OPINION ISSUED JANUARY 17, 1986
CONSTANCE KESNER, INDIVIDUALLY AND CONSTANCE KESNER, AS
ADMINISTRATRIX OF THE ESTATE OF PHILIP S. KESNER, DECEASED
DEPARTMENT OF CORRECTIONS
David N. Dittmar, Attorney at Law, for claimant.
Henry C. Bias, Jr., Deputy Attorney General, for respondent.
This claim was filed by Constance Kesner, individually and as a
wrongful death claim under the
provision of W.Va. Code 55-7-5 by Constance Kesner as the
of the Estate of
Philip S. Kesner, deceased, who was killed during an escape by
from the West Virginia
State Penitentiary in Moundsville, West Virginia on November 7,
the time of his death,
Philip S. Kesner was employed as a trooper by the Department of
Safety of West
Virginia and had been so employed for approximately three years. He
survived by his wife,
Constance Kesner, to whom he was married on April 24, 1978. Both he
his wife were 23
years old at the time of his death. On the night of November 7,
the decedent and his wife
were driving past the penitentiary at the time of a prison break.
Escaping prisoners forcibly
stopped and commandeered the Kesner vehicle. The Kesners were
of the vehicle,
and Philip S. Kesner was shot and killed. When the claimant's
was nearly completed,
the respondent conceded liability and acknowledged that there
would not have been
an escape resulting in the death and injuries had there not been
negligence on the part of at least
two correction officers of the respondent. only the issue of
remained to be determined.
The decedent had no children and under the provisions of W.Va.
§55-7-5, the widow
became the sole heir of the decedent, entitled to receive any
by reason of the death of
her husband. The respondent contends that certain sums received by
widow from State
funds should be offset against any award. Benefits received by the
sources are not to be considered.
The Court finds that proceeds of two life insurance policies paid
by the State, one with the
Aetna Life Insurance Company in the amount of $8,000.00 and one
Insurance in the amount of $20,000.00, both amounts paid to the
are not a collateral
source. Additionally, the widow is entitled to receive from the
Department of Public Safety
Death, Disability and Retirement Fund $1,324.83 per month
sixty days after the
decedent's death and continuing for the life of the widow or until
remarries. These payments
are not a collateral source except for the contribution of
$2,400.00 made by the
decedent during his employment as a trooper.
The Court is well aware of the shock and mental anguish suffered
Kesner. The experience of being dragged from their vehicle,
her husband's death in
her presence, will never be erased from her memory. After careful
consideration of the record
and considering the sums already received by the widow other than
collateral sources, and fully
realizing the possibility of her remarriage, the Court makes an
the claimant, Constance
Kesner, individually in the amount of $50,000.00.
The Court also finds that Constance Kesner, as Administratrix of
Estate of Philip S.
Kesner, deceased, is entitled to an award of $150,000.00. In
this amount, under the
provisions of the wrongful death statute, the administratrix is
to recover the funeral bill in
the amount of $2,960.59, incidental funeral expenses in the amount
$77.25, and the cost of a
tombstone in the amount of $1,270.00. Accordingly, the Court makes
award to Constance
Kesner, as Administratrix of the Estate of Philip S. Kesner,
the amount of
The victim's automobile was heavily damaged, later repaired and
for $3,500.00. The
record is otherwise silent as to the value of the automobile prior
the escape, and the Court
makes no award as to automobile damages.
Award of $50,000.00 to Constance Kesner, individually. Award of
Constance Kesner, as Administratrix of the Estate of Philip S.