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"FlowersOn January 15, 2012, I posted on “Who Can Bring a Wrongful Death Lawsuit Under Georgia Law?” In that blog entry, I talked about Georgia wrongful death law.

I mentioned that the courts “strictly construe” the Georgia
wrongful death statute because it is “in derogation of common law.”
You can look back at that entry to read more about what that phrase means,
but essentially it means that way back when, there was no lawsuit for
“wrongful death.” The reason that you have the ability to
sue for wrongful death is because the legislature passed statutes saying
you could do so. Since the statute was created by the legislature, the
courts read it exactly as it is written – even if the statute ends
up making no sense in a particular case. In my earlier personal injury
lawyer blog entry, I mentioned the fact that the legislature had to add
a provision that allowed illegitimate children to sue under the statute;
originally the statute had not specifically provided for an illegitimate
child, and the courts had read the statute very strictly.

O.C.G.A. § 51-4-2(a), the legislature provided that the person who could bring a wrongful
death claim is the surviving spouse. The provision was challenged –
why couldn’t the children bring the suit instead? — but the
Supreme Court found that the legislature’s decision to let the suit
belong to the surviving spouse, was rational. The Court explained that
the general law regarding the duties of representatives adequately protected
the children from wrongdoing by the spouse.
Mack v. Moore, 256 Ga. 138, 138-139 (Ga. 1986).

Mack, the daughter of a decedent had brought a
DeKalb County wrongful death lawsuit. The surviving spouse moved to dismiss the daughter’s suit. The
daughter argued that there was “a basic unfairness because the children
of the deceased are at the mercy of the spouse,” and pointed out
that “the surviving spouse could settle the claim unreasonably or
even refuse to assert a claim at all thereby precluding any benefits to
the children.”

Mack court disagreed, finding that the fact that the statute gave the spouse
standing to bring the suit, “does not vest in the spouse all of
the rights to the claim.” Since the spouse must share the proceeds
with the children, “the spouse acts not solely as an independent
party but rather as an individual and as the representative of the children.”
The spouse owes the children a duty, “and part of that duty is to
prudently in asserting, prosecuting and settling the claim.” The
court suggested that if the spouse failed to act prudently, the children
might have a suit against her “for breach of duty as a representative.”

The rule can create a very unfair situation, as the Decatur wrongful death
lawyer in that particular case argued on behalf of the daughter Ms. Mack.
Often a new spouse will not get along with the children of a prior marriage,
and will not act to protect them. If she chooses to bring suit, then at
least there will be some amount of money from which they can recover.
But if the spouse chooses not to sue at all, then the children have no
right to sue themselves – and unless the widow is independently
wealthy, the children may have no remedy at all


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