Case Law

Here we will discuss are two wrongful death appellate cases that show how the appellate courts analyze the complex fact patterns that we see in the real world. In Tolbert v. Maner, decided in 1999, the issue was whether the grandchild of a deceased whose parent died before the grandparent had standing to share in the proceeds of the wrongful death suit.

Dekalb Medical Center v. Hawkins, 655 S.E.2d 823, 288 Ga. App. 840 (Ga. App., 2007)

In a wrongful death case, does the grandchild of the decedent still have a claim if the parent of the grandchild died before the plaintiff decedent?

Hall v. Bailey, 560 S.E.2d 76, 253 Ga.App. 595 (Ga., 2002)

Gordon v. Atlanta Cas. Co., 611 S.E.2d 24, 279 Ga. 148 (Ga., 2005)

No. Grandma Glover died due to medical malpractice in Georgia. Glover had several children. One of those children sired Tyrone Maner. Tyrone’s father, Glover’s son, died before Glover died. Tyrone’s Aunts and Uncles agreed that Tyrone was an heir and would inherit whatever amount of the settlement for the Georgia wrongful death claim went into the Estate Claim, but claimed that Tyrone was not entitled to any of the money from the statutory wrongful death case.
This is how a wrongful death lawyer in Atlanta would analyze the case:

Wrongful death was created by the Georgia legislature and cases can only be brought under the rules laid out in OCGA § 51-4-2. That law lays out who gets to share in the money from the case:

“(a) The surviving spouse, or if there is no surviving spouse, a child or children, either minor or sui juris, may recover for the homicide of the spouse or parent the full value of the life of the decedent….


(b)(2) If an action for wrongful death is brought by a child or children … and one of the children dies pending the action, the action shall survive to the surviving child or children….


(d)(1) Any amount recovered … shall be equally divided, share and share alike, [between] the surviving spouse and the children per capita, and the descendants of children shall take per stirpes….”

That means that if married, the wife controls the wrongful death case, with proceeds to be shared with the children. It also means that if Tyrone’s dad were alive when Glover died, Tyrone would have a valid claim. But he wasn’t.  By law the funds are divided per capita (even share to each child) but Tyrone gets skipped because his link to the claim was broken before the wrongful death occurred.

If a minor child dies and the parents are divorced, do they have to share the proceeds of the wrongful death case equally?

Hall v. Bailey, 560 S.E.2d 76, 253 Ga.App. 595 (Ga., 2002)

Under OCGA 19-7-1 (c) (2) (C), parents would normally share in the proceeds 50/50. However, a parent can file a petition under OCGA 19-7-1 (c) (6) to determine the fair percentage of allocation between them if they are divorced. The Court analyzed the father’s relationship with the son as follows: “Morocco did not spend a single night with Anderson after the divorce, and Anderson did not exercise his visitation rights with the child. There was ample evidence contradicting Anderson’s claim that he did not know where Bailey and his son were living, and the trial court found that this claim lacked credibility. There was evidence that Anderson failed to maintain any significant contact with his son, failed to attend almost every important event in his son’s life, and had no meaningful relationship with him. Based on the evidence produced, we find that the trial court did not abuse its discretion by awarding 95% of the proceeds to Bailey and 5% to Anderson. Richardson v. Barber, 241 Ga. App. 254 (527 SE2d 8) (1999).”

see also Baker v. Sweat, 637 S.E.2d 474, 281 Ga.App. 863 (Ga. App., 2006);  Uniroyal Goodrich Tire Co. v. Adams, 221 Ga.App. 705, 706(1), 472 S.E.2d 518 (1996), Dove v. Carver, 197 Ga.App. 733, 735, 399 S.E.2d 216 (1990) (recognizing that a legal father could lose the right to recover for the wrongful death of his child if it is shown by clear and convincing evidence that he had abandoned the child); Ramos v. Ramos, 173 Ga.App. 30, 31-33(2), 325 S.E.2d 415 (1984) (accord).


If a child dies and the parent lives in another house, can he claim against his own Underinsured Motorist Insurance?

Gordon v. Atlanta Cas. Co., 611 S.E.2d 24, 279 Ga. 148 (Ga., 2005)

Not any more. In this case the father was divorced and the child did not live with him. The child died wrongfully and dad wanted to claim against his own underinsured motorist policy for the wrongful death. The slimy insurer argued that since the decedent did not live there and was not an insured, there was no coverage. The Court of Appeals agreed. The Supreme Court reversed finding;

“The language of the statute is plain and it is not illogical. It clearly states that the insurer is to pay “all sums which [the] insured shall be legally entitled to recover as damages from the owner or operator of an uninsured motor vehicle.”  OCGA § 33-7-11(a)(1). All means all, every single one. Since the insured in this case is entitled to recover damages for the death of his son against the owner or driver of the uninsured vehicle, he is entitled to recover those damages against his insurer.” This was the law until the legislature amended OCGA 33-7-11 and struck the “all sums language.” Now the decedent had to have been an insured at the time of death for the insurance to apply.

Can you exhaust the tortfeasor’s policy limits with the statutory wrongful death claim and pursue the Estate claim against the Underinsured Motorist Insurer’s reducing limits?

Erturk v. GEICO Gen. Ins. Co., 315 Ga.App. 274, 726 S.E.2d 757, 12 FCDR 1374 (Ga. App., 2012)

No. The Court looked at the policy language and held;

” Here, the trial court properly determined that the wrongful death claim and survival claim was limited to the per-person liability of Davis’s bodily injury liability insurance—that the depletion of $99,000 of Davis’s liability insurance by the Widow did not entitle the Estate to coverage by Cuneyt’s uninsured motorist insurance. While the claims are two separate causes of action with two different beneficiaries under the law, the wrongful death claim here does not constitute an “other claim” for purposes of triggering uninsured motorist coverage under the former OCGA § 33–7–11(b)(1)(D)(ii).11 As similarly explained by the Georgia Supreme Court in Thompson v. Allstate Ins. Co.,12 the total payments for the claims of the Estate and the Widow would not exceed the per-person liability limit of Davis’s insurance because the damage to both the Estate and the Widow “arises out of a personal injury to only one person.” 13 An opposite “construction defies both the meaning and intent of the uninsured motorist statute.” 14 Although the Estate and the Widow are collecting different damages resulting from Cuneyt’s death, it does not follow that the per-person policy limits no longer apply. Accordingly, the trial court correctly granted summary judgment in favor of Geico.”

When you are injured in a Road Rage Incident Involving a gun, Does your Uninsured Motorist Policy Insure Against Being Shot?

Abercrombie v. Georgia Farm Bureau Mut. Ins. Co., 454 S.E.2d 813, 216 Ga.App. 602 (Ga. App., 1995)

Sometimes. This case involved two drivers who got into a collision and then continued to drive down I-285 shooting at each other. One of the passengers was shot and died from the wound. His family claimed against his uninsured motorist policy for the wrongful death. The uninsured motorist insurer file a motion with the trial court claiming that because the death came from a gunshot and not the use of a motor vehicle, there was no coverage. The Court of Appeals disagreed.

“The insurer by its policy agreed to pay all sums that Abercrombie is entitled to recover from the owner or driver of the uninsured vehicle for which the owner or driver is liable, to the extent that they “result from the ownership, maintenance, or use of the ‘uninsured motor vehicle.’ ” The initial collision, when the VanAlstine vehicle hit the decedent’s vehicle, occurred as a result of the use of the vehicle. The two verbal altercations which followed resulted from and related to that improper or unintended use.”

Other cases that have examined these facts patterns have concluded that this case is stronger because it all started with a vehicle collision.

Bumpy roads made the gun go off. Payne v. Southern Guaranty Ins. Co., 159 Ga.App. 67, 282 S.E.2d 711 (1981); Southeastern Fidelity Ins. Co. v. Stevens, 142 Ga.App. 562,

Mough v. Progressive Max Ins. Co., 12 FCDR 773, 314 Ga.App. 380, 724 S.E.2d 414 (Ga. App., 2012)

Can the Parents of an Adult Child Sue the Bar that got their Son Drunk for his Wrongful Death?

Dion v. Y.S.G. Enters., Inc. (Ga., 2014)

No. The bar served the young man liquor for 8 hours and knew he would soon be driving. He left the bar and crashed, killing himself. The parents sued under general civil liability theories, claiming that  Georgia’s Dram Shop law was not the exclusive remedy. The Court said, sorry, but that law is exclusive.

” OCGA § 51-1-40 (a) provides:

The General Assembly finds and declares that the consumption of alcoholic beverages, rather than the sale or furnishing or serving of such beverages, is the proximate cause of any injury, including death and property damage, inflicted by an intoxicated person upon himself or upon another person…”

Because the driver could not have sued for his own injuries for his own drinking, the parents cannot bring the wrongful death case.

When a Mother has a Miscarriage, is there a Wrongful Death Case?

It all depends on the age of the fetus. Georgia recognizes that Feticide, the wrongful killing of an unborn child, is a crime and similarly, the courts have allowed wrongful death civil cases where the child is “quick” within the womb. For the fetus that is before the age of the quickening, the claim is only held by the mother for emotional distress and then only if there is a corresponding physical injury to the mother. See Thomas v. Carter 234 Ga. App. 384 (1998) What is strange is the logic that before quickening, the fetus must be considered part of the woman’s body but after quickening it is a separate human being. By that logic, pre-quickening the fetus being injured enough to miscarry should be injury enough to the mother. The appellate cases seem to require some sort of other physical injury to the mother aside from the miscarriage. Suffice it to say the that law is still coming into focus in this field.