Surrogate Stacy Pettit
Petitioners moved, and respondents cross-moved for summary judgment. Decedent’s death was caused by mesothelioma, and his estate collected settlement proceeds from litigation since 2005. Petitioners were respondents’ half-siblings and were not listed as distributees on the administration proceeding filed by respondent’s counsel, nor as parties on proceedings for purposes of compromising the conscious pain and suffering settlements. Respondent administrator distributed the nearly $1.2 million net settlements to herself and her two full siblings, and petitioners received nothing from the estate. Petitioners sued respondent seeking a direction of payment of their entitled-to distribution. Respondent argued counsel misadvised her regarding petitioners and their status as distributees. The court found respondent and her counsel were at fault, noting she failed to exercise reasonable care required of a fiduciary as she was aware petitioners were decedent’s children. Thus, as respondent breached her fiduciary duty, causing a financial loss to petitioners, a surcharge was warranted—nearly $598,000, to satisfy petitioners’ shares. As a fiduciary, she had a duty to recover funds on the estate’s behalf, including funds wrongfully distributed, and pursuit of a legal malpractice claim.