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Schaffer v. Gateway Harvestore8/19/1998
"Such a requirement eliminates the possibility that the defendant will face more than one lawsuit. It also allows for potential conflicts of interest to be revealed in advance of the filing of the action. And it ensures to some degree that the wrongful death action will be brought by a person who will act in the best interests of the beneficiaries, the real parties in interest."
Consequently, minors are represented through the personal representative of the decedent just as any other adult beneficiary to the action. The personal representative acts on behalf of all beneficiaries. Appellants have not demonstrated how those within the class of beneficiaries are not being treated equally through their common representation. Thus, we need not reach the question of whether the disparate treatment is rationally related to a government interest. We note that while appellants argue that minors are unfairly disadvantaged because they have no authority to compel a representative to bring a wrongful death action, a failure on the part of a personal representative to file a legitimate wrongful death action on behalf of a minor or adult beneficiary is not without its own remedies. We find no merit in appellants' second assignment of error.
"The trial court erred as a matter of law in holding that the amended complaint now bars the minor plaintiffs' cause of action."
In their third assignment of error, appellants complain that the trial court erred in holding that an amended complaint, renaming the parties in this case to comply with R.C. 2125.02(A), barred the minors' wrongful death claims.
The record reveals that the trial court allowed the amendment of appellants' complaint, thereby recognizing that the complaint was filed by Constance and Jeanne Schaffer, as the administrators of David's and Garry's estates, in accordance with R.C. 2125.02(A). The trial court went on to mention a previous wrongful death action that had been initially filed in a timely manner by these administrators but had not been timely reinstituted in accordance with the saving provisions. See fn. 3, above. The trial court concluded that appellants' present action was time-barred. For the reasons expressed in our review of appellants' first assignment of error, this court is in agreement with the decision rendered by the trial court. Appellants' third assignment of error is overruled.
In the event we found merit in any of appellants complaints on appeal, Gateway offered a cross-assignment of error for the purpose of preventing a reversal of the trial court's decision granting Gateway's motion for summary judgment. Because we find no merit in appellants' claims, Gateway's cross-assignment of error is moot.
Having found no error prejudicial to appellants herein in the particulars assigned and argued, we affirm the judgment of the trial court.
Judgment affirmed.
SHAW, P.J., and HADLEY, J., concur.
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