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Graham v. Asbury

Graham v. Asbury

Case No. 
Type of Proceeding: 
Appeal from the Circuit Court of Raleigh County (Judge Hutchison)

Under W.Va. Code 55-7-6, the proceeds of a wrongful death case are to be distributed, among others, to the “surviving…children” of the decedent. To be entitled to a share of the proceeds, must a child be living at the time the wrongful death settlement is reached, approved and distributed?



Helen Graham died in March, 2010. Helen had seven children including a daughter, Betty Asbury. Helen’s estate filed a wrongful death suit against Raleigh General Hospital, alleging that the hospital’s negligent care and treatment led to her death. After suit was filed, Betty also died.

Eventually, the wrongful death suit was settled and an agreement was reached to distribute the proceeds among the six surviving children. Initially, the court approved the settlement. Thereafter, the executor of Betty’s estate objected, claiming that Betty was a wrongful death beneficiary and that she was entitled to a share of any proceeds. The court entered a new order on October 21, 2013, finding that Betty was indeed a “surviving” child for purposes of W.Va. Code 55-7-6 and, therefore, was entitled to participate in the proceeds of the settlement. Helen’s estate appeals this order.

Positions of the Parties: 

Petitioner (Helen Graham estate):

Petitioner argues that the wrongful death act “links the acts of survival and distribution in the same clause, separated by only two words. Hence, one must survive the distribution date to receive a share of the proceeds.” In Adams v. Sparacio, 156 W.Va. 678, 196 S.E.2d 647 (1973), the Supreme Court did recognize that a surviving wife in a wrongful death suit could still recover even though she died before the suit was settled. Petitioner distinguishes Adams, however, arguing that it applies to cases where there is a sole beneficiary and only pecuniary damages are recovered.

There is a secondary issue involving standing. Petitioner argues that because Betty’s estate was already closed, there was no one who had standing to object to the settlement on Betty’s behalf.
Respondent (Betty Asbury estate):

Respondent argues that Adams stands for a much broader proposition. Indeed, Respondent quotes the following language from Adams: “[W]here, upon the death of the beneficiary entitled to damages for wrongful death, the action survives to such beneficiary’s estate.” Respondent argues that limiting Adams to cases involving pecuniary damages would produce a “ludicrous” result.

Regarding the standing issue, Respondent argues that the proper remedy is not to deny Respondent’s objection on standing grounds but, instead, to provide a reasonable time for the estate to be reopened.

Probable Impact: 

This is an important case. The Supreme Court should settle once and for all the question of when a wrongful death beneficiary “survives” for purposes of W.Va. Code 55-7-6. This will bring needed clarity for both bench and bar.

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