Legal Memorandum: Release or Covenant not to Sue

Issue: If the children of a deceased individual, who have already been ‘compensated’ in a lawsuit commenced and settled by their remaining, surviving parent subsequently bring a separate wrongful death action against the same entity, will the recovery from their parent’s settled litigation affect their recovery?

If it is determined that the children are entitled to commence a new wrongful death cause of action against the same defendant from which they already received monies following the resolution of their parent’s wrongful death cause of action, it is highly unlikely that a court would allow the children to receive a windfall recovery by allowing them to retain the funds received through their parent’s settlement and the full judgment in their own litigation.  In short, the children would effectively be double-compensated for the death by receiving a portion of their parent’s settlement (in the amount, presumably, which they are entitled to under the statute) and then receiving an additional recovery of their own.  A search for case law regarding this issue has not yielded any supporting authority.  It is believed that the issue has not arisen in an appellate level court at this point for the simple reason that once a wrongful death action has been commenced and resolved (whether by settlement, verdict, or otherwise) a party who has benefited from that resolution cannot thereafter commence a new wrongful death cause of action arising out of the same death. 

If the children were to commence litigation against a different tortfeasor, it is likely that recovery realized in that litigation would also be reduced.  Section 13-50.5-105 of the statutes provides:

(1)        When a release or a covenant not to sue or not to enforce a judgment is given in good faith to one […]

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