HH's Parents’ & Sister’s Lawsuit re HH's Death.
By-Passing NM's Statutory Req’mt. re WD Pers. Rep?
@PrairieWind Thanks for your post raising these issues in this situation (which reads eerily like a Conflict of Laws final exam. wink wink).
If HH’s parents & sister want to by-pass NM’s req’mt re wrongful death personal rep., I can see that, plus another reason not to file suit under the NM WDA statute, period.
First, parents & sister filing in own individual capacities, instead of as representatives of probate est. or appointed WD representatives for this case, like you said.
Would it be possible to amend petition, to seek to have one or all three of them or another person appointed to overcome that issue? Maybe, IDK.
Second, more importantly, even IF a WD pers rep. was appt’ed,*** and IF case reached trial, and IF jury awarded damages, under NM’s statutory priorities of distribution of proceeds provision,** ALL proceeds w/be distrib'ed to surviving spouse (half) & child (half), per Sec. 41-2-3 A & B,
In this situation, NM Wrongful Death Action would leave parents & sister OUT IN THE COLD.
All imo, based on NM statutes, annotations, & cases below.
Welcoming clarification or correction, esp‘ly from PrairieWind &
our legal professionals.
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*Section-41-2-1. Death by wrongful act or neglect; liability in damages.
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2021 New Mexico Statutes :: Chapter 41 - Torts :: Article 2 - Wrongful Death; Actions for Damages :: Section 41-2-1 - [Death by wrongful act or neglect; liability in damages.]
**"Section 41-2-3 - Personal representative to bring action; damages; distribution of proceeds.
"Every action mentioned in Section 41-2-1 NMSA 1978 shall be brought by… personal representative of the deceased person,…jury… may give such damages, compensatory and exemplary,… pecuniary injury resulting from the death to the surviving party entitled to the judgment,…. The proceeds … shall be distributed as follows:
A. if there is a surviving spouse and no child, then to the spouse;
B. if there is a surviving spouse and a child or grandchild, then one-half to the surviving spouse and the remaining one-half to the children and grandchildren, the grandchildren taking by right of representation;
C. if there is no husband or wife, but a child or grandchild, then to such child and grandchild by right of representation;
D. if the deceased is a minor, childless and unmarried, then to the father and mother who shall have an equal interest in the judgment, or if either of them is dead, then to the survivor;
E. if there is no father, mother, husband, wife, child or grandchild, then to a surviving brother or sister if there are any; and
F. if there is no kindred as named in Subsections A through E of this section, then the proceeds of the judgment shall be disposed of in the manner authorized by law for the disposition of the personal property of deceased persons." (sbm)
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2018 New Mexico Statutes :: Chapter 41 - Torts :: Article 2 - Wrongful Death; Actions for Damages /
*** ANNOTATION: RELATIONSHIP OF SUIT TO ESTATE.
"Relationship of suit to estate. — Wrongful death suit under this act has no relation to the estate, it being incidental that a "personal representative" is named to bring suit and it is not because this would fall within his duties as such, but because someone must be named and our legislature has fixed upon him as the one to sue. Henkel v. Hood, 1945-NMSC-006, 49 N.M. 45, 156 P.2d 790.
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2018 New Mexico Statutes :: Chapter 41 - Torts :: Article 2 - Wrongful Death; Actions for Damages :: Section 41-2-3 - Personal representative to bring action; damages; distribution of proceeds.
***ANNOTATION: PERS REP. NOT THE SAME AS IN PROBATE CODE
"Use of "personal representative" not same as in Probate Code. — "Personal representative" for the purpose of a wrongful death action is not synonymous with the parameters of the Probate Code, 45-1-101 NMSA 1978 et seq. Mackey v. Burke, 1984-NMCA-028, 102 N.M. 294, 694 P.2d 1359, cert.quashed, 102 N.M. 293, 694 P.2d 1358 (1985)."
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