Can Surviving Children File a Wrongful Death Suit in Georgia?

Legal Alert

November 29, 2021

Surviving spouses retain exclusive standing to bring a wrongful-death lawsuit. That’s the ruling passed down by the Georgia Court of Appeals last month in Connell et al v. Hamon.

After James Isaac Dickens, Jr. died of a stroke, his sole surviving child, Diane Dickens Hamon, brought a wrongful death action against Dickens’s doctor and medical group. Notably, Dickens had been separated and estranged from his wife, who declined to file the wrongful death action in her capacity as surviving spouse because of their years long separation. With her mother refusing to file the suit, Hamon argued that she was left with no other adequate remedy and that the case fit within the “equitable exception” to Georgia’s Wrongful Death statute’s standing law.

In Georgia, there is no common law right to file a claim for wrongful death; the claim is entirely of statutory creation. As such, plaintiffs seeking to file must satisfy the standing requirements of Georgia’s Wrongful Death Act, O.C.G.A. § 51-4-1, et seq. This law gives the exclusive right to bring such a claim to the surviving spouse if there is a surviving spouse. However, for other civil actions, the General Assembly has provided “fallback” standing exceptions, allowing a person without standing to bring suit when the person with proper standing fails to sue. Hamon argued that the trial court was permitted to apply this “fallback” exception to the Wrongful Death standing statute through the use of the trial court’s equitable powers.

The Court of Appeals disagreed. While trial courts have equitable authority, this power has limits. As the Court observed: “[a]lthough equity does seek to do complete justice, it must do so within the parameters of the law.” Keeping on trend with the appellate judiciary’s recent strict textualist approach to statutory interpretation, the Court of Appeals held that because the legislature did not specifically include this exception within the Wrongful Death statute, the trial court abused its discretion in doing so. “Even where there are compelling circumstances, we cannot ignore the plain language of the statute and rewrite it to suit the facts of a particular case,” the judges wrote. “The right to make such revisions or amendments is placed in the hands of the legislature, not the courts.”

While state law does require surviving spouses to respect the rights of children when they file wrongful death actions and share the proceeds in any recovery, the Court of Appeals reaffirmed that the exclusive right to sue, settle, and release defendants from liability belongs to the surviving spouse if one exists. This case serves as a reminder that just because someone is a beneficiary under the Wrongful Death Act doesn't mean they are entitled to bring a claim.

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