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Clayton v. Burnett12/7/1999
n.2 (Ga. 1989), that does not mean he is not "entitled" to bring the cause of action in the first place. Section 51-4-2(a) vests him with the right to bring the wrongful death action. His own potential negligence does not divest him of this right. Thus, pursuant to Georgia's wrongful death statutory scheme, Chip Lee Hall, as Michelle Clayton Hall's surviving spouse, is the only party entitled to bring this cause of action for wrongful death.
Our inquiry does not end there, however, as Georgia has a separate jurisdictional scheme in equity. "Any person who may not bring an action at law may complain in equity and every person who is remediless elsewhere may claim the protection and assistance of equity to enforce any right recognized by the law." Ga. Code Ann. ยง 23-4-20 (1982). As we have already concluded, plaintiff here, as Michelle Clayton Hall's personal representative, may not bring this wrongful death action at law. The legal right was that of Chip Lee Hall, the surviving spouse. We nonetheless conclude that plaintiff can pursue this claim in equity. Georgia courts have on at least two occasions circumvented section 51-4-2(a)'s limiting language and allowed others to maintain wrongful death suits under the cloak of equity jurisdiction. In Brown v. Liberty Oil & Refining Corp., 403 S.E.2d 806 (Ga. 1991), the Georgia Supreme Court invoked equity to allow a decedent's children to institute a wrongful death claim because the surviving spouse had abandoned the children, could not be located, and likely would not pursue such a claim in the first place. Following this lead, the Georgia Court of Appeals, in Emory University v. Dorsey, 429 S.E.2d 307 (Ga. Ct. App. 1993), again permitted a decedent's child to pursue a wrongful death claim because the surviving spouse had left the state and apparently had no intention of bringing forth the cause of action himself.
Defendants point out that both of these cases involved the ability of a decedent's children to bring a wrongful death claim, rather than a decedent's personal representative. However, we do not feel these cases stand for the proposition that equity jurisdiction may only be invoked if the decedent leaves surviving children. Rather, they focus on the specific factual circumstances warranting the application of equity jurisdiction. We feel the specific factual circumstances here justify using equity to allow plaintiff to proceed with his wrongful death claim. Plaintiff waited the full two-year statute of limitations period before filing his claim to see whether Chip Lee Hall would exercise his legal right to bring the claim himself; Chip Lee Hall manifested no intent to bring the claim himself; and, most importantly, Michelle Clayton Hall's beneficiaries and next of kin are left remediless unless plaintiff is permitted to maintain this cause of action.
In summary, we hold that Georgia law applies to this case because the issue of who may institute a wrongful death claim is a substantive matter to be governed by the lex loci principle. We further hold that, pursuant to Georgia law, plaintiff is entitled to pursue his claim for funeral expenses. And finally, we hold that equity enables plaintiff to proceed with his claim for wrongful death as well.
Because of our holding, we need not address plaintiff's remaining assignments of error.
Reversed and remanded.
Judges JOHN and McGEE concur.
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