Motion for Summary Judgment

Motion for Summary Judgment

IN THE CIRCUIT COURT OF COUNTY,

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MOTION FOR SUMMARY JUDGMENT

COMES NOW , Defendant in the above-captioned action, pursuant to Rule 56 of the Rules of Civil Procedure, and respectfully moves this Court to enter a summary judgment for him as to the claims of Plaintiffs, and in support thereof, would respectfully show unto the Court the following:

I. This action arises out of an automobile accident which occurred on , between a vehicle being driven by Defendant's alleged employee, , and a vehicle being driven by Plaintiffs' decedent, . died in the accident.

II. Shortly after the accident, on , 20____, Plaintiffs, the father, mother, brothers and sisters of the decedent, filed the subject suit contending that they were the sole surviving heirs-at-law and statutory beneficiaries of the decedent under the wrongful death statute, § ().

III. During the course of discovery, Defendant served upon Plaintiffs an Interrogatory requesting that Plaintiffs identify any and all children of the decedent. Plaintiffs, by and through , responded under oath that the decedent had no children. See Plaintiffs' Response to Interrogatory No. 3 of First Set of Interrogatories Propounded by the Defendant, , attached as Exhibit "A". Defendant subsequently deposed on , during which she again stated under oath that the decedent had no children. See pp. 5-6 of ’s deposition attached as Exhibit "D".

IV. Defendant subsequently learned that decedent, fathered two children by . The children were named after their natural father, . The boy, born on , was named . The girl, born on , was named . The decedent openly acknowledged these two children as being his own, and provided financial support to his two children. A true and correct copy of photocopies of photographs of , and are attached hereto as Exhibit "C".

V. , on behalf of , subsequently applied to the Social Security Commission for survivor's social security benefits. The Social Security Commission subsequently awarded survivor's benefits to , specifically adjudicating that he was the child of the decedent.

VI. Under the wrongful death statute § , the damages for the death of a man, if he has no wife, "shall be equally distributed to the children". Since and are the natural children of the decedent, Plaintiffs, the parents, and siblings of the decedent, have no cause of action.

VII. Further, Defendant submits that § , providing for inheritance by illegitimacies is unconstitutional, a conclusion reached by at least two state court judges, and implicitly reached by the Fourth Circuit Court of Appeals. Estate of Miller v. Miller, 409 So.2d 715 (Miss. 1982); Witt v. Mitchell, 437 So.2d 63 (Miss. 1983); Jones v. Harris, 460 So.2d 120 (Miss. 1984). As reflected in these opinions, the only reason the Supreme Court has not previously addressed the constitutionality of this statute is the fact that the issue of constitutionality had not been specifically pleaded in these cases. Therefore, Defendant specifically pleads that § is unconstitutional on equal protection and due process grounds as illegitimates are not treated equally under .

VIII. Since decedent was survived by two children, Plaintiffs have no valid cause of action against Defendant.

WHEREFORE, PREMISES CONSIDERED, Defendant, , moves the Court to enter a summary judgment in his favor as Defendant is entitled to judgment as a matter of law.

Respectfully submitted,

CERTIFICATE OF SERVICE

I, , do hereby certify that I have this day mailed by United States Mail, postage fully prepaid, a true and correct copy of the above and foregoing Motion for Summary Judgment to