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WRONGFUL DEATH OVERVIEW

 

1)  What potential claims are available after a loved one dies?

 

2)  Who can bring a wrongful death claim?

 

3)  What is the history of Georgia’s wrongful death act?

 

4)  What is the purpose of Georgia’s wrongful death statutes?

 

5)  Can a wrongful death claim be pursued even though the decedent caused their own death?

 

6)  What if a beneficiary’s negligence caused the death – can a wrongful death claim still be pursued?

 

7)  Do Georgia’s wrongful death statutes apply if the death occurred outside of Georgia?

 

8)  What are the pleading requirements to pursue a wrongful death claim?

 

9)  If the wrongful death claim settles, can I still pursue an estate-based claim?

 

10)  What are Georgia’s statutes that may provide right to recovery upon a person’s death?

CIVIL HOMICIDE AND QUALIFYING DEATHS

 

11)  What qualifies as a wrongful death?

 

12)  Are wrongful death claims allowed for product liability cases?

 

13)  Are punitive damages available for wrongful death?

 

14)  Can a child born out of wedlock pursue a wrongful death claim of a parent?

 

15)  When does the statute of limitations for a wrongful death claim begin?

 

16)  Can the statute of limitations be extended by the “discovery rule?”

WHO CAN SUE FOR WRONGFUL DEATH

 

17)  Can a married, yet separated, spouse still sue for the wrongful death of the other spouse?

 

18)  Do all children need to participate in order to bring a wrongful death claim?

 

19)  What duties does a surviving spouse owe to surviving children in a wrongful death case?

 

20)  What if a surviving spouse violates their duty to surviving children?

 

21)  If the surviving spouse re-marries, does this terminate their right to sue for wrongful death?

 

22)  Does an adopted child have standing to sue for the wrongful death of their natural parents?

 

23)  Are grandchildren allowed to bring a wrongful death claim if there are no surviving spouses, children, or parents?

 

24)  Can a wrongful death claim be pursued for an unborn fetus?

 

25)  Can one parent pursue a wrongful death claim without the participation of the other parent?

 

26)  If a beneficiary’s contributory negligence caused the decedent’s death, is the wrongful death claim barred as to the remaining beneficiaries?

 

27)  Can interspousal immunity shield one spouse from being sued for causing the death of the other spouse?

WRONGFUL DEATH DAMAGES AND COMPENSATION

 

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

 

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

 

30)  How can lost future wages be proven?

 

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

 

32)  How is life expectancy objectively measured?

 

33)  How is the life of a child valued?

 

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

 

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

 

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

 

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

 

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

 

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

 

40)  What if the beneficiary is a minor child?

 

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

 

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

 

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

 

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

 

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

ESTATE-BASED CLAIMS

 

46)  What claims can an estate administrator pursue after the death of a loved one?

 

47)  Does a personal injury claim survive a claimant’s death?

 

48)  What duties does an estate administrator owe to the estate beneficiaries?

 

49)  What types of pain and suffering can the estate recover?

 

50)  Is an estate administrator entitled to any wrongful death proceeds?

 

51)  Is it possible for an estate administrator to have a conflict of interest in settling an estate-based claim?

 

52)  Can an estate-based claim include a claim for punitive damages?

 

53)  Are recoveries for estate-based claims subject to the decedent’s debtors and creditors?

 

54)  What if the Defendant dies before a claim can be pursued?

 

55)  Are punitive damages allowed against a deceased defendant?

 

WRONGFUL DEATH OVERVIEW

1)  What potential claims are available after a loved one dies?

 

Generally speaking, there are three categories of claims that can be pursued after a loved one passes away.

 

Georgia’s wrongful death statutes allow certain people to pursue a claim for “wrongful death.”  The damages that may be recovered are for the “full value of the life of the decedent.”

 

The remaining two claims are often interchangeably referred to as the “estate” claims or “survival” actions.  The decedent’s estate can pursue claims for the “funeral, medical, and other necessary expenses” that are related to the wrongful conduct that caused the injury and death.  However, this statute only relates to objective money damages.

 

The final category of claims that may be pursued by the estate are for any claim the decedent may have had or been pursuing prior to their death.  This includes claims for pain and suffering the decedent may have experienced prior to their death.  Or, these claims may relate to independent, existing injury claims that the decedent may have already been pursuing, unrelated to their death.

 

So, even though the estate claims are provisions that are found in Georgia’s wrongful death statutes, they are separate and distinct claims.

 

References:

O.C.G.A. § 51-4-2 (Homicide of Spouse or Parent; Survival of Action; Distribution of Recovery);

O.C.G.A. § 51-4-4 (Homicide of a Child);

O.C.G.A. § 19-7-1 (Parental Power, Recovery for Homicide of Child)

O.C.G.A. § 9-2-41 (Action for Tort and Certain Causes of Action not to Abate by Death of Either Party);

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

Gay v. Piggly Wiggly S., Inc., 183 Ga. App. 175, 180, 358 S.E.2d 468, 473 (1987)

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2)  Who can bring a wrongful death claim?

 

Georgia’s statutes expressly prescribe who can bring a wrongful death claim. 

 

O.C.G.A. § 51-4-2(a) provides two categories of people who may pursue these claims:  “the surviving spouse or, if there is no surviving spouse, a child or children.”

 

But, if there are no surviving spouse or surviving children, we must look to other statutes.  O.C.G.A. § 19-7-1(c)(1) provides that a parent is next in line to pursue a wrongful death claim for the death of a child, regardless of whether the child is a minor or an adult.

 

If the decedent is not survived by a spouse, child, or parent, then the right to pursue the claim goes to the decedent’s estate on behalf of the deceased’s next of kin, as provided under O.C.G.A. § 51-4-5(a).

 

References:

O.C.G.A. § 51-4-2(a)

O.C.G.A. § 19-7-1(c)(1)

O.C.G.A. § 51-4-4

O.C.G.A. § 51-4-5(a)

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3)  What is the history of Georgia’s wrongful death act?

 

Historically, a claim for wrongful death was not permitted under common law.  So, if a loved one died due to another person’s wrongful conduct, there was not remedy.

 

Georgia enacted its first wrongful death act in 1850, modeled after England’s Lord Campbell Act that was enacted just a few years prior.

 

Since there was no common law right to wrongful death claims, the statutes are strictly applied by their plain terms.

 

References:

Brock v. Wedincamp, 253 Ga. App. 275, 277, 558 S.E.2d 836, 839 (2002)

Stewart v. Bourn, 250 Ga. App. 755, 756–57, 552 S.E.2d 450, 451–52 (2001)

W. & Atl. R. Co. v. Michael, 175 Ga. 1, 165 S.E. 37, 43 (1932)

Tolbert v. Maner, 271 Ga. 207, 208, 518 S.E.2d 423, 425 (1999)

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4)  What is the purpose of Georgia’s wrongful death statutes?

 

One obvious purpose of the wrongful death statute is to allow recovery for a person’s death.

 

But, that is not the only purpose as captured by Georgia courts.

 

Georgia’s Supreme Court has repeatedly noted these statutes create a cause of action that did not otherwise exist.  In this way, the statutes “create a new cause of action and new rights and duties for the prevention of criminal and negligent homicides and to meet social and economic needs. The aim of these statutes is to strike at the evil of the negligent destruction of human life, by imposing liability upon those who are responsible . . . .”

 

Expanding on this purpose, the Georgia Supreme Court has summarized that the statutes “serve dual roles:  they seek to prevent the loss of human life by making ‘homicide expensive,’ and they seek to preserve the social and economic order.”

 

In summary, wrongful death claims are, in a way, both compensatory (from the standpoint of the surviving family) and penal (from the standpoint of the defendant) in nature.

 

References:

W. & Atl. R. Co. v. Michael, 175 Ga. 1, 165 S.E. 37, 42–43 (1932)

Bibbs v. Toyota Motor Corp., 304 Ga. 68, 74, 815 S.E.2d 850, 856 (2018)

Carringer v. Rodgers, 276 Ga. 359, 364, 578 S.E.2d 841, 844 (2003)

W. & Atl. R. Co. v. Michael, 175 Ga. 1, 165 S.E. 37, 43 (1932)

Pollard v. Kent, 59 Ga. App. 118, 200 S.E. 542, 546 (1938)

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5)  Can a wrongful death claim be pursued even though the decedent caused their own death?

 

Generally speaking, a wrongful death claim cannot be pursued if the decedent’s own actions caused their death. 

 

Conceptually, the wrongful death claim is derivative of the decedent’s own right to pursue a claim.  Meaning, if the decedent could not have pursued a claim and recovered damages (if they were still alive) then their wrongful death claim will similarly be barred.

 

Another way of understanding this concept is from the defendant’s perspective.  Just as the right to pursue a wrongful death claim survives to certain heirs of the decedent, so do the defenses to those claims. 

 

References:

Dion v. Y.S.G. Enterprises, Inc., 296 Ga. 185, 187, 766 S.E.2d 48, 50 (2014)

deVente v. Flora, 300 Ga. App. 10, 13, 684 S.E.2d 91, 93 (2009)

Mowell v. Marks, 269 Ga. App. 147, 149, 603 S.E.2d 702, 704 (2004)        

Bibbs v. Toyota Motor Corp., 304 Ga. 68, 75, 815 S.E.2d 850, 856 (2018)

United Health Servs. of Georgia, Inc. v. Norton, 300 Ga. 736, 738–39, 797 S.E.2d 825, 827 (2017)

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6)  What if a beneficiary’s negligence caused the death – can a wrongful death claim still be pursued?

 

Wrongful death claims are not precluded just because one of the beneficiaries to the claim may have contributed to the death. 

 

However, this limitation only applies if there are multiple beneficiaries. 

 

And, you need to be able to differentiate between a beneficiary of wrongful death recovery and the individual who actually has standing to pursue the claim.

 

References:

Happy Valley Farms v. Wilson, 192 Ga. 830, 838–39, 16 S.E.2d 720, 725 (1941)

Lynn v. Wagstaff Motor Co., 126 Ga. App. 516, 518–19, 191 S.E.2d 324, 326 (1972)

Matthews v. Douberley, 207 Ga. App. 578, 581–82, 428 S.E.2d 588, 590–91 (1993)

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7)  Do Georgia’s wrongful death statutes apply if the death occurred outside of Georgia?

 

No, Georgia’s wrongful death statute does not apply unless the claims arise under the jurisdiction of Georgia courts.

 

Meaning, the statute has no “extraterritorial application.”  So, there are no remedies for a claim of wrongful death in Georgia for deaths that occur outside of its borders.

 

References:

Auld v. Forbes, 309 Ga. 893, 896–97, 848 S.E.2d 876, 880 (2020)

Selma, Rome & Dalton R. Co. v. Lacy, 43 Ga. 461, 463 (1871)

Green v. Johnson, 71 Ga. App. 777, 778, 32 S.E.2d 443 (1944)

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8)  What are the pleading requirements to pursue a wrongful death claim?

 

Generally, the claims against an accused must be pled sufficiently to put the defendant on notice of the nature of the claims so they may intelligently prepare their defense. 

 

As a rule of thumb, you must specifically plead that you are specifical pursuing wrongful death.  The claim will not be presumed just because you allege other claims arising from the death of a loved one (i.e. constitutional claims).

 

One court has held that a complaint that demands recovery for the full value of the decedent’s life is not enough to plead a wrongful death claim.  Contrastingly, another court has held that be pleading a wrongful death claim does not require the plaintiff to plead damages for the “full value of a decedent’s life.”

 

However, another Georgia case suggest that making a claim for negligence and referencing the wrongful death statutes is enough to plead a claim for wrongful death.

 

Finally, the status of the beneficiaries of apportionment of a wrongful death claim need not be pled in a Complaint either.

 

References:

Gilmere v. City of Atlanta, Ga., 864 F.2d 734, 737 (11th Cir. 1989)

Rockdale Health Sys., Inc. v. Holder, 280 Ga. App. 298, 299, 640 S.E.2d 52, 54 (2006)

Felio v. Hyatt, 639 F. App'x 604, 611 (11th Cir. 2016)

Lewis v. Williams, 78 Ga. App. 494, 498–99, 51 S.E.2d 532, 536 (1949)

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9)  If the wrongful death claim settles, can I still pursue an estate-based claim?

 

Settlement of a wrongful death claim does not preclude the estate from continuing to pursue any estate-based claims, such as for funeral and medical expenses as well as pain and suffering of the decedent.

 

That’s because each claim is separate and independent, and the claims may not necessarily be pursued by the same person.

 

For instance, after the death of a loved one, the wrongful death claim first belongs to the surviving spouse.  But, let’s assume that the decedent’s last will and testament appointed a different person to be the executor of their estate (let’s assume the decedent sibling).

 

In this scenario, only the decedent’s spouse is the only person who can pursue – and settle – the wrongful death claim.  Meanwhile, the decedent’s sibling, as executor of their estate, is the only person who can pursue any estate-based claims.

 

References:

O.C.G.A. § 51-4-2(a) (Homicide of Spouse or Parent; Survival of Action; Distribution of Recovery);

O.C.G.A. § 9-2-41(a) (Action for Tort and Certain Causes of Action not to Abate by Death of Either Party);

Smith v. Wood, 115 Ga. App. 265, 269–70, 154 S.E.2d 646, 650 (1967)

Caskey v. Underwood, 89 Ga. App. 418, 419–20, 79 S.E.2d 558, 560 (1953)

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)

Dowling v. Lopez, 211 Ga. App. 578, 580, 440 S.E.2d 205, 208 (1993)

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10)  What are Georgia’s statutes that may provide right to recovery upon a person’s death?

 

Georgia’s wrongful death statutes include:

 

  • O.C.G.A. § 51-4-1 (Definitions)

  • O.C.G.A. § 51-4-2 (Homicide of Spouse or Parent; Survival of Action; Distribution of Recovery);

  • O.C.G.A. § 51-4-4 (Homicide of a Child);

  • O.C.G.A. § 19-7-1 (Parental Power, Recovery for Homicide of Child)

 

Although a provision of the wrongful death statutes, O.C.G.A. § 51-4-5 is recognized as the estate claim (or “survival action”) that is legally and conceptually different than wrongful death claims.

 

Some other statutes that permit tort injuries and other wrongful death claims include:

  • O.C.G.A. § 9-2-41 (Action for Tort and Certain Causes of Action not to Abate by Death of Either Party);

  • O.C.G.A. § (Liability for Personal Injuries or Death; Who May Recover; Measure of Damages) – applies to railroad employees only;

  • O.C.G.A. § 51-1-23 (Sale of Unwholesome Provisions)

  • O.C.G.A. § 51-1-24 (Sale of Adulterated Drugs or Alcoholic Beverages)

 

In the workers compensation setting, these statutes would apply:

 

  • O.C.G.A. § 34-9-13 (List of Dependents, Termination of Dependency);

  • O.C.G.A. § 34-6-265 (Death from causes other than injury; death resulting from injury; expenses of last sickness and burial; dependents; penalty where death caused by intentional act of employer; payment of benefits to board)

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CIVIL HOMICIDE AND QUALIFYING DEATHS

11)  What qualifies as a wrongful death?

 

In Georgia, a wrongful death is one that is the result a “homicide.” 

 

This is different than a criminal homicide, and a wrongful death homicide is defined by statute.

 

Specifically, a wrongful death homicide includes “all cases in which the death of a human being results from a crime, from criminal or other negligence, or from property which has been defectively manufactured, whether or not as the result of negligence.”

 

Recent courts still characterize this to mean a death resulting from a “wrongful act, default or negligence,” which appears to be language from Lord Campbell’s Act in England.

 

Stated another way, any right of action for damages that was actionable at common law is available under the wrongful death statute.

 

References:

O.C.G.A. § 51-4-1(2)

Dowling v. Lopez, 211 Ga. App. 578, 579, 440 S.E.2d 205, 208 (1993)

Caskey v. Underwood, 89 Ga. App. 418, 420, 79 S.E.2d 558, 560 (1953)

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12)  Are wrongful death claims allowed for product liability cases?

Georgia’s wrongful death statutes specifically incorporate claims for product liability.

 

Specifically, a qualifying death “includes all cases in which the death of a human being results . . . from property which has been defectively manufactured, whether or not as the result of negligence.”

 

Georgia’s Supreme Court has interpreted this to include all available product liability theories and claims.  Those theories include defective manufacture; defective packaging and labeling, and failure to warn of known defect.

 

However, breach of warranty claims for product sellers seem to be claims that are not viable, unless it is related to the sale and consumption of adulterated food, drugs, and/or alcohol.

 

References:

O.C.G.A. § 51-4-1(2)

O.C.G.A. § 51-1-11

O.C.G.A. § 51-1-23 (Sale of Unwholesome Provisions)

O.C.G.A. § 51-1-24 (Sale of Adulterated Drugs or Alcoholic Beverages)

Stiltjes v. Ridco Exterminating Co. Inc., 256 Ga. 255, 347 S.E.2d 568 (1986)

Ryals v. Billy Poppell, Inc., 192 Ga. App. 787, 789, 386 S.E.2d 513, 514 (1989)

Higginbotham v. Ford Motor Co., 540 F.2d 762, 771–72 (5th Cir. 1976)

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13)  Are punitive damages available for wrongful death?

 

No, punitive damages are not available under Georgia’s wrongful death statutes, as they don’t explicitly allow for them.

 

Also, the statute is penal in nature, so wrongful death damages are already punitive.

 

However, estates are allowed to pursue punitive damages.

 

References:

Georgia Osteopathic Hosp., Inc. v. O'Neal, 198 Ga. App. 770, 773, 403 S.E.2d 235, 240 (1991)

Ford Motor Co. v. Stubblefield, 171 Ga. App. 331, 340, 319 S.E.2d 470, 480 (1984)

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

Pollard v. Kent, 59 Ga. App. 118, 200 S.E. 542, 546 (1938)

W. & Atl. R. Co. v. Michael, 175 Ga. 1, 165 S.E. 37, 43 (1932)

Ford Motor Co. v. Stubblefield, 171 Ga. App. 331, 340–41, 319 S.E.2d 470, 480 (1984)

Mascarenas v. Cooper Tire & Rubber Co., 643 F. Supp. 2d 1363, 1378 (S.D. Ga. 2009)

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14)  Can a child born out of wedlock pursue a wrongful death claim of a parent?

 

Yes, a child that is born out of wedlock and has not been legitimized can bring a wrongful death claim on behalf of a deceased parent.

 

Georgia’s legislature expressly addressed this issue in the statute due to constitutional challenges and other confusion created by older versions of the wrongful death statute.

 

References:

O.C.G.A. § 51-4-2(f)

Tolbert v. Murrell, 253 Ga. 566, 571, 322 S.E.2d 487, 491 (1984)

Edenfield v. Jackson, 251 Ga. 491, 494, 306 S.E.2d 911, 914–15 (1983)

Weldon v. Williams, 170 Ga. App. 589, 591, 317 S.E.2d 570, 574 (1984)

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15)  When does the statute of limitations for a wrongful death claim begin?

 

The statute of limitations begins to run as soon as the right to a wrongful death claim accrues – upon the death of the decedent.

 

That’s because it’s impossible to know the nature of the loss or the person having standing to sue until death occurs.

 

This may sound elementary, but it has been an issue repeatedly addressed.  That’s because the wrongful conduct may have occurred much earlier than the actual death.

 

For instance, a drunk driver could cause a car accident that puts someone in a coma for over a year.  Eventually the person dies, and a wrongful death claim accrues to his surviving heirs.  The statute of limitations does not begin at the time of the car accident.  Instead, it begins when the decedent actually passes away.

 

References:

O.C.G.A. § 9-3-33

Williams v. Georgia Dep't of Hum. Res., 272 Ga. 624, 626, 532 S.E.2d 401, 404 (2000)

Miles v. Ashland Chem. Co., 261 Ga. 726, 727–28, 410 S.E.2d 290, 291 (1991)

Lovett v. Garvin, 232 Ga. 747, 748, 208 S.E.2d 838, 839–40 (1974)

Emory Univ. v. Dorsey, 207 Ga. App. 808, 809, 429 S.E.2d 307, 308 (1993)

Bryant v. Browning, 259 Ga. App. 467, 467–68, 576 S.E.2d 925, 926 (2003)

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16)  Can the statute of limitations be extended by the “discovery rule?”

 

Georgia’s Supreme Court has expressly refused to apply the discovery rule to wrongful death claims.

 

The discovery rule states that a right of action does not “accrue” until the injured person discovers the cause of his/her injury.  Theoretically, it has been argued that the surviving heirs entitled to bring a wrongful death claim should be allowed more time under the statute of limitations, because they may not even realize that the death was caused by someone else’s wrongful conduct.

 

Since Georgia’s wrongful death statute is strictly construed by its plain terms, Georgia’s Supreme Court has expressly refused to apply the discovery rule to wrongful death claims.

 

References:

Miles v. Ashland Chem. Co., 261 Ga. 726, 727, 410 S.E.2d 290, 291 (1991)

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WHO CAN SUE
FOR WRONGFUL DEATH

17)  Can a married, yet separated, spouse still sue for the wrongful death of the other spouse?

 

A separated spouse still has the right to sue for the wrongful death of the other spouse.

 

The wrongful death statute expressly gives the right to pursue a claim to a surviving spouse.  The statute does not question the quality of the marriage nor does it qualify for legally separated spouses.

 

As long as the spousal relationship has not been legally terminated by Court Order, then the surviving spouse can pursue wrongful death claims.

 

References:

O.C.G.A. § 51-4-2(a)

Dunbar v. Charleston & W. C. Ry. Co., 186 F. 175, 176 (C.C.S.D. Ga. 1911)

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18)  Do all children need to participate in order to bring a wrongful death claim?

 

If a parent dies without leaving a surviving spouse, the wrongful death claim can be pursued by the “child or children.”

 

Any one of the surviving children may pursue the wrongful death claim without full participation of the other children.

 

It’s important to remember that standing to sue and standing to recover are two different things.  Just because one surviving child sues for wrongful death does not entitle them to more damages – the right to recover for wrongful death damages belongs to all beneficiaries as defined by statute.

 

References:

O.C.G.A. § 51-4-2(a) & (d)

Caldwell v. Evans, 334 Ga. App. 68, 70–71, 778 S.E.2d 235, 238 (2015)

Leanhart v. Knox, 351 Ga. App. 268, 271, 830 S.E.2d 545, 548 (2019)

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19)  What duties does a surviving spouse owe to surviving children in a wrongful death case?

 

Since the surviving spouse has exclusive right to pursue a wrongful death case, but surviving children are entitled to a portion of wrongful death benefits, the surviving spouse owes the children certain duties.

 

In a way, the surviving spouse acts in the individually capacity as well as representative of the surviving children.  However, the surviving spouse does not need permission of the surviving children (or any wrongful death beneficiaries) to pursue and/or settle a wrongful death case.

 

Instead, they just owe the surviving children/beneficiaries a duty to act prudently with the utmost good faith.  This includes a duty to prudently assert, prosecute, and settle wrongful death claims.

 

References:

O.C.G.A. § 51-4-2(c)

Seay v. Valdosta Kidney Clinic, LLC, 353 Ga. App. 378, 381, 837 S.E.2d 529, 532 (2020)

Home Ins. Co. v. Wynn, 229 Ga. App. 220, 221, 493 S.E.2d 622, 625 (1997)

Emory Univ. v. Dorsey, 207 Ga. App. 808, 809, 429 S.E.2d 307, 309 (1993)

Leanhart v. Knox, 351 Ga. App. 268, 271, 830 S.E.2d 545, 548 (2019)

Matthews v. Douberley, 207 Ga. App. 578, 581, 428 S.E.2d 588, 590 (1993)

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20)  What if a surviving spouse violates their duty to surviving children?

 

Surviving children are not helpless if the surviving spouse refuses to pursue a wrongful death claim or fails to do so prudently with the utmost good faith.

 

Surviving children have a cause of action for breach of the spouse’s duty as representative. 

 

Or, in rarer cases, Georgia courts will exercise its equitable powers to transfer the right to sue from the surviving parent to the surviving children.  So, there are remedies for surviving children, though the remedies are not guaranteed.

 

If the standing to pursue a wrongful death claim is in dispute, the proper way to resolve this dispute is by bringing a declaratory judgment proceeding with the court.

 

References:

Home Ins. Co. v. Wynn, 229 Ga. App. 220, 222–23, 493 S.E.2d 622, 626 (1997)

Brown v. Liberty Oil & Ref. Corp., 261 Ga. 214, 215–16, 403 S.E.2d 806, 807–08 (1991)

Moore v. Mylan Inc., 840 F. Supp. 2d 1337, 1343 (N.D. Ga. 2012)

Rai v. Reid, 294 Ga. 270, 274–75, 751 S.E.2d 821, 825–26 (2013)

King v. Goodwin, 277 Ga. App. 188, 189–90, 626 S.E.2d 165, 166–67 (2006)

Mann v. Taser Int'l, Inc., 588 F.3d 1291, 1311 (11th Cir. 2009)

Lambert v. Allen, 146 Ga. App. 617, 618–19, 247 S.E.2d 200, 202 (1978)

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21)  If the surviving spouse re-marries, does this terminate their right to sue for wrongful death?

 

No, the remarriage of a surviving spouse does not extinguish their right to sue for wrongful death.

 

References:

Georgia R.R. & Banking Co. v. Garr, 57 Ga. 277, 278–80 (1876)

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22)  Does an adopted child have standing to sue for the wrongful death of their natural parents?

 

If their parental rights have been legally terminated, the child no longer has standing to sue for the wrongful death of his natural parents.

 

But, this only applies if the parental rights were severed prior to the death of the natural parent(s).  If the adoption occurs after the death of the parent(s), this will not prevent the surviving child from pursuing a wrongful death claim.

 

Similarly, a child has no right to sue for the death of a stepparent who has not legally adopted the child.  But, they do continue to maintain a right to sue for the death of a parent, even if their parents are legally divorced.

 

References:

Emory Univ. v. Dorsey, 207 Ga. App. 808, 808–09, 429 S.E.2d 307, 308 (1993)

Eig v. Savage, 177 Ga.App. 514, 339 S.E.2d 752 (1986)

Johnson v. Parrish, 159 Ga. App. 613, 613, 284 S.E.2d 111, 112–13 (1981)

Limbaugh v. Woodall, 121 Ga. App. 638, 639, 175 S.E.2d 135, 136 (1970)

Marshall v. Macon Sash Door & Lumber Co., 103 Ga. 725, 30 S.E. 571, 572 (1898)

Weems v. Saul, 52 Ga. App. 470, 183 S.E. 661, 661–62 (1936)

Avery v. S. Ry. Co., 44 Ga. App. 613, 162 S.E. 648, 649–50 (1931)

U. S. Fid. & Guar. Co. v. Dunbar, 112 Ga. App. 102, 109, 143 S.E.2d 663, 669 (1965)

St. Paul Fire & Marine Ins. Co. v. Miniweather, 119 Ga. App. 617, 617, 168 S.E.2d 341, 342 (1969)

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23)  Are grandchildren allowed to bring a wrongful death claim if there are no surviving spouses, children, or parents?

 

No, grandchildren are not among the class of plaintiffs authorized by Georgia’s wrongful death statutes. 

 

So, grandchildren have no right to bring a wrongful death claim.  if there are no surviving spouses, children, or parents, then only the estate administrator has standing to bring the wrongful death claim.

 

References:

O.C.G.A. § 51-4-2(a)

O.C.G.A. § 19-7-1(c)(1)

O.C.G.A. § 51-4-4

O.C.G.A. § 51-4-5(a)

Tolbert v. Maner, 271 Ga. 207, 209, 518 S.E.2d 423, 425–26 (1999)

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24)  Can a wrongful death claim be pursued for an unborn fetus?

 

A wrongful death claim can be pursued for the death of an unborn fetus, but only if the unborn child had a “detectable human heartbeat” at the time of the death.

 

References:

O.C.G.A. § 19-7-1(c)(1)

O.C.G.A. § 1-2-1

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25)  Can one parent pursue a wrongful death claim without the participation of the other parent?

 

If the decedent has no surviving spouse or children, then any of the decedent’s parents can pursue a wrongful death claim.

 

The right to the wrongful death claim belongs to each parent, even if they are divorced.

 

This also means that one parent can be estranged from their decedent child, but still have standing to sue for wrongful death.  Or, the child can be born out of wedlock and the parent still have rights to sue.

 

However, the court can terminate the parental rights strictly for wrongful death claim purposes if the court finds that parents have acted in a way to terminate the parent-child relationship as defined by the statute (i.e. adoption, abandonment, cruel treatment, etc.).

 

References:

O.C.G.A. § 19-7-1

Blanton v. Moshev, 262 Ga. 254, 255, 416 S.E.2d 506, 507 (1992)

City of Fairburn v. Clanton, 102 Ga. App. 556, 558, 117 S.E.2d 197, 198–99 (1960)

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

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26)  If a beneficiary’s contributory negligence caused the decedent’s death, is the wrongful death claim barred as to the remaining beneficiaries?

 

One beneficiary’s wrongful conduct does not prevent the remaining beneficiaries from pursuing and recovering wrongful death claims.

 

For instance, if one spouse murders or causes the death of the other spouse, the surviving children have standing to sue the surviving spouse/parent for wrongful death.

 

Or if one of the children’s negligence or wrongful conduct contributes to the death of the parents, the surviving children and/or parents would still have standing to sue for wrongful death.

 

References:

Carringer v. Rodgers, 276 Ga. 359, 364–65, 578 S.E.2d 841, 844–45 (2003)

Happy Valley Farms v. Wilson, 192 Ga. 830, 838–39, 16 S.E.2d 720, 725 (1941)  

McIver v. Oliver, 353 Ga. App. 106, 108–09, 836 S.E.2d 535, 537–38 (2019), reconsideration denied (Nov. 12, 2019)

Belluso v. Tant, 258 Ga. App. 453, 455, 574 S.E.2d 595, 597–98 (2002)

Lynn v. Wagstaff Motor Co., 126 Ga. App. 516, 518–19, 191 S.E.2d 324, 326 (1972)

Davis v. Cox, 131 Ga. App. 611, 613–14, 206 S.E.2d 655, 657 (1974)

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27)  Can interspousal immunity shield one spouse from being sued for causing the death of the other spouse?

 

Georgia’s Supreme Court has expressly held that interspousal immunity is unconstitutional as applied to wrongful death claims because it arbitrarily distinguishes between classes of wrongful death claimants.

 

This is a long way of saying that interspousal immunity does not necessarily apply to wrongful death claims because the policy reasons for interspousal immunity no longer apply.

 

References:

Jones v. Jones, 259 Ga. 49, 49, 376 S.E.2d 674, 675–76 (1989)

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WRONGFUL DEATH
DAMAGES & COMPENSATION

28)  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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29)  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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30)  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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31)  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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32)  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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33)  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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34)  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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35)  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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36)  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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37)  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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38)  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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39)  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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40)  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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41)  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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42)  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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43)  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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44)  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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45)  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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ESTATE-BASED CLAIMS

46)  What claims can an estate administrator pursue after the death of a loved one?

 

The estate administrator is entitled to recover for the “funeral, medical and other necessary expenses” that result from the injury and death of the deceased person. 

 

These are objective damages of a precise pecuniary value.

 

However, the decedent’s estate is also entitled to pursue non-pecuniary claims, such as the pain and suffering experienced by the decedent before their death.

 

References:

O.C.G.A. § 51-4-5

O.C.G.A. § 9-2-41

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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47)  Does a personal injury claim survive a claimant’s death?

 

A personal injury claim is not extinguished, or terminated, just because an injured plaintiff dies. 

 

The claim survives to the deceased plaintiff’s personal representative of his estate.  This includes personal injury and property damage claims.

 

By way of an example, let’s assume that your spouse was involved in a car wreck in which they broke a bone.  If your spouse later passes away due to reasons unrelated to the collision (i.e. old age, disease, cancer, etc.), their claim for personal injuries would pass on to the estate representative.

 

References:

O.C.G.A. § 9-2-41

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

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48)  What duties does an estate administrator owe to the estate beneficiaries?

 

Estate administrators owe is a fiduciary for the estate beneficiaries. 

 

So, that means they owe the estate beneficiaries a duty of utmost good faith.

 

Generally, the estate administrator must exercise this duty in prosecuting estate-based claims, such as for funeral or medical expenses or claims for pain and suffering.

 

If the estate administrator is not up to the task of pursuing the estate’s legal claims, they may assign the claim to a creditor or a beneficiary of the estate.

 

References:

O.C.G.A. § 53-7-1

O.C.G.A. § 53-7-45

Home Ins. Co. v. Wynn, 229 Ga. App. 220, 222, 493 S.E.2d 622, 625 (1997)

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49)  What types of pain and suffering can the estate recover?

 

The estate is allowed to recover the garden-variety types of pain and suffering, including physical and mental pain and suffering, emotional distress, and humiliation.

 

But, there are some qualifiers.

 

If the death was instantaneous and there is no evidence of pain and suffering, then there is nothing to be compensated as to those specific claims.

 

If death is not instantaneous, recoverable pain and suffering also includes the fright, shock, and mental suffering experienced by the decedent upon realizing their impending death.  This can be proven by circumstantial evidence, and it does not require that the deceased suffer an actual physical injury first (going against the traditional rule that physical injury is a condition precedent for pain and suffering).

 

And, if the decedent is unconscious, then the estate is not entitled to recover for pain and suffering that they speculate could be experienced during this unconsciousness.

 

References:

Carroll Fulmer Logistics Corp. v. Hines, 309 Ga. App. 695, 697, 710 S.E.2d 888, 891 (2011), overruled by Auld v. Forbes, 309 Ga. 893, 848 S.E.2d 876 (2020)

Camacho v. Nationwide Mut. Ins. Co., 13 F. Supp. 3d 1343, 1359 (N.D. Ga. 2014)

McQurter v. City of Atlanta, Ga., 572 F. Supp. 1401, 1422–23 (N.D. Ga. 1983)

Grant v. Georgia Pac. Corp., 239 Ga. App. 748, 751, 521 S.E.2d 868, 870 (1999)

TGM Ashley Lakes, Inc. v. Jennings, 264 Ga. App. 456, 469, 590 S.E.2d 807, 820 (2003)

Monk v. Dial, 212 Ga. App. 362, 362, 441 S.E.2d 857, 859 (1994)

Curtis v. United States, 274 F. Supp. 3d 1366, 1380 (N.D. Ga. 2017)

Cooper v. Mullins, 30 Ga. 146, 152 (1860)

Dep't of Transp. v. Dupree, 256 Ga. App. 668, 680, 570 S.E.2d 1, 11 (2002)

Mascarenas v. Cooper Tire & Rubber Co., 643 F. Supp. 2d 1363, 1376 (S.D. Ga. 2009)

Matter of Adventure Bound Sports, Inc., 858 F. Supp. 1192, 1211 (S.D. Ga. 1994)

Dep't of Human Res. v. Johnson, 264 Ga. App. 730, 738, 592 S.E.2d 124, 131 (2003), aff'd sub nom. Johnson v. Georgia Dep't of Human Res., 278 Ga. 714, 606 S.E.2d 270 (2004)

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50)  Is an estate administrator entitled to any wrongful death proceeds?

 

A personal representative of an estate (i.e estate administrator or executor) is generally allowed to be compensated for administrating the estate. 

 

Georgia statutes allow the estate administrator a commission of 2.5% “on all sums of money received by the personal representative on account of the estate” and “on all sums paid out by the personal representative, either for debts, legacies, or distributive shares.”

 

This means that the estate administrator can paid a commission out of a tort settlement that passes through the estate, regardless of the type of claim.

 

In addition, they can be reimbursed for reasonable expenses incurred in the administration of the estate, including pursuing wrongful death claims.  Examples of expenses include expenses travel or similar expenses.

 

The compensation for an estate administrator can be changed either in the decedent’s last will and testament or by written agreement.

 

References:

O.C.G.A. § 53-6-60

O.C.G.A. § 53-6-61

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51)  Is it possible for an estate administrator to have a conflict of interest in settling an estate-based claim?

 

It is possible for the estate administrator to have a conflict of interest that could influence how they settle any possible claims that arise from the death of a loved one.

 

For instance, if the surviving spouse is also serving as the estate administrator, he or she may have several conflicting interests in how to apportion the settlement of those claims.  The surviving spouse is entitled to loss of consortium damages.  They are also entitled to atleast one-third of the wrongful death proceeds.  Finally their right to proceeds of any estate-based claims could be influenced by the decedent’s last will and testament, as well as their right, as administrator, to collect administrator fees.

 

The estate administrator must avoid any conflicts of interest and must disclose any purported conflicts to the beneficiaries to address appropriately.

 

References:

O.C.G.A. § 53-7-1

Home Ins. Co. v. Wynn, 229 Ga. App. 220, 222, 493 S.E.2d 622, 625–26 (1997)

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52)  Can an estate-based claim include a claim for punitive damages?

 

Yes, an estate-based claim can include a claim for punitive damages, even though a wrongful death claim is not entitled to punitive damages.

 

Punitive damages are generally allowed in any tort action, including personal injury.  Since the tort claims of the decedent “survive” to their estate, these claims can include punitive damages.

 

References:

O.C.G.A. § 9-2-41

Ford Motor Co. v. Stubblefield, 171 Ga. App. 331, 340–41, 319 S.E.2d 470, 480 (1984)

Berman v. United States, 572 F. Supp. 1486, 1489 (N.D. Ga. 1983)

Mascarenas v. Cooper Tire & Rubber Co., 643 F. Supp. 2d 1363, 1378 (S.D. Ga. 2009)

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53)  Are recoveries for estate-based claims subject to the decedent’s debtors and creditors?

 

Yes, any amounts recovered by an estate for estate-based claims are subject to the debts of the decedent’s creditors.

 

So, if the decedent incurred medical expenses as a result of the death causing injury, these medical expenses will need to be satisfied out of any estate-based claim.

 

Or, if the decedent had any unpaid taxes or judgment against them, then those debts would likely have to be repaid out of any settlement proceeds.  If the estate administrator disburses the proceeds to the estate’s beneficiaries before repaying the debt, then the creditor has the right to compel the beneficiaries to pay their pro-rata share of the debt.

 

It's for this reason that people often opt to qualify any proceeds from a settlement as wrongful death proceeds, because creditors are not entitled to reimbursement out of a wrongful death settlement.

 

References:

O.C.G.A. § 53-7-40

O.C.G.A. § 53-7-43

O.C.G.A. § 51-4-2(e)

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

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54)  What if the Defendant dies before a claim can be pursued?

 

If defendant or other wrongdoer dies before a claim can be made against them, this does not mean the claim against the defendant is extinguished or terminated.

 

Instead, the claim can still be pursued against the deceased defendant via their personal representative.

 

References:

O.C.G.A. § 9-2-41

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55)  Are punitive damages allowed against a deceased defendant?

 

No, punitive damages are not permitted against the personal representative of a deceased defendant. 

 

The purpose of punitive damages is to punish and deter, so that purpose is lost when the defendant is deceased.

 

References:

O.C.G.A. § 9-2-41

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