Legal Question in Personal Injury in Georgia

17 yr old Daughter Killed in a single car accident

My 17 yr old daughter was fatally injured in a car accident in August. She was one of 8 in the vehicle and the only fatality. Her Father and I are divorced he has had sole custody. He and his wife have her belongings, many of which I purchased for her. I had asked them if I could have the things I bought for her they said ok but have not done so and are downright nasty to me. We had agreed upon her internment and signed papers as her parents. He went back and made changes to her internment without consulting me and signed the papers himself. His wife possibly could have signed with him. What are my rights as her Mother? Her Father told me not to file a wrongful death suit. When I asked him why he became very irrate and verbally abusive. I fell so helpless in this situation it's like they are trying to strip away my Motherhood. What can I expect to happen? Is there any way that they could exclude me from the settlement? What do I need to look out for?

Asked on 2/28/04, 7:37 am

7 Answers from Attorneys

Charles W. Field Charles W. Field, Attorney at Law

Re: 17 yr old Daughter Killed in a single car accident

You should contact a local attorney knowledgeable about wrongful death cases ASAP. I suspect your ex is trying to pull a fast one on you.

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Answered on 2/29/04, 9:35 am

Glenn Loewenthal Glenn Loewenthal, P.C.

Re: 17 yr old Daughter Killed in a single car accident

Maam: You do have rights. See the provisions of the statute below. If you have any other questions please feel free to contact me. I am sorry for your loss.

19-7-1. Parental power; recovery for homicide of child

(a) In the event that a court has awarded custody of the child to one parent, only the parent who has custody of the child is entitled to his services and the proceeds of his labor.

(c) (1) In every case of the homicide of a child, there shall be some party entitled to recover the full value of the life of the child,

(2) If the deceased child does not leave a spouse or child, the right of recovery shall be in the parent or parents, if any, given such a right by this paragraph as follows:

(C) If both parents are living but are divorced, separated, or living apart, the right shall be in both parents. However, if the parents are divorced, separated, or living apart and one parent refuses to proceed or cannot be located to proceed to recover for the wrongful death of a child, the other parent shall have the right to contract for representation on behalf of both

parents, thereby binding both parents, and the right to proceed on behalf of both parents to recover for the homicide of the child with any ultimate recovery to be shared by the parents as provided in this subsection. Unless a motion is filed as provided in paragraph (6) of this subsection, such a judgment shall be divided equally between the parents by the judgment; and the share of an absent parent shall be held for such time, on such terms, and with such direction for payment if the absent parent is not found as the judgment directs.

(6) For cases in which the parents of a deceased child are divorced, separated, or living apart, a motion may be filed by either parent prior to trial requesting the judge to apportion fairly any judgment amounts awarded in the case. Where such a motion is filed, a judgment shall not be automatically divided. A post-judgment hearing shall be conducted by the judge at which each parent shall have the opportunity to be heard and to produce evidence regarding that parent's relationship with the deceased child. The judge shall fairly determine the percentage of the judgment to be awarded to each parent. In making such a determination, the judge shall consider each parent's relationship with the deceased child, including permanent custody, control, and support, as well as any other factors found to be pertinent. The judge's decision shall not be disturbed absent an abuse of discretion.

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Answered on 2/28/04, 7:54 am

Re: 17 yr old Daughter Killed in a single car accident

I am extremely sorry to hear about your loss. My sincerest prayers are with you.

Based upon your posting, you may very well be entitled to all of your parental rights for this loss. Divorce and loss of custody does not equal "loss of parental rights". I believe we can help you.

It would also be very helpful, if you could provide me with more facts concerning the single car accident. Who was driving? What was the cause of the accident? The insurance company involved? Also, do you know whether your ex-husband has retained an attorney or has filed a lawsuit?

In difficult times such as these, our attorneys are dedicated to providing personal attention to our clients.

Please contact me so that we might discuss this matter for you.

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Answered on 2/28/04, 8:14 am
Kenneth L. Shigley Chambers, Aholt & Rickard, LLP

Re: 17 yr old Daughter Killed in a single car accident

As I read of your daughter's death at home on Saturday morning, with my own 16 year old daughter sleeping upstairs, I can hardly imagine the depth of your grief and loss. It must be like having a hole punched in your heart.

I would like to recommend a book written by a Yale theology professor on the death of his own child, Lament for a Son by Nicholas Wolterstorff. Several of my clients in similar circumstances have found it comforting. It is available at

My friend Glenn Loewenthal already gave you the text of OCGA Section 19-7-1, the Georgia statute that says either parent may file suit for wrongful death, they are presumed to share the recovery equally, but if they are divorced or otherwise apart either parent may ask the court to make an allocation of the recovery between them.

The case law interpreting this statute makes it clear that if parents are divorced, single legal claim exists for wrongful death of the child, which may be brought by both parents together, or by one parent on behalf of both parents. Therefore, you may certainly file a wrongful death suit on behalf of yourself and your child's father. He would then probably hire a separate lawyer to represent his interests.

I handled a case a couple of years ago in which we asked the court to make such an allocation. In that case I represented the mother of a college student who was born out of wedlock. The kid lived with the maternal grandmother most of the time he was growing up, but did go to live with the mother and her husband as a teenager and she sent him to college. The father had only paid child support through wage garnsihments and met with his son a few times during high school. The trial court allocated 95% to the mother and 5% to the father. The father appealed, and the Court of Appeals affirmed without issuing an opinion.

The published decisions of the Court of Appeals make it clear that the trial judge can consider any factors he considers pertinent, and any allocation the trial court decides upon will be affirmed in the absence of "abuse of discretion."

There are published decisions of the Court of Appeals in which a mother had custody after divorce and the father had little role afterward, in which the court approved allocations of 4% and 5% to the noncustodial father and 95% adn 96% to the custodial mother. If the roles were reversed long-term, then the allocations could be reversed.

This is an extremely fact-sensitive matter. To comment more intelligently I would need to know the facts of the fatal accident, and the facts of how you and your daughter's father divided the responsibilities of child rearing over the years.

I would be glad to discuss this with you in more depth, though I am not sure whether I would want to accept the case. You may call me on Monday at 404.364.1999 if you wish.

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Answered on 2/28/04, 9:48 am
Jim Hough Thomas J. Hough, Jr., P.C.

Re: 17 yr old Daughter Killed in a single car accident

Having the role of a non-custodial parent, who now has lost that daughter to death, must be exquisitely painful. This would be true even if your former husband were not behaving as he is. I can offer nothing which has not already been touched on by my colleagues. The law is the law and you have the legal right to participate, either passively or actively, in any legal action which might be undertaken. In fact, if your husband should chose not to make a claim, then you have the right to do so. Your rights, as the rights of all individuals, even though covered by the law, are subject to the interpretation of those who would decide how the law applies to a particular situation. Given your former husband's behavior, and his insistence that you not initiate a claim, I cannot feel that your rights would be protected or even recognized if you do not take an active role in this case. To do so, demands, in my opinion, that you secure legal counsel to assist you in asserting your rights.

Having never lost a child, I cannot know your pain. Having four daughters the youngest of which is seventeen, I beleive I can imagine. My prayers are with you as you make the journey to completion in this dark chapter of your life. I encourage you to hire an attorney. Talk with several to insure you select someone who will represent you in a way that will bring honor and dignity to your struggle and the memory of your daughter. Most of all surrender your pain and loss to the Lord who made us all, and who has promised us peace if we will but turn to him.

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Answered on 2/28/04, 11:16 am
Allen Broughton Allen L. Broughton, P.C.

Re: 17 yr old Daughter Killed in a single car accident

First let me say I am sorry to hear about your loss. I have a daughter myself, and cannot begin to comprehend your agony.

You are entitled to either bring a wrongful death action or share in the proceeds of an action brought by your ex-husband. You certainly need representation given your ex-husband's behavior up to this point.

I would be happy to meet with you to discuss your case. I have handled numerous wrongful death claims, and have multiple million dollar verdicts. Please make sure whomever you hire can show you his trial results - you do not want a lawyer who just tries to settle cases.

Please feel free to call me at 404-664-9350 and I will be happy to set up a time to meet you. I wish you the best of luck.

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Answered on 2/28/04, 11:27 am
Scott Delius Delius Law Firm, P.C.

Re: 17 yr old Daughter Killed in a single car accident

I would be pleased to help you. I have handled similar cases before. Feel free to contact me directly.

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Answered on 2/28/04, 12:00 pm

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