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"FlowersWhen it comes to a lawsuit for Georgia wrongful death damages, the Georgia
statute has created a potential conflict between the decendent’s
spouse and the deceased’s children. Despite the conflict, the courts
have held firm to their decision to enforce the statute as written, making
only a single exception in a situation that truly had created an outrageous result.

If someone is killed in Newnan, Georgia, for example, then the spouse has
the right to bring a
Newnan wrongful death lawsuit. The children have no right to sue – according to the Georgia statute,
O.C.G.A. § 51-4-2, the suit belongs to the spouse. The Supreme Court extended this holding
even to situations where the spouse refused to sue, stating that the only
remedy for the children would be to sue the spouse who had failed to bring
suit on their behalf. The court explained that the right to sue “adequately
protects any property interest that children might have in an action for
a parent’s wrongful death.” The Georgia wrongful death statute
“created a procedure intended to enable children to share in any
proceeds of such an action,” but not “in control of such an
action.” The Court found that the legislature had made a constitutionally
adequate decision given this “delicate and emotional area of the
law.”
O’Kelley v. Hosp. Auth., 256 Ga. 373, 374 (Ga. 1986). The O’Kelley case involved a Fulton
County wrongful death lawsuit.

The Supreme Court made a small exception to the rule in Brown v. Liberty
Oil & Ref. Corp., 261 Ga. 214, 215-216 (Ga. 1991), a Colquitt County
wrongful death lawsuit. In Brown, a woman had been killed in a Colquitt
County tractor-trailer wreck, in which her car was struck by a large,
tractor-trailer being operated by an employee of the Liberty Oil company.
The husband abandoned the couple’s children after the car accident,
and could not be found to bring suit (the children also argued that he
was unwilling to bring suit), so the woman’s children sued for her
wrongful death. The trial court dismissed the claim, reasoning that under
Mack, the husband was entitled to make a choice not to sue, and since
the husband was alive here, the fact that he had not sued was tantamount
to a decision not to sue, so the children had no right to bring a wrongful
death suit The Supreme Court overruled prior cases Mack v. Moore, 256
Ga. 138, 138-139 (Ga. 1986) (see discussion in yesterday’s blog
entry, )and O’Kelley to the extent those cases supported the trial
court’s ruling, concluding that the trial court should have exercised
its equitable powers to preserve the wrongful death claim. (For discussion
about Mack, see
Georgia’s Wrongful Death Statute: Conflict Between the Spouse and
the Children
).

Our Constitution vests general equitable powers in the superior court.
We hold that the factual circumstances of this case demand the exercise
of those powers to preserve the rights of the minor children. The trial
court should have allowed these minors, who have no remedy at law, to
maintain an action for the wrongful death of their mother. Any contrary
holding in Mack, supra, and in O’Kelley, supra, is overruled.

Brown v. Liberty Oil & Ref. Corp., 261 Ga. 214, 215-216 (Ga. 1991).

Although the court did make a limited exception in Brown, the courts have
shown no inclination to expand the exception to cover other occasions
where the spouse fails to represent the children properly: “[T]he
general rule still applies: the surviving spouse has exclusive standing
to bring a wrongful death action. The only exception to this rule arises
“[i]n rare circumstances” . . . in the limited context of
a superior court exercising its equitable powers to allow the surviving
children with no remedy at law under certain circumstances to pursue a
wrongful death claim.” Blackmon v. Tenet Healthsystem Spalding,
Inc., 288 Ga. App. 137, 146 (Ga. Ct. App. 2007), overruled on other grounds
by 284 Ga. 369, 667 S.E.2d 348 (2008).