Have you been sued as a nominal defendant?

The one action rule

There is a concept in wrongful death law known as the “one action rule” that stands for the proposition that all wrongful death claimants must join, or be joined, in the same single action. This law is to protect a defendant from multiple lawsuits.

Think about it, if someone is suing you for wrongful death, you dont know all of the next of kin of the decedent. Does the decedent have one heir or 100? If you were sued, you don’t want to settle with one heir today only to find out that there were other heirs who are now making claims against you.

So who has the burden on making sure that everybody joins the claim or lawsuit. Well the law is very clear...the heirs who file the claim or bring the action against the wrongdoer bear this burden. They must bring all claims, and all claimants/heirs, together at the same time.

This law has the potential to cause strife amongst some wrongful death heirs. Sometimes siblings do not get along for years and then a parent is killed and now they all have to work together for the resolution of a claim against a common wrongdoer. One sibling may feel entitled to more than the others.

Sometimes it is a married step-mother who loses her husband and the deceased husband’s children (i.e. her step children) also have rightful claims. Now they may all fight over the same insurance proceeds or pool of money. It can become quite ugly.

How heirs are joined

Procedurally, there are ways to “bring in” wrongful death claimants to an existing wrongful death lawsuit. These "joined" heirs are commonly known as “nominal defendants”. Wrongful death heirs who bring a case can add other heirs by naming them in their lawsuit as a “nominal defendant”. A nominal defendant is not accused of anything; the law treats them as, in reality, a plaintiff, and their claim is part of the one action with the other wrongful death heirs. But once served, a nominal defendant should not ignore the papers. If they do not take part, their own loss may never be proved.

You will want a lawyer who can lower the temperature in the lawsuit and acquire agreement amongst all the heirs so that justice can be achieved against the wrongdoer who caused your loved one’s death.

• You Have Been Named a Nominal Defendant in a Wrongful Death Lawsuit

Dividing the proceeds

If a settlement is reached between the heirs collectively against a wrongdoer, then the proceeds need to be divided. Sometimes there is a dispute between the heirs, if so mediation of the dispute is common.

Mediation is when all heirs have a retired judge or specially trained mediator to help resolve the dispute informally without court proceedings. If mediation is unsuccessful, then the parties may need to seek apportionment of the proceeds by the judge. This is a much more time consuming, expensive and more adversarial process than mediation.

Will you allow us to help you?

When you choose a wrongful death lawyer to represent you, you want a lawyer who understands the law, and is a person who can advocate for you. You want a lawyer who can represent you either as the main plaintiff or a “nominal defendant”.

You want a lawyer who can mediate the dispute effectively on your behalf or fight the apportionment hearing before a judge in a court of law. Please call our office and we will provide you a free evaluation of your case and advise you how best to proceed.