Murg v. Barnsdall Nursing Home10/18/2005
note that the probate was reopened, by virtue of motions contained in the record that were filed by Murg, Sr., through the fall and winter of 2002, long after the appointment of Murg, Jr., as Special Personal Representative. In addition, the probate court's very appointment of Murg, Jr., served to reopen the probate estate, as well.
Continued Existence of Probate Estate
At the time of Murg, Sr.'s discharge as Personal Representative, a viable and potentially substantial claim existed against Barnsdall, a claim that represented a potential debt to the decedent's estate. The probate estate was reopened by the appointment of Murg, Jr., as Special Representative. The record reflects that Murg, Sr., was present at the hearing thereon, and represented by counsel. The Final Decree and Decree of Distribution was dated May 9, 2002. Correspondence from the Oklahoma State Department of Health that contains findings from the investigation into the decedent's death also is dated May 9, 2002. These findings support a wrongful death action against Barnsdall, and were received after the date of the Final Decree. As such, the wrongful death claim against Barnsdall constitutes property discovered after the final settlement of the estate, under 58 O.S.2001, § 692. Further evidence that the probate estate was reopened includes Murg, Sr.'s filing of documents for a rehearing on the final decree and for further distribution of funds for such items as funeral expenses, months after the final decree and after the appointment of Murg, Jr. The Final Decree and Decree of Distribution document does not reference a potential tort claim against Barnsdall. Murg, Jr., states in his petition for letters that if appointed, he will distribute the proceeds of the wrongful death lawsuit, if any, between himself and his father, the two being the only heirs at law. We note that Barnsdall cites no authority for its proposition that Murg, Sr., was the only proper party with standing to pursue a wrongful death action, or that he was the only heir entitled to decide whether the estate would pursue such an action. At the time of Murg, Sr.'s discharge as Personal Representative, a viable and potentially substantial claim existed against Barnsdall, a claim that represented a potential debt to the decedent's estate, thereby making it necessary for the court appoint the decedent's son as Special Personal Representative to administer it, or in this particular instance, to file the tort claim. It is undisputed that Murg, Jr., is one of decedent's heirs, as her biological child. Barnsdall cites no authority for its proposition that Murg, Sr., was the only proper party with standing to pursue a wrongful death action, or that he was the only heir entitled to decide whether the estate would pursue such an action. Children, whether minors or adults, are heirs at law. As such, they have an interest in the resolution of estate claims that create a case or controversy sufficient to satisfy the constitutional requirements of injury, causation and redressability. Title 12 O.S.2001, §§ 1053 and 1054, do not preclude an action by Murg, Jr., individually, as next of kin, for wrongful death. The hierarchy of potential plaintiffs set forth in these sections exists merely to preclude concurrent causes of action filed by the potential parties enumerated therein. We observed in Ouellette v. State Farm Mut. Auto. Ins. Co., 1994 OK 79, 11, 918 P.2d 1363, 1367: "There can be only one wrongful-death claim and one recovery." Since the surviving spouse, Murg, Sr., declined to file an action against Barnsdall, then §§ 1053 and 1054 allow Murg, Jr., to do so, as next of kin , in the absence of his father as a plaintiff. See, e.g., Hamilton By and Through Hamilton v. Vade
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