FOURTH DIVISION

BARNES, P. J.,

RAY and MCMILLIAN, JJ.

NOTICE: Motions for reconsideration must be

physically received in our clerk’s office within ten

days of the date of decision to be deemed timely filed.

http://www.gaappeals.us/rules

October 1, 2015

In the Court of Appeals of Georgia

A15A1488. EVANS et al. v. CALDWELL et al.

BARNES, Presiding Judge.

Craig Caldwell and his professional practice, Internal Medicine Associates of

Middle Georgia, P. C. (collectively “Caldwell”), appeal the trial court’s order

permitting a substitution and addition of plaintiffs in this medical malpractice case

following the deaths of the named plaintiffs. Caldwell contends that the trial court

erred in allowing the plaintiffs to add only two of the five surviving children of the

deceased plaintiffs, arguing that the wrongful death statute requires all surviving

children must be parties to the suit in the absence of a surviving spouse. For the

reasons that follow, we affirm the trial court.

In 2012, Claudia Evans sued Caldwell for medical malpractice, alleging that

he had negligently failed to diagnose her cancer. Claudia’s husband, Edison Evans,

asserted a claim for loss of consortium. Edison died in 2013, and Claudia died in

2014, leaving five surviving children. Two of those children – the ones appointed as
executors of their parents’ estates – filed a motion to substitute parties and add

additional parties. The trial court granted the motion, substituting the two children in

their capacities as co-executors in place of the parents and adding the two children

as additional partiesfor the purpose of pursuing a wrongful death claim for Claudia’s

life. At Caldwell’s request, the court certified its order for immediate review, we

granted Caldwell’s application for interlocutory appeal, and this appeal followed. 

Citing OCGA § 51-4-2, which addresses the parties entitled to bring wrongful

death actions for the death of a spouse or parent, Caldwell argues on appeal that the

trial court erred by allowing fewer than all of Claudia Evans’ five surviving children

to be added as plaintiffs. The plaintiffs argue that Caldwell lacks standing to make

this argument because he issubject to only one cause of action, and that, in any event,

Caldwell’s interpretation of the law is wrong. 

The predecessor to OCGA § 51-4-2 has been amended several times over the

years, and most of the cases cited by both Caldwell and the plaintiffs were decided

under earlier versions of the law. In 1939, Code Ann. § 105-1306 provided a right of

action for wrongful death to the survivors of a married woman:

The husband and/or child or children may recover from the homicide of

the wife or mother, and those surviving at the time the action is brought

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shall sue jointly and not separately, with the right to recover the full

value of the life of the decedent, as shown by the evidence, and with the

right of survivorship asto said suit, if either shall die pending the action.

Ga. L. 1939, p. 233, § 1 (emphasis supplied). The Supreme Court interpreted this

language as requiring that all surviving parties had to join in the wrongful death

action for any surviving party to recover. See Happy Valley Farms v. Wilson, 192 Ga.

830, 835 (16 SE2d 720) (1941) (explaining “the necessity of all joining as

plaintiffs”). 

In 1960, the statute was amended to add the following language:

Provided, however, if any one or more of those comprising the husband

and children . . . shall desire to bring an action seeking to recover for the

tortious homicide of such mother, he or they may file such action and

cause a copy thereof to be served personally upon the remaining

individuals comprising said husband and children, . . . and any of such

persons may intervene in said case as an additional plaintiff at any time

before final judgment. After final judgment, any of such persons not a

party plaintiff shall have no further right of action against the alleged

tortfeasor; but any of such persons not duly served as provided above

shall have a right against the parties plaintiff for his or their

proportionate part of the recovery in said action.

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Code Ann. §105-306;(Ga. L. 1960, p. 968, § 1.) Interpreting this additional language,

we held:

Thislegislation evidences a clear intent that less than all of the potential

plaintiffs may bring an action for the full value of the life of the

decedent, and all potential plaintiffs who are not served may bring a

subsequent action against the successful plaintiffs for a proportionate

share of any amount recovered from a tortfeasor.

Adams v. Wright, 162 Ga. App. 550, 552 (2) (293 SE2d 446) (1982). We further held

that the wrongful death defendant in such a case “has no standing to object to an

action by less than all plaintiffs since only one action can be brought against him.”

Id. Thus, if the present case had arisen under the 1960 law, then the plaintiffs plainly

would be correct – all five surviving children would not need to be made parties

plaintiff, and Caldwell would lack standing to object to the addition of fewer than all

of them.

But the law was amended in 1985 to substantially its present form, which

provides:

(a) The surviving spouse, or if there is no surviving spouse, a child or

children . . . may recover for the homicide of the spouse or parent the

full value of the life of the decedent, as shown by the evidence.

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(b) (1) If an action for wrongful death is brought by a surviving

spouse under subsection (a) of this Code section and the

surviving spouse dies pending the action, the action shallsurvive

to the child or children of the decedent.

(2) If an action for wrongful death is brought by a child or

children under subsection (a) of this Code section and one of the

children dies pending the action, the action shall survive to the

surviving child or children.

* * *

(d) (1) Any amount recovered under subsection (a) of this Code

section shall be equally divided, share and share alike, among the

surviving spouse and the children per capita . . .

OCGA § 51-4-2. See Ga. L. 1985, p. 1253, § 1. The current version of the law, then,

does not contain the language from the 1960 amendment specifically providing that

fewer than allsurvivors may bring a wrongful death action. Caldwell relies upon this

omission for his claimthat the current law requiresfullsurvivor participation. He also

argues that the holding in Adams, supra, that the defendant lacks standing to

challenge such matters, does not apply in light of the 1985 statutory change.

Caldwell’s arguments lack merit. First, although the current law does not

explicitly say that full participation is not required, the language of the statute

strongly implies it. Under OCGA § 51-4-2 (b) (2), if a child brings a wrongful death

action for a parent’s death, but the child later dies, the action “shall survive to the

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surviving child or children” — suggesting that the “surviving child or children” was

not a plaintiff at the outset. Second, nothing in the current law changes the rule

announced in Adams that a wrongful death defendant “has no standing to object to

an action by lessthan all plaintiffssince only one action can be brought against him.”

162 Ga. App. at 552 (2). Under OCGA § 51-4-2 (d) (1), the recovery from the

wrongful death action is to be divided equally among the survivors, suggesting that

there is only one recovery and therefore only one action to be brought. Accordingly,

Caldwell has no real stake in the question of whether all the children join in the

action, asthe number of plaintiffs does not affect the outcome for him. Under Adams,

Caldwell lacked standing to object to the motion to add plaintiffs.

1

Because Caldwell lacks standing to complain that fewer than all of Claudia

Evans’surviving children are named plaintiffs, and because the trial court did not err

in granting the plaintiffs’ motion to add and substitute parties, we affirm.

Judgment affirmed. Ray and McMillian, JJ., concur.

1 The plaintiffs also argue that even if Caldwell’sinterpretation of the currentstatute

is correct, the trial court had equitable discretion to allow the prosecution of a wrongful

death claim by parties other than those designated by the statute. See Blackmon v. Tenet

Healthsystem Spalding, 284 Ga. 369, 370-371 (667 SE2d 348) (2008) (recognizing court’s

equitable authority to allow a representative of a minor child to bring a wrongful death

action when a surviving spouse will not). In light of our conclusion that Caldwell lacks

standing and has misread the statute, we do not reach this argument.

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