O.C.G.A. § 51-4-5 (2019)

Annotations

Law reviews. - For article surveying torts law, see 34 Mercer L. Rev. 271 (1982). For survey article on wills, trusts, guardianships, and fiduciary administration, see 59 Mercer L. Rev. 447 (2007).

For note, ‘‘Piercing the Marital Veil: Interspousal Tort Immunity After Harris v. Harris,’’ see 36 Mercer L. Rev. 1013 (1985).

JUDICIAL DECISIONS Claims for wrongful death and pain and suffering are distinct. - An individual’s claim for wrongful death and an estate’s claim for the decedent’s pain and suffering are distinct causes of action. Smith v. Memorial Medical Ctr., Inc., 208 Ga. App. 26, 430 S.E.2d 57 (1993). Health plan fiduciary met burden for obtaining a preliminary injunction under Fed. R. Civ. P. 65 and 29 U.S.C. § 1132(a)(3) of ERISA as to portion of a medical malpractice settlement allocated to claims of the estate under O.C.G.A. § 51-4-5(b) for individual medical bills, but fiduciary was not entitled to a portion of the settlement allocated to decedent’s daughter for a wrongful death claim under O.C.G.A. § 51-4-2(a) because the claim belonged to the daughter and not to the estate and wrongful death statute was not preempted by 29 U.S.C. § 1144(a) of ERISA in that the statute did not sufficiently ‘‘relate to’’ the ERISA plan. Diamond Crystal Brands, Inc. v. Wallace, 531 F. Supp. 2d 1366 (N.D. Ga. 2008). Wrongful death or survival nature of section. - Insofar as subsection (b) of O.C.G.A. § 51-4-5 gives the personal representative the right to recover a deceased’s ante mortem expenses, it is not a true wrongful death provision but a mere survival statute. It is only to the extent that the subsection constitutes a provision for liability in case of funeral expenses growing out of wrongful death that it is a true wrongful death provision rather than a mere survival statute. Gay v. Piggly Wiggly S., Inc., 183 Ga. App. 175, 358 S.E.2d 468, cert. denied, 183 Ga. App. 906, 358 S.E.2d 468 (1987). Right of administrator of unborn child’s estate. - The administrator of the estate of an unborn child had standing to bring a wrongful death action on behalf of the child after it was shown that the mother of the child died in the accident and the identity of the father was un-

known. Reese v. United States, 930 F. Supp. 1537 (S.D. Ga. 1995). Subsection (b) unconstitutional to extent it permits double recovery from same party. - Since a husband is liable to furnish his wife the necessaries of life and a cause of action exists in the husband against a person who negligently causes a wife’s death for her medical, hospital, and funeral expenses by reason thereof, this section, to the extent it confers upon the wife’s administrator a right to recover for these things from the same person, deprives the defendant of the defendant’s property without due process of law in that it requires the defendant to pay one to whom the defendant is under no legal liability so to do. Complete Auto Transit, Inc. v. Floyd, 214 Ga. 232, 104 S.E.2d 208 (1958). Act which does not purport to repeal the husband’s right of action but creates an additional right of action in the personal representative of a decedent subjects the defendant to a double recovery and violates due process. Complete Auto Transit, Inc. v. Floyd, 214 Ga. 232, 104 S.E.2d 208 (1958). Subsection (a) does not permit double recovery against defendant, but rather provides that the administrator or executor of the decedent may sue for the full value of the decedent’s life, for the benefit of the next of kin, only if there is no other person entitled to sue. Garvin v. Lovett, 131 Ga. App. 46, 205 S.E.2d 124, aff ’d, 232 Ga. 747, 208 S.E.2d 838 (1974). Construction with O.C.G.A. § 19-7-1. - Court rejected a husband’s argument that as the court-appointed personal representative of his wife’s estate he was the only one vested with a cause of action for recovery of funeral, medical, and other necessary expenses resulting from his wife’s death pursuant to O.C.G.A. § 51-4-5(b); however, when there was a right of recovery under O.C.G.A. § 19-7-1,

§ 51-4-5 did not apply. Belluso v. Tant, 258 Ga. App. 453, 574 S.E.2d 595 (2002). Despite evidence of a parent’s cruel treatment of the parent’s decedent son, the trial court erred in finding that the parent forfeited parental rights, and thus lost the status as a parent and, in so doing, lost the right to recover as an heir of the decedent’s estate as the loss of parental power did not necessarily result in a parent’s loss of a right to inherit as an heir from the estate of that parent’s child, short of having the parent’s rights terminated prior to the child’s death; hence, summary judgment against the parent on the issue was reversed. Blackstone v. Blackstone, 282 Ga. App. 515, 639 S.E.2d 369 (2006). Expression ‘‘next of kin’’ needs no construction. It means what it says and does not mean a person among a group of dependents who, in comparison with all the other members of the group, is the next of kin to the decedent, though not, as against all other persons, the next of kin or nearest of kin to the decedent. Jackson v. Central of Ga. Ry., 86 Ga. App. 557, 71 S.E.2d 899 (1952). Decedent’s siblings could not, even as ‘‘next of kin,’’ maintain an action in their own name since the right of action lies with the administrator of the decedent’s estate. Walden v. John D. Archbold Mem. Hosp., 197 Ga. App. 275, 398 S.E.2d 271 (1990), but see First Christ Holiness Church, Inc. v. Owens Temple First Christ Holiness Church, Inc., 282 Ga. 883, 655 S.E.2d 605 (2008). Determining ‘‘next of kin’’ by applying descent and distribution law. - In determining who was included in the term ‘‘next of kin’’ under O.C.G.A. § 51-4-5(a), it was appropriate to employ a previous appellate decision which answered the same question by referring to the law of descent and distribution as once the courts interpret a statute, that interpretation becomes an integral part of the statute, under the laws of statutory construction. Hence, a share of the decedent’s wrongful death settlement was to be distributed, per stripes, to the children of decedent’s deceased siblings. Stewart v. Bourn, 250 Ga. App. 755, 552 S.E.2d 450 (2001).

Nonresident alien parents of decedent entitled to bring action. - Because nonresident alien parents of a decedent were entitled to bring an action under O.C.G.A. § 51-4-4, an administratrix did not have standing to pursue the action under O.C.G.A. § 51-4-5. Auto Doors, Inc. v. Zivoluba, 277 Ga. App. 288, 626 S.E.2d 256 (2006). This statutory provision expressly authorizes administrator to bring suit for homicide when circumstances exist as enumerated in the statute; the action is one purely at law, sounding in tort. Dowell v. Pollard, 182 Ga. 792, 187 S.E. 25 (1936). Temporary administrator is authorized to maintain suit provided for under this section. Wilson v. Pollard, 190 Ga. 74, 8 S.E.2d 380 (1940). The representative of a parent’s estate is not authorized to bring an action for wrongful death of the parent’s minor child if there is a surviving parent or other person entitled to bring it. Hosley v. Davidson, 211 Ga. App. 529, 439 S.E.2d 742 (1993). Wrongful death action not barred by prior personal injury recovery. - The fact that there had been a prior recovery for a child’s personal injury claim and the father’s claim for medical and rehabilitation expenses did not extinguish the right of the father to pursue a wrongful death action arising from the subsequent death of the child allegedly due to the original injuries. Winding River Village Condominium Ass’n v. Barnett, 218 Ga. App. 35, 459 S.E.2d 569 (1995). Subsection (b) not retroactive in effect. - Statute authorizing recovery of medical and funeral expenses by the personal representative of the estate in cases of wrongful death and statute providing for survival of causes of action confers upon personal representative a new substantive right and is not remedial only. Statute therefore may not be given a retroactive effect so as to apply to the estate of one who died prior to its passage. Biddle v. Moore, 87 Ga. App. 524, 74 S.E.2d 552 (1953). Wrongdoer should not profit from wrongs. - In a wrongful death action, when the surviving spouse, who was the

wrongdoer responsible for the spouse’s death, cannot bring the action, the cause of action belongs to the decedent’s parent and a court erred in refusing to use its equitable powers to allow the decedent’s parent to sue on behalf of the parent’s daughter. Belluso v. Tant, 258 Ga. App. 453, 574 S.E.2d 595 (2002). Statutory right to bring an action for wrongful death. - After the Georgia Supreme Court concluded that because the police officer, as the son’s wife and murderer, was precluded from recovery, the son’s mother had standing to assert claims for her son’s wrongful death and funeral expenses under Georgia law; therefore, the district court erred by dismissing the mother’s state law claims. Carringer v. Rodgers, 331 F.3d 844 (11th Cir. 2003). Under the plain language of O.C.G.A. § 51-4-2(a), the decedent’s son had the right to bring a wrongful death action for the father’s death and a wrongful death claim brought by the administrator of the decedent’s estate was properly dismissed. King v. Goodwin, 277 Ga. App. 188, 626 S.E.2d 165 (2006). Medical malpractice action subject to limitations under O.C.G.A. § 9-3-71(a). - Because the evidence presented on appeal adequately showed that the decedent estate’s claim filed by the personal representative under O.C.G.A. § 51-4-5 was filed two months after the two-year statute of limitation under O.C.G.A. § 9-3-71(a) expired, despite the application of O.C.G.A. § 9-3-92, the trial court properly dismissed the claim as time-barred. Goodman v. Satilla Health Servs., 290 Ga. App. 6, 658 S.E.2d 792 (2008). When right of action in case lies with administratrix, minority of decedent’s next of kin does not toll applicable statute of limitations. Deloach v. Emergency Medical Group, 155 Ga. App. 866, 274 S.E.2d 38 (1980). In action under this section, suit is on behalf of decedent’s next of kin, not the estate, and former Code 1933, § 3-803 (see now O.C.G.A. § 9-3-92) did not and cannot have application to a case when the decedent’s estate is in no wise interested or concerned. Deloach v. Emer-

gency Medical Group, 155 Ga. App. 866, 274 S.E.2d 38 (1980). Former Code 1933, § 3-803 (see now O.C.G.A. 9-3-92), providing for the tolling of the statute of limitations in favor of an ‘‘estate’’ during the time between the death of a person and representation on the person’s estate, had no application to a suit for damages brought by an administrator under former Code 1933, §§ 105-1309 and 105-1310 (see now O.C.G.A. § 51-4-5) to recover for benefit of a dependent next of kin of the deceased, since the action was one in which the estate was nowise interested or concerned, but under the statute the parties interested were permitted merely to use the name of the administrator in bringing the suit. Patellis v. King, 52 Ga. App. 118, 182 S.E. 808 (1935). In action under this section, administrator or executor of decedent may sue for and recover and hold amount recovered for benefit of next of kin. Deloach v. Emergency Medical Group, 155 Ga. App. 866, 274 S.E.2d 38 (1980). In suit brought by administrator for benefit of designated relatives, recovery does not become part of estate of deceased, the administrator in bringing the suit acting merely as a quasi-trustee or nominal party for those entitled to the fund, and the administrator’s only duty on receipt of the proceeds of recovery being to pay them to the proper beneficiaries. Patellis v. King, 52 Ga. App. 118, 182 S.E. 808 (1935). Amounts recovered not subject to debts of estate. - An action by an administrator is not brought by the administrator as such, but the administrator’s name and office are merely lent to the beneficiary for the purpose of enforcing the individual rights of the latter, and not for the purpose of recovering a claim owing to the estate; the amount of the recovery is, therefore, not subject to debts owed by the decedent, and in the recovery the estate as such has no claim right or concern. Patellis v. King, 52 Ga. App. 118, 182 S.E. 808 (1935). Funeral and burial expenses. - The administrator of the estates of a parent and the parent’s minor child was the proper party to bring an action for funeral

and burial expenses of the decedents. Hosley v. Davidson, 211 Ga. App. 529, 439 S.E.2d 742 (1993). Adequacy of damages. - A verdict for less than the amount of the plaintiff ’s proved medical expenses is not so inadequate as to require a new trial when there was testimony showing that the plaintiff ’s complaints were at least partially related to the plaintiff ’s physical condition prior to the collision. Trowell v. Weston, 154 Ga. App. 572, 269 S.E.2d 74 (1980). Cited in Thompson v. Watson, 186 Ga. 396, 197 S.E. 774 (1938); Bloodworth v. Jones, 191 Ga. 193, 11 S.E.2d 658 (1940); Montgomery v. Southern Ry., 78 Ga. App. 370, 51 S.E.2d 66 (1948); West v. Mathews, 104 Ga. App. 57, 121 S.E.2d 41 (1961); Winston v. City of Austell, 123 Ga. App. 183, 179 S.E.2d 665 (1971); Cohn v.

Combs, 126 Ga. App. 292, 190 S.E.2d 546 (1972); Isom v. Schettino, 129 Ga. App. 73, 199 S.E.2d 89 (1973); Williams v. Ray, 146 Ga. App. 333, 246 S.E.2d 387 (1978); Parham v. Hughes, 441 U.S. 347, 99 S. Ct. 1742, 60 L. Ed. 2d 269 (1979); DeLoach v. Floyd, 160 Ga. App. 728, 288 S.E.2d 65 (1981); McQurter v. City of Atlanta, 572 F. Supp. 1401 (N.D. Ga. 1983); Lucas v. Bob Hurst Mazda-Peugeot Autos., 174 Ga. App. 212, 329 S.E.2d 593 (1985); Cole v. Roberts, 648 F. Supp. 415 (M.D. Ga. 1986); Jones v. Jones, 184 Ga. App. 709, 362 S.E.2d 403 (1987); Gilmere v. City of Atlanta, 864 F.2d 734 (11th Cir. 1989); Bryant v. Browning, 259 Ga. App. 467, 576 S.E.2d 925 (2003); Alvista Healthcare Ctr. v. Miller, 286 Ga. 122, 686 S.E.2d 96 (2009).

RESEARCH REFERENCES Am. Jur. 2d. - 22A Am. Jur. 2d, Death, § 279 et seq. C.J.S. - 25A C.J.S., Death, §§ 176-178. ALR. - Measure of damage for death where recovery is based upon loss to decedent’s estate, 26 ALR 593, 163 ALR 253. Right of foreign domiciliary, or of ancillary, personal representative to maintain an action for death, under statute of the forum which provides that the action shall be brought by the personal representative, 65 ALR 563; 52 ALR2d 1048. Delay in procuring appointment of personal representative of deceased or of person causing his death in event of latter’s death, as extending period for bringing an action for death, 70 ALR 472. Right of foreign domiciliary, or of ancillary, personal representative to maintain action for death under Federal Employers’ Liability Act, 73 ALR 593; 163 ALR 1284. Right of action for death, where deceased left no next of kin, or person within class of beneficiaries named in the statute creating the right of action, 117 ALR 953. Kind of verdict or judgment, or verdicts or judgments, where administrator or executor whose decedent was negligently killed brings an action which combines a cause of action for benefit of estate and another for statutory beneficiaries, 124 ALR 621.

Action against spouse or estate for causing death of other spouse, 28 ALR2d 662. Capacity of local or foreign personal representative to maintain action for death under foreign statute providing for action by personal representative, 52 ALR2d 1016. Capacity of foreign domiciliary, or of ancillary, personal representative to maintain action for death, under statute of forum providing for action by personal representative, 52 ALR2d 1048. Power and responsibility of executor or administrator as to compromise or settlement of action or cause of action for death, 72 ALR2d 285. Tolling or interruption of running of statute of limitations pending appointment of executor or administrator for tort-feasor in personal injury or death action, 47 ALR3d 179. Recovery, in action for benefit of decedent’s estate in jurisdiction which has both wrongful death and survival statutes, of value of earnings decedent would have made after death, 76 ALR3d 125. Effect of death of beneficiary upon right of action under death statute, 13 ALR4th 1060. Effect of settlement with and acceptance of release from one wrongful death beneficiary upon liability of tortfeasor to

other beneficiaries or decedent’s personal representative, 21 ALR4th 275. Assignability of proceeds of claim for personal injury or death, 33 ALR4th 82. Recovery of damages for grief or mental

anguish resulting from death of child - modern cases, 45 ALR4th 234. Effect of death of beneficiary, following wrongful death, upon damages, 73 ALR4th 441.