Wrongful Death Lawsuits in Georgia

Atlanta Wrongful Death Lawyers

A wrongful death claim for money is the only way civil law has to recognize the value of the life, compensate for the death, and penalize the party at fault.

Skillful legal advocacy in a wrongful death case can generate funds to care for the family’s real needs and with which the family may appropriately memorialize the life of the departed. Within the requirements of allocation of damages to the spouse and children, survivors can choose to put a monetary award for wrongful death to any good use. Most often that is to deal with the family’s economic needs. But we have seen cases where parents of a deceased child chose to donate a building at a church or school in memory of their child.

What are common examples of wrongful death claims in Georgia?

Wrongful death occurs when someone’s misconduct causes another person’s death. Examples that may result in monetary damages include:

• Car or truck accidents caused by negligence
• Medical malpractice
• Defective products
• Dangerous property conditions (premises liability)

What two types of claims can be made for a wrongful death in Georgia?

 In Georgia there are two separate claims that can be made for a death.

• “Wrongful death” claim for full value of the life.

The first type of claim for a death is a wrongful death claim for the full value of life which belongs to survivors designated by statute: spouse, children, parent, or heirs at law depending on the circumstances. 

• “Survival action” for the estate of the deceased.

The second type of claim that can be made for a death is a “survival action” because the rights of the decedent survive the death and belong to the estate of the deceased. That claim may be pursued by the executor or administer seeking compensation for the pain and suffering before death plus the medical and funeral expense. Punitive damages may be awarded in connection with such a survival action on behalf of the estate but not for the wrongful death claim. Experienced legal counsel can weigh all the factors in deciding whether to include a punitive damages claim.

The family of the deceased may choose to pursue both claims or only one of them depending on what makes the most sense under the circumstances. It is entirely proper in Georgia for the family, with experienced legal counsel, to pursue both claims, or to choose to file one claim and abandon the other.

Who can sue for wrongful death in Georgia?

A wrongful death claim for the “full value of the life” in Georgia belongs to survivors whose priority is set by statute, spouse, children, parents, and other next of kin through the representative of the estate

• Surviving spouse.

A surviving spouse has the right to sue for wrongful death in Georgia but must share the recovery equally with surviving children of the deceased.

• Children.

If there is no surviving spouse, the right goes to surviving children. If a surviving spouse is missing or uncooperative, a court may allow the children to pursue the death claim alone.

• Parents.

If there is neither a spouse nor child surviving, then the decedent’s parents have the right to sue under Georgia law.

 If the parents of a deceased child are divorced or living apart, the trial court has full discretion to distribute the wrongful death recovery between them, considering any pertinent factors.

• Administrator of Estate.

If there is not a surviving spouse, child or parent, the administrator of the decedent’s estate can sue on behalf of the next of kin. That may include siblings, nieces, nephews, uncles, aunts, cousins, and more distant relatives.

We sometimes receive inquiries from family members whose rights to recover for wrongful death of a deceased family member may have been severed by operation of law. For example, that may happen when a young adult son has fathered a baby out of wedlock, and the claim belongs to that child and is controlled by the baby’s mother. Sometimes we can devise mutually acceptable solutions to these challenges, but sometimes not. It is important to get all close relatives of the deceased on the same page, but if the family is splintered and dysfunctional that can be a problem.

Your Atlanta wrongful death attorney can guide you through the choices in preparing a Georgia wrongful death lawsuit.

How does a surviving spouse share the wrongful death recovery with a surviving child who is a minor under the age of 18 in Georgia?

• Where the surviving spouse is required to share a wrongful death recovery with the decedent’s minor child, the child’s share up to $15,000 may be held by the child’s natural guardian without posting a bond.
• If a minor child’s share of the recovery is $15,000 or more, a guardian of the child’s property must be qualified in probate court, and a bond posted.
• The bond requirement may be avoided if the probate court approves a structured settlement with annuity payments going to the child after reaching age 18, with the cash held by the child’s natural guardian remaining less than $15,000.
• When the surviving spouse is someone other than a surviving parents of a minor child, we are usually able to negotiate a mutually agreeable solution.

How is the “full value of the life” decided under Georgia law?

• Georgia defines the “full value of the life” in a wrongful death case to include both economic and intangible aspects. There is no rigid formula or arbitrary cap.
• The economic aspects of “full value of the life” include the projected lifetime income and benefits and the value of their uncompensated services to family and community, reduced to present value.
• In determining the intangible aspect of “full value of the life” fair and impartial jurors are guided by their “enlightened conscience” in assessing the quality of life, relationships, activities, passions and pursuits, and determine what the experience of living was worth to that person who died. The intangible value of life is not reduced to present value.

Does Georgia allow damages for fear in anticipation of impending death?

Yes. Where the deceased died almost immediately after impact but could see what was about to happen, the estate may make a claim for the mental pain of recognizing impending death. In some cases that may have great value. In appropriate cases, an accident reconstruction can help establish how much time the person had to recognize impending doom before being killed.

What is the effect of liens for unpaid medical bills and other debts of the deceased in a Georgia wrongful death case?

Liens for medical bills and other debts of the decedent apply to an estate’s claim but not to the wrongful death claim of survivors designated by statute. If there is limited insurance coverage and medical liens, survivors may decide to pursue only the wrongful death claim which is not subject to such liens, or to allocate all but a token amount of a settlement to the wrongful death claim.  If there is evidence of aggravated conduct that would be admissible only for a punitive damages claim, or if liability insurance is ample and liens are light, it may be worthwhile to pursue the estate’s claim.

What is the average settlement for a wrongful death claim in Georgia?

We often see wrongful death settlement from a few hundred thousand to several million dollars. But the value of a wrongful death claim in Georgia is affected by many factors, including disputed issues of liability, contributory negligence, comparative negligence, assumption of risk, proximate causation, and insurance coverage considerations. So it is important not to confuse the value of a case with the true value of the departed loved one’s life.

Often the biggest challenge is the search for more insurance. In one recent case, the coverage on the at-fault driver’s vehicles was only $100,000, but we found additional insurance to collect $1,600,000.

When insurance and assets are sufficient, wrongful death verdicts and settlements in Georgia can run into tens of millions of dollars. We recently had an $8,000,000 wrongful death settlement and believed a jury verdict could have been several times more, but the family chose a confidential settlement for $8,000,000 to gain closure without everyone in their town knowing how much they got. As your lawyers working for an agreed percentage of what we get for you, we are motivated to seek the maximum that is feasible. But it all depends upon the complex interplay of facts, insurance, and legal issues.

What are the time limits for wrongful death claims in Georgia?

• Two years. Generally, a Georgia wrongful death case must be filed in court within two years from the date of death.
• But there are circumstances that may shorten or lengthen the time, but these are tricky and should not be relied upon without experienced legal counsel.
• If there is a criminal case pending, the time limit may be paused until the criminal case is concluded.
• The estate’s time limit may be extended up to five years when no administrator or executor has been appointed. However, this does not apply to the wrongful death claim for family members.
• In medical malpractice cases, there is a strict two year time limit from the time of the negligent act, not the time of death.
• Even if the next of kin is a minor, e.g., a sibling, Georgia law requires that an administrator file suit on behalf of the minor beneficiary within two years from the date of death rather than pausing the time limit due to the child’s age.
• In claims against state and local government, there are shorter time limits – 6 months or 12 months — for presenting a notice of claim to the governmental entity. That can be very technical, and a claim may be lost by failure to properly present such a pre-suit notice of claim.

No fee unless we win for you.

Founded in 1949, Johnson & Ward was the first and best personal injury and wrongful death specialty law firm in Georgia. Our attorneys have extensive experience representing clients in wrongful death cases throughout Georgia.

Call us now at 404-253-7862 or fill out our free case review form. If a log truck crash badly hurt you or a member of your family, we’re ready to fight for the justice you deserve.

Ken Shigley, senior counsel at Johnson & Ward, is a former president of the State Bar of Georgia (2011-12) and former chair of the Institute for Continuing Legal Education in Georgia. He was the first Georgia lawyer to earn three board certifications from the National Board of Trial Advocacy (Civil Trial Advocacy, Civil Pretrial Advocacy, and Truck Accident Law). In 2019, he received the Traditions of Excellence Award for lifetime achievement. Mr. Shigley was the lead author of eleven editions of Georgia Law of Torts: Trial Preparation and Practice (Thomson Reuters, 2010-21). He graduated from Furman University and Emory University Law School, and completed certificate courses in trial practice, negotiation and mediation at Harvard Law School.