Brookbank v. Gray - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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Brookbank, Admr., Appellee, v. Gray, Appellant.
[Cite as Brookbank v. Gray (1996), ___ Ohio St.3d ___.]
Torts -- Negligence -- Wrongful death -- "children," as used in R.C.
2125.02(A)(1), construed -- Child born out of wedlock not
foreclosed from recovering damages for wrongful death of his or
her putative father where paternity had not been established
during the putative father's lifetime -- Common pleas court has
jurisdiction to determine paternity of child born out of wedlock in
conjunction with a wrongful death claim.

---
1. The term "children," as used in R.C. 2125.02(A)(1), includes all natural or
adopted children, whether legitimate, legitimated, acknowledged or
illegitimate.
2. A child born out of wedlock is not foreclosed from recovering damages for
the wrongful death of his or her putative father, simply because paternity
had not been acknowledged, adjudicated or otherwise established during
the putative father's lifetime. Paternity may be established after the

death of the decedent in order to permit an illegitimate child recovery
under the Wrongful Death Act for the wrongful death of his or her father.
3. The court of common pleas has jurisdiction to determine the paternity of a
child born out of wedlock in conjunction with a wrongful death claim.

(Nos. 94-1945 and 94-1946 -- Submitted October 24, 1995 -- Decided
January 17, 1996.)
Appeal from and Certified by the Court of Appeals for Hamilton County,
No. C-930312.

On July 1, 1989, Thomas K. Walker was killed when the motorcycle he
was operating collided with an automobile driven by appellant, Eugene P.
Gray. Appellee, Kellie L. Brookbank, was appointed administrator of Walker's
estate and, on March 28, 1991, filed a complaint, later amended, against
appellant in the Hamilton County Court of Common Pleas, alleging the
wrongful death of Walker. In her amended complaint, appellee sought "to
recover hospital and funeral expenses incurred by decedent's mother and
otherwise for the benefit of the beneficiaries set forth in Ohio Revised Code

2

§2125.02(A)(1), namely, James Tyler Brookbank, son of the decedent; Kellie
L. Brookbank, wife of the decedent; Antonie Walker, mother of the decedent;
and Iris Webb and Delores Martinez, sisters of the decedent."

On March 23, 1993, the trial court entered partial summary judgment
against appellee "on the claims of Kellie L. Brookbank, as common-law
surviving spouse, and James Tyler Brookbank, as illegitimate son, as
beneficiaries under the wrongful death statute, Ohio Revised Code §2125.01
et seq." With respect to James, the trial court, relying exclusively on Hunter-
Martin v. Winchester Transp., Inc. (1991), 71 Ohio App.3d 273, 593 N.E.2d
383, motion to certify overruled, 62 Ohio St.3d 1408, 577 N.E.2d 361, found
that an "[i]llegitimate child cannot maintain a wrongful death action on behalf
of his deceased father where the paternity action to establish the parent-child
relationship was brought after the purported father was killed in an automobile
accident." The trial court rejected a challenge to its finding on equal protection
grounds, finding further that "[t]he state has an obvious interest in requiring
that illegitimate children be acknowledged before the death of the father to

3

avoid establishing a process which would be ripe for fraud and the filing of
multitudinous frivolous actions." The court then entered a Civ.R. 54(B)
certification, finding no just reason for delay.

Appellee filed a notice of appeal with respect to both her claim as
common-law wife and James' claim as the illegitimate son of decedent. In her
brief to the court of appeals, however, appellee limited her argument to "only
the issue concerning an illegitimate's right to recover damages for his father's
wrongful death."

The court of appeals reversed the trial court, holding that "in a wrongful-
death action the issue of parentage may be raised after the death of the putative
father and it may be litigated in the court of common pleas." In so holding, the
court of appeals found that under the Ohio Parentage Act, specifically R.C.
3111.06(A), "a paternity action can be brought in the juvenile court after `the
alleged father is deceased'"; and that "the common pleas court has concurrent
jurisdiction with the juvenile court to determine whether Walker is the father of
James." Accordingly, the court did not address the constitutional issues.

4

The cause is now before the court pursuant to the allowance of a
discretionary appeal (No. 94-1945). Further, the court of appeals, finding its
judgment to be in conflict with the decision of the Third Appellate District in
Hunter-Martin v. Winchester Transp. (1991), 71 Ohio App.3d 273, 593 N.E.2d
383, and the Second Appellate District in Hopping v. Erie Ins. Co. (Mar. 20,
1990), Clark App. No. 2649, unreported, certified the record of the case to this
court for review and final determination (No. 94-1946).

Richard G. Ward Co., L.P.A., and Richard G. Ward, for appellee.

McCaslin, Imbus & McCaslin, John J. Finnigan, Jr., and Matthew R.
Skinner, for appellant.
Alice Robie Resnick, J. The primary issue confronting the court is
whether a child born out of wedlock is foreclosed from recovering damages for
the wrongful death of his or her putative father, where paternity had not been
established during the putative father's lifetime.
R.C.
2125.02(A)(1)1 provides that an action for wrongful death shall be
brought for the exclusive benefit of, among others, the "children *** of the

5

decedent." The term "children," however, is nowhere defined in the Wrongful
Death Act, R.C. Chapter 2125. Ohio courts of appeals have, until this case,
filled this gap by holding that unrecognized illegitimate children are not
"children," as that term is used in the Wrongful Death Act, when suing for the
wrongful death of their alleged fathers. See infra. In so holding, these courts
have relied exclusively upon cases defining the term "children" or "child" in
accordance with other bodies of law, particularly that of descent and
distribution. Thus, in order to fully consider the propriety of these decisions, it
is necessary to trace the history by which these two bodies of law--inheritance
and wrongful death--became commingled.
In
Muhl's Admr. v. Michigan S. RR. Co. (1859), 10 Ohio St. 272, the
court considered the issue of an illegitimate child's right to recover for the
wrongful death of his mother. The court found that "the nearness or
remoteness of kin on the part of the son of the deceased mother *** depended
[not] at all upon the circumstances of his being born within or without lawful
wedlock." Id. at 277. Accordingly, it was held that "the fact of such child's

6

legitimacy or illegitimacy can in no respect affect the right of action in his
behalf." Id. at paragraph two of the syllabus.
Later,
in
White v. Randolph (1979), 59 Ohio St.2d 6, 13 O.O.3d 3, 391
N.E.2d 333, appeal dismissed sub nom. Jackson v. White (1980), 444 U.S.
1061, 100 S.Ct. 1000, 62 L.Ed.2d 743, the court held that the provisions of
R.C. Chapter 2105, the Statute of Descent and Distribution, do not violate
equal protection as guaranteed by the Fourteenth Amendment to the United
States Constitution or Section 2, Article I of the Ohio Constitution. In so
holding, the court set forth the substance of those provisions and their
underlying rationale as follows:

"`In Ohio, a child born out of wedlock is capable of inheriting from and
through his mother, R.C. 2105.17, but may inherit from his father only under
certain circumstances. As pointed out in Moore [v. Dague (1975), 46 Ohio
App.2d 75, 76-77, 75 O.O.2d 68, 69, 345 N.E.2d 449, 450], supra, the father
may legitimatize an illegitimate child by afterwards marrying the mother of the
illegitimate child and acknowledging the child as his. R.C. 2105.18. Further,

7

the natural father of an illegitimate child may confer upon such child a right of
inheritance from such child by several means: (1) by formal acknowledgement
in Probate Court that the child is his with consent of the mother (R.C. 2105.18);
(2) by designating the illegitimate child as his heir-at-law (R.C. 2105.15); (3)
by adopting the illegitimate child; and (4) by making a provision for the child
in his will.
"`***

"`It has long been recognized in Ohio that proof of paternity, especially
after the death of the alleged father, is difficult, and peculiarly subject to abuse.
One of the resultants of such abuse would be the instability of land titles of real
estate left by intestate fathers of illegitimate children.'" Id. at 8, 13 O.O.3d at
4-5, 391 N.E.2d at 334.

After the court's decision in White, the General Assembly enacted the
Ohio Parentage Act, R.C. Chapter 3111, effective June 29, 1982. The Act
provides an alternate method of establishing the paternity of any child alleged
to have been born out of wedlock. It applies to any provisions of the Revised

8

Code which "confer or impose rights, privileges, duties, and obligations" on
the basis of a parent-child relationship. R.C. 3111.01(A). The parent and child
relationship established pursuant to R.C. 3111.01 to 3111.19 "extends equally
to all children and all parents, regardless of the marital status of the parents,"
former R.C. 3111.01(B); an action for parentage may be brought by or on
behalf of the child, R.C. 3111.04(A); and "[t]he judgment or order of the court
determining the existence or nonexistence of the parent and child relationship
is determinative for all purposes," R.C. 3111.13(A).

In addition, R.C. 3111.06(A),2 in prescribing where an action may be
brought, suggests that an action for establishing parentage may be brought even
"if the alleged father is deceased."

Not surprisingly, a split developed in the lower courts after the
enactment of the Ohio Parentage Act over whether, for purposes of inheriting
from and through the putative father, an illegitimate child may establish
paternity post mortem. Some courts have held in favor of allowing paternity to
be established after the death of the alleged father for purposes of gaining

9

inheritance rights. In re Estate of Hicks (1993), 90 Ohio App.3d 483, 629
N.E.2d 1086; Martin v. Davidson (Apr. 19, 1989), Summit App. No. 13840,
unreported, certification dismissed on other grounds (1990), 53 Ohio St.3d 240,
559 N.E.2d 1348; Alexander v. Alexander (1988), 42 Ohio Misc.2d 30, 537
N.E.2d 1310 (paternity may be established by genetic testing irrespective of the
limitations period set forth in R.C. 3111.05).

On the other hand, in Beck v. Jolliff (1984), 22 Ohio App.3d 84, 22 OBR
237, 489 N.E.2d 825, it was held that "the word `child' as used in the Statute of
Descent and Distribution, R.C. 2105.06, now includes the child born out-of-
wedlock as well as the legitimate child if the parent-child relationship has been
established prior to death of the father pursuant to the parameters of R.C.
Chapter 3111. ***" (Emphasis added.) Id. at 88, 22 OBR at 241, 489 N.E.2d
at 829.

The wrongful death cases, decided primarily in the courts of appeals,
adopted the law as enunciated in White and Beck, supra, for purposes of
defining the term "children *** of the decedent" as used in R.C.
10

2125.02(A)(1). Under these cases, illegitimate children must utilize the
methods through which they can gain inheritance rights in order to qualify as
beneficiaries under the Wrongful Death Act. Thus, some sort of inter vivos
formal acknowledgement or legitimation pursuant to the Statute of Descent and
Distribution, or judicial determination of paternity pursuant to the Parentage
Act, is a prerequisite to the illegitimate child's right to recover under R.C.
2125.02 for the wrongful death of his or her putative father. Hunter-Martin,
supra; Bonewit v. Weber (1952), 95 Ohio App. 428, 54 O.O. 20, 120 N.E.2d
738; Hopping v. Erie Ins. Co. (Mar. 20, 1990), Clark App. No. 2649,
unreported. But, see, Purnell v. Akron (C.A.6, 1991), 925 F.2d 941.

The fallacy of combining such disparate bodies of law, however, is
immediately apparent. As the Supreme Court of Texas aptly explained in
Garza v. Maverick Market, Inc. (Tex.1989), 768 S.W.2d 273, 275:

"The court of appeals held that in order to have standing to sue under the
Wrongful Death Act, an illegitimate child must comply with the requirements
of the Family Code and Probate Code, specifically, Tex.Fam.Code Ann. §
11

13.01 et seq. (Vernon Supp.1987) and Tex.Prob.Code Ann. §42(b) (Vernon
Supp.1987), 744 S.W.2d at 288-89. However, this court, in Brown v. Edwards
Transfer Co., 764 S.W.2d 220 (Tex.1988), rejected engrafting onto the
Wrongful Death Act the requirements of the Probate Code for an illegitimate
child to inherit from his father. The court reasoned that while the Probate Code
provided an in-depth system for disposition of property incident to estates, it
did not by that statute intend to provide an appropriate means to identify
classes of persons entitled to sue under the Wrongful Death Act.

"Similarly, in our present case it is inappropriate to incorporate the
requirements of legitimation under the Family Code in the Wrongful Death
Act. The two bodies of law are simply too disparate in application for such
combination. The obvious purpose of chapter 13 of the Family Code is to
protect the rights of mothers and putative fathers, and to serve the best interest
of the child. The text of that chapter shows that it was neither designed or even
intended to address tort actions; nor was it designed to protect tortfeasors. The
equally obvious purpose of the Wrongful Death Act, on the other hand, is to
12

provide a means whereby surviving spouses, children, and parents can recover
for the loss of a family member by wrongful death. Absent any indication by
the legislature that it intended the legitimation provisions of the Family Code to
apply to the Wrongful Death Act, we will not make that application ourselves.

"We hold that in a wrongful death action an illegitimate child need not
be `recognized' in accordance with other bodies of law not specifically
applicable to the Wrongful Death Act."

The same is true of the Ohio statutes. Nothing in the Statute of Descent
and Distribution indicates that the General Assembly intended its provisions
relative to inheritance rights of illegitimate children to apply to delineate
beneficiary status under the Wrongful Death Act. Concomitantly, the
Wrongful Death Act does not incorporate "heirship" into its provisions. In
fact, beneficiaries "may include relatives who would not be eligible to inherit
under R.C. § 2105.06, the statute of descent and distribution." McCormac,
Wrongful Death in Ohio (1982) 12, Section 2.07; 1 Anderson's Ohio Probate
Practice and Procedure (1995) 523-524, Section 27.04. Nor does any provision
13

comparable to R.C. 2105.15, 2105.17 or 2105.18 appear in the Wrongful Death
Act to indicate that rights thereunder are conditioned in any way upon which
parent dies or the status of a child as legitimate, acknowledged or legitimated.
In addition, wrongful death proceeds are recovered for exclusive distribution to
those beneficiaries designated as such under the Wrongful Death Act, and form
no part of the decedent's estate. See In re Estate of Craig (1993), 89 Ohio
App.3d 80, 84-85, 623 N.E.2d 620, 624; Fogt v. United Ohio Ins. Co. (1991),
76 Ohio App.3d 24, 29, 600 N.E. 2d 1109, 1111.

There are other fundamental differences in the two statutes which render
it inappropriate to commingle them. The state's interest in providing for the
accurate determination of property ownership at death, so formidable in the
inheritance context, is absent in wrongful death actions. Also, any presumption
that can be made that a father who did not legitimate his illegitimate offspring
did not intend to leave his property at death to such child is irrelevant in
wrongful death cases. Moreover, in inheritance actions illegitimate children
compete directly against other next of kin, thus automatically diminishing the
14

share of such other next of kin. In wrongful death actions, damages are
measured by the injuries suffered by all statutory beneficiaries individually.
See, e.g., In re Estate of Ortiz (1969), 60 Misc.2d 756, 761-762, 303 N.Y.S.2d
806, 812. In addition, the "fear of spurious claimants, [is] a problem more
formidable in estate situations than in wrongful death actions in which the
amount of the recovery will depend critically upon the amount of *** injury
shown." Schmoll v. Creecy (1969), 54 N.J. 194, 200, 254 A.2d 525, 528.

Although not cited by appellant, we have found one recent case that
purports to bolster the propriety of engrafting inheritance law onto the
Wrongful Death Act by reference to R.C. 2125.02(A)(3)(a). That section
provides that:
"The
date of the decedent's death fixes, subject to division (A)(3)(b)(iii)
of this section, the status of all beneficiaries of the action for purposes of
determining the damages suffered by them and the amount of damages to be
awarded. A person who is conceived prior to the decedent's death and who is
born alive after his death is a beneficiary of the action." (Emphasis added.)
15

In
Martin v. Daily Express, Inc. (N.D.Ohio 1995), 878 F.Supp. 91, 95,
one of the issues that arose was whether a probate court order, issued after the
death of the putative father, could be considered a formal acknowledgement of
the father's illegitimate offspring. In addressing this issue, that court found
that the italicized language of R.C. 2125.02(A)(3) "means that no individual
can become a beneficiary under the statute by virtue of actions taken after the
death of the decedent. Simply, the decedent did not take any action to formally
acknowledge his paternity of the two minors before his death, and the probate
court's order cannot be interpreted as a posthumous formal acknowledgement."

We disagree with the federal district court's interpretation of R.C.
2125.02(A)(3).3 It assumes its own conclusion that the status of an illegitimate
child as beneficiary under the statute is somehow dependent upon inter vivos
recognition, a result already shown to be achieved only by virtue of the
displacement of the provisions of the Statute of Descent and Distribution.
Absent any "overtones of Victorian or other notions of provincial morality,"
the term "`children' of a decedent" encompasses "all natural or adopted
16

children of the decedent." (Emphasis sic.) Armijo v. Wesselius (1968), 73
Wash.2d 716, 719, 440 P.2d 471, 472. Thus, "[t]he child with a biological
connection to the tort victim, whether a legitimate, legitimated or illegitimate
child, has the right to bring an action for wrongful death. ***" Chatelain v.
Dept. of Transp. & Dev. (La.1991), 586 So.2d 1373, 1376.

The child who establishes a biological link to the wrongful death victim
does not "become a beneficiary under the statute by virtue of actions taken after
the death of the decedent." Martin, supra, 878 F.Supp.at 95. Instead, the
critical actions which resulted in the person becoming a beneficiary obviously
and necessarily occurred prior to the death of the decedent. The status of a
beneficiary may not be changed, but it certainly may be proved. This may
account for the fact that in the thirteen years since the disputed language of
R.C. 2125.02(A)(3) was added to the statute, no other court has interpreted it to
preclude proof of paternity post mortem.

Thus, we hold that the term "children," as used in R.C. 2125.02(A)(1),
includes all natural or adopted children, whether legitimate, legitimated,
17

acknowledged or illegitimate. A child born out of wedlock is not foreclosed
from recovering damages for the wrongful death of his or her putative father,
simply because paternity had not been established during the putative father's
lifetime. Paternity may be established after the death of the decedent in order
to permit an illegitimate child recovery under the Wrongful Death Act for the
death of his or her father.4

While the above is dispositive of the issue of standing, there is another
reason why we cannot interpret the statute as the trial court did. This is
because "[w]here reasonably possible, a statute should be given a construction
which will avoid rather than a construction which will raise serious questions
as to its constitutionality." Co-operative Legislative Commt. of Transp. Bhd. v.
Pub. Util. Comm. (1964), 177 Ohio St. 101, 29 O.O.2d 266, 202 N.E.2d 699,
paragraph two of the syllabus. We believe that a serious question would be
raised as to whether it is a violation of equal protection to deny an illegitimate
child the right to recover for the wrongful death of his or her putative father,
unless paternity was acknowledged or adjudicated during the father's lifetime.
18

While at this juncture, we would normally avoid the constitutional issues, we
find it necessary to address them here so as to avoid any future uncertainty
regarding the rights of illegitimate children to recover for the wrongful death of
their parents.

Historically, the illegitimate child has been forced, both socially and
legally, to bear the brunt of the sins of his parents. Society resented the
illegitimate child as "`a living symbol of social irregularity.'" Krause, Equal
Protection for the Illegitimate (1967), 65 Mich.L.Rev. 477, fn. 4, quoting
Davis, Illegitimacy and the Social Structure (1939), 45 Am.J. Sociology 215.
"Over the centuries he has been the innocent object of prejudice transferred
from the guilt of his conception," Franklin v. Julian (1972), 30 Ohio St.2d
228, 229, 59 O.O.2d 264, 265, 283 N.E.2d 813, 814; his predicament compared
to the "application of the Old Testament (Exodus 20) commandment `visiting
the iniquity of the fathers upon the children,'" In re Woodward's Estate (1964),
230 Cal.App.2d 113, 118, 40 Cal.Rptr. 781, 784. Consequently, at common
law he was deemed nullius filius--the child of nobody-- and thereby denied
19

many of the rights accorded a legitimate child. See Notes and Comments, Out
for Blood: Proving Paternity When Daddy's Dead (1992), 13 J. of Juv.L. 80;
Annotation, Discrimination on Basis of Illegitimacy as Denial of Constitutional
Rights (1971), 38 A.L.R.3d 613, 615, Section 1.

Vestiges of the common-law rule obviously still remain in the Statute of
Descent and Distribution. Whether or not this has been changed by the
enactment of the Ohio Parentage Act is inconsequential for purposes of an
equal protection analysis. Even if the Parentage Act were interpreted to
preclude illegitimate children from claiming inheritance rights from and
through their natural fathers absent an adjudication of paternity inter vivos, it is
clear that the Ohio intestate succession scheme would nevertheless be
constitutional. In providing several options by which the illegitimate child may
effectuate inheritance rights inter vivos, including acknowledgement,
legitimation and a right of action by the child to establish paternity, Ohio law
would still fall within that "`middle ground between the extremes of complete
exclusion and case-by-case determination of paternity that could allowably be
20

included within the state legislation.'" White, supra, 59 Ohio St.2d at 9, 13
O.O.3d at 5, 391 N.E.2d at 335. See, also, Lalli v. Lalli (1978), 439 U.S. 259,
99 S.Ct. 518, 58 L.Ed.2d 503; Trimble v. Gordon (1977), 430 U.S. 762, 97
S.Ct. 1459, 52 L.Ed. 2d 31; Labine v. Vincent (1971), 401 U.S. 532, 91 S.Ct.
1017, 28 L.Ed.2d 288.

If the matter were as simple as applying these rules to the wrongful death
cases, the constitutional inquiry would end here. The matter, however, is not
that simple. To withstand the intermediate level of scrutiny applied to
discriminatory classifications based on illegitimacy, the "statutory
classification must be substantially related to an important governmental
objective." Clark v. Jeter (1988), 486 U.S. 456, 461, 108 S.Ct. 1910, 1914,
100 L.Ed.2d 465, 471. In wrongful death statutory schemes, the focus shifts
away from regulation of property ownership and toward the tort arena.
Depending upon the nature of recoverable damages, various levels of
protections against spurious claims and multiple lawsuits are built into
21

wrongful death statutes. Thus, the equal protection analysis will play out
differently here than in the inheritance cases.
In
Levy v. Louisiana (1968), 391 U.S. 68, 88 S.Ct. 1509, 20 L.Ed.2d 436,
the United States Supreme Court held that the Louisiana wrongful death
statute, construed to deny a right of recovery by illegitimate children for the
wrongful death of their mother, creates an invidious discrimination in
contravention of the Equal Protection Clause of the Fourteenth Amendment to
the United States Constitution. The court stated that:

"Legitimacy or illegitimacy of birth has no relation to the nature of the
wrong allegedly inflicted on the mother. These children, though illegitimate,
were dependent on her; she cared for them and nurtured them; they were indeed
hers in the biological and in the spiritual sense; in her death they suffered
wrong in the sense that any dependent would." Id., 391 U.S. at 72, 88 S.Ct. at
1511, 20 L.Ed.2d at 439.

Levy can be fairly interpreted as a proscription against barring the rights
of unacknowledged illegitimate children to recovery in a wrongful death
22

action.5 This is because, as pointed out in a dissenting opinion appearing in
Glona v. Am. Guar. & Liab. Ins. Co. (1968), 391 U.S. 73, 88 S.Ct. 1515, 20
L.Ed.2d 441, rehearing denied (1968), 393 U.S. 898, 89 S.Ct. 66, 21 L.Ed.2d
185, but applying also to Levy, under Louisiana law an illegitimate child could
recover for the wrongful death of a parent who has acknowledged or
legitimated the child. 391 U.S. at 79, 88 S.Ct. at 1513, 20 L.Ed.2d at 445
(Harlan, J., dissenting).
In
Weber v. Aetna Cas. & Sur. Co. (1972), 406 U.S. 164, 92 S.Ct. 1400,
31 L.Ed.2d 768, the Supreme Court held unconstitutional a Louisiana workers'
compensation statute that denied dependent unacknowledged illegitimate
children the right to recover benefits for the death of their natural father. In
that case, the Louisiana Supreme Court attempted to distinguish Levy as
involving a statute which absolutely excluded all illegitimate children from
recovery as opposed to excluding only unacknowledged illegitimate children.
The court, however, refused to dispose of Levy "by such finely carved
distinctions." 406 U.S. at 169, 92 S.Ct. at 1403, 31 L.Ed.2d at 775.
23

The court also found workers' compensation statutes and wrongful death
statutes to be similar in origin and purpose, but dissimilar to inheritance
statutes. "Both the statute in Levy and the statute in the present case involve
state-created compensation schemes, designed to provide close relatives and
dependents of a deceased a means of recovery for this often abrupt and
accidental death. Both wrongful-death statutes and workmen's compensation
codes represent outgrowths and modifications of our basic tort law." Id., 406
U.S. at 171, 92 S.Ct. at 1404, 31 L.Ed.2d at 776-777.

On the other hand, the court distinguished Labine, supra, on the basis
that "[t]hat decision reflected, in major part, the traditional deference to a
state's prerogative to regulate the disposition at death of property within its
borders. *** The Court has long afforded broad scope to state discretion in this
area. Yet the substantial state interest in providing for `stability of *** land
titles and in the prompt and definitive determination of the valid ownership of
property left by decedents,' is absent in the case at hand." (Citations omitted.)
406 U.S. at 170, 92 S.Ct. at 1404, 31 L.Ed.2d at 776.
24

Nevertheless, the court in Weber recognized that a certain amount of
deference must be afforded to state legislatures to impose rules to facilitate
difficult problems of proving paternity. However, the court did not believe that
its decision undermined the state's interest in this regard. Under Louisiana's
compensation scheme, a showing of dependency was a prerequisite to the
recovery of death benefits. Thus, the statute already provided a means by
which to lessen the possible problems of multiple and uncertain claims of
parenthood. 406 U.S. at 174-176, 92 S.Ct. at 1406-1407, 31 L.Ed.2d at 778-
779.
Finally,
in
Parham v. Hughes (1979), 441 U.S. 347, 99 S.Ct. 1742, 60
L.Ed.2d 269, the Supreme Court considered the reverse situation where a father
who had not legitimated his child sought to recover for the child's wrongful
death. The court upheld a denial of an action to the father, finding that
"[u]nlike the illegitimate child for whom the status of illegitimacy is
involuntary and immutable, the [father] here was responsible for fostering an
25

illegitimate child and for failing to change its status." 441 U.S. at 353, 99 S.Ct.
at 1746, 60 L.Ed.2d at 276.

The court also addressed the relationship between the statutory
classification and the state's objective in dealing with difficult problems of
proof, as follows:

"Of particular concern to the State is the existence of some mechanism
for dealing with `the often difficult problem of proving the paternity of
illegitimate children and the related danger of spurious claims against intestate
estates.' Lalli v. Lalli, supra [439 U.S.], at 265 [99 S.Ct. at 523, 58 L.Ed.2d at
509]. See also Gomez v. Perez, 409 U.S. [535], at 538 [93 S.Ct. 872, 875, 35
L.Ed.2d 56, 59-60].

"This same state interest in avoiding fraudulent claims of paternity in
order to maintain a fair and orderly system of decedent's property disposition is
also present in the context of actions for wrongful death. If paternity has not
been established before the commencement of a wrongful-death action, a
defendant may be faced with the possibility of multiple lawsuits by individuals
26

all claiming to be the father of the deceased child. Such uncertainty would
make it difficult if not impossible for a defendant to settle a wrongful-death
action in many cases, since there would always exist the risk of a subsequent
suit by another person claiming to be the father. The State of Georgia has
chosen to deal with this problem by allowing only fathers who have established
their paternity by legitimating their children to sue for wrongful death, and we
cannot say that this solution is an irrational one. Cf. Lalli v. Lalli, 439 U.S. 259
[99 S.Ct. 518, 58 L.Ed.2d 503]." 441 U.S. at 357-358, 99 S.Ct. at 1748-1749,
60 L.Ed.2d at 278-279.

Under a superficial analysis, it could be argued that the court adopted the
"middle ground" approach applicable to the inheritance statutes. Under closer
scrutiny, however, it becomes clear that the court did no more than recognize
the same important governmental interest in facilitating difficult problems of
proving paternity that it had already recognized in Weber, and simply applied it
to the unique scenario in Parham. The situation in Parham involved a suit by a
father, not the child. More importantly, the Georgia statute at issue in Parham
27

based the amount of recovery in wrongful death actions on the "`full value of
the life of the decedent.'" 441 U.S. at 368, 99 S.Ct. at 1754, 60 L.Ed.2d at 285,
fn. 19 (White, J., dissenting). This type of statute does not provide any
protection against uninjured or undeserving parents, thereby exacerbating the
concern over the problem of fraudulent claims.

None of these cases--Levy, Weber and Parham--is directly on point in
determining whether the trial court's interpretation in the case sub judice, if
accepted, could withstand equal protection scrutiny. They do, however,
provide a framework for analysis. As applicable here, the cases identify the
need to establish some method to deal with the danger of fraudulent claims and
to accord finality to wrongful death actions as important governmental
objectives. Whether a particular statutory classification based on illegitimacy
is substantially related to those objectives in wrongful death statutes depends
critically upon the extent to which the statute already has built into it protection
against the evils sought to be avoided.
28

Under Ohio's Wrongful Death Act, damages are keyed to the losses
suffered by the surviving beneficiaries. The amount of damages is determined
on the basis of pecuniary and dependency-related factors. Accordingly, unlike
the Georgia statute at issue in Parham, our statute provides protection against
uninjured or undeserving potential distributees. Moreover, the two-year time
limitation on bringing a wrongful death action imposed by R.C. 2125.02(D) is
not merely a time limitation on the remedy; it is a restriction which qualifies the
right of the action itself. See Sabol v. Pekoc (1947), 148 Ohio St. 545, 36 O.O.
182, 76 N.E.2d 84, paragraph one of the syllabus. Thus, it is not tolled by a
beneficiary's minority. See Taylor v. Black & Decker Mfg. Co. (1984), 21
Ohio App.3d 186, 21 OBR 199, 486 N.E.2d 1173. These provisions operate to
substantially reduce the possibility of spurious and multiple claims. Any
further attempt to achieve such objectives by eliminating recovery for
substantial classes of illegitimate children looks suspiciously like a shield for
invidious discrimination.
29

Wrongful death by its nature defies prediction; the tortious death of a
parent may occur at any time during a child's life. Prior thereto, it may not
have been feasible or desirable for a father to have acknowledged or
legitimated his illegitimate offspring. Unlike the intestacy situation, the
presumed intent of the father is unrelated to the nature of the harm to the child.
The child's mother or guardian may not have been willing or possessed the
sophistication or incentive to have ensured protection of the child by seeing to
acknowledgement, legitimation or adjudication of paternity before the father's
death. There is, however, no good reason to further punish the child because of
the ineptitude or procrastination of his or her caretakers. Moreover, a father
who willingly accepts his obligations to support and nurture his illegitimate
child is less likely to be the subject of a paternity action. Consequently, those
illegitimate children who have suffered the greatest loss and possess the most
viable claims for their father's wrongful death are the very children most likely
denied recovery by a rule requiring inter vivos establishment of paternity.
30

Thus, most courts have refused to burden the illegitimate child with the
consequences resulting when those to whose care the child has been entrusted
have failed to protect the child's interests. Thus, there is a general refusal in
wrongful death cases to accept any classification that purports to establish a
connection between inter vivos recognition and/or adjudication, on the one
hand, and the harm suffered by the illegitimate child, on the other hand,
particularly where the loss is ultimately determined under the statute on the
basis of pecuniary or dependency-related factors. Accordingly, most post-Levy
decisions have distinguished the inheritance cases, and have held that formal
acknowledgement or adjudication of paternity prior to the putative father's
death cannot be imposed as a prerequisite to permitting the illegitimate child to
recover for the father's wrongful death. Millman v. Cty. of Butler (1993), 244
Neb. 125, 134-135, 504 N.W.2d 820, 826-827; Chatelain, supra (status as
"child" used defensively); Garza, supra; Brown v. Edwards Transfer Co.
(Tex.1988), 764 S.W.2d 220; Crane v. Mekelburg (Colo.App.1984), 691 P.2d
756, 760-761; Hurt v. Supreme Court of Arizona (1979), 124 Ariz. 45, 601
31

P.2d 1329; Eckel v. Hassan (1976), 87 Misc.2d 1057, 386 N.Y.S.2d 995,
affirmed Eckel v. Hassan (1978), 61 A.D.2d 13, 401 N.Y.S.2d 820; Jordan v.
Delta Drilling Co. (Wyo.1975), 541 P.2d 39, overruled in part, Wetering v.
Eisele (Wyo.1984), 682 P.2d 1055; In re Estate of Niles (1975), 81 Misc.2d
937, 367 N.Y.S.2d 173, affirmed In re Estate of Niles (1976), 53 A.D.2d 983,
385 N.Y.S.2d 876; In re Estate of Johnson (1973), 75 Misc.2d 502, 348
N.Y.S.2d 315; Warren v. Richard (La.App.1973), 283 So.2d 507, affirmed
(1974), 296 So.2d 813; Evans v. Atlantic Cement Co. (Fla.App.1973), 272
So.2d 538; In re Estate of Perez (1972), 69 Misc.2d 538, 330 N.Y.S.2d 881;
Weaks v. Mounter (1972), 88 Nev. 118, 493 P.2d 1307; Jenkins v. Collette
(E.D.La.1971), 335 F.Supp. 47; Cannon v. Transamerican Freight Lines
(1971), 37 Mich.App. 313, 194 N.W.2d 736 (interpreting Ohio law regarding
right of recovery by posthumous illegitimate child prior to enactment of R.C.
2125.02[3][A]'s posthumous exception); Juarez v. System Leasing Corp.
(1971), 15 Cal.App.3d 730, 93 Cal.Rptr. 411; In re Estate of Ortiz, supra;
Schmoll v. Creecy, supra. See, also, Armijo, supra (pre-Levy decision);
32

Annotation, Right of Illegitimate Child, after Levy v. Louisiana, to Recover
Under Wrongful Death Statute for Death of Putative Father (1977), 78
A.L.R.3d 1230, Section 5; Annotation, Right of Recovery, Under Wrongful
Death Statute, for Benefit of Illegitimate Child or Children of the Decedent
(1984, 1995), 72 A.L.R.2d 1235, Later Case Service, Sections 3 and 5.

Accordingly, we find that any interpretation of our Wrongful Death Act
that precludes illegitimate children from establishing paternity after the death
of their putative father for purposes of recovering for the wrongful death of the
putative father is violative of their equal protection rights as guaranteed by the
Fourteenth Amendment to the United States Constitution and Section 2, Article
I of the Ohio Constitution.

Also, we agree with the court of appeals that the issue of an illegitimate
child's paternity "may be litigated in the court of common pleas." Contra, see
In re Estate of Hicks, supra, 90 Ohio App.3d at 488, 629 N.E.2d at 1089. The
juvenile court has been given "original jurisdiction" to determine the paternity
of children born out of wedlock. R.C. 2151.23(B)(2); 3111.06(A). This is in
33

contrast to the "exclusive original jurisdiction" given to the juvenile court over
other matters. R.C. 2151.23(A). Moreover, R.C. Chapter 3111 evinces no
legislative intent to establish R.C. Chapter 3111 paternity proceedings as the
exclusive method by which paternity may be determined or the parent-child
relationship effectuated. In re Custody of Davis (1987), 41 Ohio App.3d 81,
534 N.E.2d 946. Thus, the concurrent original jurisdiction of the court of
common pleas with regard to all civil matters is unaltered, and such court has
jurisdiction to determine the issue of paternity of a child born out of wedlock in
conjunction with a wrongful death claim. See Standifer v. Arwood (1984), 17
Ohio App.3d 241, 244, 17 OBR 508, 511, 479 N.E.2d 304, 308; 2 Anderson's
Ohio Family Law (1989) 106, Section 10.15. See, generally, Seventh Urban,
Inc. v. Univ. Circle Property Dev., Inc. (1981), 67 Ohio St.2d 19, 23-24, 21
O.O.3d 12, 15, 423 N.E.2d 1070, 1074.

In light of the foregoing, the judgment of the court of appeals is
affirmed.

Judgment affirmed.
34

MOYER, C.J., DOUGLAS, WRIGHT, F.E. SWEENEY and PFEIFER, JJ.,
CONCUR.

COOK, J., concurs separately.

FOOTNOTES:
1 Former R.C. 2125.02(A)(1) provided:

"An action for wrongful death shall be brought in the name of the
personal representative of the decedent for the exclusive benefit of the
surviving spouse, the children, and the parents of the decedent, all of whom
were rebuttably presumed to have suffered damages by reason of the wrongful
death, and for the exclusive benefit of the other next of kin of the decedent."
2 R.C. 3111.06(A) provides:

"The juvenile court has original jurisdiction of any action authorized
under sections 3111.01 to 3111.19 of the Revised Code. An action may be
brought under those sections in the juvenile court of the county in which the
child, the child's mother, or the alleged father resides or is found or, if the
35

alleged father is deceased, of the county in which proceedings for the probate
of his estate have been or can be commenced, or of the county in which the
child is being provided support by the department of human services of that
county. If an action for divorce, dissolution, or alimony has been filed in a
court of common pleas, that court of common pleas has original jurisdiction to
determine if the parent and child relationship exists between one or both of the
parties and any child alleged or presumed to be the child of one or both of the
parties." (139 Ohio Laws, Part I, 2183.)
3 This provision was first enacted as part of Am.Sub.H.B. No. 332, effective
February 5, 1982. The purpose of Am.Sub.H.B. No. 332 was stated to be "[t]o
amend sections 2125.01, 2125.02, and 2125.03 of the Revised Code to
authorize the court or jury in a wrongful death action to award compensatory
damages." 139 Ohio Laws, Part II, 2458. The primary effect of R.C.
2125.02(A)(3)(a) was to supersede prior case law holding that if a beneficiary
dies prior to trial or judgment, his interest dies with him and his estate does not
succeed to his wrongful death claim. Davis v. New York Cent. RR. Co. (1954),
36

160 Ohio St. 474, 52 O.O. 356, 117 N.E.2d 39; Fini v. Perry (1928), 119 Ohio
St. 367, 164 N.E. 358; Doyle v. Baltimore & Ohio RR. Co. (1909), 81 Ohio St.
184, 90 N.E. 165. The language, however, is obviously much broader in scope.
4 The illegitimate child whose paternity has been established or acknowledged
inter vivos may still bring an action for the wrongful death of his or her father.
Nothing in this opinion shall be construed to change that result.
5 In Baston v. Sears (1968), 15 Ohio St.2d 166, 168, 44 O.O.2d 144, 145, 239
N.E.2d 62, 63, at fn., the court stated that "[t]he rights announced in Levy were
based on the intimate, familial relationship which exists between a mother and
her child, whether the child is legitimate or illegitimate." Baston, however,
was overruled by Franklin, supra, 30 Ohio St.2d at 234, 59 O.O.2d at 268, 283
N.E.2d at 817, fn. 5.
Cook, J., concurring. I concur in the syllabus, judgment and reasoning of the court on
the primary issue. Because I find the discussion of the constitutional issue to be unwarranted,
I do not concur with that portion of the opinion. See, e.g., Hal Artz Lincoln-Mercury, Inc. v.
Ford Motor Co. (1986), 28 Ohio St.3d 20, 28 OBR 83, 502 N.E.2d 590, paragraph two of the
syllabus, citing State ex rel. Herbert v. Ferguson (1944), 142 Ohio St. 496, 27 O.O. 415, 52
37

N.E.2d 980, paragraph two of the syllabus (constitutional questions will not be addressed
unless necessary).

38