This post will deal with the tolling of claims due to death and up until the appointment of an administrator. Remember, a wrongful death action consists of two categories of claims: those that belong to the decedent’s survivors and consists of the “full value of the life of the decedent,” and those that belong to the estate and include medical expenses incurred prior to death, funeral and burial expenses, conscious pain and suffering prior to death, and punitive damages. For calculating the limitations period for the estate’s claims, Georgia law allows for up to five years to pass between the decedent’s death and the appointment of an administrator. This potential five-year tolling period applies only to the estate’s claims; the claim for the “full value of the life of the decedent” is subject to Georgia’s two-year personal injury statute of limitations (even if the death arose out contract claim). O.C.G.A. §§ 9-3-33; 9-3-92. Consequently, while the law allows for a delay in prosecuting the estate’s claims to appoint an administrator, that time is not unlimited and is, of course, still subject to any statute of repose.
Goodman v. Satilla Health Servs., Inc., 290 Ga. App. 6 (2008) offers an example of how Georgia’s tolling statute due to death works in practice and in conjunction with other applicable statutes of limitations. Goodman involved a medical malpractice action that arose out of a misdiagnosis. In most misdiagnosis cases, the injury begins immediately upon the misdiagnosis; the misdiagnosis itself is the injury, and not the subsequent discovery of the proper diagnosis. Therefore, the fact that the patient did not know the medical cause of her suffering does not affect the applicability of O.C.G.A. § 9-3-71(a). While there was a dispute about when the misdiagnosis occurred, the date most favorable to the estate, and ultimately used given the procedural posture of the case, was June 22, 2001. The decedent then died six months later on December 23rd. Upon death, the law automatically tolled the two-year limitations on the estate’s claims until an administrator was appointed, roughly a year later, on November 8, 2002, at which point, the two-year limitations period began to run again. The estate then waited another 20 months before filing suit, i.e., 26 months after the date of the injury minus the tolling period. But by then, the two-year statute of limitations had run, and the estate’s claims were barred by the statute of limitations. Goodman, 290 Ga. App. at 6-9 (citations omitted).
Under Georgia law, only the appointment of a permanent administrator capable of asserting claims on behalf of the estate will end the legal tolling period. Thus, obtaining counsel or seeking expert advice or taking other actions that might be consistent with the role of an administrator will not act to implicitly wave any statute of limitations. It is the date that a permanent administrator is appointed that controls and not some amorphous timeframe based on when a defendant could theoretically allege a person was effectively acting as the administrator. Hayes v. Hines, 347 Ga. App. 802, 807-08 (2018); Goodman v. Satilla Health Servs., Inc., 290 Ga. App. 6, 9 (2008); Walden v. John D. Archbold Mem’l Hosp., Inc., 197 Ga. App. 275, 279–80 (1990) (disapproved of by First Christ Holiness Church, Inc. v. Owens Temple First Christ Holiness Church, Inc., 282 Ga. 883 (2008)).