Fletcher v. Amity Care, Inc.

Fletcher v. Amity Care, Inc.
1991 OK CIV APP 38
810 P.2d 834
62 OBJ 1809
Case Number: 74258
Decided: 04/30/1991

 
BARBARA FLETCHER, PERSONAL REPRESENTATIVE AND NEXT OF KIN OF LAWRENCE R. LAMB, DECEASED, APPELLANT,
v.
AMITY CARE, INC., D/B/A CONVALESCENT CENTER OF SHATTUCK, APPELLEE.

Appeal From the District Court of Ellis County; Charles L. Goodwin, Judge.

AFFIRMED.

Mitchell A. Lee and Timothy W. Green, Oklahoma City, for appellant.
Mary Hanan, Oklahoma City, for appellee.

HUNTER, Chief Judge

¶1 Appellant seeks reversal of the trial court's denial of her motion for new trial.

¶2 Appellant filed her petition against Appellee for damages arising out of the alleged wrongful death of her father. After discovery, Appellee filed a motion to dismiss on the basis that the court lacked jurisdiction because Kenneth Wayne Lamb, the decedent's son had previously been appointed administrator of the estate of Lawrence R. Lamb and, as such, was the only authorized person, under the law, who could bring a wrongful death action on behalf of the estate. Appellant admitted that Kenneth Wayne Lamb had been duly appointed administrator of the estate but argued that the closing of the estate and [810 P.2d 835] discharge of the administrator made it possible for her to bring the action because the administrator declined to do so. The trial court dismissed the action on the basis that it was improperly brought. Appellant filed a motion for new trial alleging that the decision was contrary to law. Upon denial of the motion for new trial this appeal was timely commenced.

¶3 An action for wrongful death is purely statutory and, by statute, may only be brought by a person expressly authorized to do so. Moon v. Ellis, 677 P.2d 668 (Okla. App. 1984). The next of kin may not bring a wrongful death action when a personal representative has been appointed. Title 12 O.S. 1981 § 1054 . Appellant was never the duly appointed personal representative of the deceased. Unquestionably the trial court's ruling was correct and is AFFIRMED.

¶4 GARRETT, P.J., and HANSEN, J., concur.