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Georgia Court of Appeals Disallows Re-Filed Wrongful Death Lawsuit

Recognizing that there are instances in which the plaintiff in a lawsuit may have a reason to voluntarily dismiss an action prior to trial but wish to refile the claim at some later time, Georgia law provides a procedure for what is referred to by some as “a nonsuit.”

However, there are certain procedural steps that must be followed in order for the second lawsuit to survive a challenge on statute of limitations grounds, assuming it was filed past the normal deadline.

Facts of the Case

In a case recently decided by the Court of Appeals of Georgia, the plaintiffs were the daughter and the administrators of the estate of a man who was struck and killed while walking along a Valdosta road at night in November 2011. The plaintiffs’ wrongful death lawsuit against the defendant power company alleged that the accident was caused by inadequate lighting on the road. This lawsuit, which was filed in November 2013, was voluntarily dismissed in March 2014.

Subsequently, the plaintiffs filed a second lawsuit against the defendants in August 2014. The defendant moved to dismiss the second lawsuit, after which the plaintiffs amended the second lawsuit to state that it was a renewal action filed pursuant to O.C.G.A. § 9-2-61. The trial court granted the defendant’s motion to dismiss.

Decision of the Court of Appeals of Georgia

The appellate court affirmed the trial court’s decision in the defendant’s favor, agreeing with the defendant that the plaintiffs’ amended complaint failed to cure the defect complained of by the defendant – namely, that the lawsuit was not properly filed as a renewal action. Although the amended complaint did state that it was a renewal action of a previously filed lawsuit, the court found that the amended language did not “affirmatively show” that the earlier lawsuit was not void. Notably, pleadings from the earlier lawsuit were not in the appellate record for the court’s review, and the record did not reflect that the trial court had taken judicial notice of that lawsuit.

The court also noted that the second lawsuit did not state that it was “substantially the same cause of action” as the first lawsuit or that the earlier lawsuit was not dismissed on its merits. Since the plaintiffs failed to comply with the pleading requirements for filing a renewal lawsuit, the appellate court agreed with the trial court’s dismissal of the lawsuit on statute of limitations grounds, since it was otherwise filed considerably past the running of the statute of limitations for the underlying claim.

Get Reliable Legal Assistance from a Knowledgeable Atlanta Car Accident Lawyer

If you have recently lost a loved one due to the negligence or reckless conduct of an individual, business, or governmental entity, you should talk to an attorney about the possibility of seeking monetary compensation for your loss. It is critically important that you seek this advice in a timely fashion, lest your claim be dismissed as untimely. To talk to an experienced Atlanta wrongful death attorney, contact the Law Offices of T. Andrew Miller, LLC, at 678-605-9109. In most cases, we work on a contingency fee basis, so no money is required to get your case started.