Abstract

On July 14, 1980, Carl Schoenrock sued his doctor for failure to diagnose lung cancer in a timely fashion. Ten months later, Carl settled his case for $30,000. He died the next year. One and a half years after his death, his widow, Ruth Schoenrock, sued the doctor for wrongful death. The district court dismissed her case, holding that she could not maintain a wrongful death action. The decision was then appealed. In Schoenrock v. Cigna Health Plan of Arizona, Inc., Division 1 of the Arizona Court of Appeals affirmed the decision of the lower court, holding that a dependent cannot maintain a wrongful death action if the decedent has recovered, by way of settlement, prior to death.

This Note examines the rights of dependents in Arizona to maintain a wrongful death action where the decedent previously recovered by way of settlement for the injuries ultimately causing death. In particular, this Note examines whether such dependents can recover for wrongful death under the language of Arizona's wrongful death statute or whether such dependents can recover for wrongful death under a common law theory of recovery. It then reviews new Arizona case law holding that the right to recover damages for wrongful death is a fundamental right under the Arizona Constitution that cannot be abrogated. 

This Note argues that the rule of law established in Schoenrock is outdated and should be overturned. It urges the adoption of a rule that would allow dependents to maintain wrongful death actions where the decedent recovered by way of settlement from the tortfeasor prior to death. Finally, this Note addresses the consequences of adopting such a rule.

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