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Death Damages & 

Compensation FAQ

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1)  What compensation can I receive from a wrongful death claim?

 

The compensation you can receive from a wrongful death claim is for the “full value of the life” of the decedent.

 

Georgia statute defines the “full value of life” to be that value “without deducting for any of the necessary or personal expenses of the decedent had he lived.” 

 

Georgia courts have interpreted this to mean both the economic value as well as the intangible value of the decedent’s life.  And, this measure of damages is unique to Georgia.

 

This does NOT include injuries suffered by the decedent prior to their death.  Instead, only the estate administrator can sue for those damages.

 

References:

O.C.G.A. § 51-4-1(1)

O.C.G.A. § 51-4-5(a)

Consol. Freightways Corp. of Delaware v. Futrell, 201 Ga. App. 233, 233, 410 S.E.2d 751, 752 (1991)

Brock v. Wedincamp, 253 Ga. App. 275, 279–80, 558 S.E.2d 836, 840–41 (2002)

Pope v. Goodgame, 223 Ga. App. 672, 676, 478 S.E.2d 636, 640 (1996)

Alvista Healthcare Ctr., Inc. v. Miller, 296 Ga. App. 133, 137, 673 S.E.2d 637, 640, aff'd, 286 Ga. 122, 686 S.E.2d 96 (2009)

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2)  How is the economic value of the decedent’s life determined?

 

The economic value of the decedent’s life is measured by the gross sum of what he could have been expected to make, or earn, in wages over the span of his remaining life, had he not been killed. 

 

This includes the economic value of pensions, retirement plans, social security benefits, as well as lost wages.  But, it does not include lost alimony payments.

 

This sum is reduced to it’s present cash value.  But, it is NOT reduced by the expected income taxes of that amount, because income taxes are considered “personal expenses” which the statute specifically states should not be deducted.

 

This measure of damages is not made from the perspective of the person entitled to recover wrongful death claims – instead, it is an objective measure, calculated from the perspective of the deceased.  So, the number of children and/or dependents of the deceased does not influence the value of the case.

 

In this way, these damages are punitive in nature.

 

References:

O.C.G.A. § 51-4-1(1)

Consol. Freightways Corp. of Delaware v. Futrell, 201 Ga. App. 233, 233, 410 S.E.2d 751, 752 (1991)

Kerr v. Mims, 130 Ga. App. 54, 55, 202 S.E.2d 244, 245 (1973)

McQurter v. City of Atlanta, Ga., 572 F. Supp. 1401, 1422 (N.D. Ga. 1983)

Pollard v. Boatwright, 57 Ga. App. 565, 196 S.E. 215, 218 (1938)

Childs v. United States, 923 F. Supp. 1570, 1583 (S.D. Ga. 1996)

Bibbs v. Toyota Motor Corp., 304 Ga. 68, 80, 815 S.E.2d 850, 859 (2018)

Alvista Healthcare Ctr., Inc. v. Miller, 296 Ga. App. 133, 137, 673 S.E.2d 637, 640, aff'd, 286 Ga. 122, 686 S.E.2d 96 (2009)

McMahan v. Koppers Co., 654 F.2d 380, 381 (5th Cir. 1981)

 

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3)  How can lost future wages be proven?

 

Tax records are not necessarily required to prove past wages in order to recover for future lost wages – the testimony of the surviving spouse is all that is needed to prove past income, though this type of proof may lack the credibility and certainty that pay stubs or tax records may provide.

 

And past earnings are only one factor to consider, and they are not dispositive.

 

Factors that can be considered for gross earnings include the decedent’s age, habits, wages, life expectancy, probable loss of employment, voluntary absence, dullness in profession, expected wage reductions, infirmities of age, diminution of earning capacity, and other factors.

 

Usually, it’s better to allow an economist to provide expert opinion as to future lost wages.

 

References:

Georgia Dep't of Transp. v. Baldwin, 292 Ga. App. 816, 821–22, 665 S.E.2d 898, 904–05 (2008)

Georgia S. & F. Ry. Co. v. Odom, 152 Ga. App. 664, 666, 263 S.E.2d 469, 472 (1979)

Har-Pen Truck Lines, Inc. v. Mills, 378 F.2d 705, 709 (5th Cir. 1967)

Brock v. Wedincamp, 253 Ga. App. 275, 279, 558 S.E.2d 836, 840 (2002)

Pollard v. Boatwright, 57 Ga. App. 565, 196 S.E. 215, 218 (1938)

City of Thomasville v. Jones, 17 Ga. App. 625, 87 S.E. 923, 924 (1916)

Boswell v. Barnhart, 96 Ga. 521, 23 S.E. 414, 415 (1895)

 

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4)  What are “intangible damages” and how are they calculated?

 

Intangible damages are the value of services that are not capable of exact proof, and it eludes a precise definition.

 

They include the value of intangible relationships between the decedent and his surviving spouse/children. 

 

A decedent’s religious beliefs and church activities may also be relevant, along with other circumstances in their life, to determine what has been lost.  Finally, they include lost services that the decedent would have provided to the surviving family.

 

Regardless, these intangible damages not need be proven with exact numbers and figures, should not be reduced to present value, and can only be measured by the enlightened conscience of the jury.

 

References:

McQurter v. City of Atlanta, Ga., 572 F. Supp. 1401, 1422 (N.D. Ga. 1983)

Miller v. Jenkins, 201 Ga. App. 825, 826, 412 S.E.2d 555, 556 (1991)

Consol. Freightways Corp. of Delaware v. Futrell, 201 Ga. App. 233, 234, 410 S.E.2d 751, 753 (1991)

City of Macon v. Smith, 117 Ga. App. 363, 375, 160 S.E.2d 622, 631 (1968)

Brock v. Wedincamp, 253 Ga. App. 275, 280, 558 S.E.2d 836, 841 (2002)

Standard Oil Co. v. Reagan, 15 Ga. App. 571, 84 S.E. 69 (1915)

Pollard v. Kent, 59 Ga. App. 118, 200 S.E. 542, 545–46 (1938)

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5)  How is life expectancy objectively measured?

 

Georgia allows certain mortality tables to be used to calculate the life expectancy and present value of future earnings.

 

For life expectancy, this mortality tables provide an objective measure of the number of years a person, on average, is expected to live at a certain age.  For instance, if the decedent was 45 year old male at the time of his death, he would be expected to live for 30.57 years as calculated by the Annuity Mortality Table for 1949.  If the decedent was a 45 year old female, their life expectancy would be 35.41 years.

 

However, the jury is not exclusively limited to using these mortality tables to determine life expectancy and present value of future earnings.

 

References:

O.C.G.A. § 24-14-44

O.C.G.A. § 24-14-45

Annuity Mortality Table for 1949. Ultimate

 

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6)  How is the life of a child valued?

 

The life a minor child is difficult to value to the level of certainty required by law. 

 

That’s because they have not yet established any earning capacity, and the type of job they may hold and the amount of income they may earn is speculative.  Instead, the life of a child is determined by the enlightened conscience of the jury. 

 

However, a parent may recover for the lost services of the child to the extent that the parent can show that the child provided services (i.e. mowing the lawn, clean the house, etc.).  Or, if the child maintained a job to help support the family, the parent can also sue for the value of those damages.

 

Atleast one court has considered other intangible items to value the life of a minor child, including the fact that the child came from a good home, attended church, had excellent relationships with parents and friends at school and participated in Girl Scouts.

 

And, other evidence of intangible damages could be the value of the parent’s society, advice, example, and counsel.

 

For all of these reasons, the “full value of the life” of a minor child is not normally reduceable to present value.

 

References:

O.C.G.A. § 19-7-1

Seaboard Coast Line R. Co. v. Duncan, 123 Ga. App. 479, 481, 181 S.E.2d 535, 538 (1971)

Collins v. McPherson, 91 Ga. App. 347, 348–49, 85 S.E.2d 552, 554 (1954)

Childs v. United States, 923 F. Supp. 1570, 1584–85 (S.D. Ga. 1996)

S. Fulton Med. Ctr., Inc. v. Poe, 224 Ga. App. 107, 112, 480 S.E.2d 40, 45 (1996)

 

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7)  If a parent’s rights have been terminated, can the parent recover any wrongful death benefits of their child?

 

If parental rights have been terminated, then the parent is not entitled to any proceeds due to the child’s wrongful death.

 

The court handling the wrongful death claim has the authority to terminate parental rights if the circumstances qualify (i.e. abandonment, cruel treatment, etc.).

 

References:

O.C.G.A. 53-2-1(d)

O.C.G.A. 19-7-1

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8)  Who can sue for the medical and funeral expenses for the death of a minor child?

 

The surviving parents have independent claims for the medical and funeral expenses involved in the death of a minor child.

 

Although O.C.G.A. § 51-4-5 gives the decedent’s estate the right to pursue medical and funeral expenses, this statute does not apply when the decedent is a minor child.

 

Instead, parents are minor children are responsible for providing and paying for a child’s expenses under O.C.G.A. § 19-7-2.  So, a parent is required, by law, to cover funeral and medical expenses.  It follows, then, that the parent has the right to pursue reimbursement for those expenses, and not the child’s estate.

 

References:

O.C.G.A. § 19-7-2

O.C.G.A. § 51-4-5

Belluso v. Tant, 258 Ga. App. 453, 455, 574 S.E.2d 595, 598 (2002)

Saunds v. Forsythe, 112 Ga. App. 269, 269, 144 S.E.2d 926, 927 (1965)

 

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9)  Who can pursue claims for pain and suffering of a minor child?

 

Only the decedent child’s estate can pursue claims for their pain and suffering that they have experienced prior to their death.

 

Even though the child is a minor, their wrongful death claim is separate and distinct from their survival claims, such as pain and suffering.  These claims “survive” to the estate of the deceased, regardless of their age.

 

References:

O.C.G.A. § 51-4-5

Blackstone v. Blackstone, 282 Ga. App. 515, 518 n.5, 639 S.E.2d 369, 372 (2006)

 

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10)  Is emotional distress a component of a wrongful death claim?

 

No, the emotional distress, mental suffering, and grief suffered by the surviving family is not a measure of damages in a wrongful death case. 

 

Nor is the emotional distress suffered by the decedent prior to their death.  I

 

nstead the emotional distress suffered by the decedent is a component of their pain and suffering, which may only be pursued by a separate claim through their estate.

 

References:

OB-GYN Assocs. of Albany v. Littleton, 259 Ga. 663, 663, 386 S.E.2d 146, 147 (1989), abrogated by Lee v. State Farm Mut. Ins. Co., 272 Ga. 583, 533 S.E.2d 82 (2000)

Bulloch Cty. Hosp. Auth. v. Fowler, 124 Ga. App. 242, 248–49, 183 S.E.2d 586, 591 (1971), overruled by Gilson v. Mitchell, 131 Ga. App. 321, 205 S.E.2d 421 (1974)

Mays v. Kroger Co., 306 Ga. App. 305, 306, 701 S.E.2d 909, 911 (2010)

Grant v. Georgia Pac. Corp., 239 Ga. App. 748, 750–51, 521 S.E.2d 868, 870 (1999)

Smith v. Mem'l Med. Ctr., Inc., 208 Ga. App. 26, 27, 430 S.E.2d 57, 59 (1993)

 

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11)  Can a wrongful death claim be reduced due to the decedent’s own negligence?

 

Yes, the value of a wrongful death claim can be reduced in proportion to the decedent’s own negligence in causing his or her death.

 

For instance, if the “full value of the life” of the decedent is valued at $1,000,000, but the decedent is found to be 25% at-fault for their own death, the total value of the claim would be reduced by that value.  So, the wrongful death claim would only be worth $750,000.

 

References:

O.C.G.A. § 51-12-33 (Apportionment Statute)

Davis v. Davis, 144 Ga. 62, 86 S.E. 248, 248–49 (1915)

 

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12)  Who is entitled to recover for wrongful death damages?

 

Georgia statutes specifically identify the beneficiaries entitles to wrongful death damages.

 

Remember, standing to sue and standing to recover are two separate and distinct concepts. 

 

Georgia’s wrongful death statute states that wrongful death damages “shall be divided, share and share alike, among the surviving spouse and the children per capita, and the descendants of children shall take per stirpes.”

 

However, the surviving spouse’s share shall never be less than one-third of any recovery.

 

For instance, let’s assume that the “full value of the life” of a decedent is determined to be $1,000,000, and the decedent is survived by a spouse and two children.  This $1,000,000 will be divided equally among the surviving spouse and children – each would receive $333,333.33.

 

Building on this example, let’s assume that one of the children was already dead but was survived by two of his own children.  These grandchildren would be entitled to split the $333,333.33, each receiving approximately $166,666.66.

 

Now let’s assume that the decedent was survived by a spouse and three children.  Since the surviving spouse is always entitled one-third of the total proceeds, their shall would be $333,333.33.  Meanwhile, the three surviving children would split the remaining $666,666.66 equally (or approximately $222,222.22 per child).

 

References:

O.C.G.A. § 51-4-2(d)(1) & (2)

O.C.G.A. § 53-2-1(c)(1)

 

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13)  What if the beneficiary is a minor child?

 

If the beneficiary is a minor child, the child is still entitled to his or her portion of the wrongful death benefits. 

 

If the child’s portion of the wrongful death proceeds is less than $15,000, then the child’s legal guardian is charged with holding and using that money for the benefit of the child.

 

However, if the amount equals or exceeds $15,000, a conservatorship with the probate court needs to be established. 

 

References:

O.C.G.A. § 51-4-2(d)(1)

Harris v. Boyd, 193 Ga. App. 467, 468, 388 S.E.2d 60, 61 (1989)

McMahan v. Koppers Co., 654 F.2d 380, 381–82 (5th Cir. 1981)

 

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14)  Who is entitled to wrongful death proceeds if the decedent does not have a surviving spouse, children, or grandchildren?

 

If the decedent does not have a surviving spouse, child, or grandchildren, then the decedent’s parents are entitled to any wrongful death proceeds.

 

However, things become challenging if the parents are divorced, separated, or living apart. 

 

In that case, the law does not presume equal apportionment between the surviving parents.  Instead, any one of the parents can file a motion with the court requesting the judge to fairly apportion the wrongful death proceeds.

 

The judge will hold a hearing, evaluating evidence of the parent’s relationship with the deceased child and apportion the wrongful death proceeds appropriately.  Generally speaking, custodial parents of minor children will be entitled to more wrongful death proceeds.

 

If the decedent is not survived any parents, then the wrongful death proceeds will be disbursed to his next of kin through his estate, based on Georgia’s laws of descent and distribution.

 

References:

O.C.G.A. § 19-7-1(c)(6)

O.C.G.A. § 51-4-5(a)

Richardson v. Barber, 241 Ga. App. 254, 257, 527 S.E.2d 8, 11 (1999)

Hall v. Bailey, 253 Ga. App. 595, 560 S.E.2d 76 (2002)

Wymbs v. Stokes, 236 Ga. App. 742, 743, 512 S.E.2d 669, 671 (1999)

Dove v. Carver, 197 Ga. App. 733, 735, 399 S.E.2d 216, 218–19 (1990)

Ramos v. Ramos, 173 Ga. App. 30, 31, 325 S.E.2d 415, 417 (1984)

Abraham v. Black, 346 Ga. App. 229, 230, 816 S.E.2d 351, 353 (2018)

Blackstone v. Blackstone, 282 Ga. App. 515, 517, 639 S.E.2d 369, 371 (2006)

Pickett v. Amoco Oil Co., 735 F.2d 445, 446 (11th Cir. 1984)

Stewart v. Bourn, 250 Ga. App. 755, 755–56, 552 S.E.2d 450, 451 (2001)

 

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15)  How can a beneficiary enforce their right to wrongful death proceeds?

 

A beneficiary can enforce their right by bringing a subsequent action seeking their proportionate share of wrongful death proceeds.

 

Standing to sue and standing to recover are two different concepts.  So, while the settlement of a wrongful death claim is binding on the beneficiaries, they can still enforce their own rights to the proceeds of that settlement.

 

And, the person who pursues and settles a wrongful death claim has a duty to set aside those portions due to the beneficiaries, even minor children.

 

However, if the right to those proceeds are disputed, the proper method for determining these disputed rights is through a declaratory judgment.

 

References:

Adams v. Wright, 162 Ga. App. 550, 552, 293 S.E.2d 446, 449 (1982)

United Health Servs. of Georgia, Inc. v. Norton, 300 Ga. 736, 738, 797 S.E.2d 825, 827 (2017)

Warnock v. Davis, 267 Ga. 336, 336, 478 S.E.2d 124, 125 (1996)

Hosley v. Davidson, 211 Ga. App. 529, 531, 439 S.E.2d 742, 744 (1993)

 

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16)  Can a decedent’s last will and testament alter a beneficiary’s rights to wrongful death proceeds?

 

No, a decedent is powerless to alter the beneficial rights for wrongful death proceeds as established by Georgia statutes.

 

That’s because a wrongful death claim only exists by statute, and the statute must be strictly interpreted. 

 

The decedent has no property right in their own wrongful death proceeds.  And, since the statute prescribes the beneficiaries of a wrongful death claim, the decedent is not able to alter these rights through their will.

 

References:

Boggan v. Boggan, 145 Ga. App. 401, 243 S.E.2d 664 (1978)

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17)  Can a hospital lien be asserted against wrongful death proceeds?

 

Georgia statute specifically states that wrongful death proceeds are not subject to any debts or liabilities of the decedent.

 

Before this statutory provision was created, Georgia courts specifically held that a hospital lien could not be asserted against wrongful death proceeds. 

 

However, a hospital lien can be asserted against any proceeds recovered by the decedent’s estate under O.C.G.A. § 51-4-5.  But, the plaintiffs can simply avoid any debts or liens by classifying the settlement amounts per claim, at their discretion.

 

References:

O.C.G.A. § 51-4-2(e)

O.C.G.A. § 51-4-5

Nash v. Allstate Ins. Co., 256 Ga. App. 143, 567 S.E.2d 748 (2002)

 

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18)  What are Georgia’s laws on descent and distribution as they relate to wrongful death proceeds?

 

Georgia’s laws of descent and distribution outline who and how a decedent’s next of kin will inherit their property after death.

 

These rules also determine which next of kin are entitled to wrongful death proceeds, if the decedent is not survived by a spouse, child, or parent.

 

Generally, wrongful death proceeds will be inherited by the decedent’s siblings; if the decedent had no siblings, then their grandparents are entitled to the wrongful death proceeds; and if the decedents grandparents are not living, then the decedent’s aunts and uncles are entitled to wrongful death proceeds.

 

References:

O.C.G.A. § 51-4-5

O.C.G.A. § 53-2-1

Stewart v. Bourn, 250 Ga. App. 755, 759, 552 S.E.2d 450, 453 (2001)

 

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