 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Evans v. Diaz6/4/1993
EXUM, Chief Justice.
This is a wrongful death action in which the deceased, a seven-year-old boy, was killed by the allegedly negligent operation of an automobile by defendant, the boy's mother and his only heir. Allegedly, defendant permitted the boy to ride on the hood of the car; and when he fell off, the car ran over him.
Under our precedents it is clear this action could not be maintained for the benefit of defendant-mother. She, however, before the action was filed renounced her right to inherit from her son in favor of her two daughters, the sisters of her son.
The issue is whether this renunciation breathes life into an otherwise moribund claim. The trial court concluded not; the Court of Appeals reversed; we agree with the trial court and reverse the Court of Appeals.
The parties have stipulated, or it is otherwise uncontradicted in the record, as follows: The deceased, who died intestate, was survived by defendant and two sisters; thus, defendant was at the time of death the deceased's sole heir under the Intestate Succession Act, N.C.G.S. § 29-15(3) (1984), and solely entitled to
any recovery which would be realized in a wrongful death action brought on account of her son's death, N.C.G.S. § 28A-18-2 (1984). On 5 January 1990 pursuant to Chapter 31B (1989) of the General Statutes, defendant formally renounced her right to inherit from her son and purported to transfer this right to her two remaining children, the deceased's sisters. On the same date defendant also formally renounced her right to administer her son's estate in favor of plaintiff, her father and the deceased's grandfather. Plaintiff filed this action under the Wrongful Death Act, N.C.G.S. § 28A-18-2, on 14 February 1990.
May the action be maintained? Judge Cornelius, presiding at trial, held, on stipulated facts, that it could not. He reasoned that "the determination as to the beneficiaries of the estate . . . is to be made as of the time of death . . . and . . . that the defendant has since . . . filed a renunciation of her right to inherit from [the deceased] should not be allowed to . . . affect the fact that the sole original beneficiary of the plaintiff estate was the defendant . . . ." Judge Cornelius, pursuant to the parties' pretrial stipulation, entered judgment for plaintiff for $10,000. The Court of Appeals disagreed, interpreting a portion of the Act governing renunciation of transfers by intestacy, N.C.G.S. § 31B-3, to mean that the action could proceed on behalf of the defendant's two remaining children. The Court of Appeals remanded for entry of judgment in accordance with the parties' stipulation.
We allowed defendant's petition for further review. Concluding, for essentially the reason given by Judge Cornelius, that the action cannot be maintained, we reverse the decision of the Court of Appeals and reinstate the trial court's judgment. In an action brought under the Wrongful Death Act the real party in interest is not the estate but the beneficiary of the recovery as defined in the Act. Davenport v. Patrick, 227 N.C. 686, 44 S.E.2d 203 (1947). The proceeds of a wrongful death recovery do not constitute, generally, assets of the estate and are not available to pay creditors or legacies, except for burial expenses and limited hospital and medical expenses. N.C.G.S. § 28A-18-2; Carver v. Carver, 310 N.C. 669, 314 S.E.2d 739 (1984).
In Carver the Court summarized the law relating to the maintenance of wro
Page 1 2 3 4 North Carolina Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|