A surviving spouse maintains priority to file a wrongful death action, even if the surviving spouse’s alleged negligence caused or contributed to the decedent’s death.
In Nelson v. Myres, No. M2015-01857-SC-R11-CV (Tenn. March 5, 2018), decedent died in a car accident. The daughter filed a wrongful death action, naming several defendants, including decedent’s surviving husband. According to daughter, husband “was under the influence of an intoxicant at the time of the accident” and his actions disqualified him from maintaining the suit (husband was “ultimately incarcerated for vehicular homicide”). Husband filed a wrongful death action, naming only the other driver as a defendant, and the other driver asserted comparative fault against husband in his answer.
Husband moved to dismiss daughter’s wrongful death action, claiming that he had the superior right to bring the case, and the trial court agreed. The Court of Appeals, however, reversed, holding that husband “had an inherent conflict of interest because, due to his conduct in bringing about the accident, he would be both a defendant and a plaintiff in [decedent’s] wrongful death action.” The Court of Appeals held that “only [daughter’s] lawsuit would fully prosecute [decedent’s] cause of action.” Husband appealed to the Tennessee Supreme Court, which reversed the Court of Appeals decision, reinstating husband as the proper person to maintain the wrongful death action.
The only issue in this case was “whether a surviving spouse retains priority to file a wrongful death action pursuant to Tennessee Code Annotated section 20-5-106(a) when a surviving child has also filed a wrongful death action and claims that the surviving spouse negligently cause the death of the decedent.” The Court began its analysis by noting that the plain language of the statute gives the surviving spouse priority, and that while “Tennessee courts have recognized that a surviving spouse might waive his or her right to bring a wrongful death action,…no case has held that a surviving spouse is disqualified from bringing a wrongful death action because of [his or her] negligence.” Further, the Court pointed out that the statute does include some exceptions to the “spousal priority rule,” but that negligence of the surviving spouse is not one of them.
Daughter argued that allowing husband to maintain the suit would produce an “absurd result,” but the Supreme Court disagreed. The Court reasoned:
The statutory language describing who may institute a wrongful death action is clear, and the legislature did not include an exception for when the death of a spouse is caused by the negligence of the surviving spouse. …The legislative intent is to prevent individuals form intentionally killing their spouses for monetary gain; therefore, it is not against the legislative intent to hold that a spouse’s negligent killing of a spouse does not prevent the surviving spouse from instituting a wrongful death action. Accordingly, we conclude that the plain language of the wrongful death statutes does not provide an exception to the spousal priority rule for a surviving spouse’s negligent killing of a decedent.
Having lost her statutory argument, daughter next asserted that husband waived his right to maintain the suit by failing to “sue two out three ‘indispensable’ parties, namely himself and his employer.” The Court rejected this argument, stating that “even a seemingly bad decision by a surviving spouse is binding on the children” in the wrongful death context. Here, because husband “had the right to control the litigation, his decision regarding whom he should sue was within his purview and cannot be considered lack of diligence or waiver.”
Daughter further argued that husband was disqualified due to his conflict of interest, as he would “be both a defendant and a plaintiff” in this case. The Court also rejected this argument, noting that “under our system of comparative fault, plaintiffs are often in a position of having to defendant their own actions.” The Court compared this case to one where a parent brings a wrongful death action on behalf of their child, and the defendant alleges that the parent was comparatively negligent.
Having dismissed all of daughter’s arguments that she should maintain the suit, the Court held that “the wrongful death statutes do not contain an exception to the rule that surviving spouses have the priority to institute a wrongful death action when a spouse’s alleged negligence caused the decedent’s death[.]”
This is an interesting result, made even more so by the fairly egregious facts of the underlying car accident. It will be interesting to see whether the legislature makes any moves to address such a situation arising in the future. Read my article in the Tennessee Bar Journal focusing on another aspect – the fiduciary duty of one who undertakes prosecution of a Tennessee wrongful death lawsuit – of this case.