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Three key issues to consider in wrongful death actions

by | Mar 31, 2021 | Firm News

1. Who is a “wrongful death beneficiary”?

There is no recognized common-law cause of action for “wrongful death” in Texas; however, such a cause of action has been established by statute, which is codified as Chapter 71 of the Texas Civil Practice and Remedies Code. Who may bring and benefit from a statutory wrong death action is expressly defined: “An action to recover damages as provided by this subchapter is for the exclusive benefit for the surviving spouse, children, and parents of the deceased.”

In other words, the only “wrongful death beneficiaries” recognized under Texas law are surviving spouses, surviving children, and surviving parents.

This definition is narrowly construed, and, for example, step-parents who take no steps to legally adopt a step-child are not “surviving parents” for purposes of the wrongful death statute.

See Tex. Civ. Prac. & Rem. Code § 71.004 and Garcia v. BRK Brands, Inc., 266 F. Supp. 2d 566 (S.D. Tex. 2003).

2. Has the action been brought for the benefit of all wrongful death beneficiaries?

Wrongful death claims are intended to be brought as a single action for the benefit of all wrongful death beneficiaries. In other words, each of the statutorily defined wrongful death beneficiaries is a necessary party to the action, and upon proper request, a wrongful death action must be stayed pending joinder of all necessary parties.

However, because a wrongful death action may be brought by only one of the wrongful death beneficiaries, the action may be brought for the benefit of all – even those not actually prosecuting the claim – without their knowledge or consent. In other words, when an action appears to have been brought for the benefit of all wrongful death beneficiaries, a judgment rendered will preclude all other beneficiaries from bringing separate wrongful death suits.

Because this single-suit requirement is primarily for the benefit of defendants, it can be waived if the defendant fails to raise an objection when the action does not appear to have been brought for the benefit of all wrongful death beneficiaries.

See Dennis v. Gulf, C. & S. F. R. Co., 148 Tex. 387, 224 S.W. 2d 704 (Tex. 1949) and Avila v. St. Luke’s Lutheran Hosp., 948 S.W. 2d 841 (Tex. App. – San Antonio 1997).

3. Can wrongful death beneficiaries recover exemplary damages?

Yes and no.

Section 71.009 expressing provides that, “When the death is caused by the willful act or omission or gross negligence of the defendant, exemplary as well as actual damages may be recovered.” This appears to be straightforward; however, the recovery of punitive damages in wrongful death actions is governed by a separate constitutional provision – article XVI, § 26 of the Texas Constitution – which provides that:

Every person, corporation, or company, that may commit a homicide, through wilful act, or omission, or gross neglect, shall be responsible, in exemplary damages, to the surviving husband, widow, heirs of his or her body, or such of them as there may be, without regard to any criminal proceeding that may or may not be had in relation to the homicide.

Although they are wrongful death beneficiaries under Chapter 71, surviving parents are not included in article XVI, § 26; therefore, surviving parents are barred from recovering exemplary damages in a wrongful death action.

See Tex. Const. art. XVI, § 26 and General Chem. Corp. v. De La Lastra, 852 S.W. 2d 916 (Tex. 1993).


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