78B-3-106.5 - Claims brought by presumptive personal representative.
78B-3-106.5. Claims brought by presumptive personal representative.
(1) "Presumptive personal representative" means:
(a) the spouse of the decedent not alleged to have contributed to the death of thedecedent;
(b) if no spouse exists, the spouse of the decedent is incapacitated, or if the spouse of thedecedent is alleged to have contributed to the death of the decedent, then an adult child of thedecedent not alleged to have contributed to the death of the decedent; or
(c) if the spouse and all children of the decedent are incapacitated, or are alleged to havecontributed to the death of the decedent, then a parent of the decedent.
(2) Forty-five days after the death of a person, including a minor, caused by the wrongfulact or neglect of another, the presumptive personal representative may present and resolve aclaim for policy limits up to $25,000 for liability and uninsured motorist claims, and $10,000 forunderinsured motorist claims, arising out of that death to an insurer and may execute a release ofliability upon presentation of an affidavit, properly notarized, stating that:
(a) the person presenting the affidavit is the presumptive personal representative;
(b) 45 days have elapsed since the death of the decedent;
(c) no application or petition for the appointment of a personal representative is pendingor has been granted in any jurisdiction; and
(d) notice of intent to resolve the claim has been sent to the last-known addresses of allheirs as defined by Section 78B-3-102 or 78B-3-105.
(3) The presumptive personal representative may also present and resolve a claim for anyapplicable benefits payable under personal injury protection coverage, resulting from the death ofan insured.
(4) The presumptive personal representative's claim shall be on behalf of all heirs of thedecedent as defined by Section 78B-3-102 or 78B-3-105. The personal representative shall havethe same duties toward other heirs as those duties provided in Sections 75-3-701 through75-3-720.
(5) Any insurer and its insured paying a claim arising out of the wrongful death of aperson, including a minor, including but not limited to claims for uninsured or underinsuredmotorist coverage as provided in Section 31A-22-305, to a presumptive personal representativeupon presentation of an affidavit as described in Subsection (2) are discharged and released to thesame extent as if the insurer and its insured dealt with a personal representative of the decedent. The insurer and its insured are not required to inquire into the truth of any statement in theaffidavit.
(6) Nothing in this section affects or prevents, to the limits of insurance protection only,any claim for first party benefits or a proceeding to establish the liability of a tort feasor insuredunder any policy of insurance in addition to the policy under which the claim was presented andpaid under Subsection (2).
(7) If any heirs are minors, the presumptive personal representative may not distributemore than 50% of the proceeds of the settlement until the distribution has been approved by acourt approved settlement in which a conservator is appointed for any minor heirs.
Amended by Chapter 46, 2009 General Session