Wrongful Death of Children and Parents are Not Together

Few tragedies are worse that the loss of a child and in situations where the parents either never married or have split, there can be confusing legal snarls as to who has the right to file the case.

One of the most heartbreaking situations is where a parent or spouse of the adult child is the at fault party. Normally, there is a strict statutory order of who has the right to bring the wrongful death claim:
  1. the spouse
  2. if there is no spouse, the children.
  3. If there is no spouse or children, the parents of the decedent.
  4. If there is none of the above, then the Court will appoint a representative.
In the practice of law, we have found that every possible fact pattern has a variation on the specifics that can turn an ordinary case into a complex struggle to understand who has the right to bring the case. 

So, what about a situation where a husband and wife are driving along and the husband negligently causes her death by driving recklessly and he survived. 

This very thing happened in a case called Belluso v. Tant  258 GA 453 (2002). The trial court focused only on the code sections and thought that the father of the deceased girl could not bring the case and ruled that the claim lay with the at fault husband. The Appellate Court analyzed the origin of wrongful death claims in Georgia and noted “[T]he wrongful death statute is ‘a legislative imposition of a penalty upon the person who causes the death of another by negligence, the penalty to go to the person injured.’ ” Brock v. Wedincamp, 253 Ga.App. 275, 281, 558 S.E.2d 836 (2002).  The Court reasoned that the purpose of the laws was to punish and if the strict code based order blocked anyone from bringing the suit, that violated the statutory intent. They considered that the Superior Court has equity powers that can override strict language and reasoned that it did not make sense for the husband to be able to lay a claim for his own negligence. 

Accordingly, the father of the deceased adult child was able to bring the claim, effectively divesting the at-fault husband. 

Consider another situation: A Child and Mother are passengers in a vehicle when the driver crashes and kills them both, the child dying before the mother by a matter of seconds. 

The brother of the mother gets himself appointed as the administrator of the Estate of his deceased sister and files the wrongful death lawsuit arguing that the sister survived longer than the child, so the child's claim vested in the Mother and once the Mother passed, it vested in her Estate. The Court analyzed a series of cases and concluded that had the lawsuit actually been filed, the claim for the child's death would have been held by Mom's Estate, but since she only survived briefly, the claim passed onto the child's biological father. 

The Court, in part, held, "(t)hus, where one of the parents of a minor child dies before instituting an action for the child's wrongful death, the representative of that parent's estate is not authorized to bring such an action if there is a surviving parent or other person entitled to bring it." Hosley v. Davidson et al 211 Ga.App. 533 (1994)

Unfortunately for the family, the father had missed the two year statute of limitations and the case likely died in the Appellate Courts. When analyzing wrongful death claims, it is wise to sit down and determine who all of the potential family members are, not only so that the proper claimant brings the case, but also so that all possible vectors of uninsured motorist insurance come into play. 

Keep in mind there are some strange nuances to Underinsured Motorist Claims involving wrongful death. Consider the situation where a mother and father are divorced and the child lives part time at each house. The child is an insured under both policies and the issue is then, do the parents add up the policies and split the proceeds down the middle or each keeps the money for the policy they bought? I would argue it is number one. The decedent is insured under both so the coverage adds up and the parents have to split it evenly.

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