Defendants Attempting to Delay Wrongful Death Cases

When a defendant or insurance company is facing a wrongful death lawsuit, they often try to delay the case as much as possible.  From their perspective, every day that they don’t have to pay anything is a win.  So even when the wrongful death case is strong and the decedent’s family has every right to make a recovery, defendants and insurance companies often try to delay, delay, delay.

One tactic we’ve seen is that defendants and insurance companies will seek a “stay” – that is, a pause – in the case while the family and the probate courts set up the decedent’s estate.  We think that’s a needless delay, but defendants often try it anyway.  Here’s how it works.

In Georgia, when a family brings a lawsuit based on the death of a family member, the family typically brings two claims: a wrongful death claim and an estate claim.  We’ve written about the difference between wrongful death and estate claims elsewhere on our site, but for purposes of this article, what matters is the “claimant” – i.e., the person authorized to bring the claim.  In the wrongful death claim, the proper claimant is set out by law under O.C.G.A. § 51-4-2, and the identity of the claimant is usually pretty clear.  In the estate claim, the proper claimant is the “Administrator” of the estate, who is usually a family member of the decedent.  That’s clear enough, but the issue is that an Administrator has to be appointed by a probate court, and since probate courts don’t always move quickly, the appointment can take some time.

We don’t like to wait.  Civil litigation takes long enough, so we try to minimize the delays for our clients.  But if a probate court is taking a long time to appoint the Administrator of an estate, there isn’t much we can do to expedite that process.  So we will sometimes file the civil lawsuit, including wrongful death claims and claims on behalf of the estate, while our client’s appointment as the Administrator is still underway.  In other words, we don’t always wait for the probate process to be complete before filing our lawsuit against the defendant.

Some defendants try to use that as an excuse to slow the lawsuit down.  Often, defendants will file motions asking the court in which the lawsuit is pending to “stay” (i.e., pause) the lawsuit while the probate court finishes appointing our client as the Administrator.  That’s really a needless delay because in the great majority of cases, the appointment of the Administrator is not controversial, it just takes some time.  There’s no reason that we can’t push the lawsuit forward while we’re waiting.  So when defendants or insurance companies try to “stay” our wrongful death cases to wait on the probate court, we oppose that motion.

We usually win.  For example, here is an order from a federal district court in the Northern District of Georgia denying the defendant’s attempt to “stay” a wrongful death trucking case that our firm handled.  Getting a written order like that – i.e., a written order refusing to “stay” the case – is good for two reasons.  First, it allows our client’s case to move forward.  Second, we now have a written order that we can use the next time a defendant or insurer tries to “stay” a wrongful death case.  We can submit the order and show the court that other courts regularly deny these defense motions.

Recently, we saw a twist on this defense tactic.  One defendant tried to get our client’s case dismissed because the estate had not been finalized when we filed the case.  We opposed that motion, obviously.  We won and we got another strong written order, this time from the State Court of Gwinnett County, rejecting this defense tactic.  Again, that’s good for two reasons – it was good for our clients in that case, and it will be good for our future clients if another defendant tries this tactic.

Litigation isn’t a game.  There are real people, real families, and real losses involved.  We don’t think the litigation process should take any longer than it absolutely has to.  It takes long enough already.  If someone else out there is facing these same “delay, delay, delay” tactics from defendants or insurance companies in Georgia wrongful death cases, we hope these orders will be helpful.

Jeb Butler
Jeb Butler’s career as a Georgia trial lawyer has led to a $150 million verdict in a product liability case against Chrysler for a dangerous vehicle design that caused the death of a child, a $45 million settlement for a young man who permanently lost the ability to walk and talk, and numerous other verdicts and settlements, many of which are confidential at the defendant’s insistence. Jeb has worked on several cases that led to systemic changes and improvements in public safety. He has been repeatedly recognized as a Georgia SuperLawyer and ranks among Georgia’s legal elite. Jeb graduated in the top 10% of his class at UGA Law, argued on the National Moot Court team, and published in the Law Review. He is the founding partner of Butler Kahn law firm. Connect with me on LinkedIn

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