No. 31406
The Estate of Robert L. Postlewait, by Eric Postlewait, Fiduciary, Karen L.
Postlewait v. Ohio Valley Medical Center, Inc., a corporation, et al. and Ohio
Valley Medical Center, Inc., a corporation, and Ohio Valley Medical Center,
Inc., a corporation
Starcher, C.J., concurring:
I concur with the majority's decision to reverse the circuit court's order, and
to allow plaintiff Karen L. Postlewait to recover her agreed-upon share of the medical
malpractice settlement proceeds.
Contrary to what my dissenting colleague suggests, the facts in this case are not
“straightforward” - rather, they are subject to considerable debate. The record does not
establish that Mrs. Postlewait “pushed her husband off a porch causing him to fall onto
concrete and suffer a serious brain injury that ultimately resulted in his death.”
(See footnote 1)
The record,
instead, indicates that Robert Postlewait had been drinking on the night in question, and that
Mrs. Postlewait shoved him away from her door. Mrs. Postlewait's deposition - which is
quoted in the majority's opinion - indicates that somehow, Mr. Postlewait fell or rolled
across a three-foot-wide porch, down two steps with a banister on each side, and hit his head
on the concrete at the base of the steps. Mrs. Postlewait, upon seeing her husband several
minutes later crumpled on the concrete, then helped her husband into the house and helped
him get cleaned up. Had Mr. Postlewait sought medical treatment immediately, he might
have survived his fall. Because he waited, and because the medical treatment he finally
received - by the defendants' own admission - was below the standard of care, he did not.
Our law bars a person from sharing in a judgment or settlement when they have
been “convicted of feloniously killing another,” W.Va. Code, 42-4-2 [1931], or “[w]here
there is no such conviction, then [when] evidence of an unlawful and intentional killing [has
been] shown in a civil action.” Syllabus Point 2, McClure v. McClure, 184 W.Va. 649, 403
S.E.2d 197 (1991).
Mrs. Postlewait was acquitted of misdemeanor involuntary manslaughter.
Additionally, the facts recited above simply do not prove that Mrs. Postlewait engaged in an
“unlawful and intentional killing.” She might have been guilty of negligence or gross
negligence in shoving her husband _ assuming it was the shoving that caused him to fall off
the porch _ but we have made clear that “negligence or gross negligence will not bar
recovery under a slayer statute because the common law rule requires an intentional killing.”
McClure, 184 W.Va. at ___ n. 6, 403 S.E.2d at 200 n. 6.
In other words, there is no “straightforward,” undisputed, jury-considered
evidence in the record for a court to say Mrs. Postlewait intentionally caused the death of her
husband. There is therefore no legal reason for a court to bar her from recovering for her
husband's death - particularly when that death was the proximate result of clear-cut, admitted
medical malpractice.
What I find most distressing about the circuit court's decision to invalidate the
parties' settlement in this case is that nobody - neither the other beneficiaries to the
settlement nor any of the medical defendants - objected to Mrs. Postlewait's receipt of her
portion of the settlement. None of the defendants filed briefs before this Court, but the
administrator of Mr. Postlewait's estate filed briefs - both in his individual capacity and in
his fiduciary capacity - urging this Court to reverse the circuit court and allow the estate to
distribute Mrs. Postlewait's share to her.
While a circuit court certainly has the authority, under W.Va. Code, 55-7-7
[1989] to review and approve the form and substance of a settlement in a wrongful death
action, that review should generally focus on whether all of the statutory beneficiaries have
been included or considered in the settlement, and whether the settlement is the result of
fraud, duress, or some other invalidating factor. See Syllabus Point 7, Arnold v. Turek, 185
W.Va. 400, 407 S.E.2d 706 (1991). The circuit court in this case went too far in relying upon
disputed facts to reach a legal conclusion that the parties didn't even assert.
I therefore concur with the majority's opinion.
Footnote: 1 The record also does not establish, as my dissenting colleague asserts, that “Mrs.
Postlewait filed a medical malpractice/wrongful death action against her husband's medical
providers and successfully negotiated a settlement netting herself more than half a million
dollars!” Instead, the record establishes that Mr. Postlewait's son by a prior marriage, Eric
Postlewait, filed the lawsuit on behalf of his father's estate, and negotiated a $3.2 million
settlement. The younger Mr. Postlewait then agreed that his stepmother should receive
$691,021.66.
