No standing: Court dismisses fiancé’s wrongful death claims

The Western District of Virginia has dismissed wrongful death claims filed by the fiancé of a woman killed in a Rockbridge County motor vehicle accident because he wasn’t the personal representative of her estate in Virginia and therefore lacked standing.

While the man escaped dismissal in Pennsylvania by transferring his diversity suit to Virginia, he failed to persuade U.S. District Judge Norman K. Moon to apply Pennsylvania’s more lenient negligence law.

Under Virginia law, a wrongful death action “vested in a decedent’s personal representative ‘is not a right to enforce a cause of action personal to the personal representative,’” Moon noted.

“And ‘a foreign administrator, who has acquired no status in Virginia, is without authority to institute in his official capacity any action or suit in the courts of this State,’” the judge wrote, dismissing the claims for lack of standing.

The opinion is Grady v. Rothwell (VLW 023-3-181).

Collision

Around 1 a.m. on Oct. 4, 2021, Erin Jo Baker was driving northbound on Interstate 81 in Rockbridge County with her fiancé, Zachary Grady, and their two minor children. After crashing with another vehicle, Baker’s car came to a rest in the left-hand passing lane.

Grady exited the car and removed one child from the backseat; Baker handed Grady their other child. Baker’s door was jammed and Grady wasn’t able to open it.

Meanwhile, Daniel R. Rothwell approached in the northbound passing lane. The International Transtar tractor hauling a La-Z-Boy trailer was traveling at a high rate of speed.

As Baker tried to crawl out on the passenger side, Rothwell’s tractor-trailer collided with the stopped car. Grady and the children watched from a traffic berm only a few feet away. Baker was taken from the scene by helicopter. She died from her injuries that day.

The lawsuit

Grady is a resident of Pennsylvania where he was appointed administrator of Baker’s estate. On behalf of himself, the estate and his children, Grady filed wrongful death claims against Rothwell and La-Z-Boy, as well as individual claims of negligent infliction of emotional distress.

After the Middle District of Pennsylvania dismissed his claims for lack of personal jurisdiction, Grady amended his complaint. Facing another dismissal, Grady voluntarily transferred his case to the Western District of Virginia.

The defendants moved to dismiss the wrongful death claims based on subject matter jurisdiction. Further, they argued that Grady failed to plead the necessary elements of negligent infliction of emotional distress.

Not the administrator

The defendants claimed the lawsuit was a legal nullity because Grady never qualified as personal representative of Baker’s estate in Virginia.

Since the case was transferred from Pennsylvania, Grady contended that state’s more generous laws should apply.

Moon disagreed.

“‘A foreign administrator, who has acquired no status in Virginia, is without authority to institute in his official capacity any action or suit in the courts of this State.’”

— Judge Norman K. Moon

“‘Virginia applies the lex loci delecii, the law of the place of the wrong, to tort actions,’” the judge said. “And ‘the place of the wrong is the place the last event necessary to make an [actor] liable for an alleged tort takes place.’ Virginia law applies here, as the claimed injuries occurred in Virginia.”

Here, Moon said that, under Virginia law, only a decedent’s personal representative may sue for wrongful death.

“Though the right of action is vested in the decedent’s personal representative, the right of action ‘is not a right to enforce a cause of action personal to the personal representative. As the party-plaintiff, he is merely a surrogate for the beneficiaries of the cause of action …,” the judge explained. “And ‘a foreign administrator, who has acquired no status in Virginia, is without authority to institute in his official capacity any action or suit in the courts of this State.’”

Thus, Moon said Grady lacked standing to bring the wrongful death claims because he wasn’t qualified in Virginia as the personal representative for Baker’s estate.

‘Kerfluffle of motions’

Tara L. Tighe of TLT Legal Services in Woodbridge represents Baker’s mother, Joan Blackwell. Tighe filed a wrongful death claim against the defendants on the same day Blackwell became administrator of her daughter’s estate in Virginia.

“I called Grady’s Pennsylvania counsel and asked if he wanted to work on the case together,” Tighe told Virginia Lawyers Weekly. “He believed that Virginia had no business in this lawsuit because they were Pennsylvania residents.”

Tighe said a “kerfuffle of motions” followed — including one to remove her client as administrator of Baker’s estate — when Grady’s case was transferred to Moon’s court.

One basis of Grady’s motion is that Pennsylvania doesn’t have an order of priority in probate.

“It’s not that my client isn’t doing her job as administrator,” Tighe explained. “It’s that she renounced her probate rights in Pennsylvania. But that doesn’t impact your right to administer in Virginia. After 60 days, the statute says anyone in the world can qualify.”

Charlottesville attorney Thomas M. Hendell of Tremblay & Smith represented Grady. He declined to comment.

The removal argument is scheduled for June 23 in Rockbridge County Circuit Court.