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06/22/89 Pamela Szymakowski, v. Szymakowski

June 22, 1989

SZYMAKOWSKI, A MINOR, ET AL., INTERVENING, PLAINTIFFS-APPELLANTS

v.

VERBENA SZYMAKOWSKI, ADM'R OF THE ESTATE OF STEVEN SZYMAKOWSKI, DECEASED, PLAINTIFF-APPELLEE (MARTIN



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FOURTH DIVISION

PAMELA SZYMAKOWSKI, Guardian of the Estate of Steven John

Marketing Corporation, Defendant)

542 N.E.2d 372, 185 Ill. App. 3d 746, 134 Ill. Dec. 193 1989.IL.961

Appeal from the Circuit Court of Cook County; the Hon. Walter J. Kowalski and the Hon. Benjamin E. Novoselsky, Judges, presiding.

APPELLATE Judges:

PRESIDING JUSTICE JIGANTI delivered the opinion of the court. LINN and JOHNSON, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE JIGANTI

This appeal arises out of the settlement of a wrongful death and survival actions. Intervening plaintiffs appeal the portion of the distribution order awarding fees to the attorneys for the administrator. No objection is raised regarding the amount of the settlement.

Steven Szymakowski died on December 25, 1986, as a result of injuries he sustained during a fire and explosion of a fuel storage tank. Steven was survived by his father Frank Szymakowski, his mother Verbena Szymakowski, and two minor children Steven John and Francis William. The children were both from previous marriages -- Steven John by the marriage to Pamela Szymakowski, and Francis William by the marriage to Denise Szymakowski.

Shortly after Steven's death, the trial court appointed Frank to serve as special administrator of the decedent's estate. As special administrator, Frank filed a survival action and a wrongful death action against Martin Marketing Corporation, not a party to this appeal. After filing the complaint, Frank was appointed administrator of the estate and given letters of office under the Probate Act of 1975 (Ill. Rev. Stat. 1985, ch. 110 1/2, par. 1-1 et seq.). However, the trial court subsequently found Frank ineligible to serve as administrator. Verbena was then appointed successor administrator. Verbena, through her attorneys, Robert W. Karr & Associates, pursued the wrongful death and survival actions. Pamela and Denise, acting in their capacity as guardians of the estate of their minor children, were granted leave to intervene. As intervening plaintiffs in the wrongful death and survival actions, Pamela and Denise, and their attorneys, Robert Schey & Associates, were entitled to appear and be present during hearings, pretrials, and settlement negotiation conferences but were limited to the filing of pleadings only by leave of court.

After several months of negotiations, a settlement proposal was presented before the trial Judge. Following a hearing, the trial Judge entered a distribution order which provided for a structured settlement for the minor children, the beneficiaries of the estate. The present cash value of the settlement was approximately $600,000. Pursuant to a one-third contingency fee agreement between Verbena, as administrator of the estate, and her attorneys, Karr & Associates, the trial Judge also ordered the defendant in the wrongful death and survival actions to issue a check for $182,618 to Karr & Associates in attorney fees. An order was also entered finding that Robert Schey & Associates, the attorneys for Pamela and Denise, guardians of the estate of their minor children, had no lien upon the funds which were the subject of the distribution order. The distribution order was subsequently approved by a Judge in the probate division.

On appeal, the intervening plaintiffs argue that Karr & Associates are not entitled to attorney fees because they breached their fiduciary duty to the minor children, the beneficiaries of the estate. Although they give a lengthy account of the events surrounding the opening of the estate and the pursuit of the wrongful death and survival actions, the intervening plaintiffs essentially argue that Karr & Associates breached their fiduciary duty to the minor children by asserting a recovery for Verbena and Frank, the parents of the decedent.

It is well established that an administrator of an estate stands in a fiduciary relationship to the beneficiaries under the Wrongful Death Act (Ill. Rev. Stat. 1985, ch. 70, pars. 1, 2) and therefore is obligated to act in good faith to protect their interests. (Johnson v. Village of Libertyville (1986), 150 Ill. App. 3d 971, 974, 502 N.E.2d 474, 477.) Similarly, an attorney who represents an administrator stands in a fiduciary relationship to the beneficiaries. (In re Estate of Halas (1987), 159 Ill. App. 3d 818, 825, 512 N.E.2d 1276, 1280.) If an attorney acts in bad faith and against the interest of the beneficiaries of the estate, attorney fees may be denied. Halas, 159 Ill. App. 3d at 831, 512 N.E.2d at 1284.

In the instant case, Karr & Associates represented Verbena, the administrator of the estate. Verbena rightfully received letters of administration pursuant to section 9-3 (Ill. Rev. Stat. 1985, ch. 110 1/2, par. 9-3). As administrator, Verbena had the sole right to pursue and control the wrongful death action. (Rodgers v. Consolidated R.R. Corp. (1985), 136 Ill. App. 3d 191, 482 N.E.2d 1080.) Any recovery in a wrongful death action is ...


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