In re Estate of Robert Leo Roe6/13/1990
COURT OF APPEALS OF OREGON
CA No. A51010
1990.OR.40839 ; 102 Or. App. 152; 794 P.2d 4
June 13, 1990
IN THE MATTER OF THE ESTATE OF ROBERT LEO ROE, DECEASED. CAROLYN ROE, RESPONDENT,
v.
PAULA SUE PIERCE, KEVIN MICHAEL ARRINGTON, DAVID WILLIAM ARRINGTON, AND REBECCA L. MOORE, APPELLANTS
Appeal from Circuit Court, Multnomah County. Patrick Dooley, Judge pro tempore. No. 8707-91551.
James A. Cox, Lake Oswego, argued the cause for appellants. With him on the briefs was Cox, Peterson & Sussman, Lake Oswego.
Richard P. Noble, Lake Oswego, argued the cause for respondent. With him on the brief was Kathryn H. Clarke, Portland.
Graber, Presiding Judge pro tempore, and Richardson and Edmonds, Judges.
Edmonds
Appellants, decedent's children, appeal from a probate judgment distributing proceeds of a settlement to decedent's wife. We review de novo, Williams v. Cover, 74 Or App 711, 713 n 2, 704 P2d 548 (1985), and affirm.
In February, 1986, decedent filed a medical malpractice action, which was amended in December to include a claim by wife for loss of consortium. In June, 1987, decedent died as a result of the alleged malpractice. Wife was appointed personal representative of decedent's estate in July and, in that capacity, filed a separate wrongful death action in October against the same defendants pursuant to ORS 30.020 et seq. In August, 1988, as personal representative, she filed an amended complaint in the medical malpractice action.
The actions were referred to arbitration. However, the parties reached a settlement before arbitration began, and the wife petitioned the probate court for approval of the settlement. The petition recited that the estate had been opened to pursue a claim for wrongful death of decedent and that the settlement was for wife's "loss of companionship, society and support." Appellants, children of decedent from a prior marriage, objected. Wife then petitioned to have decedent's will, which left the entire estate to her, admitted to probate. Subsequently, she filed an amended petition for approval of the settlement that was substantially the same as the original, except that it stated that the settlement was for "claims for personal injury to [decedent], loss of consortium for [wife] and wrongful death of [decedent]."
The court rejected appellants' objections, approved the settlement and concluded that the amount of the settlement apportioned for decedent's pain and suffering was to be awarded to decedent's estate and distributed according to the
provisions of his will, thereby proceeding under ORS 30.075. Appellants contend that the court erred in not distributing the amount apportioned for decedent's pain and suffering under ORS 30.030(5).
The wrongful death statute, ORS 30.020, provides, in relevant part:
"(1) When the death of a person is caused by the wrongful act or omission of another, the personal representative of the decedent, for the benefit of the decedent's surviving spouse, surviving children, surviving parents and other individuals, if any, who under the law of intestate succession of the state of the decedent's domicile would be entitled to inherit the personal property of the decedent, may maintain an action against the wrongdoer, if the decedent might have mainta
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