A covenant not to sue is a contract in which one party agrees not to bring a lawsuit against another in exchange for something of value. In Georgia, this kind of agreement can affect a later wrongful death claim, but the answer to whether it bars the claim depends on who signed it, what it covered, and what kind of conduct is alleged. Georgia law treats a covenant not to sue and a release as closely related, yet there are important distinctions, and a wrongful death claim has features that make the analysis particular.
What a Covenant Not to Sue Is
A release is an agreement that gives up an existing claim. A covenant not to sue is more accurately described as an agreement not to assert a claim, often one that is future or contingent at the time the covenant is signed. Georgia recognizes both. Under O.C.G.A. section 13-4-81, a covenant never to sue is treated as equivalent to a release. The practical difference between the two terms has narrowed under Georgia law, although the labels still carry meaning when courts examine the scope and effect of a particular agreement.
How a Covenant Affects a Derivative Claim
A Georgia wrongful death claim is built on the underlying tort that caused the death. The right of survivors to recover the full value of the decedent’s life is, in an important sense, derivative of the wrong done to the decedent. Because of that relationship, an agreement that would have barred the decedent’s own claim against a particular defendant can also bar a wrongful death claim against that same defendant arising from the same conduct.
Georgia case law has applied this principle directly. Where a decedent signed a covenant not to sue that would have barred the decedent’s own cause of action for ordinary negligence against a defendant, that covenant has been held to bar the wrongful death claim of survivors against the same defendant for ordinary negligence. The reasoning is that survivors cannot recover for a wrong that the decedent had already agreed not to pursue against that defendant.
The Distinction Between Ordinary and Gross Negligence
A covenant not to sue does not necessarily reach every theory of liability. Georgia courts have recognized that a covenant barring a claim for simple, or ordinary, negligence does not automatically bar a claim based on gross negligence. Gross negligence describes a higher degree of culpable conduct than ordinary carelessness. Where a covenant was written to release ordinary negligence, a wrongful death claim premised on gross negligence may survive even though the ordinary negligence theory is barred. The exact reach of any particular covenant depends on its language and on what conduct is alleged.
This distinction matters because the enforceability of agreements that excuse a party from its own future negligence is itself limited. Georgia courts scrutinize pre-injury releases and covenants, and public policy places boundaries on the extent to which a party can contract away liability for serious misconduct.
Covenants and Multiple Tortfeasors
A wrongful death may involve more than one responsible party. Georgia law draws a clear line here. Under O.C.G.A. section 13-4-81 and related authority, a covenant not to sue applies only to the party with whom it was made. A covenant not to sue one tortfeasor does not bar a claim against a different tortfeasor who also contributed to the death.
This is one of the practical reasons covenants not to sue are used rather than technical releases. A technical release of one of several jointly liable original debtors can, under traditional principles, discharge all of them. A covenant not to sue is structured to avoid that result, so that an agreement with one defendant does not unintentionally extinguish claims against others. Where a covenant has been given to one party, any payment made under it is generally credited against the amount owed by the remaining tortfeasors.
The Role of the Beneficiaries and Authority to Sign
Who signed the covenant also matters. A covenant signed by the decedent before death can affect the decedent’s own claim and, by extension, the derivative wrongful death claim against the same defendant. A covenant signed after death by a person seeking to resolve a wrongful death claim raises separate questions about that person’s authority to act for all of the statutory beneficiaries. Georgia wrongful death law directs how recovery is shared among the surviving spouse and children, and the resolution of a wrongful death claim ordinarily requires attention to the interests of every beneficiary, including any minor children. An agreement that does not properly account for all beneficiaries may not have the effect the signing party intended.
Summary
A covenant not to sue can bar a Georgia wrongful death claim, but only within limits. Because a wrongful death claim is derivative of the wrong to the decedent, a covenant the decedent signed that would have barred the decedent’s own ordinary negligence claim against a defendant can also bar the survivors’ wrongful death claim against that same defendant for ordinary negligence. It does not necessarily bar a claim for gross negligence, and it does not bar claims against other tortfeasors who were not parties to the covenant. The precise effect always turns on the wording of the agreement, the conduct alleged, and who signed it.
Disclaimer
This article is provided strictly for general educational and informational purposes. It is intended to explain how Georgia law works as a matter of public legal education, and it does not constitute legal advice, a legal opinion, or a recommendation about any particular course of action. Reading this article, or contacting the website on which it appears, does not create an attorney-client relationship between the reader and any law firm, attorney, or author.
The law changes over time. Statutes, regulations, court rules, and judicial decisions discussed here may have been amended, repealed, superseded, or reinterpreted after the date of publication, and citations to specific code sections or cases reflect the law only as it was understood when this article was written. The application of any legal principle also depends heavily on the specific facts and circumstances of an individual matter, and outcomes vary from case to case.
For these reasons, no one should rely on this article as a substitute for advice from a licensed Georgia attorney who can review the particular facts involved. The author and publisher make no warranty, express or implied, regarding the accuracy, completeness, timeliness, or applicability of the information provided, and disclaim any liability for any action taken or not taken based on this content.