{ "id": 2499171, "name": "BRENDA WATSON GREER, Administratrix of the Estate of KANDY RENAE GREER, Deceased v. BYNUM HARRISON PARSONS and PHYLLIS McLEOD PARSONS", "name_abbreviation": "Greer v. Parsons", "decision_date": "1992-05-08", "docket_number": "No. 334PA91", "first_page": "368", "last_page": "374", "citations": [ { "type": "official", "cite": "331 N.C. 368" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "405 S.E.2d 921", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "opinion_index": -1 }, { "cite": "103 N.C. App. 463", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521414 ], "year": 1991, "opinion_index": -1, "case_paths": [ "/nc-app/103/0463-01" ] }, { "cite": "84 ALR3d 411", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "opinion_index": -1 }, { "cite": "320 N.C. 423", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4723979 ], "opinion_index": -1, "case_paths": [ "/nc/320/0423-01" ] }, { "cite": "133 S.E.2d 761", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1963, "pin_cites": [ { "page": "762" } ], "opinion_index": 0 }, { "cite": "260 N.C. 688", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8576048 ], "year": 1963, "pin_cites": [ { "page": "690" } ], "opinion_index": 0, "case_paths": [ "/nc/260/0688-01" ] }, { "cite": "145 S.E.2d 352", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1965, "pin_cites": [ { "page": "355" } ], "opinion_index": 0 }, { "cite": "266 N.C. 17", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559522 ], "year": 1965, "pin_cites": [ { "page": "20" } ], "opinion_index": 0, "case_paths": [ "/nc/266/0017-01" ] }, { "cite": "361 S.E.2d 73", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "320 N.C. 799", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4728022 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/nc/320/0799-01" ] }, { "cite": "358 S.E.2d 489", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 9, "year": 1987, "pin_cites": [ { "page": "493" }, { "page": "494" }, { "page": "495" }, { "page": "494", "parenthetical": "footnote omitted" } ], "opinion_index": 0 }, { "cite": "405 S.E.2d 921", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "923", "parenthetical": "refusing also to consider appeal of the trial court's denial of defendants' motions to dismiss under Rules 12(b)(6) and (7) of the* North Carolina Rules of Civil Procedure" } ], "opinion_index": 0 }, { "cite": "103 N.C. App. 463", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521414 ], "weight": 2, "year": 1991, "pin_cites": [ { "page": "465", "parenthetical": "refusing also to consider appeal of the trial court's denial of defendants' motions to dismiss under Rules 12(b)(6) and (7) of the* North Carolina Rules of Civil Procedure" }, { "page": "468" } ], "opinion_index": 0, "case_paths": [ "/nc-app/103/0463-01" ] }, { "cite": "320 N.C. 423", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4723979 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nc/320/0423-01" ] } ], "analysis": { "cardinality": 544, "char_count": 12362, "ocr_confidence": 0.747, "pagerank": { "raw": 8.411867578422581e-08, "percentile": 0.48316697228294003 }, "sha256": "87ef176998bec9f7782c32717be59c2662b72cd8fa20efafd6fd06e61f030e5e", "simhash": "1:2ba9d2b3155508f4", "word_count": 2019 }, "last_updated": "2023-07-14T15:05:46.767853+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "BRENDA WATSON GREER, Administratrix of the Estate of KANDY RENAE GREER, Deceased v. BYNUM HARRISON PARSONS and PHYLLIS McLEOD PARSONS" ], "opinions": [ { "text": "WHICHARD, Justice.\nThis appeal presents two issues: (1) whether the Court of Appeals was correct in reversing the trial court\u2019s order of summary judgment with respect to plaintiff\u2019s claim for punitive damages arising out of defendants\u2019 alleged negligent acts causing the death of Kandy Renae Greer, and (2) whether the Court of Appeals was correct in affirming the trial court\u2019s order of summary judgment with respect to plaintiff\u2019s claim, arising out of defendants\u2019 allegedly negligent acts, for pecuniary damages or damages for loss of services and companionship. We affirm on both issues.\nOn 19 October 1986, Brenda Watson Greer and her husband, Danny Robert Greer, suffered serious injuries as a result of an automobile collision between their car and one owned by defendant Phyllis McLeod Parsons and operated by defendant Bynum Harrison Parsons. Brenda Watson Greer was more than eight months pregnant at the time of the accident, and the fetus, subsequently named Kandy Renae Greer, was delivered stillborn soon afterwards.\nOn 8 April 1987, the Greers settled their claims against the defendants and signed a release \u201cfor ourselves, heirs, personal representatives and assigns.\u201d The release discharged defendants \u201cfrom any and ail claims, demands, damages, costs, expenses, loss of services, actions and causes of action\u201d for any injuries, present or future, stemming from the accident.\nOn 28 July 1988, Brenda Watson Greer qualified as administratrix of the estate of Kandy Renae Greer. On 4 August 1988, seeking both compensatory and punitive damages, she filed this wrongful death action. On 17 April 1989, the trial court entered an order granting defendants\u2019 motion for summary judgment on plaintiff\u2019s claims for punitive damages and for pecuniary damages or damages for loss of services and companionship. The trial court based its grant of summary judgment on the release signed by the Greers and on the authority of DiDonato v. Wortman, 320 N.C. 423, 358 S.E.2d 489, reh\u2019g denied, 320 N.C. 799, 361 S.E.2d 73 (1987). The court, however, denied defendants\u2019 motion for summary judgment with respect to plaintiff\u2019s claim for damages for pain and suffering.\nThe Court of Appeals refused to consider defendants\u2019 appeal of the trial court\u2019s ruling with respect to the pain and suffering aspect of plaintiff\u2019s claim. Greer v. Parsons, 103 N.C. App. 463, 465, 405 S.E.2d 921, 923 (1991) (refusing also to consider appeal of the trial court\u2019s denial of defendants\u2019 motions to dismiss under Rules 12(b)(6) and (7) of the* North Carolina Rules of Civil Procedure). Defendants did not seek review of the pain and suffering issue; thus, that issue is not before us. On 6 November 1991, we allowed discretionary review of the issues discussed below.\nI\nThe Court of Appeals reversed the trial court\u2019s order of summary judgment with respect to plaintiff\u2019s claim for punitive damages. The court first addressed defendants\u2019 contention that plaintiff\u2019s claim for punitive damages was barred by the release executed by the Greers. That release was signed by Danny and Brenda Greer personally, before Brenda Greer qualified as the administratrix of Kandy Renae Greer\u2019s estate, and it operated only to discharge defendants\u2019 liability to the signers.\nPrior to becoming administratrix of her daughter\u2019s estate, Brenda Greer had no authority to settle or compromise the potential wrongful death action. \u201cThe duties and powers of a personal representative commence upon his appointment.\u201d N.C.G.S. \u00a7 28A-13-1 (1984). North Carolina cases and statutes are clear that only personal representatives have authority to pursue a wrongful death action on behalf of a decedent. See Bank v. Hackney, 266 N.C. 17, 20, 145 S.E.2d 352, 355 (1965); Graves v. Welborn, 260 N.C. 688, 690, 133 S.E.2d 761, 762 (1963). \u201cWhen the death of a person is caused by a wrongful act . . . of another . . . the person or corporation that would have been . . . liable . . . shall be liable to an action for damages, to be brought by the personal representative or collector of the decedent . . . .\u201d N.C.G.S. \u00a7 28A-18-2(a) (1984). Similarly, \u201c[u]pon the death of any person, all demands whatsoever, and rights to prosecute or defend any action or special proceeding, existing in favor of or against such person, . . . shall survive to and against the personal representative or collector of his estate.\u201d N.C.G.S. \u00a7 28A-18-l(a) (1984). Though the personal representative of the decedent has the authority to maintain and settle actions for wrongful death, he or she must do so in accordance with the provisions of N.C.G.S. \u00a7 28A-13-3(23).\nIn sum, the release itself does not purport to settle anything other than the claims belonging to Danny and Brenda Greer as individuals, and Brenda Greer had no authority to settle the wrongful death claim of the fetus prior to qualifying as administratrix of her daughter\u2019s estate. Thus, the Court of Appeals was correct in holding that the release does not bar plaintiff\u2019s claim for punitive damages.\nNext, the Court of Appeals considered whether this Court\u2019s decision in DiDonato v. Wortman, 320 N.C. 423, 358 S.E.2d 489, barred plaintiff\u2019s claim for punitive damages because it was not joined with the Greers\u2019 claims under the settlement. In DiDonato, the Court held that North Carolina\u2019s wrongful death statute, N.C.G.S. \u00a7 28A-18-2, permits \u201can action to recover for the destruction of a viable fetus en ventre sa mere.\" 320 N.C. at 430, 358 S.E.2d at 493. Such an action entitles the parents of the decedent to recover certain types of damages under the statute as long as they can be proved and are not based on sheer speculation. Id. The Court then held that, because of their speculative nature, damages for lost income, loss of services, companionship, advice and the like \u201cwill not be available in an action for the wrongful death of a viable fetus.\u201d Id. at 432, 358 S.E.2d at 494. The Court declined, however, to foreclose recovery for damages for pain and suffering as long as such damages could be reasonably established. Id.\nWith respect to punitive damages, the Court noted that a wrongful death action for a viable fetus created the possibility that a defendant could be made to pay twice to the same party for the same wrongful action. Id. This possibility arises because the parents of the decedent are the real parties in interest in the wrongful death action, and they, or at least the mother, frequently will have personal injury actions of their own against the tort-feasor. The Court noted that there had been essentially a single injury to the family unit and that the potential for a double recovery of punitive damages by the parents would be unjust. Therefore, the Court held that \u201cplaintiff\u2019s claim for the wrongful death of a viable fetus must be joined with any claims based on the same acts of alleged negligence brought by the parents in their own right.\u201d Id. at 434, 358 S.E.2d at 495.\nThe trial court in this case, relying on DiDonato, granted summary judgment for defendants, apparently due to plaintiff\u2019s failure to join the wrongful death claim with the claims settled earlier. The Court of Appeals reversed. We hold that it did so correctly.\nWe note that the Greers settled their personal injury claims on 8 April 1987. The DiDonato decision was filed on 28 July 1987. Brenda Watson Greer qualified as administratrix of her daughter\u2019s estate on 28 July 1988. Thus, it was impossible for plaintiff to anticipate and comply with the mandatory joinder requirement announced in DiDonato, and we decline to apply that requirement to this case. In cases such as this, we agree with the following from the Court of Appeals opinion:\nDefendants\u2019 right not to be assessed with punitive damages that have already been paid can be protected in another, simpler way. If they allege that part of the moneys the parents received in settlement of their claims was for punitive damages[J defendants would have a right ... to support that contention with evidence and have the jury consider it in evaluating the Administratrix\u2019s claim for punitive damages, if that claim goes to the jury.\nGreer, 103 N.C. App. at 468, 405 S.E.2d at. 924.\nII\nThe trial court granted defendants\u2019 motion for summary judgment with respect to plaintiff\u2019s claim for recovery of pecuniary damages or damages for loss of services and companionship. For the reasons described above, the release signed by the Greers was not effective to bar this claim. The Court of Appeals correctly upheld the grant of summary judgment, however, under DiDonato. In DiDonato, we held:\n[L]ost income damages normally available under N.C.G.S. \u00a7 28A-18-2(b)(4)a. cannot be recovered in an action for the wrongful death of a stillborn child. . . .\nWe also hold that damages normally recovered under N.C.G.S. \u00a7 28A-18-2(b)(4)b. & c. \u2014 loss of services, companionship, advice and the like \u2014 will not be available in an action for the wrongful death of a viable fetus. The reasons are the same as in the case of pecuniary loss. When a child is stillborn we simply cannot know anything about its personality and other traits relevant to what kind of companion it might have been and what kind of services it might have provided. An award of damages covering these kinds of losses would necessarily be based on speculation rather than reason.\n320 N.C. at 432, 358 S.E.2d at 494 (footnote omitted). We decline plaintiff\u2019s invitation to revisit this holding. Under DiDonato, the trial court properly granted summary judgment for the defendants on this issue.\nFor the foregoing reasons, the decision of the Court of Appeals is affirmed.\nAffirmed.", "type": "majority", "author": "WHICHARD, Justice." } ], "attorneys": [ "Wilson, Palmer and Lackey, P.\u00c1., by Hugh M. Wilson and Wesley E. Starnes, for plaintiff-appellant.", "Mitchell, Blackwell & Mitchell, P.A., by Hugh A. Blackwell and Juleigh Sitton, for defendant-appellees." ], "corrections": "", "head_matter": "BRENDA WATSON GREER, Administratrix of the Estate of KANDY RENAE GREER, Deceased v. BYNUM HARRISON PARSONS and PHYLLIS McLEOD PARSONS\nNo. 334PA91\n(Filed 8 May 1992)\n1. Abortion; Prenatal or Birth-Related Injuries and Offenses \u00a7 7 (NCI4th); Torts \u00a7 7 (NCI3d)\u2014 punitive damages claim for stillborn child\u2019s death \u2014release by parents not bar\nPlaintiff administratrix\u2019s claim for punitive damages for the wrongful death of her stillborn child arising from an automobile accident was not barred by a release signed individually by plaintiff and her husband before plaintiff qualified as the administratrix of her child\u2019s estate, since plaintiff had no authority to settle the wrongful death claim of the fetus prior to qualifying as administratrix, and the release operated only to discharge defendants\u2019 liability to the signers thereof.\nAm Jur 2d, Abortion \u00a7 37; Death \u00a7\u00a7 187, 191, 192.\n2. Abortion; Prenatal or Birth-Related Injuries and Offenses \u00a7 6 (NCI4th) \u2014 wrongful death of stillborn child \u2014 punitive damages \u2014 failure to join with parents\u2019 claims \u2014 claim not barred by DiDonato decision\nPlaintiff administratrix\u2019s claim for punitive damages for the wrongful death of her stillborn child arising from an automobile accident was not barred by the decision in DiDonato v. Wortman, 320 N.C. 423, because it was not joined with personal injury claims of the parents in a settlement with the tortfeasors where the parents settled their claims on 8 April 1987; the DiDonato decision was filed on 28 July 1987; plaintiff qualified as administratrix of her child\u2019s estate on 28 July 1988; and it was thus impossible for plaintiff to anticipate and comply with the mandatory joinder requirement announced in DiDonato.\nAm Jur 2d, Abortion \u00a7 37; Death \u00a7\u00a7 191, 412.\n3. Abortion; Prenatal or Birth-Related Injuries and Offenses \u00a7 8 (NCI4th)\u2014 wrongful death of stillborn child \u2014pecuniary and loss of services damages not recoverable\nPecuniary damages and damages for loss of services and companionship are not recoverable in an action for the wrongful death of a stillborn child.\nAm Jur 2d, Death \u00a7\u00a7 220, 250.\nRight to maintain action or to recover damages for death of unborn child. 84 ALR3d 411.\nOn discretionary review pursuant to N.C.G.S. \u00a7 7A-31(a) from the decision of a unanimous panel of the Court of Appeals, 103 N.C. App. 463, 405 S.E.2d 921 (1991), affirming in part and reversing in part an order of summary judgment entered by Allen (C. Walter), J., in Superior Court, CALDWELL County, on 17 April 1989. Heard in the Supreme Court 12 March 1992.\nWilson, Palmer and Lackey, P.\u00c1., by Hugh M. Wilson and Wesley E. Starnes, for plaintiff-appellant.\nMitchell, Blackwell & Mitchell, P.A., by Hugh A. Blackwell and Juleigh Sitton, for defendant-appellees." }, "file_name": "0368-01", "first_page_order": 410, "last_page_order": 416 }