In Hamon v. Connell, the Georgia Supreme Court was presented with an interesting question: can an adult child bring a wrongful death lawsuit if the widow refuses to bring a claim?
Facts of Hamon v. Connell
The petitioner is the only surviving child of the decedent. She brought a medical malpractice lawsuit alleging she is entitled to compensation for the wrongful death of her father under O.C.G.A 51-4-2, the Georgia wrongful death statute. Her father was married at the time of his death but had been separated and estranged from his spouse. The estranged spouse did not file a wrongful death claim on behalf of her husband due to their separation, which prevented the petitioner from accessing the court to file her claim. Therefore, the petitioner had to bring the claim herself to prevent it from being time-barred by the two-year statute of limitations.
The malpractice defendants filed a motion to dismiss, arguing only the surviving spouse had the standing to bring the claim under the Georgia wrongful death statute. The trial court found that due to the specific circumstances of this case, it had the power to allow the appellant to bring a wrongful death claim. The trial court limited its ruling to the particular facts of this case, but the judge understandably believed that it was the only path to justice.
The appellees appealed the trial court’s order, and the Georgia Court of Appeals reversed the trial court’s ruling. The Georgia Court of Appeals ruled that woman, being an adult and not a minor child, had no standing to bring the wrongful death claim and that the trial court did not have the equitable powers to protect her claim. The daughter applied to the Georgia Supreme Court.
Plaintiff’s Argument on Appeal
Plaintiff’s malpractice lawyer agreed that under normal circumstances, the right to bring a wrongful death action belongs to the surviving spouse according to O.C.G.A. § 51-4-2(a). However, there are exceptions to the possible claimants under the Georgia wrongful death statute when the surviving spouse is unwilling or unable to bring the action. In such cases, a court of equity may provide an exception to the wrongful death statute and authorize children or others to bring the case. This allows the legal rights of all heirs to be protected, not just the rights of the surviving spouse.
The plaintiff cited the same equitable principles that the trial court did that permit trial courts to depart from the statutory scheme and to authorize others to bring a wrongful death action have been established for over a quarter of a century.
The plaintiff’s lawyer relied on Georgia cases to support this premise, most notably Brown v. Liberty Oil & Refining Corp. In that case, children were permitted to bring a claim for the wrongful death of their mother, even if she had a surviving husband who had abandoned the children. In another case, Blackmon v. Tenet HealthSystem Spalding, this common sense equity was applied where the husband was incarcerated. So the plaintiff’s attorney argued that these cases extend to all children who have no remedy at law, not just minor children.
So the crux of the argument is that the surviving spouse is not the sole party with a legal stake in the recovery, even under normal circumstances. While the statute outlines the order of priority for litigation control, it does not suggest that the recovery solely belongs to the party with the right to sue. Instead, the recovery is reserved for distribution among heirs according to O.C.G.A. § 51-4-2(d), O.C.G.A. § 19-7-1(c)(2)(C), or O.C.G.A. § 51-4-5(a). The individual with the legal right to sue acts in a fiduciary capacity for other heirs. In a wrongful death case, the surviving spouse serves as the children’s representative and is obligated to act with prudence when asserting, prosecuting, and settling the claim, acting in good faith. If the widow refuses to take that role, other beneficiaries can and should step up.
Malpractice Defendants’ Argument on Appeal
The malpractice defendants argued that the equitable exception only applies in specific circumstances, such as when the deceased’s surviving spouse refuses to bring a wrongful death claim and effectively abandons any minor children of the decedent, or if the surviving spouse was responsible for the decedent’s death.
However, the appellant in this case is an adult child of the decedent, and the surviving spouse is not alleged to have caused the death. Therefore, the defense attorneys argued that the equitable exception does not apply in this case.
The defendants noted that Georgia law specifically criminalizes the abandonment of children, and it only applies when the father or mother does not furnish sufficient food, clothing, or shelter for the child’s needs. So they argue that since there is no allegation that the estranged widow in this case has left the adult daughter in a dependent condition, she cannot be considered abandoned by the surviving spouse.
The Georgia Wrongful Death Statute
In Georgia, the beneficiaries of a wrongful death action are determined by statute. Under O.C.G.A. § 51-4-2, the deceased person’s surviving spouse is considered the primary beneficiary and has the right to bring a wrongful death action. If there is no surviving spouse, the deceased person’s surviving children may bring the action.
If the deceased person has no surviving spouse or children, then the right to bring the wrongful death action passes to the surviving parents of the deceased person. If the deceased person has no surviving spouse, children, or parents, then the right to bring the action passes to the personal representative of the deceased person’s estate.
Georgia Supreme Court’s Ruling
The Supreme Court of Georgia found no basis in the relevant case law to distinguish between minor and adult children with regard to the right of recovery for wrongful death. The court noted that the wrongful death statute gives an unqualified right of action “upon the sole ground of [the] relationship existing between parent and child” and that the question of dependency is “absolutely immaterial.” Therefore, the court held that the same language in the statute supports the notion that no distinction may be drawn between minor and adult children concerning the right of recovery for wrongful death.
Accordingly, the court found that the Georgia Court of Appeals erred in reversing the trial court’s denial of the appellees’ motion for judgment on the pleadings because the daughter’s complaint did not disclose with certainty that she would not be entitled under Brown to pursue her wrongful death claim “under any state of provable facts.” Therefore, Brown’s equitable principles apply to minor and adult children of a decedent, allowing them to pursue a wrongful death claim when the surviving spouse refuses to do so.