IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs September 1, 2021

ROBERT WELCH ET AL. v. CATHERINE WELCH ET AL.

Appeal from the Circuit Court for Davidson County

No. 20C1889Amanda Jane McClendon, Judge

___________________________________

No. M2021-00081-COA-R3-CV

___________________________________

Prior to his death, the decedent brought suit for personal injury and loss of consortium in 

the Circuit Court of Kanawha County, West Virginia against more than seventy defendants 

after being diagnosed with mesothelioma. Ultimately, the parties in that matter reached a 

settlement. After informing the West Virginia court of the resolution of the matter, the case 

was closed by the court. Shortly thereafter, and prior to full disbursement of the settlement 

proceeds, the decedent died from mesothelioma. Several of the decedent’s heirs then 

brought the present action in Tennessee, seeking to have the settlement proceeds received 

pursuant to the West Virginia litigation characterized as wrongful death proceeds. The trial 

court dismissed the heirs’ action, and this appeal followed. We affirm the trial court’s 

dismissal.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed and 

Remanded.

ARNOLD B. GOLDIN, J., delivered the opinion of the Court, in which ANDY D. BENNETT

and JOHN W. MCCLARTY, JJ., joined.

Kristen Vanderkooi, Nashville, Tennessee, for the appellants, Robert Welch, Kelly Welch, 

and Kim Stangenberg.

Michael P. Dolan and Daniel C. Paulus, Nashville, Tennessee, for the appellees, Catherine 

Welch and Elizabeth Watson.

OPINION

BACKGROUND AND PROCEDURAL HISTORY

Charles Welch (“Decedent”) was diagnosed with mesothelioma1in July 2018. 

 

1Mesothelioma is a form of cancer that is associated with asbestos exposure. James L. Stengel, The 

12/10/2021
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Subsequently, Decedent obtained legal representation with the law firm Maune Raichle 

Hartley French & Mudd, LLC (“MRHF&M”) and Antion McGree Law Group, PLLC to 

seek compensation as a result of his mesothelioma diagnosis. Decedent filed a complaint 

in the Circuit Court of Kanawha County, West Virginia on August 22, 20182against 

numerous defendants. 

Decedent ultimately reached a settlement agreement with the defendants. On June 

20, 2019, the Circuit Court of Kanawha County entered an “Order Closing Cases/Withdraw 

as to Pro Hac Vice Admissions” (hereinafter referred to as “West Virginia Order”), stating 

that it had been “informed that the above captioned actions have been resolved[.]” 

Decedent later died on September 5, 2019, due to complications arising from 

mesothelioma. According to the record on appeal, prior to his death, Decedent had received 

several distributions from the settlement proceeds. 

Following Decedent’s death, litigation was initiated in the Davidson County Probate 

Court when Robert Welch, the son of Decedent, filed a “Petition to Probate the Intestate 

Estate of Charles Leonard Welch.” Decedent’s wife, Mrs. Welch, thereafter filed a petition 

in the probate court to “Admit Will to Probate.” Both of these matters were consolidated. 

Decedent’s will proffered by Mrs. Welch was admitted to probate, and she was appointed 

executrix of Decedent’s estate. The probate court thereafter entered an order on December 

10, 2019, certifying a will contest. The contestants to the will contest included Robert 

Welch and other children of Decedent (hereinafter collectively referred to as “Petitioners”). 

On August 26, 2020, Petitioners filed a petition for declaratory judgment in the 

Circuit Court for Davidson County (hereinafter referred to as the “trial court”), wherein 

they contended that they had property rights to Decedent’s mesothelioma litigation 

settlement funds as compensation for Decedent’s wrongful death. According to 

Petitioners, these funds should pass via intestate succession. In their request for relief, 

Petitioners asked the trial court to declare the mesothelioma litigation settlement funds as 

compensation for Decedent’s wrongful death. In response, Mrs. Welch and Elizabeth 

Watson, daughter of Decedent (hereinafter collectively referred to as “Respondents”), filed 

a motion to dismiss Petitioners’ action. In their motion, Respondents argued that, prior to 

his death, Decedent “fully and finally compromised and waived any and all claims relating 

to his wrongful death arising out of his lifetime exposure to mesothelioma” in the West 

Virginia case. As such, because Decedent had waived any future claims for wrongful 

death, Petitioners had “no basis to assert any derivative claims on his behalf.” 

As part of the probate litigation, Petitioners moved the probate court to compel 

production of settlement agreements in response to written discovery requests. Addressing 

 

Asbestos End-Game, 62 N.Y.U. ANN. SURV. AM. L. 223, 227 (2006). 

2 Decedent and his wife, Catherine Welch, were both named as plaintiffs to the West Virginia

action. 
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Petitioners’ motion to compel, the probate court entered an order directing Mrs. Welch to 

produce, among other things, “redacted copies of the mesothelioma litigation settlement 

agreement documentation” for an in camera inspection by the court. In an order dated 

September 1, 2020, the probate court found that, based upon its review of the confidential 

settlement agreements, 

there has been a complete and universal or global release under the West 

Virginia action that was filed during the decedent’s lifetime, including any 

possible future action for wrongful death. Further, this Court also finds that 

by having resolved the West Virginia action, not only were the personal 

injury and loss of consortium claims for [Decedent and Executrix] resolved, 

but [Executrix], in her capacity as Executrix of the Estate, as well as, anyone 

else that could step into her shoes, or any other heirs-at-law of the decedent, 

are contractually barred from filing suit for wrongful death against the 76 

defendants in the West Virginia case.

By a memorandum opinion entered January 11, 2021, the trial court dismissed 

Petitioners’ action. In its order, the trial court concluded that it did not “have the legal 

authority to classify any portion of the settlement proceeds as wrongful death proceeds” 

and that “[t]he parties to the settlement negotiations very clearly intended to foreclose upon 

any future wrong[ful] death funds related to the mesothelioma litigation.” This appeal 

followed. 

ISSUE PRESENTED

Petitioners raise several issues for our review on appeal. We have consolidated 

these issues into a single issue, as follows:

Whether the trial court erred in dismissing Petitioners’ action.

DISCUSSION

Petitioners in this case sought a ruling from the trial court “that the [Decedent’s] 

mesothelioma litigation settlement funds are compensation for wrongful death.” 

Specifically, Petitioners contended that, as Decedent’s beneficiaries, they would be entitled 

to a portion of the settlement proceeds if they were characterized as wrongful death 

proceeds3rather than as the proceeds of a personal injury settlement. In its order dismissing 

 

3

Indeed, “Tennessee’s courts have consistently held that [wrongful death proceeds] pass to the 

statutory beneficiaries in accordance with the laws of intestate succession.” Beard v. Branson, 528 S.W.3d 

487, 499 (Tenn. 2017). Moreover, although a “decedent’s surviving spouse is entitled to file the wrongful 

death action,” a decedent’s children are also entitled to share in the proceeds from a wrongful death action 

as “‘passive’ beneficiaries.” Spires v. Simpson, 539 S.W.3d 134, 142 (Tenn. 2017) (citing Beard, 528 

S.W.3d at 501). 
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Petitioners’ action, the trial court, in part, found there to be no authority supporting 

Petitioners’ attempted re-characterization of the settlement proceeds. As such, according 

to the trial court, there ultimately existed no basis under the law in which Petitioners could 

be compensated for Decedent’s wrongful death. Thus, no viable claim existed, and 

dismissal was warranted. 

We conclude that the trial court’s dismissal of Petitioners’ requested relief was 

proper. As we noted earlier, prior to the initiation of the present action, Decedent brought 

suit in West Virginia in connection with his mesothelioma diagnosis. As part of his 

complaint, Decedent made claims for personal injury and loss of consortium. Ultimately, 

Decedent reached a settlement with the defendants, as evidenced by the June 2019 West 

Virginia Order deeming the matter to be closed as the court had been informed that it had 

been “resolved.” Decedent subsequently died in September of 2019 after having received 

several distributions of the settlement proceeds.

Although a decedent’s children are entitled to share in proceeds from a wrongful 

death action pursuant to Tennessee law, Spires, 539 S.W.3d at 142 (citing Beard, 528 

S.W.3d at 501), it is apparent from the record before us that there are no wrongful death 

proceeds in relation to Decedent. While Petitioners note that the purpose of their action 

was to ask the trial court “to rule on the characterization of the settlement proceeds as 

compensation for wrongful death [] because the settlement agreements waived any future 

wrongful death claims,” we find no legal support for Petitioners’ contentions regarding the 

settlement proceeds. As best as we can understand it, Petitioners predicate their position 

on the fact that (a) the West Virginia settlement was conditioned on waiver of future 

wrongful death claims and (b) in United States Aviation Underwriters v. Selle, No. M2004-

02243-COA-R3-CV, 2006 WL 236914 (Tenn. Ct. App. Jan. 31, 2006), there was also a 

waiver of a wrongful death claim and this Court determined that the insurance proceeds in 

the case constituted wrongful death proceeds. However, as we will explain in more detail 

below, the respective contexts of the present matter and of Selle do not dictate identical 

treatment of the waivers involved. Rather, we find Selle inapposite to our discussion and 

ultimate disposition. 

In Selle, the decedent was an employee of an insurance company and died while 

piloting a plane during the course of his employment. Selle, 2006 WL 236914, at *1. 

Incident to his employment, the decedent was covered under an insurance policy that 

included a voluntary settlement provision. Id. This provision provided up to $250,000.00 

in coverage for claimants “who agreed to release or waive any and all liability claims, 

including wrongful death or survival actions” against the insurance provider or the 

decedent’s employer. Id. Ultimately, a dispute arose between the decedent’s mother and 

wife as to the proceeds from the voluntary settlement provision. Id. at *2. Specifically at 

issue was whether the proceeds would pass as part of the decedent’s estate by the terms of 

his will, by intestate succession, or by Tennessee’s wrongful death statute. Id. Part of the

decedent’s wife’s argument contended that the policy proceeds constituted payment for the 
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decedent’s wrongful death and should therefore pass under Tennessee’s wrongful death 

statute. Id. On appeal, this Court affirmed the trial court’s holding that the voluntary 

settlement provision proceeds constituted the settlement of a wrongful death claim and 

were to pass to the decedent’s wife pursuant to the wrongful death statute. Id. at *8. 

Contrary to Petitioners’ assertions, we do not find Selle dispositive of the facts in the 

present matter. Here, Decedent brought suit in West Virginia for personal injury and loss 

of consortium. Decedent himself ultimately accepted a settlement in lieu of further 

litigation. The monies received as part of Decedent’s settlement in the West Virginia 

matter therefore represent compensation for his claims for personal injury and loss of 

consortium. Decedent was, obviously, still living at the time of his reaching a settlement

in the West Virginia litigation. The monies awarded in Selle, however, represented 

compensation for the decedent’s death. The insurance policy at issue therein granted the 

decedent’s employer the option of offering a lump sum payment “in exchange for the 

waiver of any liability claims by or for the injured party.” Id. This Court observed that the 

only action that could be brought against the decedent’s employer for the decedent’s death 

was a wrongful death claim and that, therefore, “the proceeds . . . would only be paid upon 

receipt of a waiver from the person having the right to prosecute a claim for wrongful 

death.” Id. 

The context of the “waiver” in the present set of facts is entirely different than that 

provided in Selle. Again, the West Virginia matter involved a settlement for personal 

injury and loss of consortium claims arising during Decedent’s lifetime. The mere fact that 

these settlement proceeds resulted from injuries occurring while Decedent was still living 

reveals why these proceeds should not be treated as wrongful death proceeds. Decedent’s 

death months after reaching his settlement does not warrant a recharacterization of the 

entire action. Indeed, by accepting the settlement, Decedent extinguished any right his 

heirs or beneficiaries would have to pursue a wrongful death claim pursuant to the plain 

language of section 55-7-5, West Virginia’s wrongful death statute, which provides that: 

No action, however, shall be maintained by the personal representative of 

one who, not an infant, after injury, has compromised for such injury and 

accepted satisfaction therefor previous to his death.

W. Va. Code Ann. § 55-7-5 (emphasis added). As we perceive it, any potential cause of 

action for Decedent’s wrongful death was extinguished when he resolved his personal 

injury case during his lifetime by way of settlement. Accordingly, Decedent’s personal 

representatives, or beneficiaries, had no cause of action for his wrongful death because 

Decedent foreclosed on that opportunity in reaching a settlement. Petitioners’ attempt to 

categorize Decedent’s settlement proceeds as wrongful death proceeds simply ignores the 

plain realities of the West Virginia litigation and associated settlement. 

In light of the above, we conclude that the trial court did not err in dismissing 
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Petitioners’ action. 4

CONCLUSION

Based on the foregoing, we affirm the trial court’s order of dismissal. 

 s/ Arnold B. Goldin 

 ARNOLD B. GOLDIN, JUDGE

 

4 To the extent we do not address certain arguments or issues raised in the briefs of the parties, they 

are pretermitted as unnecessary to our disposition. Wheeler Bonding Co., Inc. v. 1st Stop Bonding LLC., 

No. M2019-00064-COA-R3-CV, 2019 WL 6825971, at *4 (Tenn. Ct. App. Dec. 13, 2019).