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Klancke v. Smith9/26/1991
Plaintiffs, Kim Klancke, Kirk Klancke, Kit Klancke, and Jill Klancke Cook (children), appeal from a summary judgment entered in favor of defendants, Peter M. Smith, Susan Y. Young, and Peter M. Smith and Susan Y. Young Law Offices, on claims of negligence and breach of fiduciary duty. We affirm.
This appeal arises out of a dispute over the disposition of proceeds recovered in a wrongful death action brought by Janet Klancke (Ms. Klancke) in federal district court. In that action, Ms. Klancke recovered a money judgment for the death of her husband, Calvin Klancke, who was killed in an airplane crash near Granby, Colorado, in 1986.
Plaintiffs are the surviving natural children of Calvin Klancke and are stepchildren of Ms. Klancke, who was Calvin Klancke's second wife.
Ms. Klancke retained defendants to prosecute her wrongful death claim. On June 16, 1986, defendant Smith filed a complaint in federal district court listing only Ms. Klancke as plaintiff.
While the wrongful death claim was pending, a dispute arose between the children and Ms. Klancke concerning the childrens' rightful share in the proceeds of any potential recovery. Ms. Klancke took the position that the children were required to prove their net pecuniary loss in order to share in the wrongful death recovery.
As a result of this dispute, three of the children retained separate counsel to represent their interests in the wrongful death action. The children concede that they at no time retained defendants to represent them in the wrongful death suit.
In June 1987, an attorney entered an appearance in the wrongful death action on behalf of certain of the children and filed motions regarding their participation in the action and sharing in any proceeds deriving therefrom.
In November of 1987, the federal district court issued two orders, in which it determined that, although the children are entitled to share in the proceeds of any recovery, under Colorado law, those proceeds may only be distributed to the surviving spouse in whose name the action was commenced.
On April 26, 1988, a jury awarded Ms. Klancke approximately $465,000 in her wrongful death action. On May 24, 1988, the judgment was satisfied when defendant Smith received payment and deposited the funds in his firm's trust account.
Before such satisfaction, the children filed a motion requesting the federal court to supervise distribution of the wrongful death proceeds, but that motion was denied on June 3, 1988. Subsequently, after deducting costs and attorney fees, defendant Smith distributed the wrongful death proceeds in their entirety to his client, Ms. Klancke.
Thereafter, the children commenced an action in the state court against Ms. Klancke for breach of trust and conversion. Summary judgment was entered in favor of the children in October 1989 in the approximate amount of $190,000. However, in August 1989, Ms. Klancke filed a petition for bankruptcy and an automatic stay was issued. Thereafter, the children brought this action against defendants.
Plaintiffs contend that the trial court erred in determining that defendants owed no duty to them, fiduciary or otherwise, to ensure that any wrongful death proceeds recovered were actually shared with or paid to them. We disagree.
An action for wrongful death did not exist at common law, but rather is entirely a creation of statute. Therefore, the proper method for distribution of monies recovered in connection with a wrongful death action must be derived exclusively from the terms of the wrongful death statute. Clint v. Stolworthy, 144 Colo. 597, 3
Page 1 2 3 4 Colorado Personal Injury Attorneys
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