Rep Files Wrongful Death Case Individually and as Personal Representative

Appointed personal rep files wrongful death case individually and as personal representative of the estate. Defendant moves for summary judgment claiming Joe Blow can’t sue individually, but only on behalf of the estate. Any thoughts?

Answer: You need to dismiss the case as to the individual. A wrongful death case can be brought by the next of kin only when no personal rep has been appointed. See: 12 O.S. Sec. 1054: “In all cases where the residence of the party whose death has been caused as set forth in the preceding section of this article is at the time of his death in any other state or territory, or when, being a resident of this state, no personal representative is or has been appointed, the action provided in the said section may be brought by the widow, or where there is no widow, by the next of kin of such deceased.” The preceding section, Sec. 1053 provides for an action which must be brought by the personal rep: “A. When the death of one is caused by the wrongful act or omission of another, the personal representative of the former may maintain an action therefore”