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April 3, 1995

LETICIA G. GEDDES and BARNABAS B. BREED, as executor of the Estate of WARREN H. GEDDES, deceased, Plaintiffs, against THE CESSNA AIRCRAFT COMPANY, Defendant.

The opinion of the court was delivered by: A. SIMON CHREIN


 On January 9, 1995 I received the first draft of the "Order of Compromise" submitted by the plaintiffs in this case. By order dated January 12, 1995 I directed the parties to address a number of issues that concerned me regarding the proposed "Order of Compromise". I received a revised "Order of Compromise" from plaintiffs' attorney; Daniel Donnelly, Esq., dated February 21, 1995. After a careful review of the submissions, I am satisfied that the counsel fees are within the normal range for a case of this complexity, but the court is concerned with the proposed distribution of the settlement and has determined to appoint a guardian ad litem to represent the infants' interests.


 Decedent, Warren H. Geddes, died in a plane crash on November 17, 1986. This action was instituted by the plaintiffs on November 7, 1988. This case was scheduled for trial before the undersigned on January 9, 1995. By letter dated December 21, 1994 Daniel Donnelly, Esq., informed the court that this matter had settled.

 Proposed Distribution of the Settlement:

 The order of compromise dated February 21, 1995 proposed that the $ 1,800,000.00 settlement *fn1" be distributed as follows:


$ 73,990.70 to ITT Hartford in satisfaction of its lien pursuant to § 29 of the New York Workers Compensation Law. The plaintiffs accept this in full discharge of its lien. The percent of each family member's share has been multiplied by the amount of the lien to determine the amount that each member will pay towards satisfaction of the lien. Thus, Leticia Geddes pays 66% ($ 48,833.86) of the lien, James pays 7% ($ 5.179.35). Philip pays 13% ($ 9,618.79) and William pays 14% ($ 10,358.70) of the lien.


$ 633,009.39 in attorney fees to Daniel Donnelly, Esq., as compensation for legal services rendered in this action to the plaintiffs, inclusive of costs and distributions paid by him and to be paid to him.


$ 753,056.75 to Leticia Geddes, representing the widow's pecuniary loss, including reimbursement of $ 101,890.61 for litigation expenses.


$ 66,855.65 to James Geddes, representing his pecuniary loss as Warren H. Geddes' 20 year old son.


$ 130.360.21 to Philip Geddes, representing his pecuniary loss as Warren H. Geddes' 13 year old son.


$ 142,727.30 to William Geddes, representing his pecuniary loss as Warren H. Geddes' 12 year old son. *fn2"

 This distribution results in a departure from In re Kaiser's Estate, 198 Misc. 582, 100 N.Y.S.2d 218 (Sur. Ct. Kings Cty. 1950), which is generally used by New York courts to allocate wrongful death proceeds. See Joseph and Robert S. Kelner, 'Kaiser' Revisited: Allocation of Wrongful Death Proceeds, 212 N.Y.L.J. 3 (November 29, 1994). The court is concerned with two aspects of the proposed compromise order: the proposed distribution of the settlement and the fact that a guardian ad litem has not been appointed to represent the infants' interests.


 Distribution of the Settlement Proceeds:

 Wrongful death damages are for the exclusive benefit of the decedent's distributees and shall be distributed in proportion to the pecuniary injuries suffered by each distributee. N.Y. [EST. POWERS & TRUSTS] LAW § 5-4.4(a)(1)(McKinney 1981 & Supp. 1995). A surviving spouse can recover for the reasonable value of family responsibilities and household services that decedent would have performed, as well as the loss of support from the decedent's earning potential. Estate of Feld, 153 Misc. 2d 615, 582 N.Y.S.2d 922, 923-924 (Sur. Ct., New York Cty. 1992). The decedent's child is entitled to recover for the loss of financial support and lost parental care, guidance and love. Id. at 924.

 In re Kaiser's Estate allocates the proceeds received upon settlement of a wrongful death action to be distributed to decedent's spouse and next of kin based on the period they might reasonably have looked to the decedent for support. 100 N.Y.S.2d at 220. The formula considers the life expectancy of the surviving spouse and the life expectancy of the decedent, selecting whichever figure is lower, and the total number of years of estimated dependency of each child on the deceased, ". . . and divides the anticipated years of dependency of each distributee by the total, producing a percentage of the recovery for each distributee." Cerisse Anderson, Old Formula Rejected for Death Settlements, 207 N.Y.L.J. 1 (March 4, 1992). Dependency of the decedent's children is generally measured until the children reach twenty-one years of age. Kaiser recognized there may be cases where a departure from the mathematical percentages is necessary if there are special factors present, such as illness or dependency which may transcend those in the usual case. 100 N.Y.S.2d at 221. The net proceeds of the wrongful death settlement would be distributed according to the Kaiser allocation as follows: *fn3" APPLICATION OF THE KAISER FORMULA: NAME DATE OF AGE ON YEARS OF PERCENTAGE BIRTH 11/17/86 DEPENDENCY INTEREST LETICIA 2/19/47 39 34.20 *fn4" 44.22% GEDDES ($470,987.22) (widow) JAMES 5/23/74 12 8.51 11% GEDDES ($117,161.00) (son) PHILIP 6/1/82 4 16.54 21.39% GEDDES ($227,824.89) (son) WILLIAM 12/19/83 2 18.09 23.39% GEDDES ($249,126.89) (son)


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