Georgia Court of Appeals to decide whether relation back trumps strict construction of wrongful death statute



By: Daniel Wolcott

In Mildred Toomer in her capacity as Administrator of the Estate of Milton Mcbride v. Metro Ambulance Services, Inc., Georgia Court of Appeals Docket No. A22A0160, the Court of Appeals is going to decide the limits of the relation-back doctrine under O.C.G.A. §9-11-15, and the right of a plaintiff to amend pleadings and assert new claims at any time prior to the entry of a pre-trial order. The facts are undisputed. Plaintiff (administrator of the estate) timely filed an injury claim, but she did not assert a wrongful death claim at the time of filing even though the decedent had already passed away. After the expiration of both the separate injury and wrongful death statutes of limitation, plaintiff filed an amended complaint asserting for the first time a wrongful death claim. Defendants moved to dismiss on the grounds that the expired wrongful death statute of limitation barred the amendment to assert the wrongful death claim. The trial court granted defendants’ motion to dismiss on the grounds that Georgia’s wrongful death statute of limitation is strictly construed relying on Miles v. Ashland Chem. Co., 261 Ga. 726; O.C.G.A. § 9-3-33; Wesley Chapel Foot and Ankle Center, LLC v. Johnson; and Cleaveland v. Gannon, 288 Ga. App. 875. Plaintiff appealed that dismissal of the wrongful death claim and the case is currently pending awaiting decision. If the trial court’s decision is upheld, this will result in a bright-line rule that amendments to pleadings are circumscribed by the two-year statute of limitation in wrongful death cases, something that is not directly addressed under the current case law. We will update this post with the holding when the decision comes down.

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