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Burgess v. Prudential Property and Casualty Insurance Co.

August 18, 1998

DONNIE BURGESS, INDIVIDUALLY AND ON BEHALF OF THE WRONGFUL DEATH BENEFICIARIES OF MARCUS EDWIN BURGESS, DECEASED; AND JANET BURGESS, AS NATURAL MOTHER AND GUARDIAN OF MICAH BRANDON BURGESS AND CHARITY MARION BURGESS, MINORS, APPELLANTS
v.
PRUDENTIAL PROPERTY AND CASUALTY INSURANCE COMPANY AND JOYCE BURGESS MCGOWAN, INDIVIDUALLY AND AS GUARDIAN OF LEIGH ANNE MCGOWAN AND CHRISTY LYNN MCGOWAN, MINORS, APPELLEES



Before Thomas, P.j., Diaz, And Herring, JJ.

The opinion of the court was delivered by: Thomas, P.j., For The Court:

Burgess v. Prudential Property and Casualty Insurance Company, et al, 97-CA-00128-COA

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-B

DATE OF JUDGMENT: 12/23/96

TRIAL JUDGE: HON. ROBERT L. GIBBS

COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT

NATURE OF THE CASE: CIVIL - TORTS

TRIAL COURT DISPOSITION: SUMMARY JUDGMENT GRANTED TO, APPELLEES

DISPOSITION AFFIRMED

Aggrieved of the lower court's granting of a summary judgment, the Burgesses raise the following issues as error:

§ 11- I. MISS. CODE ANN. 7-13 PROVIDES THAT RECOVERY FOR A CLAIM OF WRONGFUL DEATH SHALL BE DISTRIBUTED EQUALLY TO ALL STATUTORY BENEFICIARIES. THE LOWER COURT ERRED IN DISMISSING THE APPELLANTS' CLAIM TO A PRO-RATA SHARE OF THE PROCEEDS OF A WRONGFUL DEATH SETTLEMENT BY ENTERING SUMMARY JUDGMENT IN FAVOR OF OTHER STATUTORY BENEFICIARIES WHO ACTUALLY RECEIVED ALL OF THE SETTLEMENT MONIES.

II. MONIES RECOVERED IN A WRONGFUL DEATH CLAIM ARE HELD IN TRUST FOR THE BENEFIT OF ALL STATUTORY BENEFICIARIES § ENUMERATED IN MISS. CODE ANN. 11-7-13. WHEN KNOWN BENEFICIARIES ARE EXCLUDED FROM THE DISTRIBUTION OF MONEY PAID IN SETTLEMENT OF A WRONGFUL DEATH CLAIM THROUGH A SCHEME BETWEEN CERTAIN BENEFICIARIES AND THE INSURER FOR THE TORTFEASOR ARE SUCH ACTORS LIABLE IN TORT FOR DEPRIVING THE OTHER BENEFICIARIES OF THEIR STATUTORY INTERESTS IN THE SETTLEMENT OF MONIES HELD IN TRUST?

Finding no error, we affirm.FACTS

Marcus Burgess, a twenty-one-year-old male, died from an October 1991 motor vehicle accident that involved a car being operated by Elizabeth Brown. The car was insured by Prudential Property and Casualty ...


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