Health Law and Regulation Update Blog Post by Eric Frisch.

The Georgia Court of Appeals reversed the denial of a motion for judgment on the pleadings, holding that an adult child does not have standing to sue for wrongful death when the decedent’s spouse is alive but estranged. Plaintiff is the adult child of the decedent, who was married but estranged from his spouse. Defendants moved for judgment on the pleadings on the grounds that the adult child lacked standing to sue under the Wrongful Death Act. Plaintiff countered that the trial court could act in equity to recognize the rights of the adult child under the ‘equitable exception’ to the ‘spouse standing’ rule. The trial court agreed.

In reversing, the Court of Appeals went through the jurisprudence of the ‘equitable exception’ for standing to sue under the Wrongful Death Act. First, the Court noted that a wrongful death claim in Georgia is entirely a creature of statute and in derogation of common-law, meaning that the statute is strictly construed with no exceptions. The Court then described the limited circumstances when equity will intervene, typically in the case of minor children of a decedent whose surviving spouse abandoned them and could not be located.

In this case, there was no evidence the surviving spouse had abandoned the adult child or that they could not be located. Rather, the decedent and spouse were simply estranged and the statute clearly gives the right to the surviving spouse to elect not to pursue the claim, even over the protests of an adult child. The Court ruled the trial court “impermissibly expanded” the equitable exception and reversed.

Take-home: standing in wrongful death cases matters. In some cases, it can be a challenge to figure out who the proper party is and the plaintiff may be reluctant to give details.

The case is Connell v. Hamon, __ S.E.2d ___, 2021 WL 4841043 (Ga.Ct.App. October 18, 2021).

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