Opinion
No. V88-57992.
Decided September 14, 1990.
Tobias H. Elsass, for the claimant.
Anthony J. Celebrezze, Jr., Attorney General, for the state.
On April 28, 1989, a single commissioner determined that Ruby J. Highwarden met the jurisdictional requirements necessary to qualify as a claimant. Her claim was denied, however, pursuant to R.C. 2743.60(E), based on decedent Kimberly A. Wiseman's October 23, 1985 conviction for aggravated trafficking, a felony. On September 19, 1989, a panel of commissioners reversed the single commissioner's April 28, 1989 denial upon the authority of In re Gumpf (1989), 44 Ohio Misc.2d 8, 541 N.E.2d 501, and In re Barnes (Apr. 7, 1989), Ct. of Claims No. V86-46560tc, unreported. The panel then vacated the April 28, 1989 order and remanded the claim for further consideration.
After careful review of the reparations application, the finding of fact and recommendation of the Attorney General, documents and evidence contained in the claim file, and the response of the claimant, I make the following determination.
Claimant Ruby J. Highwarden incurred funeral expense in the amount of $3,731.60. Former R.C. 2743.51(N) limited to $1,250 the amount which may be granted in reparation of funeral expense. Therefore, the claimant is granted $1,250 in reparation of funeral expense.
The Attorney General found that the decedent's daughters, Chevon and Sherry Wiseman, qualify as dependents. Because, however, collateral source benefits, which exceed the value of the decedent's contributions of things of economic value, are being received on behalf of the dependents, the Attorney General found that the dependent's economic loss totaled a negative $56,585. Similarly, the Attorney General found that the dependents had not incurred dependent's replacement services loss because their collateral source benefits exceed the cost of obtaining ordinary and necessary services in lieu of those the decedent would have performed.
R.C. 2743.51(I) provides:
"`Dependent's economic loss' means loss after a victim's death of contributions of things of economic value to his dependents, not including services they would have received from the victim if he had not suffered the fatal injury, less expenses of the dependents avoided by reason of the victim's death."
R.C. 2743.51(J) provides:
"Dependent's replacement services loss means loss reasonably incurred by dependents after a victim's death in obtaining ordinary and necessary services in lieu of those the victim would have performed for their benefit if [she] had not suffered the fatal injury, less expenses of the dependents avoided by reason of the victim's death and not subtracted in calculating dependent's economic loss." (Emphasis added.)
To determine the dependent's economic loss, the Attorney General applied the formula provided by economist Edward Bell. The formula employs three factors: (1) value of things of economic value contributions by the victim during the dependents' years of minority (CTEV); (2) reduced by expenses avoided (EA); and, (3) reduced by the value of collateral sources (KS) (Social Security benefits). After determining that: CTEV equalled $9,634; EA equalled $1,672; and, KS equalled $64,547, the Attorney General determined that dependent's economic loss equalled a negative $56,585.
To determine the dependent's replacement services loss, the Attorney General calculated the cost of obtaining day care services and then deducted the value of the collateral source benefits (Social Security benefits). Those calculations indicate that a total cost of $61,465.29 would be incurred to provide day care services for Chevon and Sherry until they reached the age of majority. The Attorney General then determined that the value of Social Security benefits which will be received on behalf of the dependents would total $65,658. Therefore, the Attorney General concluded that the dependents would receive $4,192.71 in excess of the cost of obtaining ordinary and necessary services in lieu of those the victim would have provided. Consequently, the Attorney General concluded that Chevon and Sherry would not incur dependent's replacement services loss.
A dependent's "economic loss," as defined by the Victims of Crime Act, R.C. 2743.51(I), is to be based upon "net wages," that is, the victim's disposable income or net take home pay, deducting from "gross wages" all taxes imposed or any other deduction required as a condition of the deceased victim's employment, and by taking into account any such dependent's earnings. In re Eader (1982), 70 Ohio Misc. 17, 24 O.O.3d 83, 434 N.E.2d 757.
Where the collateral sources available to the appellant exceeded the appellant's economic loss, and the appellant argued that it was contrary to law that positive dependent's replacement services loss be offset against any excess from collateral sources, the court held that the Victims Act is for the purpose of diminishing the losses from a tragedy, not to facilitate a gain or profit from the tragedy or to make a victim of a crime "whole," and an award was denied. In re Smith (Oct. 14, 1982), Ct. of Claims No. V80-41507jud, unreported.
Under the foregoing facts and law, I find that it was inequitable to apply the dependents' Social Security benefits to offset the dependent's economic loss and to also offset the dependent's replacement services loss. After the Social Security benefits were applied to determine that dependent's economic loss totaled a negative $56,585, only that negative $56,585 could equitably be applied to offset dependent's replacement services loss. Therefore, having determined that dependent's replacement services loss totaled $61,465.29 and that pursuant to the law enunciated in In re Smith, supra, the dependent's replacement services loss must be offset by the negative dependent's economic loss of $56,585 (excess from collateral sources), I find that Chevon and Sherry will incur dependent's replacement services loss in the amount of $4,192.71. Chevon's dependent's replacement services loss of $24,739.39 constitutes forty percent of the $61,465.29 total and Sherry's dependent's replacement services loss of $36,725.89 constitutes sixty percent of the $61,465.29. Therefore, forty percent of $4,192.71, $1,677.08, will be awarded on behalf of Chevon and sixty percent of $4,192.71, $2,515.63, will be awarded on behalf of Sherry. Warrants in payment of judgments on behalf of Chevon and Sherry shall be paid and payable to the person or institution which is issued letters of guardianship of the estate of the minors pursuant to R.C. 2111.01 through 2111.04 or, in the alternative, to the person or institution designated in any order dispensing with the guardianship pursuant to R.C. 2111.05 in the form prescribed in the order.
In his response to the Attorney General's January 9, 1990 finding of fact and recommendation, counsel for claimant Ruby J. Highwarden objected to the Attorney General's use of the decedent's net weekly wage of $22.70 to calculate economic loss. Counsel also stated that the Attorney General failed to consider the claim for child care compensation.
With regard to counsel's objection, consistent with the rationale enunciated in In re Eader, supra, however, dependent's economic loss is to be based on "net wages." Therefore, the Attorney General's use of the decedent's net weekly wage was appropriate. Regarding counsel's statement that the Attorney General did not address the claim for child care compensation, I find that the Attorney General did address the issue, albeit inaccurately. Further, that issue has been appropriately addressed in this decision.
The reparations application included a claim for reimbursement of legal fees, in the amount of $400, incurred by claimant Ruby J. Highwarden. Contrary to the Attorney General's finding that attorney fees, incurred for estate guardianship representation, are not compensable, pursuant to V.C.C.R. 1(C)(2) " [a]ttorneys may be reimbursed for fees incurred in the creation of a guardianship, if the guardianship is required in order for an individual to receive an award of reparations." (Emphasis added.) Pursuant to V.C.C.R. 1(D), however, fees that may be related to the incident giving rise to the application for reparations but that are not directly related to the claim for reparations, e.g., estate work, are not reimbursable under R.C. 2743.65(A).
Under the facts of this claim, creation of guardianships of the estates of Chevon and Sherry Wiseman is required for awards of reparation to be granted on their behalf. Therefore, pursuant to V.C.C.R. 1(C)(2), counsel may be compensated for time expended creating guardianships of the estates of Chevon and Sherry. No compensation shall be granted, however, for time expended on the estate of victim Kimberly A. Wiseman. Counsel and claimant are advised that the December 29, 1987 letter of guardianship of the person of Chevon and Sherry is not sufficient with regard to payment of the judgments on their behalf; guardianships of the estates of the minors are required. Counsel is also advised to review V.C.C.R. 1(I). Finally, pursuant to V.C.C.R. 1(F), an application for attorney fees will be forwarded to counsel upon journalization of the reparations award order.
Supplemental Findings of Fact
1. By an order journalized on April 28, 1989, the single commissioner determined the applicant qualified as a claimant for an award of reparations.
2. The April 28, 1989 order denied the claim, pursuant to R.C. 2743.60(E), based on Kimberly A. Wiseman's October 23, 1985 conviction for aggravated trafficking.
3. On September 19, 1985, a panel of commissioners reversed the April 28, 1989 denial, upon the authority of In re Gumpf, supra, and In re Barnes, supra.
4. The claimant has suffered a net funeral expense in the amount of $1,250.
5. Decedent Kimberly A. Wiseman's net weekly income totaled $22.70.
6. The decedent's dependents, Chevon and Sherry Wiseman, are receiving collateral source benefits which exceed, by $56,585, the value of the decedent's contributions of things of economic value reduced by expenses avoided.
7. Chevon Wiseman will incur dependent's replacement services loss in the amount of $1,677.08.
8. Sherry Wiseman will incur dependent's replacement services loss in the amount of $2,515.63.
9. Claimant Ruby J. Highwarden has paid her counsel of record, Tobias H. Elsass, $175 towards a fee agreement of $400 for estate and guardianship work.
Conclusions of Law
Pursuant to R.C. 2743.51 through 2743.72, claimant Ruby J. Highwarden is GRANTED an award of reparations in the amount of $1,250, all of which represents "funeral expense," as defined in former R.C. 2743.51(N). Additionally, Chevon and Sherry Wiseman qualify as dependents and awards in the amounts of $1,677.08 and $2,515.63, respectively, will be awarded on their behalf.
Order
1. Judgment is rendered against the state of Ohio and the Director of Budget and Management as its agency for payment of the award in the amount of $5,442.71 apportioned as follows: $1,250 to claimant Ruby J. Highwarden; $1,677.08 on behalf of Chevon Wiseman; and $2,515.63 on behalf of Sherry Wiseman.
2. The warrant issued in payment of the $1,250 judgment in favor of claimant Ruby J. Highwarden shall be sent by the Director of Budget and Management to the claimant at the address certified to the Director by the Clerk of this court.
3. The warrant issued in payment of the $1,677.08 judgment in favor of Chevon Wiseman and the warrant issued in payment of the $2,515.63 judgment in favor of Sherry Wiseman shall be paid and payable to such person or institution which is issued the letter of guardianship of the estate of each of the minors upon application of the estate to R.C. 2111.01 through 2111.04 in her or its capacity as guardian of said minors or, in the alternative, to the person or institution designated in any order dispensing with the guardianship pursuant to R.C. 2111.05 prescribed in the order.
4. Upon the filing of the letters of guardianship of the minors estates or other order required under paragraph three of this order and upon the filing of the Social Security numbers of the minor children, the court shall enter an order identifying the party to whom the awards shall be paid and directing that the awards be certified to the Director of Budget and Management for payment.
5. Costs are to be assumed by the reparations fund.
So ordered.