Opinion
No. 1403–035/A.
2012-02-2
In the Matter of the Application of Joseph CAPOVANI, as Executor of the Estate of Darlene Ann Capovani, deceased, for Apportionment of the proceeds of a cause of action for wrongful death and pain and suffering of said decedent pursuant to Supreme Court Order and to judicially settle his account.
Marijo C. Adimey, Esq., Simonson, Hess, Liebowitz & Goodman, P.C., New York, Attorneys for the Petitioner. Laurence Naviasky, Esq., Hoffman & Naviasky, PLLC, Schenectady, Guardian ad Litem for Alexander Capovani.
Marijo C. Adimey, Esq., Simonson, Hess, Liebowitz & Goodman, P.C., New York, Attorneys for the Petitioner. Laurence Naviasky, Esq., Hoffman & Naviasky, PLLC, Schenectady, Guardian ad Litem for Alexander Capovani.
Peter J. Scagnelli, Esq., The Scagnelli Law Firm, Albany, Guardian ad Litem for Matthew Capovani.
VINCENT W. VERSACI, J.
Petitioner, Joseph Capovani, the Executor of this Estate and the surviving spouse of the decedent, filed a Petition with this Court on September 6, 2011, seeking the judicial settlement of his Executor's Account and the allocation and distribution of the settlement proceeds resulting from a Supreme Court wrongful death action. Since the last scheduled Court appearance on November 29, 2011, the Court has had the opportunity to fully review all the submissions regarding this matter and become familiar with all the facts and circumstances which led to the prosecution of the underlying wrongful death and personal injury causes of action and ultimate compromise.
In particular, the Court has considered the Report of Attorney Naviasky, the Guardian ad Litem appointed to represent the interests of the infant distributee, A. Capovani, and the Report of Attorney Scagnelli, the Guardian ad Litem appointed to represent the interests of the infant distributee, M. Capovani. The Court has also reviewed the Petition submitted on behalf of the Petitioner, Joseph Capovani, husband of the decedent, dated June 6, 2011, which is supported by several exhibits and an Affirmation from his Attorney, Marijo C. Adimey.
The Reports submitted by the Guardians ad Litem each support the Petitioner's request that the $1.5 million settlement proceeds be allocated entirely to the wrongful death cause of action, leaving no portion of the compromise being allocated to the conscious pain and suffering cause of action. Similarly, neither of the Guardians ad Litem object to the Accounting set forth in the Petition. The point of departure between the Guardians' respective proposals lies with the pro rata distribution of the $1,147,248.67 net proceeds as between their respective wards.
GAL Naviasky, on the one hand, recommends that the Court follow the Kaiser formula and allocate the net settlement proceeds between the Petitioner and his two children in accordance therewith. This would result in the Petitioner, as surviving spouse, receiving 55.71% of the net proceeds, A. Capovani (age 7 at the decedent's date of death) receiving 23.85%, and M. Capovani (age 9 at the decedent's date of death) receiving 20.44%.
GAL Scagnelli, on the other hand, supports the minor deviation from the Kaiser formula as requested in the Petition, wherein the Petitioner proposes that he receive his Kaiser share of the net proceeds, but that the balance be split equally between his two children so that each would receive 22.15% of the net proceeds. Such a proposal would result in the older sibling receiving 1.71% more than he would under the Kaiser formula while the younger sibling would receive 1.7% less. The rationale the Petitioner gives for deviating from Kaiser is that he desires, and he verily believes his wife would have wanted, their children to have been treated equally despite the difference in their ages.
EPTL § 5–4.4(a) provides that wrongful death proceeds “shall be distributed ... to the persons entitled thereto in proportion to the pecuniary injuries suffered by them ...”. The Kaiser formula alluded to above and referenced in both the Guardians' Reports is not mandatory however, but rather is just a starting point for the Court who should consider the totality of the circumstances, and exercise its broad discretion and equitable powers in determining the proper distribution of wrongful death proceeds. See, Matter of Ellers, 309 A.D.2d 1055;Matter of Duffy, 208 A.D.2d 1169;Matter of Acquafredda, 189 A.D.2d 504.
After taking all of the facts into consideration, including the circumstances surrounding the decedent's death, and the respective ages of her distributees at the time of her death, all as fully developed in the Petition and in the Guardians' Reports, I hereby approve of the allocation of the net proceeds being entirely allocated to the wrongful death cause of action. With respect to the distribution of the net proceeds resulting from the compromise that was approved by Supreme Court, Albany County, although application of the Kaiser formula would result in a fair and appropriate result, there are circumstances present here which lead this Court to conclude that a more equitable result will be reached by deviating from this calculation.
The rationale for deviating from Kaiser is, in part, based upon the Court's review of the documents that comprise the Court's Estate file. Specifically, the Court reviewed the decedent's Last Will and Testament which was admitted to probate by Decree dated October 23, 2006, as well as the Inventory of Assets filed by the Petitioner. The decedent's Estate plan as outlined in her Will is that it was her intention that the Petitioner, her spouse, receive all her worldly possessions if the circumstances were such that she were to predecease him. More importantly, however, it appears from the Inventory of Assets that almost all of the decedent's assets were owned jointly with the Petitioner (non-probate assets), which amounted to nearly $650,000 as of September 28, 2007, with the total probate and non-probate assets amounting to $653,861.91.
Based upon the facts outlined above, the Court finds that the Petitioner has already received the majority of the decedent's assets which have a significant total value and, to some extent, serve to lessen the pecuniary loss suffered by the Petitioner. The decedent's minor children, on the other hand, will only receive a portion of the proceeds from the wrongful death compromise to compensate them for the pecuniary loss suffered by them. Thus, the Court finds that there is an equitable basis to slightly deviate from the Kaiser rule in this case, but not in the manner proposed by the Petitioner, because there is no justification for reducing the one minor child's Kaiser share just for the sake of equalizing the children's shares.
Accordingly, after balancing all of these facts and circumstances relating to the compromise, and in consideration of the total value of the decedent's Estate and its subsequent distribution, the fact that the Petitioner will be charged with the care and welfare of his two children until they are emancipated, and consistent with the wishes of the Petitioner that his children be treated equally, the Court finds and decides as follows: Petitioner's request that the net proceeds totaling $1,147,248.67 be allocated entirely to the cause of action for wrongful death is hereby approved. Petitioner's request to distribute to him as and for his distributive share 55.71% or $639,132.22 of the net settlement pursuant to the Kaiser formula is hereby denied. Rather, the Petitioner shall receive 52.30% or $600,011.04, which will be distributed to him as and for his pecuniary loss. The difference between this amount and what the Petitioner would receive under a strict application of Kaiser, that being 3.41%, will be added to M. Capovani's Kaiser share, thus equalizing his share with that of his brother. Accordingly, the remaining 47.70% or $547,237.63 will be distributed equally amongst and between the decedent's two children with each receiving 23.85% of the settlement or $273,618.81 each, which will be distributed to them as and for their pecuniary loss.
The Court has also reviewed the proposed structured settlement annuity, and after due deliberation, the Court hereby approves the terms with the exception that the initial cost of the annuity will be increased from what was originally proposed for each child, to the amount of $273,618.81 each based upon the above findings, with the monthly and total guaranteed payments increasing commensurate with the increase in their respective shares.
Other than the amendments outlined above, the Account of the Executor is in all other respects hereby approved.
The foregoing shall constitute the Decision and Order of this Court.
The Court acknowledges receipt of Attorney Naviasky's Affirmation of Legal Services. Attorney Scagnelli is directed to submit an Affidavit/Affirmation of his services as Guardian ad Litem upon receipt of this Decision. Upon receipt of same, the Court will award reasonable and appropriate compensation to the Guardians ad Litem for their services pursuant to SCPA § 405. Attorney Adimey is directed to thereafter submit a revised proposed Decree of Judicial Settlement to correspond with the Decision herein.