concurring on denial of rehearing.
Appellant, Maria Del Carmen Marquez Avila, as next friend of Christina Jimenez, filed suit against the appellees, St. Luke’s Lutheran Hospital and its nurse, Marilyn Abel, for the wrongful death of Christina’s biological father. Because the appellees had been sued in a prior suit by Christina’s siblings, the appellees moved for summary judgment based on collateral estoppel. The trial court granted their motions, Avila appealed, and we reversed and remanded. We now deny, without opinion, the appellees’ motions for rehearing. I write separately to address how the status of the law creates inequities in this case.
Background
The summary judgment evidence shows that Ernesto Jimenez, Sr. died while being treated for acute epiglottitis at St. Luke’s Hospital. Christina Jimenez was bom posthumously. After Christina’s birth, her adult siblings brought a wrongful death and survival action against Abel and St. Luke’s Hospital. The petition did not mention Christina or any other beneficiaries1 but was styled in the names of Ernesto Jimenez, Jr., Jacquelyn Jimenez, and Diana Jimenez-Bolfing, individually and on behalf of the estate of Ernesto Jimenez, Sr. The claims against the hospital were settled for $500,000; and, in November 1991, a take-nothing judgment was entered in favor of all defendants. The judgment was not appealed.
In 1994, Avila filed this wrongful death action on Christina’s behalf against Abel and St. Luke’s Hospital. While Christina’s siblings were aware of her birth,2 Christina was unaware of the prior lawsuit. Additionally, the defendants in the first suit were unaware of Christina at the time the first judgment was taken. Nonetheless, Abel and the hospital moved for summary judgment based on collateral estoppel. The trial court granted the motions, and Avila appealed. As explained in the majority opinion, Avila contended the trial court erred because collateral estoppel was not applicable under these facts. In eighteen points of error on rehearing, the appellees insist that collateral estop-pel is applicable because privity existed between Christina and her older siblings. As *856explained below, I disagree, although I sympathize with the plight of the appellees.
Standard of Review
When reviewing the motions for summary judgment in this appeal, we réeognize that Abel and St. Luke’s Hospital have the burden of establishing the lack of disputed issues of material fact. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548 (Tex. 1985). Evidence favorable to Avila is taken as true, and every reasonable inference is resolved in her favor. Id. at 548-49.
Because Abel and the hospital moved for summary judgment on the affirmative defense of collateral estoppel, they must conclusively prove each element of the defense as a matter of law. Montgomery v. Kennedy, 669 S.W.2d 309, 310-11 (Tex.1984); Tex.R. Civ. P. 94. Thus, they must establish that (1) the facts sought to be litigated in the second action were fully and fairly litigated in the first action; (2) those facts were essential to the judgment in the first action; and (3) the parties or their privies were cast as adversaries in the first action. Bonniwell v. Beech Aircraft Corp., 663 S.W.2d 816, 820-21 (Tex. 1984).
Discussion
Abel and the hospital argue the Wrongful Death Act creates privity between Christina and her siblings. There is no prevailing definition of privity that can be automatically applied to cases involving collateral estoppel. Getty Oil Co. v. Insurance Co. of N. Am., 845 S.W.2d 794, 800 (Tex.1992). The term connotes “those so connected in law with a party to the judgment as to have such an identity of interest that the party to the judgment represented the same legal right.” Mendez v. Haynes Brinkley & Co., 705 S.W.2d 242 (Tex.App.—San Antonio 1986, writ ref'd n.r.e.). Privity is not established by the mere fact that persons may happen to be interested in the same question or in proving the same set of facts. Finger v. Southern Refrigeration Servs., Inc., 881 S.W.2d 890, 895 (Tex.App.—Houston [1st Dist.] 1994, writ denied). Those in privity include persons who exert control over the action, persons whose interests are represented by another party, or successors in interest to that party. Getty Oil Co., 845 S.W.2d at 798.
The Wrongful Death Act does not specifically address privity but provides that:
(a) An action to recover damages as provided by this subchapter is for the exclusive benefit of the surviving spouse, children, and parents of the deceased.
(b) The surviving spouse, children, and parents of the deceased may bring the action or one or more of those individuals may bring the action for the benefit of all.
Tex. Civ. Piiac. & Rem.Code Ann. § 71.004 (Vernon 1997) (emphasis added). Abel and the hospital maintain that the italicized language creates only one cause of action; thus, the statutory beneficiaries become, by implication, representatives of all beneficiaries. Legally, the statute does not assume privity. Furthermore, factually, the record suggests Christina’s siblings made every effort not to be responsible to their father’s daughter, their half-sister.
Although there is little modern authority discussing the Wrongful Death Act’s reference to “one action,” an older Supreme Court opinion is instructive. In Nelson v. Galveston, Houston & San Antonio Ry., 78 Tex. 621, 14 S.W. 1021, 1021 (Tex.1890), the decedent’s wife and child brought a wrongful death claim that was settled before the decedent’s second child was bom. After its birth, the second child brought another wrongful death action, which the defendants claimed was barred by the prior settlement. Id. In rejecting the defendant’s argument, the Supreme Court described the statute’s “one action” as one brought for all beneficiaries or one to which all beneficiaries were joined as parties. Id.
If the mother and one child sue, and recover only the compensation awarded them by a verdict, and, as in this case, another child sues, it cannot be precluded on the ground that one action has been brought by all the beneficiaries, or that one beneficiary has brought the action for all, because no such action has been brought. If it had, it would be the one suit contemplated by the statute. The amount to which all the beneficiaries would be entitled, if it all, would *857be included in that suit, and another could not be properly brought, and a second judgment, in whole or in part, recovered against the same defendant. But if the amount of compensation of any one of the beneficiaries had not been included in such suit, and he is entitled to it, upon no principle of reason should he be concluded by a judgment in which his rights were not considered. If the defendant is liable to three beneficiaries under the statute, the aggregate compensation to which they are justly entitled should be no greater, whether it be recovered in three suits brought by one, each of them or one suit brought by all.
Id., 14 S.W. at 1023-24.
While this authority is more than a century old, its logic is sound.3 When a decedent’s spouse, children, and parents bring a wrongful death claim, their damages include individual losses of future pecuniary benefits, inheritance, and companionship, plus damages for mental anguish. Tex. Civ. Prac. & Rem.Code Ann. § 71.004 (Vernon 1997); Sanchez v. Schindler, 651 S.W.2d 249, 251 (Tex.1983). In contrast, if they bring a statutory survival action, their recovery represents the injuries the decedent personally suffered. Tex. Civ. Prac. & Rem.Code Ann. § 71.021 (Vernon 1997); Harris County Hosp. Dist. v. Estrada, 872 S.W.2d 759, 764 (Tex.App.—Houston [1st Dist.] 1993, writ denied). In other words, a wrongful death action, unlike a survival action, would not create potentially inconsistent or overlapping damages in a second suit unless a claimant sues on behalf of all statutory beneficiaries, as each is entitled to his or her own share of damages. Cf. Henwood v. Richardson, 163 S.W.2d 256, 258 (Tex.App.—Texarkana 1942, writ ref'd w.o.m.) (finding that failure to join parents in a wrongful death action was not error where the parents sustained no loss).
The Wrongful Death Act refers to “an action” and “the action,” but it does not expressly limit the number of lawsuits that may be brought in connection with a single event. While the “one action” rule is designed to prevent a defendant from being subject to multiple suits, it is not a mandatory rule. Cf. Tex. Civ. Prac. & Rem.Code Ann. § 71.004(b) (Vernon 1986); Schwing v. Bluebonnet Express, Inc., 470 S.W.2d 133, 137 (Tex.App.—Houston [14th Dist.] 1971) (holding that right of joinder may be waived), aff'd in part, rev’d in part on other grounds, 489 S.W.2d 279 (Tex.1973); Galveston, H. & S.A. R. Co. v. Kutac, 72 Tex. 643, 11 S.W. 127, 128 (Tex.1889) (holding that first wrongful death action did not estop second action when the defendant waived its right to join all parties in the first action). In short, the Wrongful Death Act does not create privity among statutory claimants unless a beneficiary clearly represents all claimants.
In this case, there is no evidence that the adult children brought their wrongful death claim on behalf of all the statutory beneficiaries. Their petition is completely silent regarding those individuals, although the petition is necessarily styled “on behalf of the estate” to address the survival claim. When the children settled their claim, the release applied to their “heirs, executors, administrators, successors, assignees, representatives, agents, attorneys, sureties, and subrogees”; Christina is not a member of these categories. The release also states that the adult children “represent and warrant that no other person or entity has or has had any interest in the claims, demands, obligations, or causes of action referred to in this Release and Indemnity Agreement except as otherwise set forth within.” This language creates a cause of action between the hospital and the adult children;4 it does not limit *858Christina’s right of recovery.5 Finally, the judgment entered in the first suit is also silent regarding the representative capacity of the adult children.
Considering present law, there was no privity between Christina and her siblings that triggered collateral estoppel. Even if collateral estoppel applied in this case, the court has the discretion to refuse to apply it if doing so would be unfair. Finger v. Southern Refrigeration Servs., Inc., 881 S.W.2d 890, 896 (Tex.App.—Houston [1st] Dist 1994, writ denied). In exercising that discretion, we consider the factors outlined by Parklane Hosiery Co. v. Shore, 439 U.S. 322, 330-31, 99 S.Ct. 645, 651, 58 L.Ed.2d 552 (1979). Those factors and my answers are:
1. Whether the use of collateral estoppel will reward a plaintiff who could have been joined in the earlier suit but chose to “wait and see.” This posthumously horn child was unaware of her choice.
2. Whether the defendant in the first suit had the incentive to litigate that suit fully and vigorously. They did.
3. Whether the second suit will afford the defendant procedural opportunities unavailable in the first suit that could cause a different result. Not apparent in this record.
4. Whether the judgment in the first suit is inconsistent with any earlier decision. It is not.
Even if some elements of collateral estop-pel appeared, it would be inequitable to apply it against Christina Jimenez. But this result presents a corresponding inequity. It requires unsuspecting defendants to presume first, that people live irresponsibly and have out-of-wedlock children who will later surface and, second, that all settling siblings are too greedy and venal to reveal their existence. To properly defend themselves, defendants would be required to (1) request ad litems to protect against this eventuality, most often needlessly; or (2) generate a new lawsuit after seeking indemnification from the settling siblings for known survivors who should have been disclosed.
. Ernesto’s parents were still alive at the time this suit was brought. See Tex. Civ. Prac. & Rem. Code Ann. § 71.004(a) (Vernon 1997) (listing parents, children, and spouse of the deceased as beneficiaries).
. Christina’s mother appeared, three months pregnant, at the funeral.
. The hospital argues that Nelson improperly relied on Galveston, H. & S.A. R. Co. v. Kutac, 72 Tex. 643, 11 S.W. 127, 128 (Tex.1889), which involved the defendant’s waiver of its right to join all parties in one action. While not directly on point, the Supreme Court was free to expand Kutac's holding. The hospital also argues that Nelson relied on an outdated version of the Wrongful Death Act, which apportioned damages "among the persons entitled to the benefit of the action.” Contra Tex. Civ. Prac. & Rem.Code Ann. § 71.010(b) (Vernon 1997) (apportioning damages "among the individuals who are entitled to recover”). While this change indicates some intent to alter Nelson's holding, the legislature would have expressly overruled Nelson if that was its intention. See Enos v. State, 889 S.W.2d 303, 305 (Tex.Crim.App. 1994).
. The release addresses St. Luke’s Hospital and exempts Abel. Presumably, a second release not *858in our transcript addresses the claims against Abel.
. Without citing authority, the hospital contends that the adult children had a duty to identify Christina and by failing to do so became her implied representatives.