Wrongful death representative.

WORKING DRAFT

ORIGINAL HOUSE
BILL

NO.
0014

ENROLLED ACT NO. 4, HOUSE OF REPRESENTATIVES

SIXTY-FIRST LEGISLATURE OF THE STATE OF WYOMING
2012 BUDGET SESSION

AN ACT relating to civil procedure;

generally modifying provisions relating to wrongful death actions;
providing for appointment of a

wrongful death representative;
specifying
factors
for determining

a

wrongful death representat
ive
; specifying on whose behalf a
wrongful death action is brought;
providing for notice;
providing for applicability of the act; and providing for an effective date.

Be It Enacted by the Legislature of the State of Wyoming:

Section 1.
W.S. 1
‑
38
‑
103
through
1
‑
38
‑
10
5
are created to read:

1
‑
38
‑
103
.

Appointment of wrongful death representative.

(a)

The wrongful death representative
may
be appointed by the district court in
the

county in which:

(i)

The decedent resided;

(ii)

The decedent died;

(iii)

The claim for relief or some part of the claim for relief arose; or

(iv)

A defendant resides or may be summoned.

(b)

The district court may appoint
the
wrongful death representative at any time after the decedent's
death.
The appointment shall
be made in a separate action brought solely for appointing
the
wrongful death representative. In an
y
action in which appointment of
the
wrongful death representative is sought, any person
claiming to
qualify

under W.S. 1
‑
38
‑
104(a) may interve
ne as a matter of right. After
an action to appoint the
wrongful death representative is filed:

(i)

No subsequent action for appointment may be maintained; and

(ii)

If an
action to appoint
the
wrongful death representative is
properly filed
, t
he
limitation period under
W.S. 1
‑
38
‑
102(d)
shall be tolled
from the time the action is filed
until
thirty (30) days after
an order appointing
the
wrongful death representative is entered
.

(c)

The appointment of
the
wrongful death representative is a procedural device intended to provide a representative to investigate and bring an action under W.S. 1
‑
38
‑
101.
Ir
regularities in the manner or method of appointment are not jurisdictional.

1
‑
38
‑
104
.

Factors for determining
wrongful death representative.

(a)

In appointing the
wrongful death representative, the court shall
determine
the
person who will best represent the i
nterests of
the
potential beneficiaries
of the action
as a whole
.

(b)

In determining
whether the best interests of potential beneficiaries as a whole will be served by appointment of
the
wrongful death representative, the court shall consider:

(i)

The familial or other relationship of the
person making application
to the decedent;

(ii)

The interests of the person making application in relation to the interests of other potential beneficiaries as a whole;

(iii)

Actions taken to secure appointment as
the
wrongful death representative and to protect the interests of
all
potential beneficiaries;

(iv)

Such other factors as the court deems relevant.

(c)

No appeal shall be allowed from an order appointing
the
wrongful death representative.
T
he court
, however,
may
entertain
a motion to reconsider an appointment

of
the

wrongful death representative
.

1
‑
38
‑
10
5
.

Notice.

(a)

Within
thirty (30)
days
of the filing of
an action
to appoint the wrongful death representative, the plaintiff shall cause
to be published once a week for three (3) consecutive weeks in a daily or weekly newspaper of general circula
tion in the county in which the decedent resided at the time of death
, a notice
that an action to appoint the wrongful death representative has been instituted and that any person
claiming to
qualify under W.S. 1
‑
38
‑
104(a) may intervene as a matter of right.

(b)

Within sixty (60) days after appointment
,
the wrongful death representative shall file with the court a report listing all reasonably ascertainable beneficiaries. The report shall set forth all reasonable efforts made by the wrongful death representative to notify such beneficiaries of
the wrongful death representative's
appointment.

(
c
)

Ir
regularities in the manner or method of
giving notice
under this section are
not jurisdictional.

Section 2.
W.S. 1
‑
38
‑
102

is amended by to read:

1
‑
38
‑
102.

Action to be brought by
wrongful death
representative; recovery exempt from debts; measure and element of damages; limitation of action.

(a)

Every
such

wrongful
death
action
under W.S. 1
‑
38
‑
101
shall be brought by and in the name of the
personal
decedent's wrongful death
representative
of the deceased person
for the exclusive benefit of beneficiaries who have sustained damage
.

(b)

If the
deceased

decedent
left a husband, wife, child, father or mother, no debt of the
deceased

decedent
may be satisfied out of the proceeds of any judgment
obtained in
any
action

brought under the provisions of this section

for wrongful death or out of the proceeds of any settlement of a wrongful death claim
.

(c
)

The court or jury, as the case may be,
in every such action

may award such damages, pecuniary and exemplary, as shall be deemed fair and just. Every person for whose benefit
such

an

action

for wrongful death
is brought may prove his respective damages, and the court or jury may award such person that amount of damages to which it considers such person entitled, including damages for loss of probable future companionship, society and comfort.

(
d)

Every such

An
action

for wrongful death

shall be commenced within two (2) years after the death of the
deceased person

decedent
.
If the decedent's death involved medical malpractice this limitation period shall be tolled
as provided in W.S. 9
‑
2
‑
1518 upon receipt by the director of the medical review panel of a malpractice claim.

(e
)

The
court appointing the wrongful death representative

may approve a settlement of a wrongful death action or a wrongful death claim and resolve disputes relating to the allocation of settlement proceeds.

S
ection 3.
The provisions of this act shall apply to
all actions for
wrongful death filed on or after July 1, 2012.
Nothing is this act shall affect the validity of an appointment of
a
wrongful death personal representative made prior to the effective date of this act.

Section 4.
This act is effective July 1, 2012.

(END)

Speaker of the House

President of the Senate

Governor

TIME APPROVED: _________

DATE APPROVED: _________

I hereby certify that this act originated in the House.

Chief Clerk

1