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McCombs v. New Jersey State Police

Decided: April 17, 1990.

MAUREEN MCCOMBS, INDIVIDUALLY AND AS GENERAL ADMINISTRATRIX AND ADMINISTRATRIX AD PROSEQUENDUM OF THE ESTATE OF DIANE LYNN TRUITT, DECEASED, PLAINTIFF,
v.
NEW JERSEY STATE POLICE; STATE OF NEW JERSEY, DEFENDANT



Villanueva, J.s.c.

VILLANUEVA

This wrongful death action was instituted on behalf of two infant children of the deceased.

When the case was settled it was necessary for the court to appoint separate guardians ad litem to determine the allocation of the net proceeds. N.J.S.A. 2A:31-4. Following the guidelines set forth therein, the court ordered equal distribution of the net proceeds after considering the ages and educational requirements of the infants, the fact that these funds are not necessary for the infants' support and the recommendations of both guardians ad litem.

This is a motion to permit plaintiff's counsel to receive a contingent legal fee without reduction to 25% provided for settlements without trial for the benefit of infants. R. 1:21-7(c)(5). The guardians ad litem object, contending that this rule limits the attorney's fee in these circumstances to 25%.

The court holds that the 25% limitation applies to this wrongful death action because it was brought solely for the benefit of infants.

I.

On December 9, 1986, Kevin Truitt, a state trooper employed by the New Jersey State Police, shot and killed his wife, Diane Lynn Truitt, who left surviving her two children, Ashley Lynn Truitt, age 21 months and Joseph Parker, III, age 9 years (born of deceased's first marriage).

The mother of the deceased brought this action on behalf of her grandchildren alleging negligence by the state police in permitting an emotionally and otherwise unfit officer to handle and carry a loaded firearm. By the time the case was assigned for trial the attorneys had settled for $300,000 subject to the approval of the Attorney General. However, since the Attorney General, by practice, consults with the Superintendent of State Police before settling a case involving a state trooper and

more than 24 hours had elapsed, the court required the attorneys to select a jury and to make opening statements. This process took less than two hours before the attorneys were informed of the Attorney General's approval.

II.

Plaintiff's attorney contends that the 25% limitation does not apply to wrongful death actions and, in any event, it is not applicable herein because a trial was commenced.

The only two cases dealing with the issue of whether this rule*fn1 applies to wrongful death actions held that it is not applicable where the class of beneficiaries in a wrongful death action includes both adults and infants, specifically declining to rule as to whether it applies "where all the beneficiaries are infants or incompetents." McMullen v. Maryland Cas. Co., 127 N.J. Super. 231, 239, 317 A.2d 75 (App.Div.1974), aff'd 67 ...


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