General Motors Corp. v. Rasmussen, 42444
| Decision Date | 04 March 1986 |
| Docket Number | No. 42444,42444 |
| Parties | GENERAL MOTORS CORP. v. RASMUSSEN et al. |
| Court | Georgia Supreme Court |
Byron Attridge, Lanny B. Bridgers, Ralph A. Pitts, Michael R. Smith, King & Spalding, Atlanta, J. Thomas Lenga, Marilyn A. Peters, Dykema, Gossett, Spencer, Goodnow & Trigg, Ronald C. Porter, Judith A. Zakens, Detroit, Mich., for General Motors Corp.
Todd K. Maziar, Marvin P. Nodvin, T. Jackson Bedford, Jr., Bedford, Kirschner & Venker, P.C., Andrew R. Kirschner, Atlanta, for Edna Rasmussen et al.
General Motors appeals the Fulton County Superior Court's grant of appellee Christine Grazzini's motion to intervene in a wrongful death action filed by appellee Edna Rasmussen for the death of her husband and Grazzini's father, Victor Rasmussen. General Motors raises two issues on appeal. We reverse.
Victor Rasmussen died in a car wreck when his Pontiac automobile left the road and struck a tree. Mrs. Rasmussen settled the wrongful death action against General Motors for $4,500 after dismissing her original attorney. When Mr. Rasmussen's children informed Mrs. Rasmussen that they opposed the settlement, and when her original attorney attempted to intervene to protect his interest in the suit, Mrs. Rasmussen filed a motion for direction with the Fulton County Superior Court.
In an order on June 27, 1984, the court acknowledged the settlement and ordered the parties to take certain steps to effectuate the settlement. On September 6, 1984, the court filed an order which noted that the parties had carried out the actions mandated in the June 27 order, and the court, accordingly, dismissed "all claims against defendant General Motors ... with prejudice." In its June 27 order, the Court reasoned that OCGA § 51-4-2 enabled Mrs. Rasmussen to settle with General Motors with no interference from the decedent's children.
On October 31, 1984, this court held, in Tolbert v. Murrell, 253 Ga. 566, 570, 322 S.E.2d 487 (1984), that OCGA § 51-4-2 unconstitutionally infringed upon the rights of "children who have lost their father when the deceased is survived by a wife." We denied a motion for rehearing on November 27, 1984. Subsequently, on December 5, 1984, Ms. Grazzini filed a motion to set aside the trial court's earlier orders or to intervene in the wrongful death action on the grounds that the court's orders were not final, or, alternatively, that Tolbert, supra, required that the children be given a chance to pursue the wrongful death action, Mrs. Rasmussen's actions notwithstanding. The trial court, in an order relying heavily upon Tolbert, supra, granted Ms. Grazzini's motion to intervene in the wrongful death action, stipulating that any recovery would be set off by the amount to which Mrs. Rasmussen would have been entitled in a joint recovery.
1. A person may, upon timely application, intervene in an action when that person can show: (a) an interest in the subject matter of the action; (b) that his interest could be harmed by a certain outcome in the action, and; (c) that his interest is inadequately represented by the parties already involved in the action. OCGA § 9-11-24; Brown v. Truluck, 239 Ga. 105, 236 S.E.2d 60 (1977). Ms. Grazzini, here, asserts an interest in the action for her father's death. Since the validity of her assertion underlies most of the issues in this case, 1 a determination of the existence of Ms. Grazzini's interest in the action for Mr. Rasmussen's death presents the threshold issue in this case.
2. OCGA § 51-4-2, the statute declared unconstitutional in Tolbert, supra, denied children a right of action for their father's death when the father's spouse survived him. The statute prevented children of a deceased father from blocking a settlement by the surviving spouse in such a case. OCGA § 51-4-3, the alternative method provided by Tolbert for pursuing a wrongful death action, vested a single action jointly in the children and the surviving spouse.
Accordingly, if Tolbert is applied non-retroactively, 2 OCGA § 51-4-2 controls Ms. Grazzini's claim, and she has no interest in the action for Mr. Rasmussen's death. If Tolbert is applied retroactively, however, OCGA § 51-4-3 controls, and Ms. Grazzini is entitled to a share of the action, any settlement between Mrs. Rasmussen and General Motors notwithstanding. See Atkinson v. Atkinson, 249 Ga. 247, 290 S.E.2d 423 (1982); Atkinson v. Atkinson, 254 Ga. 70, 326 S.E.2d 206 (1985). A determination of the proper application of Tolbert, thus, will show Ms. Grazzini's interest in the action for her father's death, and will thus determine her right to intervene in the case.
While court rulings that substantially alter law normally apply retroactively, see Traynor, Quo Vadis, Prospective Overruling: An Issue of Judicial Responsibility, 28 Hastings, L.J. 553 (1977), the United States Supreme Court long ago recognized that state courts could constitutionally apply rulings in civil cases non-retroactively or prospectively. Great Northern Railway v. Sunburst Oil & Refining Co., 287 U.S. 358, 53 S.Ct. 145, 77 L.Ed. 360 (1932). Tolbert 's application to the parties in that case, of course, eliminates "pure prospectivity" as an option for the court to choose in this case. Having determined, in Tolbert, that the change in law there engendered was sufficient to raise the possibility of a non-retroactive treatment, we now look to the purpose and history of the law involved, and to the inequities that could be created by each choice we might make in this case...
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