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Locust v. Pitt County Memorial Hospital11/19/2002
PUBLISHED
Helen Locust (Plaintiff), individually and as the administratrix of the estate of her deceased brother Lester R. Tyson, appeals an order filed 22 August 2001 granting summary judgment in favor of Pitt County Memorial Hospital, Inc., James M. Galloway, M.D., Linda G. Monteith, M.D., and Pitt Family Physicians (collectively Defendants).
On 2 June 1994, Plaintiff filed a complaint against Defendants to recover damages "for the wrongful death of [Lester] Tyson," including: (1) damages for his care, treatment, and hospitalization; (2) pain and suffering and loss of enjoyment of life; (3) mental anguish; (4) funeral expenses; (5) present and future monetary value to his wife, brother, and sisters; and (6) punitive damages. Lester Tyson was survived by his estranged spouse, Brenda Tyson, and his brother and sisters. Plaintiff subsequently moved for a voluntary dismissal of her complaint on 16 November 1994.
On 17 July 1995, Plaintiff filed a "Statement of Renunciation and Acts Barring Property Rights" (the Statement) signed by Brenda Tyson. Brenda Tyson had been married to but was separated from Lester Tyson at the time of his death in June 1992. In the Statement, Brenda Tyson, pursuant to Chapter 31A of the North Carolina General Statutes, purported to "renounce . . . any interest in the estate of Lester Tyson or any interest in any wrongful death action brought by reasons of his death." Brenda Tyson further stated:
When voluntarily left Lester Tyson against his wishes and for no fault on his part in 1989, it was intent that [they] should live and die totally separate and apart, and therefore did not visit, communicate with, or have anything to do with Lester Tyson . . . after voluntarily left him . . . . In 1989, wilfully and without just cause abandoned and refused to live with Lester Tyson and was not living with him at the time of his death.
Plaintiff timely refiled her complaint against Defendants on 9 November 1995. On 24 July 2001, Defendants moved for summary judgment. The trial court entered an order on 22 August 2001 granting Defendants' motion and dismissing the case on the grounds that the North Carolina Supreme Court's decision in Evans v. Diaz barred Plaintiff from pursuing this action because Brenda Tyson's acts prevented her from succeeding to any property interest under the Wrongful Death Act.
The issues are whether: (I) the acts admitted in the Statement barred Plaintiff from pursuing a wrongful death action on behalf of Brenda Tyson and Lester Tyson's siblings; and (II) Plaintiff's complaint included a survival action outside the scope of Evans.
I.
In a wrongful death action, "the real party in interest is not the estate but the beneficiary of the recovery as defined in the [Wrongful Death] Act." Evans, 333 N.C. at 776, 430 S.E.2d at 245 (citing Davenport v. Patrick, 227 N.C. 686, 688, 44 S.E.2d 203, 205 (1947)). Pursuant to the Wrongful Death Act, the proceeds of a recovery in an action for wrongful death "shall be distributed to the same persons, and in the same proportionate shares, as the personal property of the decedent . . . would be distributed if the decedent died intestate." Williford v. Williford, 288 N.C. 506, 509, 219 S.E.2d 220, 222-23 (1975); N.C.G.S. § 28A-18-2(a) (2001) (distribution according to the Intestate Succession Act). Thus, if the decedent "is not survived by a child, children, or any lineal descendant of a deceased child or children, or by a parent," the decedent's spouse receives all of the wrongful death proceeds. N.C.G.S. § 29-14(b)(4) (2001).
Because Lester Tyson's parents were dead and he had no children, Brenda Tyson would the
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