Trial Attorney Blog

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)).

As mentioned in Part I, punitive damages are not available as part of the wrongful death claim. They are, however, available in connection with the estate’s claims for the decedent’s predeath injuries and pain and suffering. Donson Nursing Facilities v. Dixon, 176 Ga. App. 700, 701 (1985). Like with the wrongful death claim itself, punitive damages were not allowed under common law.  They are statutory in nature, and consequently, they are strictly construed.

The relevant statute for punitive damages under Georgia law is O.C.G.A. § 51-12-5.1. A party must specifically plead punitive damages in their complaint in order to receive them. As stated in the statue, the purpose of punitive damages is not to compensate the plaintiff, but to “punish, penalize, or deter the defendant.”  Georgia law raises the standard of proof for an award of punitive damages from the preponderance of the evidence to the higher “clear and convincing” evidentiary standard.  A plaintiff is required to prove by “clear and convincing evidence that the defendant’s actions showed willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of conscious indifference to consequences.” O.C.G.A. § 51-12-5.1(b)-(d).

There are significant differences between a Georgia punitive damages award in product liability cases and non-product liability cases. One distinction worth noting here is that while there is no limit to an award of punitive damages in a product liability case, in a non-product liability case, absent a finding that the “defendant acted, or failed to act, with the specific intent to cause harm,” or that the defendant was “under the influence of alcohol, drugs other than lawfully prescribed drugs administered in accordance with prescription,” or toxic vapor when the defendant acted, or failed to act, Georgia law places a $250,000.00 limit on any punitive damages award. O.C.G.A. § 51-12-5.1(e)-(g). When reviewing the amount awarded, although a court will “not mechanically look to the ratio between general and punitive damages to resolve the question of excessiveness,” the ratio is still a valid tool to determine “whether the jury’s award was infected by undue prejudice or bias.” Georgia Clinic, P.C. v. Stout, 323 Ga. App. 487, 494 (2013).

This is Part I of a discussion concerning what damages are available in Georgia wrongful death cases.  Part II will be published next week.

Wrongful death claims in Georgia are typically divided into two separate claims: (1) the wrongful death per se as measured by the “full value of the life of the decedent” without deducting for any of the necessary or personal expenses of the decedent had he or she lived; and (2) the estate claims, or the claims that would have accrued to the decedent had they lived and include medical expenses incurred prior to death, funeral and burial expenses, conscious pain and suffering prior to death, and punitive damages.

The “full value of the life of the decedent” is measured from the decedent’s perspective.  This is different from many other states which focus on the impact the decedent’s death has on the surviving family members/party plaintiffs. The “full value of the life” concept has two distinct components, one is economic and the other is non-economic. The economic component consists of the “items having a proven monetary value, such as lost potential lifetime earnings, income, or services, reduced to present cash value.” The non-economic portion comprises those “intangible items whose value cannot be precisely quantified, such as a parent’s “society, advice, example and counsel . . . .” Consol. Freightways Corp. of Delaware v. Futrell, 201 Ga. App. 233, 233 (1991).

Finch McCranie LLP has handled dozens of wrongful death lawsuits in Atlanta and throughout the State of Georgia for over 50 years.   When a person’s death is caused by the negligence of another person or company, the surviving family members have a legal right to file a wrongful death lawsuit.  In Georgia wrongful death cases, knowing who is entitled to sue on behalf of the deceased person (and their estate) is an important, and sometimes complicated, decision to make.

Wrongful death claims in Georgia are typically divided into two separate claims: (1) the wrongful death per se as measured by the “full value of the life of the decedent” without deducting for any of the necessary or personal expenses of the decedent had he or she lived; and (2) the estate claims, or the claims that would have accrued to the decedent had they lived and include medical expenses incurred prior to death, funeral and burial expenses, conscious pain and suffering prior to death, and punitive damages. The estate claims are filed by the estate’s Administrator or Administratix. The proper plaintiff in the Georgia wrongful death claim, however, depends on the decedent’s surviving relatives. See generally O.C.G.A. § 51-4-1 et seq.

If the decedent was married when they died, Georgia law makes the surviving spouse the proper plaintiff. Representing the spouse will be the most straightforward and advantageous scenario. The surviving spouse then brings the suit on behalf of themselves and any of the decedent’s children.  This is not limited to children born to the decedent and the surviving spouse; the Georgia code specifically includes out-of-wedlock children.  While the spouse must act prudently, absent exceptional circumstances, the spouse controls any potential action and need not consult or get permission from the decedent’s children in settling the matter, nor – again, absent exceptional circumstances – can the children pursue the claim on their own behalf. Mann v. Taser Int’l, Inc., 588 F.3d 1291, 1311 (11th Cir. 2009) (collecting Georgia cases illustrating when Georgia courts exercised their equitable powers to allow children to file, such as when “the surviving spouse is absent, disabled, has declined to pursue the claim, or has no relation by blood or law to the surviving children.”)