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"Grief,Under Georgia law, a suit for wrongful death is considered to be in a “statutory
creation” that is “in derogation of the common law”
and so courts “strictly construe” it.

Those words are fancy lawyer lingo, and I will give you the
Georgia wrongful death lawyer translation.

The wrongful death law is a “statutory creation” because for
a long time, Georgia law had no such thing as wrongful death lawsuits.
Now, however (and “now” is a relative term that means any
time after a really, really long time ago), the legislature has provided
that if someone is killed wrongfully, the survivors can sue for the loss of life.

The wrongful death statute is “in derogation of the common law”,
which means it is “new” (again, new is a relative term that
could mean “only” 100 years old or so).

Because the law is new, courts “strictly construe” the statute.
Again, giving you a personal injury lawyer and wrongful death lawyer interpretation,
that means that the courts will not read one single thing extra into the
law; the statute will be read as is, even if it does not make sense in
a particular context. And unfortunately, the statute does not always make
sense. For example, in the early wrongful death statutes, the legislature
did not include a provision that illegitimate children could be included
in the recovery. Even if the decedent had been supporting his illegitimate
child, the child could not recover for the loss of the earnings that had
been sustaining him. Eventually the legislature added a provision that
children born out of wedlock were considered “children”.
O.C.G.A. § 51-4-2(f). We will discuss another way that this statute does not make sense in
my next blog entry.

The statutes that provide for a wrongful death lawsuit are complicated.
Under the law, the surviving spouse has the right to bring the wrongful
death suit. O.C.G.A. § 51-4-2(a). So long as the spouse is alive,
the children of the decedent cannot sue. If the spouse is not alive, the
children can sue to recover for his wrongful death. If the decedent does
not have a living spouse or child, his estate can sue for his wrongful death.

If the decedent only had one or two children, then the wife and each child
split the money evenly. However, if the decedent had more than two children,
the surviving spouse is entitled to a minimum of 1/3 of the recovery from
the wrongful death lawsuit. O.C.G.A. § 51-4-2(d).

Although only the spouse has the right to bring the lawsuit, that fact
does not change the allotment between the children and the spouse. If
the spouse brings the lawsuit and receives money as a result, the spouse
holds the money she received in trust for the child or children. O.C.G.A.
§ 51-4-2(c).

Many people consider a wrongful death lawsuit to be just a part of a Georgia
personal injury lawsuit. They see that the serious injuries led to the
death, and they assume the cases are the same.

In fact, however, under Georgia law a wrongful death lawsuit is distinct
from the personal case:

[A]n individual’s claim for wrongful death and an estate’s
claim for the decedent’s pain and suffering are distinct causes
of action. . . . The plaintiff in his individual capacity and in his capacity
as administrator are legally different persons.
Stiltjes v. Ridco Exterminating Co., 197 Ga. App. 852, 853 (399 S.E.2d 708) (1990), aff’d 261 Ga. 697
(409 S.E.2d 847) (1991).

Smith v. Mem’l Medical Ctr., 208 Ga. App. 26, 27-28 (Ga. Ct. App. 1993). See also Forrester v. Southern
R. Co., 268 F. Supp. 194, 196-197 (N.D. Ga. 1967) (“As a general
rule, a statutory action for wrongful death in Georgia has been considered
a separate cause of action. For example, a statutory action for the wrongful
death of an individual has been held to be distinct from a common law
action for pain and suffering.”).

If you have a wrongful death lawsuit and need to talk to a law firm about
what to do, contact us at The Wallace Law Firm, L.L.C.


Lee’s peers have named her a Georgia SuperLawyer every year for two decades.