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In re Estate of Garrett David Wamiloh Peven-Holladay10/30/1991
COURT OF APPEALS OF OREGON
CA No. A63851
1991.OR.40387 ; 109 Or. App. 336; 820 P.2d 1
Decided: October 30, 1991.
IN THE MATTER OF THE ESTATE OF GARRETT DAVID WAMILOH PEVEN-HOLLADAY, DECEASED. BARRY DAVID PEVEN, RESPONDENT,
v.
SHEILA LORRAINE HOLLADAY, APPELLANT
Appeal from Circuit Court, Lane County. F. Gordon Cottrell, Judge. No. 50-88-09376.
Thad M. Guyer, Medford, argued the cause and filed the briefs for appellant.
James L. Bumpas, Eugene, argued the cause for respondent. With him on the brief was Sahlstrom & Dugdale, Eugene.
Richardson, Presiding Judge, and Joseph, Chief Judge, and Deits, Judge.
Joseph
Appellant appeals after a probate court held that the money received by her for covenanting not to sue a hospital belongs to the estate of her deceased child. We reverse.
In November, 1985, appellant had the child out of wedlock. In March, 1988, a court adjudged respondent to be the father and awarded appellant custody and child support. When the child was 10 months old, he developed leukemia. Appellant, who was receiving public assistance, sought public funding for a bone marrow transplant. She was unsuccessful and, in March, 1988, she moved with him to Washington to establish residency to secure medical care. On April 11, the child underwent a splenectomy at Children's Hospital and Medical Center in Seattle. Later, doctors discovered a surgical sponge in his small bowel. In July, appellant and the hospital began negotiating settlement of any claims that she might have against it. In August, the hospital advanced appellant funds to rent a house. On October 9, the child died in the hospital. Appellant then returned to Oregon.
On November 15, 1988, respondent was named personal representative of the estate. On December 6, acting individually and as personal representative, he filed a wrongful death action against the hospital in a federal district court in Washington. Appellant continued to negotiate with the hospital about claims that she had against it. Respondent asked her to cease negotiations. On March 24, 1989, appellant executed a covenant not to sue the hospital and received $75,000. On April 14, respondent filed a petition asking the court to declare that the money belonged to the estate.
The trial court concluded that appellant and the child were Oregon domiciliaries, that appellant had negotiated with the defendants in the wrongful death action filed by respondent, that the proceeds from the covenant belong to the child's estate and that appellant holds them in trust. It entered a $75,000 judgment against her.
Appellant acknowledges that respondent alone had standing under ORS 30.020 to assert a wrongful death claim on behalf of the beneficiaries of the estate. She argues, however, that she is not prevented from retaining the proceeds under Washington law. The covenant provides:
"This is a Covenant Not to Sue or Execute With Assignment of Claims and is not a release of all parties or potential parties to this or related litigation.
"* * *
"Sheila Holladay executes this agreement in her personal capacity, in her capacity under RCW 4.24.010, and in her capacity as a pertinent person who would be entitled to recovery as a beneficiary of the estate of Garrett David Holladay.
"* * *
"Barry David Peven, father of decedent David Garrett Holladay, est
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