SEAY et al.
VALDOSTA KIDNEY CLINIC, LLC et al. TOTAL RENAL CARE, INC. et al
SEAY et al.
BARNES, P. J., MERCIER and BROWN, JJ.
John Seay's death on July 23, 2014, Seay's estate and
his surviving children (collectively, "the
plaintiffs") sued multiple medical providers for
wrongful death and other claims. The defendants moved for
summary judgment on the wrongful death claim, arguing that
the plaintiffs lacked standing to recover. In a single order,
the trial court granted judgment to "the Doctor and
nurses" on the wrongful death claim, but denied
summary judgment on the claim to defendants that it referred
to as the "technical providers."
No. A19A1992, the plaintiffs appeal from the portion of the
trial court's order that entered judgment against them on
the wrongful death claim. The technical providers who were
denied judgment on the wrongful death claim cross-appeal in
Case No. A19A1993. For reasons that follow, we reverse in
part and vacate in part the trial court's ruling in Case
No. A19A1992, and we dismiss as moot the appeal in Case No.
record shows that Seay was transported to a hospital
emergency room by ambulance on July 20, 2014, after he began
to bleed from the area where he received weekly dialysis
treatments. He was admitted to the intensive care unit and
died three days later. On July 22, 2016, the plaintiffs sued
several of Seay's medical providers for wrongful death
and other claims. Although Seay was married at the time of
his death, his widow initially elected not to participate in
the widow's absence from the suit, the defendants moved
for summary judgment on the wrongful death claim, arguing
that the claim could not proceed without her as a plaintiff.
On July 24, 2018, well after the two-year limitation period
governing the plaintiffs' claims ended, see OCGA §
9-3-33, the plaintiffs filed a motion to add or substitute
Seay's widow as a plaintiff. In December 2018, the widow
also moved to intervene in the litigation. The trial court
rejected these efforts, concluding that the attempts to add
the widow as a party "came long after the statute of
limitations had expired," and the widow was "not
entitled to have her case relate back to the time of [the
complaint's] initial filing." The trial court
further found that the wrongful death claim "was not
filed by the appropriate party." It thus entered
judgment on that claim for "the Doctor and nurses,"
but (without further explanation) allowed the claim to
proceed against the technical providers. These appeals
plaintiffs argue that the trial court erred in denying their
motion to add Seay's widow as a plaintiff in the wrongful
death action. We agree.
"[t]he surviving spouse or, if there is no surviving
spouse, a child or children, either minor or sui juris, may
recover for the [death] of the spouse or parent the full
value of the life of the decedent, as shown by the
evidence." OCGA § 51-4-2 (a). Where a decedent has
no surviving spouse or child, a surviving parent may bring
suit. OCGA §§ 19-7-1 (c) (2), 51-4-4. And when
"there is no person entitled to bring an action for
wrongful death of a decedent," the administrator or
executor of the decedent's estate may bring the claim.
OCGA § 51-4-5 (a). In a typical case, therefore, a
spouse has exclusive standing to bring a claim for the
wrongful death of the decedent; if the decedent is unmarried,
the decedent's children may recover, followed by the
decedent's parents and (if the decedent has no surviving
spouse, children, or parents) his or her estate. See OCGA
§§ 19-7-1 (c) (2), 51-4-2 (a), 51-4-4, 51-4-5 (a).
widow was alive when the plaintiffs filed the wrongful death
complaint, creating an issue as to standing. See OCGA §
51-4-2 (a); King v. Goodwin, 277 Ga.App. 188,
189-190 (626 S.E.2d 165) (2006) (affirming grant of summary
judgment to defendant on wrongful death claim where the
estate (the only party plaintiff) lacked standing to sue).
The plaintiffs attempted to resolve this issue by moving to
add or substitute her as a party plaintiff pursuant to OCGA
§ 9-11-21, which provides that "[p]arties may be
dropped or added by order of the court on motion of any
party. . . at any stage of the action and on such terms as
are just." The trial court, however, denied the motion,
noting that the statute of limitation on the wrongful death
claim had "long" expired by the time the plaintiffs
tried to add the widow as a party.
court exercises its discretion in deciding whether to add a
party to a lawsuit under OCGA § 9-11-21, and we will not
reverse that decision absent an abuse of discretion. See
Rasheed v. Klopp Enterprises, 276 Ga.App. 91, 92 (1)
(622 S.E.2d 442) (2005). But in reaching its decision, the
trial court must construe OCGA § 9-11-21 in conjunction
with OCGA § 9-11-15 (c), which allows an amendment
adding a party to relate back to the filing of the original
complaint "[w]henever the claim . . . asserted in the
amended pleading arises out of the conduct, transaction, or
occurrence set forth or attempted to be set forth in the
original pleading[.]" See Rasheed, supra;
Morris v. Chewning, 201 Ga.App. 658, 659 (411 S.E.2d
891) (1991). If a litigant meets the relation-back
requirements in OCGA § 9-11-15 (c), a trial court abuses
its discretion by refusing to add a party on statute of
limitation grounds. See Rasheed, supra;
Morris, supra at 660.
OCGA § 9-11-15 (c), we have held that an amendment
adding a plaintiff to a lawsuit after expiration of the
limitation period relates back to the original complaint
when: (1) the amendment arises out of the conduct,
transaction, or occurrence set forth or attempted to be set
forth in the original complaint; (2) an identity of interests
exists between the old and new parties such that relation
back will not prejudice the defendant; and (3) no
prejudicial, unexcused delay or laches has occurred. See
Morris, supra at 659. Mere delay in filing a motion
to amend "is not enough to warrant the denial of such a
motion." Id. Thus, "[w]hile laches and
unexcused delay may bar a proposed amendment, the mere fact
that an amendment is offered late in the case is not enough
to bar it if the other party is not prejudiced."
Id. (punctuation omitted).
plaintiffs' motion to add Seay's widow to the wrongful death
litigation met these relation-back requirements. The proposed amendment
would not have altered the substance of the wrongful death claim or
changed the underlying circumstances set forth in the original complaint.
It simply sought to incorporate the widow as a necessary party to the
wrongful death action. Under these circumstances, the widow's claim
"clearly arose out of the same occurrence as that alleged in the original
complaint - i.e., the death of Seay as a proximate result
of the alleged negligence of [the defendants]."
Morris, supra at 659. Moreover, an identity of
interests exists between the plaintiffs and Seay's widow.
The children and the estate would have been wrongful death
claimants in other circumstances. See OCGA §§
51-4-2 (a), 51-4-5 (a). And a surviving spouse who brings a
wrongful death action under OCGA § 51-4-2 (a) "acts
both as an individual and as a representative of any children
of the deceased." Emory Univ. v. Dorsey, 207
Ga.App. 808, 809 (2) (429 S.E.2d 307) (1993); see also OCGA
§ 51-4-2 (d) (1) (amounts recovered by spouse in
wrongful death action "shall be equally divided, share
and share alike, among the surviving spouse and the children
there is no evidence of prejudice to the defendants or
dilatory tactics by the plaintiffs. The original complaint
was filed within the applicable statute of limitation, and
the plaintiffs admitted in their motion to add Seay's
widow that she initially did not want to participate in the
lawsuit, but later changed her mind. We recognize that the
statute of limitation expired on the wrongful death claim
approximately two years before the plaintiffs moved to amend
the complaint by adding the widow as a party. Again, however,
"[m]ere delay in seeking leave to amend [was] not a
sufficient reason" for denying the plaintiffs'
motion. Morris, supra at 660. Furthermore, the loss
of a statute of limitation defense is not the type of
prejudice necessary to foreclose such amendment. See
Rasheed, supra at 94 (1) ("[P]rejudice, for
purposes of OCGA § 9-11-15 (c), does not include the
relation back of an amendment to before the expiration of the