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Miraldi & Barrett Co., LPA

Although many family members may suffer losses over the death of a family member, only the executor or personal representative of an estate can file the lawsuit on behalf of the family.

When a death occurs due to the negligence of another person or corporation, the family of the person killed (legally known as the next of kin) may file a claim for that family member's "wrongful death". Because there may be many next of kin who have suffered a loss, the question is always: Who can bring the lawsuit on behalf of the family? A case recently decided by Ohio's Fourth District Court of Appeals reaffirms that the only person who may sue for a wrongful death is the representative of the decedent's estate, otherwise known as the executor or administrator of the dead person's estate.

In this recent case, a woman was a passenger on an all terrain vehicle and died following an accident involving the all terrain vehicle. Several individuals were potentially responsible for her death. The woman was survived by a husband and two adult children, a son and daughter.

The survivors consulted with a law firm selected by the son about filing a claim. The husband and daughter notified the law firm that they did not want that law firm to represent them. However the son wanted that firm to continue representing him. Eventually one of the attorneys in the law firm was appointed as the administrator of the estate and filed a lawsuit for the wrongful death on behalf of the decedent's son.

The husband and adult daughter then contacted another lawyer just four days prior to the expiration of the two year statute of limitations to bring the wrongful death claim. They claimed that they did not know that the other lawsuit had been filed or that an administrator of the deceased's estate had been appointed. Without appointing either the husband or daughter or anyone else as the administrator or executorof the dead woman's estate, the new attorney then filed a lawsuit on behalf of the husband and daughter individually to try to file the lawsuit before the time limit expired.

Because another lawsuit had already been filed, the attorney defending the first lawsuit then advised the new lawyer that a wrongful death claim had already been filed and was pending against the same defendants. But the new attorney refused to dismiss this second lawsuit, claiming that his clients were not being protected in the first lawsuit. This forced the defense to file motions and briefs asking the court to dismiss the second lawsuit and award damages for "frivolous" conduct.

The court found that the second lawsuit was "totally devoid of merit" and ordered the attorney to pay the defendant's legal fees. The court stated that the second attorney could not file a lawsuit in which the personal representative was not bringing the claim. Neither the husband or daughter was the personal representative and had no right (or standing) to prosecute the wrongful death claim. The only person who may sue for wrongful death is the representative of the decedent's estate.

The court of appeals confirmed the trial court's rulings on all counts. In this case, when the lawyer hired by the decedent's husband and daughter learned that an administrator of the estate had been appointed and a lawsuit was pending, he should have dismissed the second lawsuit and combined it with the pending lawsuit. At the conclusion of the case, the Probate Court would then have decided how to divide any money that was recovered.