Judge or jury will decide how drowning settlement money is divided

CHARLESTON – Charleston City Council members approved a $190,000 insurance payment in a drowning case, but someone else will have to divide the money among the victim's feuding relatives.

The City Council authorized the payment April 16 as compensation for the death of Linda Kannaird in 2000.

City rescue workers saved Kannaird and other employees of a Speedway station from a flood, but the rescue boat capsized.

The Kanawha County Commission appointed Kannaird's only child, Eugenia Moschgat, to administer her mother's estate.

Moschgat retained Michael Ranson of Charleston, who filed a wrongful death suit against the Speedway owners and the city.

Eight brothers and sisters of Kannaird then claimed they had a right to recover damages for Kannaird's estate and Moschgat did not. They retained Margaret Workman, who petitioned to remove Moschgat as administratrix.

They argued that Moschgat suffered no loss from her mother's death because she and her mother were estranged.

Circuit Judge Paul Zakaib removed Moschgat and appointed Diana Savilla, a sister of Kannaird, as administratrix.

Moschgat and Speedway agreed in 2003 to settle the suit, but they could not carry out the settlement due to the dispute over the estate.

Speedway moved to dismiss, arguing that under workers compensation law Zakaib could not order Speedway to compensate brothers and sisters.

Zakaib granted the motion in 2005.

For the brothers and sisters, Workman appealed to the West Virginia Supreme Court of Appeals.

Workman, a former Supreme Court Justice, argued that Kannaird never met her 13-year-old grandson and that her daughter never gave her a photo of him.

"Yet this same Eugenia Moschgat, who in life refused to have any relationship whatsoever with Linda Kannaird, rushed back to West Virginias to take control of the litigation which ensued as a result of her death," she wrote.

She wrote that Moschgat and Speedway thumbed their noses at Zakaib by reaching agreement after he removed Moschgat as administratrix.

Ranson responded that Moschgat cried and prayed on her flight to her mother's funeral.

At the funeral, he wrote, "she was greeted with open arms."

He wrote that she took responsibility for all funeral bills, and that none of the aunts and uncles offered to help.

"Eugenia Moschgat yearned for a meaningful relationship with her mother," he wrote, adding that the death kept it from occurring.

At oral arguments in October, Workman told Justices she suspected the agreement between Moschgat and Speedway was "chump change."

The Justices decided that only Moschgat could recover from Speedway, but that Savilla could administer the estate for Moschgat. They rejected Speedway's argument that in light of its proposed settlement with Moschgat there were no more claims against it.

Justice Larry Starcher wrote that a compromise of a wrongful death suit is not valid without consent of all parties. He wrote that Zakaib did not develop a record that would allow him to balance the claims of the family.

"We therefore have no basis to even attempt to decide whether and/or to what degree and upon what conditions Speedway and Ms. Moschgat may be permitted to resolve the cause of action," he wrote.

The Justices sent the case back to Zakaib. On March 1, Savilla withdrew her objection to the agreement between Moschgat and Speedway.

Zakaib approved the agreement. He received it under seal, so the public cannot see it.

Meanwhile, the city of Charleston had waited for years on the sidelines while courts decided who the plaintiff should be.

Because workers' compensation law applied to Speedway but not to the city, Kannaird's brothers and sisters could pursue claims against the city.

This spring, the insurer who covered the city in 2000 agreed to pay $190,000. The City Council authorized the payment.

Ranson said in an April 19 interview that he received no notice of the council's action and that he did not know how the payment would be distributed.

He said Zakaib could hold a hearing or let a jury distribute the money.