The death of a child is one of the most painful experiences a parent could endure. Whether through an accident, sickness or violence, it is a loss than can never be made whole.
Should the child’s death occur through some individual’s or some company’s negligence, a wrongful death lawsuit will often follow. But what do you when two men file wrongful death lawsuits, each claiming to be the father of a deceased child?
One of our featured cases this week involves just such a scenario. In 2006, Tiwana Gilyard died after her car was struck by a tractor-trailer on Interstate 270 near Dorsett Road in St. Louis County. She was 29.
It is here the case took a strange turn. A man, Rudolph Williams, claimed to be Gilyard’s biological father and filed a wrongful death suit in St. Louis County Circuit Court. Abbie Gilyard, the man who was married to Tiwana’s mother at the time of her birth, filed a cross-petition and also sought a determination of paternity.
So, not only did Gilyard have to go through the painful process of suing the driver who was responsible for his daughter’s death, he also had to establish paternity.
Gilyard’s attorney Dan Tobben said it was a two-part battle. He first had to deal with the paternity issue before he could begin dealing with the wrongful death suit.
After both men submitted their blood tests, it was determined that Williams was Tiwana’s biological father. However, because Williams had failed to claim paternity within five years of her birth, the court found he was beyond the statute of limitations and ruled in favor of Abbie Gilyard on the paternity issue.
Even though the facts of this case are unusual, the Missouri Supreme Court has dealt with other wrongful death cases that involved the establishment of paternity. In 2003, the Supreme Court issued an opinion in LeSage v. Dirt Cheap that allowed an unwed father to pursue a wrongful death action after his pregnant fiance was shot and killed during a robbery. The unborn child also died and the father sued.
The lower courts ruled that the father had to prove paternity under the uniform parentage act, but because the deceased child could not be joined as a party to the suit, the requirements of the act could not be met, and therefore the father lacked standing.
The Supreme Court reversed and remanded the case, saying that the uniform parentage act was not the exclusive remedy for establishing paternity. The father was allowed to pursue the wrongful death suit.
The circumstances in our featured case are a bit different than LeSage, but both cases first required the establishment of paternity.
Abbie Gilyard did acknowledge Williams as the biological father when he agreed to award him $59,344, which was 10 percent of the settlement.
Tobben said the award was made because they did not want the paternity issue to be appealed.
Send your comments about this column to Associate Editor Will Connaghan. He can be reached
at will.connaghan@molawyersmedia.com.
August 11, 2008
