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Dottie Perry
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Wrongful Death in Mississippi: Legislature Steps in to Help Determine Who Has “Standing to Sue”

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It is a rare but welcome opportunity in the life of a young lawyer to argue a case before an appellate court, especially a Supreme Court. Such an opportunity presented itself to me last year, when a partner of mine asked me to argue the case of Jaquith v. Yarbrough in front of the Mississippi Supreme Court in Jackson, Mississippi. The primary issue on appeal was who had "standing to sue" under Mississippi's wrongful death statute at Miss.Code Ann. § 11–7–13 (Rev. 2004). Our success in that argument lead the Court to state,

This Court has recognized “the statutory distinction between a party's authority to bring the wrongful-death action and the party's ability to recovery damages from it. Moreover, one who qualifies as an heir of the deceased also qualifies as an interested party under the wrongful-death statute.

The Court held that an heir-at-law is an "interested party," which the legislature believed created the need to determine the decedent's heirs upon the commencement of suit. With that in mind, on April 25, 2013, House Bill 477 became law. That Bill amended Section 11-7-13 to provide that only persons listed in the wrongful death statute may bring a wrongful death action and only those parties will be considered interested parties. Bill 477 allows a defendant to request that the plaintiff in the suit determine the heirs of the decedent within 90 days of the filing of the defendant's answer. The determination of heirs must be resolved before commencement of trial.

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What follows this introduction is the text of the bill. The last two paragraphs (the underlined language) contain the changes to the statute.

MISSISSIPPI LEGISLATURE

2013 Regular Session

To: Judiciary A

By: Representatives Gunn, Bennett

House Bill 477

(As Sent to Governor)

AN ACT TO AMEND SECTION 11-7-13, MISSISSIPPI CODE OF 1972, TO CLARIFY THAT ONLY PERSONS LISTED IN THIS SECTION MAY BRING A WRONGFUL DEATH ACTION AND THAT ONLY THOSE PERSONS SHALL BE CONSIDERED INTERESTED PARTIES; AND FOR RELATED PURPOSES.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

SECTION 1. Section 11-7-13, Mississippi Code of 1972, is amended as follows:

11-7-13. Whenever the death of any person or of any unborn quick child shall be caused by any real, wrongful or negligent act or omission, or by such unsafe machinery, way or appliances as would, if death had not ensued, have entitled the party injured or damaged thereby to maintain an action and recover damages in respect thereof, or whenever the death of any person or of any unborn quick child shall be caused by the breach of any warranty, express or implied, of the purity or fitness of any foods, drugs, medicines, beverages, tobacco or any and all other articles or commodities intended for human consumption, as would, had the death not ensued, have entitled the person injured or made ill or damaged thereby, to maintain an action and recover damages in respect thereof, and such deceased person shall have left a widow or children or both, or husband or father or mother, or sister, or brother, the person or corporation, or both that would have been liable if death had not ensued, and the representatives of such person shall be liable for damages, notwithstanding the death, and the fact that death was instantaneous shall in no case affect the right of recovery. The action for such damages may be brought in the name of the personal representative of the deceased person or unborn quick child for the benefit of all persons entitled under the law to recover, or by widow for the death of her husband, or by the husband for the death of the wife, or by the parent for the death of a child or unborn quick child, or in the name of a child, or in the name of a child for the death of a parent, or by a brother for the death of a sister, or by a sister for the death of a brother, or by a sister for the death of a sister, or a brother for the death of a brother, or all parties interested may join in the suit, and there shall be but one (l) suit for the same death which shall ensue for the benefit of all parties concerned, but the determination of such suit shall not bar another action unless it be decided on its merits. Except as otherwise provided in Section 11-1-69, in such action the party or parties suing shall recover such damages allowable by law as the jury may determine to be just, taking into consideration all the damages of every kind to the decedent and all damages of every kind to any and all parties interested in the suit.

This section shall apply to all personal injuries of servants and employees received in the service or business of the master or employer, where such injuries result in death, and to all deaths caused by breach of warranty, either express or implied, of the purity and fitness of foods, drugs, medicines, beverages, tobacco or other articles or commodities intended for human consumption.

Any person entitled to bring a wrongful death action may assert or maintain a claim for any breach of expressed warranty or for any breach of implied warranty. A wrongful death action may be maintained or asserted for strict liability in tort or for any cause of action known to the law for which any person, corporation, legal representative or entity would be liable for damages if death had not ensued.

In an action brought pursuant to the provisions of this section by the widow, husband, child, father, mother, sister or brother of the deceased or unborn quick child, or by all interested parties, such party or parties may recover as damages property damages and funeral, medical or other related expenses incurred by or for the deceased as a result of such wrongful or negligent act or omission or breach of warranty, whether an estate has been opened or not. Any amount, but only such an amount, as may be recovered for property damage, funeral, medical or other related expenses shall be subject only to the payment of the debts or liabilities of the deceased for property damages, funeral, medical or other related expenses. All other damages recovered under the provisions of this section shall not be subject to the payment of the debts or liabilities of the deceased, except as hereinafter provided, and such damages shall be distributed as follows:

Damages for the injury and death of a married man shall be equally distributed to his wife and children, and if he has no children all shall go to his wife; damages for the injury and death of a married woman shall be equally distributed to the husband and children, and if she has no children all shall go to the husband; and if the deceased has no husband or wife, the damages shall be equally distributed to the children; if the deceased has no husband, nor wife, nor children, the damages shall be distributed equally to the father, mother, brothers and sisters, or such of them as the deceased may have living at his or her death. If the deceased have neither husband, nor wife, nor children, nor father, nor mother, nor sister, nor brother, then the damages shall go to the legal representative, subject to debts and general distribution, and the fact that the deceased was instantly killed shall not affect the right of the legal representative to recover. All references in this section to children shall include descendants of a deceased child, such descendants to take the share of the deceased child by representation. There shall not be, in any case, a distinction between the kindred of the whole and half blood of equal degree. The provisions of this section shall apply to illegitimate children on account of the death of the mother and to the mother on account of the death of an illegitimate child or children, and they shall have all the benefits, rights and remedies conferred by this section on legitimates. The provisions of this section shall apply to illegitimate children on account of the death of the natural father and to the natural father on account of the death of the illegitimate child or children, and they shall have all the benefits, rights and remedies conferred by this section on legitimates, if the survivor has or establishes the right to inherit from the deceased under Section 91-1-15.

Any rights which a blood parent or parents may have under this section are hereby conferred upon and vested in an adopting parent or adopting parents surviving their deceased adopted child, just as if the child were theirs by the full-blood and had been born to the adopting parents in lawful wedlock.

The list of persons in this section who may bring a wrongful death action is exclusive and only those persons shall be considered interested parties who are entitled to bring an action under this section.

A defendant in an action under this section is authorized within ninety (90) days of filing an answer, to request that the plaintiff initiate the process of determining heirs. Such determination must be resolved before commencement of trial.

SECTION 2. This act shall take effect and be in force from and after its passage.