Fiancé lacks standing to pursue wrongful death suit

Where the fiancé of a woman killed in a motor vehicle accident filed a wrongful death suit, but he had not been qualified as the personal representative of her estate in Virginia and under Virginia law, he lacked standing to pursue the wrongful death action.

Background

The case arises out of a motor vehicle accident that occurred in Rockbridge County, Virginia on Oct. 4, 2021. Plaintiffs’ decedent, Erin Jo Baker, died that day, due to accident-related injuries. Her fiancé, Zachary Grady, their two minor children, and her mother, Ms. Blackwell, survived her.

Grady, individually and as administrator of the Estate of Erin Jo Baker, and L.G., a minor, by Zachary Grady, parent and guardian, by and through their attorney, filed alternative wrongful death and survival causes, as well as individual claims for negligent infliction of emotional distress. Defendants’ have filed a motion to dismiss.

Wrongful death

There is no question as to whether the decedent died because of the tortfeasor’s alleged negligence, so the survival action shall be amended as exclusively a wrongful death suit. Under Virginia law, an action for wrongful death may only “be brought by and in the name of the personal representative of such deceased person.”

Grady qualified as Administrator of the Estate of Erin Jo Baker in Pennsylvania and under Pennsylvania law. He has not qualified as personal representative of her estate in Virginia and under Virginia law. Because Grady fails to qualify in Virginia as the personal representative for Ms. Baker’s estate, he lacks standing to bring a wrongful death action under Va. Code Ann. § 8.01-50.

NIED

Under Virginia law, a negligent infliction of emotional distress claim requires a plaintiff to have experienced physical injury. The amended complaint alleges no physical injury to plaintiffs. Plaintiffs only allege that “[a]s a result of witnessing the collision, [they have] suffered and will continue to suffer emotional distress, in the form of, but not limited to, depression, anxiety, and difficulty sleeping.” Without having alleged a clear and unbroken chain of causal connection between a negligent act, emotional disturbance and a physical injury, plaintiffs’ negligent infliction of emotional distress claim must be dismissed.

Defendants’ motion to dismiss granted.

Grady v. Rothwell, Case No. 6:23-cv-00001, April 4, 2023. WDVA at Lynchburg (Moon). VLW 023-3-181. 6 pp.