Wrongful Death Claims and the Evolving Rulings Regarding Time for Filing such Claims
Recent Georgia cases have more broadly interpreted the time/tolling for filing wrongful death claims. Below is a summary of recent developments regarding the tolling of such claims and the impact on litigation/statutes of limitation.
Claims arising from a wrongful death can be broken down into two separate actions. The decedent’s estate could make a wrongful death claim for the decedent’s pain and suffering. Pursuant to OCGA § 9–3–33, administrators of an estate are subject to the two-year statute of limitation applicable to wrongful death claims. Metro Atlanta Rapid Transit Auth. v. Maloof, 304 Ga. App. 824, 827 (2010). The surviving spouse or, if there is no surviving spouse, a child or children/heir, may recover for the homicide of the deceased the full value of the life of the decedent. See O.C.G.A. § 51-4-2. Should the surviving spouse decline to pursue the claim, both the Georgia Supreme Court and the Georgia Court of Appeals have allowed other persons acting in a representative capacity to maintain a wrongful death action on behalf of a minor child. Rai v. Reid, 294 Ga. 270, 275 (2013). A child, no matter their age at the time the cause of action, could assert their claim for up to two years after they turn 18 years old. DeKalb Med. Ctr., Inc. v. Hawkins, 288 Ga. App. 840, 846 (2007) (holding that two-day old child’s wrongful death claim arising from his mother’s death during childbirth tolled for twenty years), disapproved on other grounds by Harrison v. McAfee, 338 Ga. App. 393 (2016). Therefore, under similar facts, a medical provider would be required to maintain potential evidence for 20 years to avoid any penalties related to spoliation.
The running of the period of limitations with respect to any cause of action in tort that may be brought by the victim of an alleged crime, which arises out of the facts and circumstances relating to the commission of such alleged crime committed in this state, shall be tolled from the date of the commission of the alleged crime or the act giving rise to such action in tort until the prosecution of such crime or act has become final or otherwise terminated, not to exceed six years. See O.C.G.A. § 9-3-99. O.C.G.A. § 9–3–99 applies regardless of whether the defendant in the case had been accused of committing the crime from which the cause of action arises. McAfee, 338 Ga. App. at 395. In addition, O.C.G.A. § 9-3-99 tolls a victim's causes of action during the pendency of an investigation of the alleged crime regardless as to whether the investigation leads to charges. Benjamin v. Thomas, 2016 WL 5394118, at *6 (N.D. Ga. 2016). McAfee is recent precedent (July 2016) and, therefore, its holding has not been applied to internal or GBI investigations into actions by law enforcement officers. However, based on its expansive interpretation of O.C.G.A. § 9-3-99, a court could hold that any investigation into an incident that could result in criminal charges would be tolled under this code section. NOTE: If the investigation could merely result in a fine or suspension, it would likely not be deemed a “criminal investigation” tolling the statute of limitations.