Brookbank v. Gray

[This opinion has been published in Ohio Official Reports at 

.]




              BROOKBANK, ADMR., APPELLEE, v. GRAY, APPELLANT.
                    [Cite as Brookbank v. Gray, 

.]
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.
                                  __________________
                             SUPREME COURT OF OHIO




       {¶ 1} 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 §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.”
       {¶ 2} 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), 

, 

, motion to certify overruled, 

, 

, 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 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.
       {¶ 3} 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




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                                  January Term, 1996




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.”
          {¶ 4} 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.
          {¶ 5} 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), 

, 

, 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.
          {¶ 6} 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.




                                           3
                                   SUPREME COURT OF OHIO




         {¶ 7} 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
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.
         {¶ 8} In Muhl’s Admr. v. Michigan S. RR. Co. (1859), 

, 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.” 

.
Accordingly, it was held that “the fact of such child’s legitimacy or illegitimacy
can in no respect affect the right of action in his behalf.” 

 at paragraph two of
the syllabus.
         {¶ 9} Later, in White v. Randolph (1979), 

, 

, 

, appeal dismissed sub nom. Jackson v. White (1980), 

,

, 

, 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


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.”




                                                  4
                                 January Term, 1996




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), 

, 76-
77, 

, 

], 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, 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, 

, 391 N.E.2d at 334.
        {¶ 10} 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 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,




                                           5
                                   SUPREME COURT OF OHIO




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).
         {¶ 11} 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.”
         {¶ 12} 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 inheritance rights. In
re Estate of Hicks (1993), 

, 

; Martin v.
Davidson (Apr. 19, 1989), Summit App. No. 13840, unreported, certification
dismissed on other grounds (1990), 

, 

; Alexander
v. Alexander (1988), 

, 

 (paternity may be
established by genetic testing irrespective of the limitations period set forth in R.C.
3111.05).
         {¶ 13} On the other hand, in Beck v. Jolliff (1984), 

, 22
OBR 237, 

, 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-ofwedlock as well as the legitimate child if the parent-child relationship has been

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 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.)




                                                   6
                                 January Term, 1996




established prior to death of the father pursuant to the parameters of R.C. Chapter
3111. …” (Emphasis added.) 

, 22 OBR at 241, 

.
        {¶ 14} The wrongful death cases, decided primarily in the courts of appeals,
adopted the law as enunciated in White and 

 for purposes of defining
the term “children … of the decedent” as used in R.C. 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.

 Bonewit v. Weber (1952), 

, 

,

; Hopping v. Erie Ins. Co. (Mar. 20, 1990), Clark App. No. 2649,
unreported. But, see, Purnell v. Akron (C.A.6, 1991), 

.
        {¶ 15} 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), 

, 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. § 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.,

 (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.




                                           7
                              SUPREME COURT OF OHIO




        “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 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.”
        {¶ 16} 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 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




                                            8
                                January Term, 1996




as such under the Wrongful Death Act, and form no part of the decedent’s estate.
See In re Estate of Craig (1993), 

, 

;
Fogt v. United Ohio Ins. Co. (1991), 

, 

.
        {¶ 17} 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 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), 

, 

. 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), 

, 

.
        {¶ 18} 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.)




                                          9
                                  SUPREME COURT OF OHIO




         {¶ 19} In Martin v. Daily Express, Inc. (N.D.Ohio 1995), 

, 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.”
         {¶ 20} 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 children of the
decedent.” (Emphasis sic.) Armijo v. Wesselius (1968), 

, 

. 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),

.


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), 

, 

, 

; Fini v.
Perry (1928), 

, 

; Doyle v. Baltimore & Ohio RR. Co. (1909), 

, 

. The language, however, is obviously much broader in scope.




                                                 10
                                      January Term, 1996




         {¶ 21} 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.
         {¶ 22} 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, 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
         {¶ 23} 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), 

, 

, 

, 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


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.




                                                  11
                              SUPREME COURT OF OHIO




recover for the wrongful death of his or her putative father, unless paternity was
acknowledged or adjudicated during the father’s lifetime. 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.
        {¶ 24} 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), 

, 

, 

; 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), 

, 

.
Consequently, at common law he was deemed nullius filius—the child of nobody—
and thereby denied 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), 

, 615, Section 1.
        {¶ 25} 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




                                          12
                                January Term, 1996




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 included within the state legislation.’” White,
supra, 

, 

, 

. See, also, Lalli v.
Lalli (1978), 

, 

, 

; Trimble v. Gordon
(1977), 

, 

, 

; Labine v. Vincent (1971), 

, 

, 

.
       {¶ 26} 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), 

, 

, 

. 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 wrongful death statutes. Thus, the equal protection analysis
will play out differently here than in the inheritance cases.
       {¶ 27} In Levy v. Louisiana (1968), 

, 

, 

, 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




                                          13
                                 SUPREME COURT OF OHIO




the biological and in the spiritual sense; in her death they suffered wrong in the
sense that any dependent would.” 

, 

, 

.
          {¶ 28} Levy can be fairly interpreted as a proscription against barring the
rights of unacknowledged illegitimate children to recovery in a wrongful death
action.5 This is because, as pointed out in a dissenting opinion appearing in Glona
v. Am. Guar. & Liab. Ins. Co. (1968), 

, 

, 

,
rehearing denied (1968), 

, 

, 

, 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).
          {¶ 29} In Weber v. Aetna Cas. & Sur. Co. (1972), 

, 

, 

, 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.” 

, 

, 

.
          {¶ 30} 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 statecreated compensation schemes, designed to provide close relatives and dependents


5. In Baston v. Sears (1968), 

, 

, 

, 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 

, 

, 

.




                                               14
                                 January Term, 1996




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.” 

, 

, 

.
        {¶ 31} On the other hand, the court distinguished 

 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.) 

, 

, 

.
        {¶ 32} 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. 

, 

, 

.
        {¶ 33} Finally, in Parham v. Hughes (1979), 

, 

,

, 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 illegitimate child and for failing
to change its status.” 

, 99 S.Ct. at 1746, 

.




                                          15
                             SUPREME COURT OF OHIO




       {¶ 34} 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. 

 [439 U.S.], at 265 [99 S.Ct. at 523, 

]. See also
Gomez v. Perez, 409 U.S. [535], at 538 [

, 

].
       “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 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, 

 [

, 

].” 

, 99 S.Ct. at 1748-1749, 

.
       {¶ 35} 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 based the




                                         16
                                 January Term, 1996




amount of recovery in wrongful death actions on the “‘full value of the life of the
decedent.’” 

, 99 S.Ct. at 1754, 

 (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.
        {¶ 36} 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.
        {¶ 37} 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), 

, 

, 

,
paragraph one of the syllabus. Thus, it is not tolled by a beneficiary’s minority.
See Taylor v. Black & Decker Mfg. Co. (1984), 

, 21 OBR 199,

. 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.




                                          17
                              SUPREME COURT OF OHIO




        {¶ 38} 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.
        {¶ 39} 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), 

, 

; 

 (status as “child” used defensively); 

                                           18
                               January Term, 1996




Brown v. Edwards Transfer Co. (Tex.1988), 

; Crane v. Mekelburg
(Colo.App.1984), 

; Hurt v. Supreme Court of Arizona
(1979), 

, 

; Eckel v. Hassan (1976), 

, 

, affirmed Eckel v. Hassan (1978), 

, 

;
Jordan v. Delta Drilling Co. (Wyo.1975), 

, overruled in part, Wetering
v. Eisele (Wyo.1984), 

; In re Estate of Niles (1975), 

,

, affirmed In re Estate of Niles (1976), 

, 

; In re Estate of Johnson (1973), 

, 

;
Warren v. Richard (La.App.1973), 

, affirmed (1974), 

;
Evans v. Atlantic Cement Co. (Fla.App.1973), 

; In re Estate of Perez
(1972), 

, 

; Weaks v. Mounter (1972), 

,

; Jenkins v. Collette (E.D.La.1971), 

; Cannon v.
Transamerican Freight Lines (1971), 

, 

(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), 

, 

; In re Estate of

 Schmoll v. 

       See, also, 

 (pre-Levy
decision); Annotation, Right of Illegitimate Child, after Levy v. Louisiana, to
Recover Under Wrongful Death Statute for Death of Putative Father (1977), 

, Section 5; Annotation, Right of Recovery, Under Wrongful Death
Statute, for Benefit of Illegitimate Child or Children of the Decedent (1984, 1995),

, Later Case Service, Sections 3 and 5.
       {¶ 40} 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.




                                        19
                              SUPREME COURT OF OHIO




        {¶ 41} 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, 

, 

. 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 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), 

, 

. 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 OBR 508, 511, 

; 2 Anderson’s Ohio Family Law (1989)
106, Section 10.15. See, generally, Seventh Urban, Inc. v. Univ. Circle Property
Dev., Inc. (1981), 

, 

, 

.
        {¶ 42} In light of the foregoing, the judgment of the court of appeals is
affirmed.
                                                                   Judgment affirmed.
        MOYER, C.J., DOUGLAS, WRIGHT, F.E. SWEENEY and PFEIFER, JJ., CONCUR.
        COOK, J., concurs separately.
                                __________________
        COOK, J., concurring.
        {¶ 43} 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




                                          20
                               January Term, 1996




Lincoln-Mercury, Inc. v. Ford Motor Co. (1986), 

, 28 OBR 83,

, paragraph two of the syllabus, citing State ex rel. Herbert v.
Ferguson (1944), 

, 

, 

, paragraph two of
the syllabus (constitutional questions will not be addressed unless necessary).
                              __________________




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