Can a Child Bring a Wrongful Death Action in Georgia on Behalf of a Deceased Parent?
An ER physician and his medical practice (“Defendants”) appealed from a trial court’s order denying their motion for judgment on the pleadings in a wrongful death action. They contended that the trial court erred by concluding that the Plaintiff had standing to bring a wrongful death action on behalf of her late father (the “Decedent”).
They argued that the trial court’s ruling expanded the equitable exception to Georgia’s Wrongful Death Act, OCGA § 51-4-1 et seq. “which renders the statute’s standing rules meaningless, and allows the adult children of a deceased to usurp the statutory rights of the decedent’s surviving spouse.”
What is “Standing”?
To have standing to bring a lawsuit, a party must demonstrate an “injury in fact” to their own legal interests. Thus, a party must allege a sufficient legal interest and injury to participate in the case. A case may be dismissed when a plaintiff fails to satisfy this requirement and is said to “lack standing.”
The Plaintiff, Diane Dickens Hamon, was the sole surviving adult child of the Decedent, James Isaac Dickens, Jr. She filed a medical malpractice action against the Defendants for the wrongful death of her father. She alleged that at the time of his death, he was married to, but had long been separated from his wife Lisa; that Lisa refused to bring a wrongful death claim in her capacity as surviving spouse because she’d been separated from her husband for several years; and that she filed the action in her individual capacity as the Decedent’s sole surviving child and in the representative capacity for Lisa. The Plaintiff noted that Lisa’s failure to bring a wrongful death action within the applicable statute of limitation left her with no other adequate remedy.
The Defendants filed a motion for judgment on the pleadings, arguing that, although the Plaintiff might be entitled to share in the proceeds from any recovery in a suit, Georgia’s Wrongful Death Act barred the lawsuit due to her lack of standing. The Defendants maintained that Lisa, as the Decedent’s surviving spouse, retained exclusive standing to pursue a wrongful death claim.
After a hearing, the trial court denied the Defendants’ motion, explaining that “in consideration of the particular facts and circumstance of this case, the [c]ourt finds that [Plaintiff], as surviving child of the [D]ecedent, fits under an equitable exception to the ‘spousal standing’ rule [and] is a proper party to bring the above-captioned wrongful death action.”
This appeal followed.
The Court of Appeals Decision
Judge Elizabeth Gobeil wrote the opinion for a panel that included Presiding Judge Anne Elizabeth Barnes and Judge Todd Markle. She explained that OCGA § 51-4-2 provides, in relevant part:
(a) The surviving spouse or, if there is no surviving spouse, a child or children, either minor or sui juris, may recover for the homicide of the spouse or parent the full value of the life of the decedent, as shown by the evidence.
(b) (1) If an action for wrongful death is brought by a surviving spouse under subsection (a) of this Code section and the surviving spouse dies pending the action, the action shall survive to the child or children of the decedent.
(2) If an action for wrongful death is brought by a child or children under subsection (a) of this Code section and one of the children dies pending the action, the action shall survive to the surviving child or children.
Here, the judge noted that there was no dispute that Decedent’s surviving spouse, Lisa, was alive when her daughter filed the wrongful death action. The issue here, the judge said, was whether the trial court was authorized to exercise its equity jurisdiction to grant standing to the Plaintiff under the circumstances in this case.
Judge Gobeil said that equity jurisdiction is only available in certain circumstances. Under OCGA § 23-1-3, “[e]quity jurisdiction is established and allowed for the protection and relief of parties where, from any peculiar circumstances, the operation of the general rules of law would be deficient in protecting from anticipated wrong or relieving for injuries done.” To invoke the equity jurisdiction of a court, “a party … must first identify some legally cognizable ‘wrong’ or ‘injury’ that needs to be remedied,” the judge wrote, quoting a 2016 case.
The Court of Appeals held that the trial court impermissibly expanded the scope of the equitable exception as applied to the facts of this case — granting the Plaintiff standing to bring a wrongful death action where the surviving spouse, albeit estranged, elected not to do so.
Judge Gobeil held that no Georgia statute or case gives adult children a right to file a wrongful death action to recover damages for the death of a parent even if a surviving spouse declines to exercise his or her right to bring such an action.
Plaintiff didn’t claim or offer evidence that some external circumstance prevented Lisa from exercising her right to bring an action on her husband’s death. As a result, the Plaintiff had no identifiable injury that required a remedy, legal or equitable. The decision was reversed. Connell v. Hamon, 2021 Ga. App. LEXIS 500 *; 2021 WL 4841043 (Ga. App. October 18, 2021).
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