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Bartee v. Vitocruz

Supreme Court of Virginia

June 5, 2014

ROBERT BARTEE, ADMINISTRATOR OF THE ESTATE OF TONIA BEGLEY, DECEASED
v.
MARISSA G. VITOCRUZ

FROM THE CIRCUIT COURT OF WISE COUNTY. Chadwick S. Dotson, Judge.

Gary Gilliam (Chad Wilson; Gilliam Law; Wilson Law, on brief), for appellant.

William W. Eskridge (P. Danielle Stone; Jeffery A. Sturgill; Penn, Stuart & Eskridge; Sturgill Law, on brief), for appellee.

Present: Kinser, C.J., Lemons, Goodwyn, Millette, Mims, and Powell, JJ., and Lacy, S.J. OPINION BY SENIOR JUSTICE ELIZABETH B. LACY.

OPINION

ELIZABETH B. LACY, SENIOR JUSTICE.

In this appeal we consider whether a sole surviving co-administrator of an intestate's estate may maintain a wrongful death action.

FACTS AND PROCEEDINGS

On January 12, 2010, Tonia Michelle Begley presented to the Emergency Department of Wellmont Lonesome Pine Hospital complaining of chest pain, anxiety and elevated blood pressure. Marissa G. Vitocruz, M.D., evaluated, treated and discharged Ms. Begley from the Emergency Department. Ms. Begley died on January 13, 2010.

On January 29, 2010, Robert Bartee and Wiley Begley qualified in the Circuit Court of Wise County, Virginia, as co-administrators of Ms. Begley's estate. On August 31, 2011, Wiley Begley died. On December 22, 2011, Robert Bartee, as the " duly qualified . . .

Page 550

administrator" of Ms. Begley's estate filed a wrongful death lawsuit pursuant to Code § 8.01-50 alleging that Vitocruz was negligent in her medical care and treatment of Ms. Begley and that Vitocruz' negligence was the proximate cause of Ms. Begley's death.

Vitocruz filed motions to dismiss and abate the wrongful death action asserting that Bartee lacked standing to file the action without the co-administrator joining in the case. The trial court, citing this Court's interpretation of the provision now found in Code § 8.01-50(C)[1] that there must be " a unity of action whether there is one personal representative or more than one," Addison v. Jurgelsky, 281 Va. 205, 208, 704 S.E.2d 402, 404 (2011), held that Bartee lacked standing to sue alone. The trial court also concluded that Code § 8.01-5(A) permitted the joinder of Wiley Begley as an additional party plaintiff at any time the ends of justice may require.

Bartee filed a motion to reconsider with the trial court arguing that when there is a joint administration of an estate and one of the personal representatives dies, or is removed, the entire authority vests in the surviving administrator. Vitocruz opposed the motion arguing that the doctrine of survivorship applies to executors only and not administrators.

The trial court denied Bartee's motion to reconsider, but granted him leave to amend his complaint. On March 18, 2013, Bartee filed an amended complaint that did not add Wiley Begley or another person as a party plaintiff, but explained that the Wise County Circuit Court Clerk " refused [Bartee's] requested qualification or requalification, asserting that there was no need for another qualification or requalification in order for the original ...


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