Court approval of the allocation of a settlement is 1

necessary where wrongful death and survival actions are settled

for a single amount. Moore v. Gates, 580 A.2d 1138, 1141 (Pa.

Super. Ct. 1990).

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

RONALD COLEMAN, : CIVIL ACTION

: NO. 04-3994

Plaintiff, :

:

v. :

:

UNITED STATES of AMERICA, :

:

Defendant. :

M E M O R A N D U M

EDUARDO C. ROBRENO, J. SEPTEMBER 13, 2005

This wrongful death and survival action was settled in

July 2005. Plaintiff Ronald Coleman, the only son of decedent

Robert Coleman and the administrator of his father’s estate,

filed this action against the United States of America under the

Federal Tort Claims Act, 28 U.S.C. §§ 2671-2680. Specifically,

plaintiff alleged that the Veterans Administration negligently

failed to diagnose and/or treat plaintiff’s decedent in

connection with a chest x-ray plaintiff’s decedent underwent on

March 8, 2002. Plaintiff is the only surviving heir and

beneficiary of decedent. The Court held a hearing on September

9, 2005 to address attorneys’ fees and the allocation of

settlement funds.1

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The total gross settlement in the action is $285,000.

Plaintiff requests ninety percent (90%) of the settlement funds

be allocated to the wrongful death claim and ten percent (10%) to

the survival claim. Plaintiff also requests approval of a

twenty-five percent (25%) counsel fee. The allocation and

attorneys’ fees are appropriate.

I. APPLICABLE LAW

Although jurisdiction in this case is based on federal

question jurisdiction, the court will apply Pennsylvania

substantive law to the allocation of settlement funds and the

approval of attorney’s fees. The “settlement of a lawsuit and

the relationship between an attorney and his or her client are

areas traditionally covered by state law.” Mowrer v. WarnerLambert Co., 2000 WL 974394, at *5 (E.D.Pa. 2000); see also Nice

v. Centennial Sch. Dist., 98 F. Supp.2d 665, 668 (E.D. Pa. 2000)

(if state law on an issue is well-developed, federal law does not

provide a rule of decision, and application of state law will not

impinge upon any federal interest, a federal court may apply

state law). 

II. THE SETTLEMENT ALLOCATION

Under Pennsylvania law, a wrongful death action is

brought by a decedent’s relatives on their own behalf to recover

damages for pecuniary loss suffered by the loss of decedent’s

Case 2:04-cv-03994-ER Document 18 Filed 09/16/05 Page 2 of 4
future contributions. A survival action is brought on behalf of

decedent for pain and suffering and loss of income suffered

before death. See, e.g., 2 Summ. Pa. Jur. 2d Torts § 25:5. 

Plaintiff contends the proposed allocation is

reasonable based on the decedent’s future pension earnings, the

reasonable value of support decedent would have provided to

plaintiff, and the fact that the decedent’s pain and suffering

was alleviated through medication before his death. Plaintiff’s

counsel represented to the court that in three Pennsylvania cases

the wrongful death and survival claims were allocated similarly

to the present proposal.

Pennsylvania prioritizes wrongful death claims over

survival claims in order to put the needs of the decedent’s

dependants over the estate beneficiaries. See, e.g., Krause v. B

& O Railroad, Pa. D & C.3d 458, 471 (C.P. 1983) (priority given

to the wrongful death claim over the survival claim is reinforced

by “the natural preference for compensation for needy dependants

for loss over windfall inheritances.”); 2 Summ. Pa. Jur. 2d Torts

§ 25:61.

In this case, plaintiff Ronald Coleman is the sole heir

and beneficiary of decedent, and he has agreed to the proposed

allocation. (Pl.’s Pet., Pl.’s Aff.) It appears that only the

proceeds allocated to the survival action are subject to

inheritance tax. The Pennsylvania Department of Revenue has

approved the proposed allocation. (Pl.’s Pet., Ex. C.)

Case 2:04-cv-03994-ER Document 18 Filed 09/16/05 Page 3 of 4
Considering there are no objections to the allocation,

the allocation is not unreasonable in light of Pennsylvania law,

and the beneficiary of both actions is the same individual, the

allocation of settlement funds is appropriate.

III. ATTORNEYS’ FEES

Counsel also asks for approval of attorneys’ fees. In

this case, plaintiff signed a Contingent Fee Agreement with the

law firm of Master, Weinstein, Schnoll & Dodig, P.C. for 25% of

any settlement funds plus expenses. (Pl.’s Pet., Ex. E.) 

Plaintiff is satisfied with the representation provided. (Pl.’s

Pet., Pl.’s Aff.) Ordinarily, contingent fees are not subject to

approval by the court except in the case of a minor or an

incompetent. See, e.g.,In re: Diet Drugs (Phentermine,

Fenfluramine, Dexfenfluramine) Products Liability Litigation,

2004 WL 1243736, at *2 (E.D. Pa. 2004). In any case, the

requested fee in this case comports with the allowable recovery

under the Federal Torts Claims Act, 28 U.S.C. § 2678 (2005), the

statute under which this action was brought, and is fair and

reasonable. 

IV. CONCLUSION

The proposed settlement allocation and requested

attorneys’ fees are approved.

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