Conflict of Interest in Wrongful Death Settlement

Decedent was killed in one vehicle crash. Her caretaker was driver and owner of vehicle. Decedent's will named the caretaker as PR of estate.

Caretaker/PR (without legal counsel or probate approval) settled the wrongful death claim against herself with her own insurance company. The caretaker/PR aka tortfeasor/insured signed release as PR of the estate and her insurance company issued a check to the caretaker in her individual name only. Caretaker cashed the settlement check, spent the money, but never identified or accounted for the wrongful death claim or proceeds in probate. I've been hired by the estate to pursue any claims against caretaker and her insurance carrier.

The liability of caretaker/PR seems clear, my question is in identifying claims against the insurance company for making payment to their own insured/tortfeasor. Also, will the insurance claim file be subject to production in discovery?

Answer
: I'm not real clear that the insurance company has settled anything. You need to have someone besides the caretaker appointed PR of the decedent's estate (pointing out the obvious conflict the caretaker would have) and sue the caretaker. I would take the position that, with no probate court action, the caretaker was acting in some capacity other than as a PR and had no standing.

I would think clearly the claim file would be discoverable but I'm not sure where a bad faith action would be. The insurance company owes a duty only to its own insured and not to the folks who have a claim against the insured. See: Allstate v. Amick, 1984 OK 15, 680 P.2d 362.

It seems to me you have a wrongful death case and the insurance company may get to pay all over again.