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Weiman v. Ippolito

Decided: August 16, 1974.

RUTH WEIMAN, INDIVIDUALLY, AS ADMINISTRATRIX AD PROSEQUENDUM OF THE ESTATE OF ROBERT WEIMAN, AND AS GUARDIAN FOR THOMAS ALAN WEIMAN AND RICHARD DAVID WEIMAN, MINORS, PLAINTIFF-RESPONDENT,
v.
GLORIA WEIMAN IPPOLITO, INDIVIDUALLY AND AS EXECUTRIX OF THE ESTATE OF ROBERT WEIMAN, DEFENDANT-APPELLANT



Conford, Handler and Meanor. The opinion of the court was delivered by Handler, J.A.D.

Handler

The appeal and cross-appeal in this matter relate solely to issues of damages arising from the wrongful death of Robert Weiman, who was found to have been killed intentionally by his wife, defendant Gloria Weiman Ippolito. Plaintiff is Ruth Weiman, the former wife of decedent, who brought the action individually and as administratrix ad prosequendum of the estate of Robert Weiman and as guardian for his two sons, Thomas Alan and Richard David Weiman.

Plaintiff Ruth Weiman filed a multi-count complaint setting forth in counts I, III and V claims respectively founded upon negligence for wrongful death, a survival action and for the tortious interference with a contractual relationship based upon a separation agreement with decedent. Similar claims were asserted in counts II, IV and VI based upon the theory of an intentional wrong. In counts VII and VIII plaintiff demanded declaratory judgments that as a result of her intentional act in taking the life of decedent, defendant was not entitled to receive the proceeds of insurance upon decedent's life or any property under his will. In other counts plaintiff sought the removal of defendant as executrix for the estate and a cancellation of stock of decedent's insurance agency which had been issued to defendant. Plaintiff also sought an accounting and the payment of medical bills and upward adjustments of support and alimony payments under the separation agreement. After an answer was filed a supplemental complaint was served by plaintiff against two insurance companies, alleging rights as a third-party beneficiary under two liability insurance policies in

favor of defendant as the insured. Defendant then filed a cross-claim against the insurance companies for indemnification for any negligence judgment recovered against her. The insurance companies filed answers to the cross-claim.

After a pretrial of the matter, an order was entered which prescribed the issues for trial as (1) wrongful death liability, (2) wrongful death damages and (3) estate matters. The case thereafter proceeded to trial without a jury. At the conclusion of the testimony and prior to summations a settlement was entered disposing of the negligence portion of the suit. Pursuant to the order reflecting this settlement, a judgment in the sum of $8,000 was entered against the insurance companies, allocating $2,000 for each of the sons and $4,000 in favor of plaintiff individually and as administratrix ad prosequendum of the estate, with a counsel fee and disbursements of $2,808.72 to be paid out of plaintiff's share of the settlement. The order for settlement also provided for the dismissal with prejudice of all of the negligence counts of the original complaint against defendant as well as the supplemental complaint for indemnification and defendant's cross-claim for indemnification against the insurance companies. The order, thus, reflected what was made clear to plaintiff at the hearing, namely that the settlement concluded any claims she might have individually or in a representative capacity based upon the negligence of defendant for decedent's wrongful death.

It is this settlement and the judgment for $8,000 pursuant thereto which poses the first issue on the appeal. After the friendly settlement, the trial judge later rendered a decision on the aspects of the case remaining after the elimination of the negligence counts. He determined, among other things, that plaintiff's proofs established a cause of action for the wrongful death of decedent attributable to defendant's intentional acts. This determination is not disputed. Wrongful death damages were allowed reflecting the loss of support for

the sons as next of kin, funeral expenses, the value of a major medical policy, as well as survival action losses.

It is claimed by defendant on her direct appeal that she should be allowed a credit of $8,000, the sum paid by her insurance companies in settlement of the negligence claims, against the total award of money damages. We conclude that defendant is entitled to this credit.

The measure of damages in a wrongful death action is prescribed by statute. N.J.S.A. 2A:31-5. It would be identical regardless of whether defendant's liability for a decedent's wrongful death rested on a finding of negligence or intentional wrongdoing. (There is an indication in the pretrial orders that there was an issue as to punitive as well as compensatory damages. Exemplary damages, however, were not sought or proved.) It is well established that a successful plaintiff in a tort action is entitled to a single recovery -- a quantum of damages that will justly compensate him for injuries caused by a defendant. Cf. Theobold v. Angelos, 40 N.J. 295 (1963), aff'd 44 N.J. 228 (1965); Breen v. Peck, 28 N.J. 351 (1958). Plaintiff urges, however, that her recovery of the $8,000 represents a payment from collateral sources which may not be set up to benefit defendant by mitigating or reducing the damages award otherwise payable by her.

Plaintiff's reliance on the "collateral source rule" in this context is misplaced. Under this rule, a defendant is not entitled to get the benefits of payments which have come to a plaintiff from a "collateral source," that is, a source which is "collateral" to or independent of defendant; and even though such payments may compensate a plaintiff doubly for a particular loss or item of damage, the defendant is, nevertheless, obligated to compensate the plaintiff for the entire amount of harm done. 2 Harper & James, The Law of Torts, ยง 25.22 at 1343-1344 (1956). Note, Unreason in the Law of Damages; ...


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