In 2011, a subsection was added to our state statutes regarding surviving spouses’ rights to institute and collect proceeds from Tennessee wrongful death actions:
- Notwithstanding any other law to the contrary, the right to institute and the right to collect any proceeds from a wrongful death action granted by this section to a surviving spouse shall be waived, if the children or next of kin establish the surviving spouse has abandoned the deceased spouse as described in 36-4-101(a)(13) or otherwise willfully withdrawn for a period of two (2) years.
- If the period of two (2) years has passed since the time of abandonment or willful withdrawal, then there is created a rebuttable presumption that the surviving spouse abandoned the deceased spouse for purposes of this section.
Tenn. Code Ann. § 20-5-106(c). Until recently, this new subsection had not been interpreted by Tennessee courts, but the Court of Appeals took up the task of analyzing the statute in Baugh v. United Parcel Service, Inc., No. M2014-00353-COA-R3-CV (Tenn. Ct. App. March 31, 2015).
In Baugh, the decedent was riding a motorcycle when she was hit and killed by a UPS truck. She had four minor children and was married to Latony Baugh. Baugh filed a wrongful death action on behalf of himself and the four children, although he was not their father, claiming standing as the surviving spouse pursuant to Tenn. Code Ann. § 20-5-106(a). A guardian ad litem was appointed to represent the children’s interests, but the children’s father filed a motion to intervene to represent their interest. The father then filed a motion to set a hearing on standing, which was denied by the trial court. On first appeal, the Court of Appeals remanded, directing that there should be a standing hearing regarding the possible estrangement of Baugh. In the meantime while the standing motions were going back and forth, Baugh, the guardian ad litem, and their attorneys reached a settlement agreement with UPS and the driver, which was approved by the trial court.
On remand, the trial court held a standing hearing and made certain findings of fact and conclusions of law, ultimately finding that the child (who had reached majority by this time) challenging Baugh’s standing had proven by a preponderance of the evidence that Baugh had abandoned the decedent, and that Baugh therefore did not have standing to institute or collect from the wrongful death proceeding. Baugh provided an accounting to the court showing that all of the money he had received had been spent on a house that he owned as tenants in common with another individual. The child filed a motion to transfer title of the house to the four children, which the trial court denied. The trial court also held that the attorney fees taken by the guardian ad litem and Baugh’s attorney were approved and not returnable. The child appealed the findings regarding return of the attorneys’ fees and title of the house, while Baugh appealed the finding that he lacked standing to recover.
On appeal, the prime issue was whether the two-year time requirement contained in § 20-5-106(c)(1) applied to abandonment, i.e., whether a surviving spouse had to be shown to have abandoned the decedent for two years to lose standing in a wrongful death action. The Court noted that the subsection could be read in two ways. Under the first potential reading pursuant to the last antecedent rule, the phrase “for a period of two years” found at the end of the subsection would only modify “willfully withdrawn,” since there was no comma before the phrase. Under the second potential reading, the use of the words “or otherwise” before “willfully” would indicate that abandonment was a type of willful withdrawal and the two-year period would therefore apply to both abandonment and willful withdrawal.
To decide which potential reading was correct, the Court looked to the next subsection, § 20-5-106(c)(2). Here, the legislature directed that if either abandonment or willful withdrawal were shown for a period of two years, a rebuttable presumption of abandonment would arise. The Court read this section to indicate that “there is a different threshold for less than two years,” and thus determined that “the last antecedent rule should be applied to Tenn. Code Ann. § 20-5-106(c)(1). Subsection (c)(2) would be superfluous if, to constitute abandonment under (c)(1), the children or next of kin have to establish that the surviving spouse has abandoned the deceased spouse for a period of two years.” Ultimately, the Court held that proving abandonment was enough for a surviving spouse to lose standing in a wrongful death case; the abandonment did not have to be shown to have existed for a two-year period.
As to the other issues, the Court affirmed the award of attorneys’ fees to both Baugh’s attorney and the guardian ad litem. The Court determined that the case fell within the common fund doctrine, “which arises when the attorney has succeeded in securing, augmenting, or preserving property or a fund of money in which other people are entitled to share in common.” (internal citations omitted). The Court also affirmed the trial court’s holding that it could not require Baugh to sign the title to the house he purchased over to the children. The Court stated that a wrongful death action was the wrong “vehicle for obtaining the relief to which [the children] are entitled from Mr. Baugh,” and that the children would have to file another suit against Baugh for the wrongly-received funds. (Under Tennessee’s wrongful death law, each child would be entitled to receive 1/4th of 2/3rds of the net wrongful death recovery. For more information about distribution of wrongful death proceeds under Tennessee law, click on the link.
What happens if Mr. Baugh lacks the ability to pay the children the money they are owed? The children will be looking to the advice Mr. Baugh’s lawyers gave to him about his fiduciary duty to hold money for the benefit of the children. Obviously, a lawyer cannot force the wrongful death fiduciary to distribute money to wrongful death beneficiaries in the way required by law but at a minimum he or she has the responsibility to advise the fiduciary of how the money should be distributed.
Since this is the first case interpreting this 2011 statute, it is important for wrongful death attorneys to note. The crux here was that a surviving spouse loses standing if he or she abandoned the decedent; the party challenging standing does not have to show that such abandonment was for a period of two years. The two-year modifier only applies to a showing that the surviving spouse otherwise “willfully withdrew.”