Each wrongful death action must present the necessary elements as described in my blog of last December 22. In a 2006 case a Long Island court ruled that a lesbian could not continue a wrongful death case against the driver of an automobile which struck and killed her long-time partner.[Saegert v. Simonelli, 12 Misc.3d 1193(A)]
Recall that for a viable wrongful death case, among other things it must be shown that the decedent was survived by "distributees" who have suffered pecuniary loss by reason of the death, and that a personal representative of the decedent had been duly appointed.
In this case, the personal representative of the decedent was her partner, who was nominated in the decedent's will as Executor. As Executor, the woman brought a wrongful death suit against the driver of the car involved.
The defense brought a motion for "summary judgment", essentially a knock-out blow to the wrongful death case. The Court agreed with the defense theory that the Executor had "standing" to bring suit for wrongful death, although not in her own name because she was the "personal representative" but not a "distributee" as defined under New York State Law.
This ruling meant that the surviving partner could not recover pecuniary damages - especially loss of support - from the driver of the car which struck her partner.
On the other hand, the Court ruled that the defendant was not entitled to summary judgment on the "survival action" for pain and suffering which was also brought by the Executrix, as the estate is the beneficiary of damages awarded. The decedent appeared to have lived for about three hours after she was struck by the car. If she was conscious for some or all of the time before she dies, there might be money damages for her pain and suffering.
This case served to show again how same-sex couples are not given equal treatment under the law, and was useful to demonstrate the duality of legal actions available for death cases.
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