowa law should control the distribution. The objecting children contend the district court erred in applying Iowa law, rather than Nebraska law, to distribute the decedent’s wrongful death proceeds. The objecting children also argue that even if Iowa law applies, the district court erred in its allocation of the wrongful death proceeds. Upon our review, we conclude the district court erroneously took judicial notice of Nebraska law, but properly applied Iowa law. We also modify the district court’s distribution of benefits to the surviving spouse as the award was not supported by the evidence. We therefore reverse the district court’s order in part and remand for further proceedings consistent with this opinion.

I. Background Facts and Proceedings.



In September 2004, Kenneth Pullen suffered a heart attack while at his home in Villisca. He was first taken to Montgomery County Hospital in Red Oak and then transferred to Methodist Hospital in Omaha, Nebraska. Kenneth died several days later while undergoing a “fairly routine” surgery at Methodist Hospital, when air entered his coronary artery system. He was fifty-three years old. He was survived by his spouse, Vicki Pullen; their minor children, Brittney and Courtney; their adult child, Ryan; and four adult children from a prior marriage, Frank, Jodie, Allan, and Sheila. The adult children, except Ryan, are the appellants in this case.

Kenneth died without a will. Vicki opened a probate estate in Pottawattamie County and was appointed administrator. In her representative capacity as administrator, Vicki filed a wrongful death and medical malpractice action in Nebraska district court under the Nebraska Medical-Hospital Liability Act against Kenneth’s treating physician and various Nebraska medical facilities. The wrongful death claim was settled in February 2010 for a confidential amount. Vicki filed an application for authority to settle the claim with the Iowa district court. The district court approved the terms of the settlement. Because of the confidentiality of the settlement, it is unclear whether deductions were made for court costs and attorney fees. Regardless, the remaining amount of the settlement is currently the only asset in dispute.
 

 

Judge(s): David Danilson
Jurisdiction: Iowa Court of Appeals
Related Categories: Civil Procedure , Torts , Wills / Trusts / Estates
 
Trial Court Judge(s)
Timothy O'Grady

 
Court of Appeals Judge(s)
David Danilson
Michael Mullins
Mary Tabor

 
Appellant Lawyer(s) Appellant Law Firm(s)
George Stevens
Alan Olson Olson Law Office

 
Appellee Lawyer(s) Appellee Law Firm(s)
John French Law Offices of John M. French
John Rasmussen Peters Law Firm PC

 

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Click the maroon box above for a formatted PDF of the decision.
under nebraska law, the class of persons entitled to recover damages in a the objecting children argue that even if iowa law applies, the district 13 children further contend the district court's distribution scheme for the wrongful the objecting children further argue the district court's distribution was following settlement of a wrongful death action in nebraska, surviving settlement monies. at the close of the evidence, the district court ordered the which gives rise to the decedent's death up until the date of the distribution of wrongful death settlement proceeds pursuant to iowa law "when ________________________________________________________________ our supreme court's holding in in re estate of coe, 130 iowa 307, 308-09, 106 john c. rasmussen of peters law firm, p.c., council bluffs, for appellees. extensive findings and conclusions that we find unnecessary to repeat here. the wrongful death action was based on nebraska law." in essence, they argue filed january 19, 2012 apportionment should be for the present value of the amount of financial support n.w.2d 915, 918 (iowa 1973), that the surviving spouse and children have no also 11 barry a. lindahl, iowa practice series, civil & appellate procedure, nebraska law. cases to prove the foreign law." simoni, 641 n.w.2d at 810; see also iowa r. services and support of a deceased spouse, parent or child." where a lump sum noting inequities in prior law). 169 (iowa 1976). "a party relying on foreign law may ask the court to take as the award was not supported by the evidence. we therefore reverse the complaint to the court's allocation for the loss of services, or intangible 5 decedent in a manner as the court may deem equitable consistent "most significant relationship" methodology for choice of law issues, as set forth with the loss of services and support sustained by the surviving his death." however, we decline to take issue with the district court's analysis or application of nebraska law to the distribution of the proceeds grounded upon 44-2819. unlike iowa law, the recovery does not become property of the decedent's in the court of appeals of iowa pleading, the objecting children's answer did not reference nebraska law, and section 633.336 by inserting language consistent with that set forth by the court 553 n.w.2d 896, 897 (iowa 1996); see also berghammer v. smith, 185 n.w.2d however, that "a recovery in a jurisdiction, other than where the liability arises, consent, expressly or impliedly, to a trial on issues not directly raised in the because, in this case, "no award of damages was made for loss of services and n.w.2d at 837. evidence in the record does not support that allan and sheila financially relied on affirmed in part, reversed in part, and remanded. death proceeds conflicts with applicable nebraska law. an iowa lawsuit was filed the following day, but was subsequently dismissed however, of nebraska law is not rightly before us, and we must apply iowa law to resolve will not justify a distribution of the fund not in accordance with the statute creating should have been applied to these facts, because the foreign law was not pled or vicki filed a cross-appeal, which was subsequently dismissed. application of iowa law in a post-trial motion to enlarge or amend findings of fact and cause of action for loss of services and support in a wrongful death action; the services shall be distributed as personal property in accord with sections 633.212 and fixed the children's losses solely upon their respective amount of contact or of the claim asserting nebraska law should be applied to distribute the proceeds. instructed that only once it had received the post-trial briefs, would it then file a 249a, paid on behalf of the decedent from the time of the injury the moneys collected are payable to the persons, and in the proportions provided nebraska law, because nebraska law was not properly pled, we are unable to we observe, however, that iowa rule of civil procedure 1.415 permits judicial denominated as such; an answer to a cross-claim, if the answer contains methodology in reaching its ultimate conclusions, because unless the overall notice to be taken of another state's statute if the statute is properly designated in the issue. we disagree, however, because the district court nevertheless applied context of a post-trial brief. therefore, the parties introduced no evidence, and civ. p. 1.415 (setting out procedure for judicial notice of foreign statutes).6 communication with kenneth. greater proportional share of the proceeds. deny them any award, and frank and jodie contend they were entitled to a see egan, 208 n.w.2d at 918 (observing inequities in the law prior to the services to be $100,000, rather than $169,332. we further find frank, age thirty- statute provides for the recovery of damages for death wrongfully occasioned, 633.336. subsequently filed a motion to amend or enlarge findings and conclusions, which allocation of damages between the estate and those suffering a loss of spouse, children, and parents respectively. any recovery by a should not have taken judicial notice of nebraska law was not properly preserved 811. here, the choice-of-law question with which we are confronted arose in the conclude the issue was properly preserved for our review. meier v. senecaut, 641 of roethler, 801 n.w.2d 833, 837 (iowa 2011). we will give weight to the trial supreme court has instructed that it is not sufficient to merely plead the sheila runyon wilcoxson, the objecting children contend the court's distribution is incorrect kenneth pullen, deceased acknowledge kenneth's personal contact and communication with his children age twenty-one; are younger than the other siblings and were minors when they $20,000, rather than $10,000. because brittney, age twenty-two; and courtney, the death of a spouse or parent. we also note our supreme court has interpreted vicki pullen, individually, as parent and natural guardian of brittney we are not bound by them. see iowa r. app. p. 6.904(3)(g). in addition, we are in september 2010, a trial was held to determine the apportionment of the absent evidence to the contrary, we can only conclude the settlement sum was upon our review of the issues raised, we affirm in part and reverse in part alan o. olson of olson law offices, des moines, and george stevens, marriage, frank, jodie, allan, and sheila. the adult children, except ryan, are co., 335 n.w.2d 148, 151-52 (iowa 1983). include a specific amount set aside for loss of services or support, the court was except for amounts to be paid to the department of human services 44-2819 (same), with iowa code 633.336 (permitting recovery for "loss of services and when a wrongful act produces death, damages recovered as a children consistent with their respective loss of service and support. iowa code consideration to leaving vicki after eighteen years of marriage, although they had parties to file post-trial briefs "in lieu of closing arguments." the court further intangible component of the consortium claim. the objecting children take issue in re estate of cory, 184 n.w.2d 693, 695-696 (iowa 1971). nebraska revised statutes sections 44-2801 through 44-2855. brief, "had sufficiently cited nebraska law and asserted that nebraska law should amendment the court or jury could be empowered to determine a proper distribution of the wrongful death proceeds should be determined under inequitable. specifically, they contend the district court erred in awarding exira ready mix, inc, 335 n.w.2d at 152. moreover, they were not parties to the therefore iowa law should control the distribution. the objecting children contend the wrongful death claim was settled in february 2010 for a amounts paid for such a loss. thus, we conclude the legislature must have vicki is correct that the objecting children first advanced their argument preserved in the course of the trial proceedings. administrator of the estate of kenneth pullen, deceased; jodie apportionment would be unnecessary if the settlement delineated the specific distribution of the wrongful death proceeds should be determined under for our consideration because vicki dismissed her cross-appeal raising that district court's order in part and remand for further proceedings consistent with we observe that kenneth was 53 years of age and at the time of his 3 decedent's surviving adult children appeal the iowa district court's distribution of the iowa district court. the district court approved the terms of the settlement. law as it existed before the 1976 amendment in in re estate of johnston, 213 home in villisca. he was first taken to montgomery county hospital in red oak id. we apply the supreme court's definition of "services," as used in section a hearing, "in the proportion that the pecuniary loss suffered by each bears to the total i. background facts and proceedings. court's findings of fact, especially those involving the credibility of witnesses, but proceeds to allan and sheila for loss of support or services is proper under these we affirm the conclusion of the district court that allan and sheila should under section 633.336." audubon-exira ready mix, inc. v. illinois cent. gulf r. record and adjudicate rights anew on those propositions properly to the district court, we find a more equitable distribution to vicki for loss of result of the wrongful act shall be disposed of as personal property any reason previously argued, including the court's impermissible judicial notice summoned under the provisions of rule 1.246; and an answer to cross- apply." 1227, 4. as the court observed after the amendment, damages for wrongful an application to distribute the settlement via iowa probate administration ordered the parties to file post-trial briefs "in lieu of closing arguments." and the 11 be omitted from the distribution. we appreciate the fact that sheila and allan differed, but sometimes a father's advice, support, or companionship may be hospital, when air entered his coronary artery system. he was fifty-three years claiming that nebraska law is controlling, due to their failure to plead nebraska law. sheila (the objecting children) answered the application and objected to the recognized the lex loci delicti rule, in which "[t]he right to recover in [wrongful [i]n equity it is our duty in a de novo review to examine the whole proceeds to decedent father's surviving spouse and minor children. affirmed facilities.2 consortium damages. single argument, but may profess alternative arguments. court erred by allocating the wrongful death settlement proceeds first to the loss 613.15, to our analysis of the district court's allocations pursuant to section n.w.2d 532, 537 (iowa 2002). iowa rule of civil procedure 1.401 provides: proceedings, pursuant to iowa code section 633.336 (2009). vicki proposed a brittney suffered by kenneth's death, and next for spousal consortium, followed in november 2010, the district court issued an order approving vicki's an illinois wrongful death action for an iowa resident killed in a railroad accident o'grady, judge. estate. compare id. at 30-810, with iowa code 633.336. further, unlike iowa law, damages are to be apportioned "if the damages include damages for loss of conclude the lump sum settlement includes damages for loss of services and 8 incurred the loss." egan, 208 n.w.2d at 918. the district court's distribution of kenneth pullen's estate. we remand for 6 affection for kenneth, and experienced the loss of a parent. however, the we also modify the district court's distribution of benefits to the surviving spouse proved, "our conflict-of-law rules require us to assume the foreign law is the 8 appeal from the iowa district court for pottawattamie county, timothy shenandoah, for appellants. support"). under nebraska law, the court is directed to distribute the proceeds, following heard by danilson, p.j., and tabor and mullins, jj. our statutes confer the right to recover for loss of services and support of a would be distributed to her as the surviving spouse. frank, jodie, allan, and 9 in september 2004, kenneth pullen suffered a heart attack while at his cross-appeal, as long as the prevailing party raised the alternative ground in the judicial notice of foreign statutory law and may introduce into evidence statutes or see 2 authorized to enter an equitable award to kenneth's surviving spouse and adult children appeal the iowa district court's distribution of wrongful death proposed distribution. the court's order took judicial notice of nebraska law, but coe apply, and iowa law requires the distribution of proceeds pursuant to 7 wrongful death proceeds to his surviving spouse and other children. the district the estate. that section provides: our supreme court again discussed the inequity that could occur in the vicki did not file a petition for distribution in nebraska.3 we acknowledge that section 633.336 provides that the wrongful death iowa code 633.336. kenneth's estate, vicki, in her capacity as administrator. prior to an amendment of nebraska law. see duck creek tire serv., inc. v. goodyear corners, l.c., death, "recovered by an administrator, are to be distributed by the trial court cole pullen, a minor, and courtney anne pullen, a minor, and as indeed, there is evidence in the record kenneth was giving serious court held iowa had the most significant relationship with the dispute and 12 pleadings. however, we observe the district court did rule upon the issue, and we therefore our (iowa 2005). rev. stat. 30-810 (permitting recovery for amount of damages actually sustained); by such statute, without regard to the law of domicile of the beneficiaries." simoni, 641 n.w.2d 807, 810 (iowa 2002); in re estate of allen, 239 n.w.2d 163, vicki argues estate of coe was since overruled by iowa's adoption of the some of its principles remain valid law today. even if the principles in estate of intended to distribute proceeds in a manner equivalent to each person's loss this matter was tried before the district court in probate as a proceeding in death settlement proceeds after payment of the distributions for loss of support and application of nebraska law."8 support, the settlement proceeds should be distributed as personal property of and then transferred to methodist hospital in omaha, nebraska. kenneth died 4 (iowa 1996). and a person's spouse, as well as adult and minor children, may paid for the elements of damage each sought in the petition. accordingly, we vi. conclusion. 2 we also observe in this case the district court made separate allocations take judicial notice of that state's law, and we must presume nebraska law is the not previously separated. there was evidence kenneth and vicki did not have a by parental consortium, and finally as personal property of the estate. we 1 objecting children allege that, pursuant to iowa code section 633.336, when a asserting application of nebraska law in a post-trial brief, yet continued to advance in the matter of the estate of capacity as administrator, vicki filed a wrongful death and medical malpractice conclude that although the administrator simply received a lump sum that did not support. to resolve this issue, we observe the court is empowered pursuant to vicki argues that the objecting children have not preserved error on any issue conclusions of law. however, we conclude the objecting children are not bound by a however, we find it unnecessary to resolve the issue of whether estate of coe or proposed distribution. in june 2010, the district court granted the objecting consortium damages." kulish v. w. side unlimited corp., 545 n.w.2d 860, 862 not be subject to debts and charges of the decedent's estate, the district court erred in applying iowa law, rather than nebraska law, to death statute determined the distribution of settlement proceeds procured from 6 pleadings). perhaps more importantly, we observe a post-trial brief is not a (emphasis added.)). we disagree. "citation to foreign opinions in a party's brief is not the proceeds should have been distributed not to the administrator but directly to supported by the evidence presented to the court. this award was broken down not bound by the district court's conclusions of law. estate of roethler, 801 for the loss of services and the loss of support. other than the methodology 633.336 references the "loss of services and support," and identical language is that occurred in illinois. 130 iowa at 307-08, 106 n.w. at 743-44. the court first that [kenneth] would have contributed to vicki and his dependent children but for section 633.336 to determine the recipient of the proceeds. settlement is made without a specific award of damages for loss of services or 14 argue that even if iowa law applies, the district court erred in its allocation of the petition, if a cross-petition is served. without prejudice. nebraska law applies. vicki is entitled to support the application of iowa law for the court overruled. the objecting children now appeal.4 we agree. nebraska law was not properly pled, and judicial notice should moreover, the nebraska wrongful death action was initiated by v. distribution under iowa law. in determining the allocations for loss of services, the district court made $169,332 to vicki for loss of spousal consortium because such award was not of the settlement is currently the only asset in dispute. equity. therefore, our review is de novo. iowa code 633.33; see in re estate the provisions of the nebraska medical-hospital liability act are set forth in more meaningful to a child who only infrequently receives it. thus, we have not death cases] depends solely on the statute of the state where the wrongful act is used by the district court, the objecting children have limited their specific demise and had a life expectancy of 26.52 years. vicki's life expectancy was even if the settlement did not specifically define the amount paid for each loss. old. he was survived by his spouse, vicki pullen; their minor children, brittney belonging to the estate of the deceased; however, if the damages several days later while undergoing a "fairly routine" surgery at methodist 10 court relied on in reaching its determination as to the amount of loss vicki estate of williams, 130 iowa 558, 561, 107 n.w. 608, 612 (1906) ("[w]here a claim belongs to the estate. the court also acknowledged, "[i]t is anomalous that in part, reversed in part, and remanded. leaves a spouse, child, or parent, damages for wrongful death shall section 633.336 to equitably apportion the proceeds, whereas such pullen smith; franklin carl pullen; and ryan joseph pullen. following settlement of a wrongful death action in nebraska, four of the (outlining general rules of pleadings); 1.457 (establishing that a party can proceedings consistent with this opinion.9 226, 231 (iowa 1971); fabricius v. horgen, 132 n.w.2d 410, 414-16 (1965). 7 receive $10,000; allan and sheila would receive nothing; and the remainder for payments made for medical assistance pursuant to chapter include damages for loss of services and support of a deceased the objecting children also make an alternative argument asserting the objecting children argue the district court erred in ordering the acknowledge in determining its distribution, the district court stated, "the first were made for court costs and attorney fees. regardless, the remaining amount applicability of foreign law; it must also be proven. pennsylvania life ins. co. v. smith bennett, allan searl, and decedent's death. the wrongful death claim was filed by the legal representative of contention that the objecting children failed to plead and prove nebraska law control the distribution of the wrongful death proceeds. the objecting children nebraska permits potential heirs to recover only for pecuniary losses. compare neb. in estate of johnston, 213 n.w.2d at 539. see 1976 session, 66th g.a., ch. suffered the loss of their father, we direct they receive $30,000. we kenneth died without a will. vicki opened a probate estate in written ruling. in their closing brief, the objecting children took the position that danilson, p.j. the objecting children further argue vicki's contention the district court john m. french of law offices of john m. french, council bluffs, and committed." 130 iowa at 308-09, 106 n.w. at 743. the court further observed, nebraska lawsuit. accordingly, the district court's decision not to distribute parent for the death of a child shall be subordinate to the recovery, persons entitled to the damages according to nebraska law. the objecting there shall be a petition and an answer; a reply to a counterclaim to section 633.336 in 1976, our supreme court observed in egan v. naylor, 208 same as iowa law. see talen, 703 n.w.2d at 409. thus, we apply iowa code 3 amendment of section 633.336); estate of johnston, 213 n.w.2d at 539 (also 4 loving relationship; there were arguments between them and name-calling by the appellants in this case. decedent's services and support." subsequently, the legislature amended of services and support the administrator (vicki) and minor children courtney and district court."). as vicki's post-trial brief alleges, "[o]bjectors have not pled with both of these allocations. allan and sheila also argue it was inequitable to court among the surviving spouse, children, and parents of the the term "services" for purposes of section 613.15 to include "intangible 9 to give the adverse party fair notice of the claim asserted."). thus, until the 633.336. distribute the decedent's wrongful death proceeds. the objecting children also erroneously took judicial notice of nebraska law, but properly applied iowa law. objecting children's post-trial brief was filed, neither vicki nor the court was aware confidential amount. vicki filed an application for authority to settle the claim with same as iowa law." talen v. employers mut. cas. co., 703 n.w.2d 395, 409 pecuniary loss suffered by all such persons." neb. rev. stat. 30-810. pottawattamie county and was appointed administrator. in her representative therefore nebraska law was never properly pled. iowa r. civ. p. 1.401;7 kenneth or benefited from his society and companionship. see, e.g., audubon- not have been taken by the district court. under these circumstances, the issue 633.219. to determine whether the distribution is equitable, we first observe section asserting nebraska law in their post-trial brief, where they took the position that vicki also argues that the objecting children first advanced an argument because of the confidentiality of the settlement, it is unclear whether deductions 35.43 years at the time of kenneth's death. considering the evidence presented facts. distribution in which frank, jodie, ryan, brittney, and courtney would each deceased spouse and parent on the decedent's estate rather than on those who iv. application of iowa law. adequate because it is not the introduction of evidence." simoni, 641 n.w.2d at support," but rather, the administrator "simply settled for a lump sum." the iii. judicial notice of the choice of law issue. 5 recover consortium damages upon the wrongful death of the spouse or parent. no. 1-856 / 11-0094 act1 franklin pullen, jodie pullen necessary for the district court to take judicial notice of nebraska law.5 as ordered by the district court, any remaining balance of the net wrongful wrongful death proceeds. upon our review, we conclude the district court used in iowa code section 613.15 to limit and define the measure of recovery for 796 n.w.2d 886, 893 (iowa 2011) ("it is well-settled law that a prevailing party acknowledged kenneth as their father, attended his funeral, expressed their intervenors-appellants. action in nebraska district court under the nebraska medical-hospital liability 15 if any, of the spouse or a child of the decedent. if the decedent into two parts: $119,332 for loss of household services and $50,000 for the district court subsequently ruled the objecting children, through their post-trial against kenneth's treating physician and various nebraska medical wrongful death action includes the widow and next of kin. neb. rev. stat. 30-810; in the restatement (second) conflict of laws. see veasley v. crst int'l, inc., found iowa had the most significant relationship with the dispute because the spouse, parent, or child, the damages shall be apportioned by the two; jodie, age thirty-one; and ryan, age twenty-six; should each receive iowa law and the objecting children now challenge that determination by claiming children's motion to continue hearing to conduct discovery. the right." 130 iowa at 309, 106 n.w. at 744 (emphasis added); see also in re this opinion. parties were domiciled in iowa. accordingly, the court ordered iowa law should and courtney; their adult child, ryan; and four adult children from a prior n.w.2d 536, 539 (iowa 1973) by stating, "[u]nquestionably by statutory we do not reach this issue, because we first must consider vicki's instead, she filed household chores and services as suggested by the expert's report the district settlement is received, as here, the question becomes whether we are able to n.w. 743, 743-44 (1906). in estate of coe, the court ruled the illinois wrongful suffered for kenneth's household services. a cross-claim; a cross-petition, if a person who was not an original party is both. in addition, the evidence did not support that kenneth performed distribution is inequitable, no party is aggrieved by the ruling. presented, provided issue has been raised and error, if any nebraska law. the objecting children point out the district court specifically the issue was not tried by consent of the parties. see iowa rs. civ. p. 1.402 10:3, at 10-11 (2011 ed.) ("[t]he primary purpose of pleadings under the rules is ii. standard of review. this dispute. see simoni, 641 n.w.2d at 811. moreover, even if nebraska law can raise an alternative ground for affirmance on appeal without filing a notice of


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