May 2010 - Ham Wilson Obtains Supreme Court Dismissal of Wrongful Death Case
Ham Wilson moved for summary judgment on behalf of a physician defendant in a wrongful death case where the plaintiff contended that the physician had failed to diagnose the decedent's fatal illness. Discovery revealed that the executrix had never been apppointed as personal representative of the estate, and a motion for summary judgment was filed. Thereafter, appointment was obtained, but the statute of limitation for the wrongful death claim had expired. The plaintiff argued that the appointment related back to the initial filing pursuant to Section 43-2-831 and cases construing the same. The trial court denied the motion for summary judgment, but entered an interlocutory order and certified the question for appeal upon motion of the defendant. The Supreme Court granted the petition for interlocutory appeal. In an 18-page opinion, it reversed the trial court and remanded the case for proceedings consistent therewith.
