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Editor's note: The "Surviving Wrongful Death"
Series by Mark McGrath began appearing in North Carolina
Lawyers weekly on September 4, 2006.
Surviving Wrongful Death Part
I:
An Overview
As statutes go, North Carolina's wrongful death statute is a
seemingly benign piece of legislation. Under common law,
all tort claims were extinguished or "abated" by the death of
their holder, regardless of the degree of pain, suffering or
general misery endured by the deceased prior to his demise.
Our General Assembly saw fit to rectify that inequity by
enacting the North Carolina wrongful death statute, presently
codified at G.S. § 28A-18-2.
In essence, the statute provides that the legal representative
of a decedent's estate may bring an action against any person
who is responsible for causing the decedent's death.
While the statute is largely self-explanatory, several points
should be kept in mind. The suit must be brought by the
legal representative of the decedent's estate. This means
that an estate must be opened, and a personal representative
must be appointed by the clerk. It is not enough that a
person is named as executor in the decedent's will. There
must be a formal appointment.
From the plaintiff's perspective, the client will be the estate
of the decedent. Accordingly, the attorney representing
the plaintiff will be accountable to the estate's legal
representative, not the children of the deceased, not the spouse
of the deceased, and not the family as a whole. Counsel
should be careful to avoid including non-clients in meetings and
discussions, as the participation of non-parties will likely
render the substance of those meetings discoverable.
Because the proceeds of a successful wrongful death action do
not become assets of the estate, these proceeds are not subject
to the claims of creditors. The statute does provide,
however, that the estate is responsible for funeral expenses and
pre-death medical expenses up to $4,500, said amount not to
exceed 50 percent of the total recovery.
The estate is not, however, the economic beneficiary of the
wrongful death action. Rather, the proceeds of a judgment
or settlement obtained in a wrongful death action must be
distributed to the heirs of the decedent in accordance with the
Intestate Succession Act.
The statute of limitations is two years from the date of death.
Counsel must keep in mind, however, that an applicable statute
of repose, which will begin running when the last act of
actionable negligence occurs, can cut short the two-year statute
of limitations, or even render the claim time-barred before the
decedent dies.
Wrongful death settlements require court approval, unless all of
the statutory beneficiaries are adults and have consented to the
settlement in writing. This provision is found in G.S. §
28A-13-3(23).
The contributory negligence of a beneficiary will bar his
recovery under the statute. For example, if a son's
negligence caused his father's death, the son's contributory
negligence will prevent him from taking his intestate share of
the proceeds. Moreover, where the proceeds are the product
of a jury verdict, the total award will be reduced by the amount
the negligent beneficiary would have otherwise taken by
application of the Intestate Succession Act.
While the statute appears to be a model of simplicity and
reasoned legislation, its interpretation by the courts has
yielded some surprising and down right bizarre rulings. In
subsequent installments of this series we will explore issues of
pleading, damages, statutes of limitation, professional conduct
and other vagaries of wrongful death claims.
Part Two
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