Estate of Kuebler v. Superior Court

Opinion

BROWN (Gerald), P. J —

The estate of Lawrence C. Kuebler petitions for a writ of mandate to compel the Superior Court of San Diego County to grant its motion for summary judgment, At issue is whether the settlement and dismissal of a wrongful death action by the mother of three deceased children bars the maintenance of a like action by the children’s father.

Louise Krom is the former wife of real party in interest, Richard L. Kuebler. Their three minor children were killed in an aircraft accident in which their paternal grandparents were also killed. The grandparents were both licensed pilots and it was alleged they were both in control of the plane when it crashed on July 24, 1975.

Louise filed creditor claims in the estates of both grandparents and when they were rejected, filed a wrongful death action against the two estates. This action, filed January 5, 1976, named Richard as a defendant under Code of Civil Procedure section 382 since he would not consent to being joined as a plaintiff in an action against his parents’ estates.

On June 1, 1976, Richard filed a wrongful death action under the provisions of Probate Code section 721 limited to the amount of insurance coverage available to the defendant estates. Louise was named as a party defendant under Code of Civil Procedure section 382 because she refused to join as a plaintiff in an action limited by Probate Code section 721. Richard’s complaint notes the existence of Louise’s wrongful death action.

[503]

We will not detail the communications and negotiations between the attorneys for Richard, Louise and the insurance company. While they seemingly convinced the trial court that a form of estoppel arose in favor of Richard, they are not necessary to our disposition of the petition.

In August 1976 it was agreed between counsel for Richard and counsel for Louise that the two wrongful death actions would be consolidated, Louise would limit her complaint to the amount of insurance coverage and the respective rights of Louise and Richard would be determined by reference to the recoveries in the two actions.

Before the two actions could be consolidated, Louise settled her claim for $150,000 and dismissed her action with prejudice. The insurance carrier for the estates now asserts that dismissal as a bar to the maintenance of Richard’s wrongful death action