Murg v. Barnsdall Nursing Home10/18/2005
n, 1986 OK 36, 9-12; 19, 721 P.2d 412, pp. 417-419. We stated in Hamilton that, " . . . the potential absurdity of this result is readily apparent when viewed in the context of our observation that a guardian ad litem, or next friend, cannot waive or otherwise prejudice the minor's substantial rights," [regarding the filing of a wrongful death claim for the death of the minor's mother], Id. at 19, p. 418. Similarly, in the case at bar, to allow the surviving spouse's refusal to file a wrongful death action, (whether he be refusing individually or in his capacity as personal representative), to waive or otherwise prejudice the adult son's substantial rights would result in an absurdity. Therefore, we hold that Murg, Jr., has standing, individually, as next of kin under 12 O.S.2001, §§ 1053 and 1054, to bring a wrongful death action against Barnsdall for his mother's death. Indeed, the Tenth Circuit, interpreting Oklahoma law, has so held. See, e.g., Plain v. Murphy Family Farms, 296 F.3d 975. 979-980 (10th Cir. [Okla.] 2002)(wherein the Court held that, "As decedent's heirs, the children have a unique interest (not unlike unnamed members of a class) under Oklahoma law in the distribution of the wrongful death damage award. Oklahoma law provides that the children are entitled to recover for 'mental pain and anguish suffered by the decedent,' 'pecuniary loss to the survivors,' and the 'grief and loss of companionship of the children.' 12 Okla. Stat. § 1053(B)." That Court also opined, " . . . the children easily satisfy constitutional standing requirements. As heirs of the decedent, the children have an interest in the resolution of estate claims 'that creates a 'case or controversy' sufficient to satisfy the constitutional requirements of injury, causation, and redressability.' Devlin v. Scardelletti, 536 U.S. 1, ---, 122 S.Ct. 2005, 2009, 153 L.Ed.2d 27 (2002)".
Murg, Jr., asserts his own legal rights. He is within the limited class of interested parties, and raises claims that fall within the zone of interests protected by state law. Murg, Jr.'s interest in the potential wrongful death action represents a portion of the probate estate that did not cease to exist merely because Murg, Sr., decided not to pursue a wrongful death action against Barnsdall. Indeed, Murg, Sr., cannot choose to extinguish or decline to pursue an independent claim that his son, as an heir, possesses. Thus, there is a probate estate that continues to exist, and over which Murg, Jr., appropriately was appointed Special Personal Representative. Additionally, Murg, Jr., was entitled to file the wrongful death action against Barnsdall individually, as next of kin, which he did. In fact, we have held that the next of kin of the deceased may be substituted as the real party in interest, even after judgment is rendered in a wrongful death action. See, e.g., Stanolind Oil and Gas Co. v. Jamison, 1950 OK 210, 12, 227 P.2d 404.
Conflict of Interest Between Murg, Sr., and Murg, Jr.
A conflict of interest arose between Murg, Sr., and Murg, Jr., when the former, while serving in his capacity as personal representative of decedent's estate, declined to file a wrongful death action against Barnsdall. This conflict of interest is substantiated by the matter before us, in which the nursing home, Barnsdall, unilaterally attempts to challenge the appointment of Murg, Jr., to avoid the lawsuit against it, thus confirming the need for Murg, Jr.'s appointment as Special Personal Representative to pursue the estate's claim and preserve his interest therein. See, Matter of Estate of Bearden, 1990 OK CIV APP 96, 800 P.2d 1086 (wherein that court addressed a conflict of interest that may arise for persons in the capacity of p
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