Survival of injury claims and estate actions after a Georgia truck crash

Nonabatement and survival of tort claims under O.C.G.A. 9-2-41

The heading of Section 9-2-41 reads "Nonabatement of tort actions; survival of cause; no punitive damages against representative." The first clause of Section 9-2-41 provides that no action for a tort abates by the death of either party "where the wrongdoer received any benefit from the tort complained of." That clause reaches tort actions generally, including those arising from truck crashes, but only where the wrongdoer received a benefit from the tort.^[1]

A second clause in Section 9-2-41 contains no benefit condition. Under it, no action or cause of action for damages for homicide abates by the death of either party, and the same holds for damages for injury to the person and damages for injury to property. A truck accident suit comes within this clause only when it seeks damages "for homicide, injury to the person, or injury to property" as the statute words them.^[1]

Section 9-2-41 next directs where a surviving claim goes. In case of the death of the plaintiff, such as a person injured in a truck crash, and in the event there is no right of survivorship in any other person, the cause of action "shall survive to the personal representative of the deceased plaintiff." In case of the death of the defendant, the cause of action survives against the personal representative of that defendant. When a truck driver named as a defendant dies, Section 9-2-41 provides that a cause of action it keeps from abating survives against the driver's personal representative.^[1]

The history line on the official code page traces Section 9-2-41 to Orig. Code 1863, Section 2909. That history line also lists Ga. L. 1952, p. 224, Section 1, as its final entry. Court decisions decide how terms such as injury to the person and right of survivorship apply to particular claims, including claims after truck crashes, and this entry does not cover those decisions.^[1]

Death of the wrongdoer before suit and the bar on punitive damages

The final sentence of Section 9-2-41 addresses a wrongdoer who dies before any suit. In the event of the death of the wrongdoer before an action has been brought against him, the personal representative of the wrongdoer, in that capacity, "shall be subject to the action just as the wrongdoer himself would have been during his life." The same sentence adds a proviso that "there shall be no punitive damages against the personal representative." Where a truck driver alleged to be the wrongdoer dies before an action is brought against him, Section 9-2-41 places the driver's personal representative in that position, with no punitive damages against the representative.^[1]

The general rule earlier in Section 9-2-41 refers to "the death of the defendant," and under it the cause of action survives against the defendant's personal representative, whether that defendant is a truck driver or another party. The later rule covers "the death of the wrongdoer before an action has been brought against him," and the proviso barring punitive damages appears in that later rule. In a truck accident claim, the wording of Section 9-2-41 thus ties the punitive damages bar to the personal representative of a wrongdoer who died before suit.^[1]

Recovery by the administrator, executor or personal representative under O.C.G.A. 51-4-5

Section 51-4-5(a) applies "When there is no person entitled to bring an action for the wrongful death of a decedent under Code Section 51-4-2 or 51-4-4." In that situation, the administrator or executor of the decedent may bring an action, and may recover and hold the amount recovered for the benefit of the next of kin. In any such case, the amount of the recovery is "the full value of the life of the decedent." Subsection (a) thus reaches a death from a truck crash only when no person holds an entitlement to sue under Code Section 51-4-2 or 51-4-4.^[6]

Section 51-4-5(b) provides a separate recovery. When death of a human being results from a crime or from criminal or other negligence, the personal representative of the deceased person is entitled to recover for funeral expenses and medical expenses. Subsection (b) also allows recovery of "other necessary expenses resulting from the injury and death of the deceased person." For a death following a truck accident, this expense recovery depends on a death caused by a crime or by criminal or other negligence. Subsection (b) names the personal representative of the deceased person as the one entitled to these expenses, including after truck crashes that meet that condition.^[6]

The earliest entry in the history line on the official code page for Section 51-4-5 is Ga. L. 1924, p. 60. The last entry in that history line is Ga. L. 1985, p. 1253, Section 3. Section 51-4-5 is part of Chapter 4 (Wrongful Death) of Title 51, which the official code hierarchy shows also contains Section 51-4-2.^[6][5]

Survival of a pending wrongful death action under O.C.G.A. 51-4-2(b)

Section 51-4-2(b) addresses a wrongful death action brought under subsection (a) of Section 51-4-2 when a party bringing it dies. Under Section 51-4-2(b)(1), if a surviving spouse brings the action and the surviving spouse dies pending the action, "the action shall survive to the child or children of the decedent." Under Section 51-4-2(b)(2), if a child or children bring the action and one of the children dies pending the action, the action survives to the surviving child or children. These rules reach a wrongful death action arising from a truck crash only when a surviving spouse or children brought it under subsection (a).^[5]

Section 51-4-2(b)(3) applies if there is no surviving spouse and a minor child or minor children bring the action under subsection (a), including an action over a truck accident. In that case, "the natural guardian, guardian, or next friend of any such minor child" is required to qualify as a conservator if necessary to receive payment of the settlement. That person then holds and uses the settlement for the benefit of the minor and is accountable for it as provided in Code Section 29-3-1. The same person is also required to obtain court approval of the settlement of the minor child or minor children as provided in Code Section 29-3-3.^[5]

Under Section 51-4-2(e), no recovery had under subsection (a) "shall be subject to any debt or liability of the decedent or of the decedent's estate." For a wrongful death recovery under subsection (a) after a truck accident, that provision keeps the recovery apart from the decedent's debts and from liabilities of the estate. Section 51-4-2 is part of Chapter 4 (Wrongful Death) of Title 51.^[5]

Time without estate representation under O.C.G.A. 9-3-92

The heading of Section 9-3-92 describes five-year tolling for an unrepresented estate, in favor of the estate. Under Section 9-3-92, the time between the death of a person and the commencement of representation upon the estate "shall not be counted against his estate in calculating any limitation applicable to the bringing of an action," provided that such time does not exceed five years. The same exclusion covers the time between the termination of one administration and the commencement of another, again only up to five years of excluded estate time.^[7]

At the expiration of the five years of excluded estate time, the limitation commences under Section 9-3-92, "even if the cause of action accrued after the person's death." Where a person injured in a truck crash dies and no representation of the estate has begun, Section 9-3-92 keeps that gap from counting against the estate, but only for up to five years. Court decisions decide when a claim accrues and when Section 9-3-92 applies to it, and this entry does not cover those decisions. The history line on the official code page for Section 9-3-92 begins with Ga. L. 1855-56, p. 235. It also lists Code 1933, Section 3-803.^[7]

Separate written notice or presentation periods apply to claims against government bodies, and none of them is the period for filing suit. Under Section 50-21-26(a)(1), notice of a tort claim against the state under the State Tort Claims article is given in writing "within 12 months of the date the loss was discovered or should have been discovered." For tort claims and causes of action that accrued between January 1, 1991, and July 1, 1992, the same paragraph instead requires written notice within 12 months after July 1, 1992. Under Section 50-21-26(a)(3), no action against the state under that article may be commenced until a written notice of claim has been timely presented. Under Section 50-21-26(b), no action may be commenced after the notice is presented until the Department of Administrative Services has denied the claim or more than 90 days have elapsed without action by the department, whichever occurs first. A truck crash claim against the state is subject to these steps only when it is a tort claim against the state under that article.^[4]

Under Section 36-11-1, all claims against counties, including truck crash claims, are to be presented within 12 months after they accrue or become payable or they are barred, provided that minors or other persons laboring under disabilities are allowed 12 months after the removal of the disability to present their claims. Under Section 36-33-5(b), a claimant with a claim for money damages against a municipal corporation on account of injuries to person or property presents the claim in writing to its governing authority within six months of the happening of the event on which the claim is predicated. That written claim states the time and place of the injury as nearly as practicable. It also states the extent of the injury and the negligence which caused the injury. Under Section 36-33-5(e), that description of the extent of the injury must include the specific amount of monetary damages being sought from the municipal corporation. Section 36-33-5(c) gives the governing authority 30 days from presentation to consider and act on the claim. Under Section 36-33-5(d), the running of the statute of limitations is suspended while the demand for payment is pending before the authority without action on its part. These municipal steps reach a truck accident claim only when it is a claim for money damages against a municipal corporation for such injuries.^[2][3]

See also: Flanagan Law truck accident practice

See also

On related publications

• Georgia truck-crash law notes (truckaccidentlawyer.wiki)
• Liability and comparative fault in Georgia (caraccidentlawyers.wiki)