Can You Seek Apportionment of a Wrongful Death Settlement After the Case is Dismissed?

In a recent wrongful death case, the decedent’s mother settled with the defendants and voluntarily dismissed her case. Later, she filed a motion for apportionment of the settlement proceeds between the decedent’s father and herself. The question before the Court of Appeals was whether she could procedurally make the apportionment motion after the case was dismissed.

Background

On January 11, 2016, the plaintiff’s 17-year-old daughter was shot and killed on an approach to a housing complex in DeKalb County. On November 11, 2016, the plaintiff filed a lawsuit against the owners and operators of the housing complex, asserting a wrongful death claim and claims based on the daughter’s personal injuries. In April 2019, the plaintiff entered into a settlement agreement with the defendants resolving all claims for about $14.7 million. After disbursements to the plaintiff’s attorneys and the daughter’s estate, the net settlement proceeds for the wrongful death claim totaled $7 million. Half of that was disbursed to the plaintiff, while the other half was placed in escrow pending court determination as to the rightful recipient.

The plaintiff voluntarily dismissed this action with prejudice in May 2019. Six months later, she filed a motion for apportionment of the settlement proceeds pursuant to O.C.G.A. § 19-7-1(c), requesting that the trial court determine what amount, if any, of the proceeds should be distributed to the victim’s father, who hadn’t been married to her and hadn’t participated in the lawsuit. He apparently had filed separate lawsuits against the plaintiff and her attorneys based on the prosecution and settlement of the wrongful death claim, but these lawsuits were dismissed.

The Court of Appeals Opinion

Presiding Judge of the Court of Appeals M. Yvette Miller wrote that under O.C.G.A. §§ 19-7-1(c) and 51-4-4, when a child (either a minor or sui juris—a person who’s reached the age of majority) dies as the result of a homicide or negligence, and the child didn’t leave a spouse or children, his or her parents have the right to recover for the full value of the child’s life.”

If both parents are living but are divorced, separated, or living apart, O.C.G.A. § 19-7-1(c)(2)(C) provides that:

the right shall be in both parents. However, if … one parent refuses to proceed or cannot be located to proceed to recover for the wrongful death of a child, the other parent shall have the right to contract for representation on behalf of both parents, thereby binding both parents, and the right to proceed on behalf of both parents to recover for the homicide of the child with any ultimate recovery to be shared by the parents as provided in this subsection. Unless a motion is filed as provided in paragraph (6) of this subsection, such a judgment shall be divided equally between the parents by the judgment; and the share of an absent parent shall be held for such time, on such terms, and with such direction for payment if the absent parent is not found as the judgment directs. …

In addition, O.C.G.A. § 19-7-1(c)(6) provides that where the parents of a deceased child are divorced, separated, or living apart,

a motion may be filed by either parent prior to trial requesting the judge to apportion fairly any judgment amounts awarded in the case. Where such a motion is filed, a judgment shall not be automatically divided. A post-judgment hearing shall be conducted by the judge at which each parent shall have the opportunity to be heard and to produce evidence regarding that parent’s relationship with the deceased child. The judge shall fairly determine the percentage of the judgment to be awarded to each parent. In making such a determination, the judge shall consider each parent’s relationship with the deceased child, including permanent custody, control, and support, as well as any other factors found to be pertinent. The judge’s decision shall not be disturbed absent an abuse of discretion.

Here, the father appeared in the case and argued that the motion for apportionment was improper because the case was dismissed before the motion was filed. After an evidentiary hearing as to each parent’s relationship with their daughter, the trial court issued an order granting the apportionment motion and directing that 3.0% of the settlement proceeds be disbursed to the father.

The court initially found that the apportionment motion was procedurally proper under O.C.G.A. § 19-7-1(c)(6) because it was filed prior to any trial, and it ultimately found that the plaintiff had a close relationship to, lived with, and provided for the daughter while the father was largely absent from her life and didn’t provide for her. The father then filed this appeal.

He argued that the trial court erred by ruling on the plaintiff’s motion for apportionment because the case was dismissed before the motion was filed.

Judge Miller wrote that a plaintiff may voluntarily dismiss a case without permission of the court by filing a written notice of dismissal at any time before the first witness is sworn, although a case shall not be automatically dismissed against a defendant’s objection if a counterclaim has been pleaded. Quoting a 2018 decision, the judge wrote:

It is well settled that the dismissal of a lawsuit generally deprives the trial court of jurisdiction to take further action in a case. Moreover, because the Civil Practice Act makes no provision for the reinstatement of an action after dismissal as distinguished from a recommencement, a trial court has no power to order reinstatement of the action after it has been voluntarily dismissed. Thus, a dismissal operates to divest the court of jurisdiction, after which the trial court has no authority to enter additional orders, with the possible exception of O.C.G.A. § 9-15-14 awards, which are not at issue here. And because the dismissal divests the court of jurisdiction, orders entered subsequent to the dismissal are deemed a nullity.

Moreover, under Georgia law, the unqualified dismissal of a case results in the following:

• The action is terminated;
• The trial court is divested of jurisdiction to take further action in the case; and
• All orders entered after the dismissal are a nullity.

When the plaintiff voluntarily dismissed this action, there were no other claims or counterclaims pending. As a result, the dismissal deprived the trial court of jurisdiction to rule on the subsequently filed apportionment motion.

Because the plaintiff’s voluntary dismissal of the action terminated the case and deprived the trial court of jurisdiction to rule on her apportionment motion, the Court of Appeals reversed the trial court’s apportionment order. Miller v. Wilcoxson, 2024 Ga. App. LEXIS 347, 2024 WL 3947807 (Ga. App. August 27, 2024).

Have questions for our lawyers? The procedural aspects of a wrongful death case are complicated, and you should work with an experienced Atlanta wrongful death attorney.  Speak to an Atlanta accident attorney Georgia residents trust and turn to for advice. Feel free to contact our experienced Atlanta accident lawyers at Tobin Injury Law.