Articles Posted in Wrongful Death

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establish the surviving spouse has abandoned the deceased spouse as described in 36-4-101(a)(13) or otherwise willfully withdrawn for a period of two (2) years.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).

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The case of Jernigan v. Hunter, No. M2013-01860-COA-R3-CV (Tenn. Ct. App. Sept. 30, 2014) begins in January 2006, when John Jernigan was stabbed and beaten to death by two men, a father and son, inside a Nashville strip club. Father pleaded guilty to voluntary manslaughter in his criminal proceeding, and son pleaded guilty to the lesser charge of aggravated assault.

Thereafter, Jernigan’s parents filed a wrongful death lawsuit against father and son, both of whom defended themselves during a bench trial. The trial court found that Jernigan’s parents had proved by a preponderance of the evidence that father had directly and intentionally contributed to Jernigan’s death by stabbing him multiple times. However, due to conflicting evidence, the trial court ruled that parents did not prove that the son had caused or contributed to Jernigan’s death. Accordingly, the court awarded Jernigan’s parents $250,000 in damages against the father and dismissed the son. The father appealed and represented himself again.

The appellate court’s opinion classified father’s arguments on appeal into three categories: evidentiary issues, legal issues, and issues first raised on appeal.

Evidentiary Issues

Father’s appeal was pretty much devastated at the outset because he did not file a transcript of the evidence (under Tenn. R. App. P. 24(b)) or a statement of the evidence (under Tenn. R. App. P. 24(c)) in the appellate record, resulting in a conclusive presumption on appeal that there was sufficient evidence before the trial court to support its judgment. Tennessee law holds that, to the extent issues on appeal depend on factual determinations, the lack of a transcript or statement of the evidence is essentially fatal to the party having the burden on appeal. Father challenged the sufficiency of evidence, arguing that there was conflicting testimony about who participated in the fight with Jernigan and that Jernigan had been under the influence of alcohol and marijuana at the time of his death. Father also challenged the sufficiency of the complaint, contending that it failed to state a claim upon which relief could be granted. However, because father failed to file a transcript or statement of the evidence, there was no evidence before the court to review on appeal. The appellate court therefore found father’s evidentiary issues without merit.

Legal Issues

Father sought review of the trial court’s denial of his request to appoint counsel to represent him. The appellate court rejected father’s argument because, unlike indigent criminal litigants, indigent civil litigants have neither the constitutional nor the statutory right to court-appointed counsel.

In father’s second legal issue, he argued that the trial court failed to rule on “numerous pending motions” filed in the trial court. However, the appellate court rejected this argument because father failed to identify which motions he was referring to, and he otherwise failed to establish that any substantive motions were not properly addressed by the trial court.

Father’s third legal issue argued that the trial court should have severed father’s civil trial from son’s civil trial. Rule 42.02 of the Tennessee Rules of Procedures states that a trial judge may exercise its discretion to order separate trials for “convenience or to avoid prejudice,” and the Tennessee Supreme Court has held that the interest of justice will warrant a bifurcation of the issues in only the most exceptional cases and upon a strong showing of necessity. Father’s appellate brief failed to identify any reason why he was prejudiced by the trial court’s denial of his motion to sever. Further, the trial court had found that father and son were both necessary witnesses in each case, and, depending on the proof at trial, fault would likely need to be allocated against each defendant. Based on these considerations, the appellate court found that the trial court did not abuse its discretion in denying father’s motion to sever. 

Father’s fourth legal issue on appeal challenged the competency of a witness who testified at trial. Father alleged that the witness had past criminal charges against him, mental health issues, and was “unreliable.” But, again, because of father’s failure to file a transcript or statement of the evidence, the court of appeals was unable to fully address the witness’s competency. With no evidence to counter the presumption of correctness afforded to the trial court, the appellate court had no basis to conclude the evidence was insufficient to support the ruling that the witness was competent to testify, and thus father’s argument was rejected.

Issues First Raised on Appeal

Father argued the following three issues for the first time on appeal: whether Jernigan’s parents had standing to bring the wrongful death claim, whether Jernigan’s parents filed the wrongful death lawsuit within the statute of limitations, and whether the lawsuit satisfied the requirements of the Federal Tort Claim Act. The appellate court summarily rejected all three issues, relying on well-established Tennessee law that holds that if an issue is not properly raised in the trial court it cannot be raised for the first time on appeal. Because father did not properly bring these matters to the attention of the trial court, the appellate court that they were without merit.

Note to non-lawyers:  practicing law ain’t rocket science, but there are rules that, if not followed, create all sorts of problems.  I don’t fix my own toilets, and you probably should defend yourself in a wrongful death case.

Under Tennessee wrongful death law, the distribution of proceeds obtained after a settlement for wrongful death are governed by common law not statute. Basically, the law provides that the wrongful death proceeds are distributed under the law of intestate succession.

Thus, if a decedent left behind a surviving spouse and one child, each would receive one-half of the proceeds. If the wrongful death decedent left behind a surviving spouse and two children, each of them would receive one-third of the wrongful death proceeds. A surviving spouse would never receive less than a one-third share of the recovery, even if there were three or more surviving children.

A recent case from the Tennessee Court of Appeals faced a question never addressed before in Tennessee: what happens to wrongful death proceeds when the surviving spouse entered into a postnuptial agreement agreeing to waive all rights which she acquired as a result of her marriage to the defendant?

A few more facts. Fourteen years after Mr. and Mrs. Rickman were married, they entered into a postnuptial agreement waiving their rights to the property of the other, including all "rights they may have acquired by reason of their marriage." Mr. Rickman died first, and his wife entered an Order in the probate action acknowledging that she was not entitled to any portion of Mr. Rickman’s estate.

Thereafter, one of Mr. Rickman’s children (from a prior marriage), acting as Administrator of the Estate, filed a wrongful death lawsuit against a health care provider. The lawsuit was settled several months later, and Mrs. Rickman claimed a portion of the proceeds. Mr. Rickman’s children claimed the postnuptial agreement barred her from recovering any portion of the proceeds, and the instant litigation ensued.

(Those unfamiliar with Tennessee wrongful death law need to know that even though the administrator of an estate has the right to file a wrongful death lawsuit the proceeds of any recovery in the action belong not to the estate but, as stated above, pass to the beneficiaries under the law of intestate succession. Thus, the fact that the widow disclaimed any interest in the estate of Mr. Rickman was not dispositive of the issue of whether she was entitled to any portion of the wrongful death proceeds.)

The Tennessee Court of Appeals affirmed the decision of the trial court denying Mrs. Rickman any recovery from the wrongful death settlement. The court ruled that *[w]idow’s only claim to entitlement of the proceeds from the wrongful death action is ‘by reason of [her] marriage’ to the decedent. Accordingly, the postnuptial agreement, which is undisputedly valid and enforceable, waives her right to share in the wrongful death proceeds." The court did not follow the precedent from several other states on the issue, noting differences in the wording of the postnuptial agreements in those cases and differences in the wrongful death law.

Although not discussed in the opinion, the same reasoning would apply to prenuptial agreements, which are much more common than postnuptial agreements. 

It is unknown whether Mrs. Rickman will ask the Tennessee Supreme Court to review this case. The opinion was issued on October 15, 2013, and she has sixty days to file a request for Supreme Court review.

The opinion should be of interest to all Tennessee wrongful death lawyers as well as to lawyers who draft prenuptial and postnuptial agreements. The broad language of these agreements would frequently result in the surviving spouse not receiving wrongful death proceeds arising from the death of the other. On the other hand, a Tennessee prenuptial agreement or postnuptial agreement could be drafted to allow for the survivor to share in wrongful death proceeds if desired.

The case is Rickman v. Rickman, No. M2013-00251-COA-R3-CV, (Tenn. Ct. App. Oct. 15, 2013). For more information about leading cases on Tennessee wrongful death law in Tennessee, click on the link.

Well, it ain’t much, but the Tennessee Legislature has fixed one small problem with the tort reform legislation that impacts all tort cases arising on or after October 1, 2011.

The original legislation included a provision that required all future damages to be broken down "on an annual basis"  for future medical bills, lost earning capacity, and non-economic damages. Tennessee Code Annotated, Section 29-39-103(a)(2),   This was a disaster waiting to happen.  Why?

Here is an example.  Assume a 20 year old unmarried woman is severely brain damaged as a result of an incident.  She will never work again and she has a significant future medical expenses over her lifetime.  Her life expectancy is disputed – the defense says she has a fifteen year life expectancy and the plaintiff’s expert says she has a normal (sixty year) life expectancy.  There is also a dispute over the inflation rate and the discount rate.

Under the original version of the law, the jury would have up to 240 separate lines  to complete on future damages – 80 entries on lost earning capacity, 80 lines for future medical bills, 80 lines for non-economic damages.  This is not only an unnecessary hassle for the jury, but it also creates lots of opportunities for error.

If she had been married at the time of the incident, another 80 lines would be required for future loss of consortium.

The new legislation – State of Tennessee Public Chapter 379 –  eliminates the words "on an annual basis."  Thus, the jury still must still break out past and future damages by class, and if life expectancy is disputed it must still determine the plaintiff’s life expectancy, but it need not determine each class of damages on a year-by-year basis.

The change in the law became effective on the date it was signed by the Governor.  (May 14, 2013)

The Tennessee Judicial Conference gets the credit for getting the General Assembly to make this important change in the law.  A crazy law just got a little less crazy. 

Under the law of wrongful death in Tennessee, the spouse of the decedent typically has the principle right to pursue a wrongful death claim.  

However, from time to time cases have arisen where the marriage effectively but not legally ended before the death of one spouse, and squabbles arose over who controlled the wrongful death action and whether wrongful death proceeds were recoverable.

The Tennessee General Assembly has weighed in on the controversy.  First, Tenn. Code. Ann.  Sec. 20-5-110 has been amended to provide that the right to bring a wrongful death case or collect any proceeds is waived if the surviving spouse abandoned the deceased spouse as described in Tenn. Code Ann. Sec. 36-4-101(a)(13) or otherwise willfully withdrawn from the decedent  for a period of two (2) years.  Section (c) of the statute sets forth more details on the issue, and includes a mechanism for bringing the issue to a head. 

Section 20-5-107 (e) also addresses the issue, and provides inter alia that if the spouse who files the wrongful action is later disqualified from so serving or from receiving proceeds the filing date of the action by the disqualified spouse is preserved for statute of limitations purposes.

Section 20-5-106 (c) requires children who bring a wrongful death case to put the surviving spouse on formal notice of the filing, presumably so that his or her rights can be determined in the proceeding.

The new provisions have not yet been interpreted by Tennessee appellate courts.  However, the changes to the law represent a responsible effort to clarify and simplify the process of the progression of wrongful death cases in these difficult circumstances and the distribution of wrongful death proceeds.

As regular readers know,  the Tennessee Bar Association has published a regular column in the Tennessee Bar Journal called "Day on Torts" for many years.  I enjoy writing for these articles and am thankful for the many calls, letters and emails I have received over the years from my fellow lawyers thanking for me writing them. 

The September 2012 edition of the publication includes my latest column, titled "Distribution of Net Proceeds in Tennessee Wrongful Death Cases."   The article offers an analysis of Tennessee law on how statutory beneficiaries divide the net proceeds of wrongful death settlements and judgments.

I wrote this column after receipt of many calls from lawyers asking me questions on the subject.  I hope that this work helps other lawyers serve their clients in Tennessee wrongful death cases.

The Tennessee General Assembly has now placed arbitrary caps on damages in personal injury and wrongful death cases.  And the House of Representatives just passed HR 5, which placed a caps on damages in medical malpractice cases.

But how does the federal government value life when weighing regulatory burden?  The New York Times provides us these figures:

  • EPA – $9.1 million
  • FDA – $7.9 million
  • DOT – $6.0 million

The government looks to research from W. Kip Viscusi, a professor at Vanderbilt, for its numbers.  His paper on the subject, The Value of a Statistical Life: A Critical Review of Market Estimates Throughout the World, is fascinating.  He currently pegs the value of human life at $8.7 million.

His model is explained here:

The idea he and others have since developed in a long string of studies is that differences in wages show the value that workers place on avoiding the risk of death. Say that companies must pay lumberjacks an additional $1,000 a year to perform work that generally kills one in 1,000 workers. It follows that most Americans would forgo $1,000 a year to avoid that risk — and that 1,000 Americans will collectively forgo $1 million to avoid the same risk entirely. That number is said to be the “statistical value of life.”

There is no "value of life" analysis of any type conduct by the tort reformers.  Rather, their only goal is an arbitrary and low cap that will permit wrongdoers and their insurance companies to calculate the risk of misconduct in advance.

Generally speaking, these are the rules for who may file a wrongful death lawsuit inTennessee:

  • A lawsuit for the death of a husband can be filed by his wife, his executor or the administrator of his estate.
  • A lawsuit for the death of a wife can be filed by her husband, her executor, or the administrator of her estate.
  • If a person is single at the time of his or her death, the lawsuit can be maintained by his or her adult children or, if there are no adult children, by his or her parents. The lawsuit can also be filed by an executor or administrator.
  • If a person is a single minor at the time of death, the lawsuit can be maintained by his or her parents. If the parents are divorced, special rules apply. The lawsuit can also be filed by an administrator.
  • If the decedent did not leave a spouse or child and was predeceased by his or her parents, the law permits a sibling to file suit. The lawsuit can also be filed by an executor or administrator.
  • There are exceptions to these general rules. An experienced wrongful death lawyer can explain whether an exception is applicable if he or she is advised of the nature of the family situation.

It is rarely necessary to open an estate in Tennessee for the sole purpose of filing a wrongful death lawsuit.  Thus, we rarely recommend that an estate be opened for the sole purpose of filing a lawsuit.

 

Two recent cases from the Alabama Supreme Court hold that a parent may bring a wrongful death lawsuit on behalf of a stillborn child that was incapable of life outside the womb.

In Hamilton v. Scott, No. 1100192 (Ala. Feb. 17, 2012, Amy Hamilton alleged that several defendants negligently caused the death of the child she was carrying in utero. After discovery, defendant moved to dismiss, arguing that Alabama law required that the fetus had to viable outside the womb before the mother could maintain a wrongful death lawsuit.   The case was dismissed.

The Alabama Supreme Court reversed, citing the recent decision in Mack v. Carmack, No. 1091040 (Ala. Sept. 9, 2011) that raised the same issue. This is the holding in Mack, re-affirmed in Hamilton:

In sum, it is an unfair and arbitrary endeavor to draw a line that allows recovery on behalf of a fetus injured before viability that dies after achieving viability but that prevents recovery on behalf of a fetus injured that, as a result of those injuries, does not survive to viability. Moreover,it is an endeavor that unfairly distracts from the well established fundamental concerns of this State’s wrongful-death jurisprudence, i.e., whether there exists a duty of care and the punishment of the wrongdoer who breaches that duty. We cannot conclude that ‘logic, fairness, and justice’ compel the drawing of such a line; instead, ‘logic, fairness, and justice’ compel the application of the Wrongful Death Act to circumstances where prenatal injuries have caused death to a fetus before the fetus has achieved the ability to live outside the womb.

In accord then with the numerous considerations discussed throughout this opinion, and on the basis of the legislature’s amendment of Alabama’s homicide statute to include protection for ‘an unborn child in utero at any stage of development, regardless of viability,’ § 13A-6-1(a)(3), [Ala. Code 1975,] we overrule Lollar and Gentry, and we hold that the Wrongful Death Act permits an action for the death of a previable fetus. We therefore reverse the summary judgment in favor of Carmack and remand the action for further proceedings consistent with this opinion.

Tennessee law does not currently permit the recovery of damages for the unborn child in this type of case. However, such a result would be mandated by a statute, not case law. T.C. A. Sec. 20-5-106 (d) (“’person’ includes a fetus that was viable at the time of injury. A fetus shall be considered viable if it had achieved a stage of development wherein it could reasonably be expected to be capable of living outside the uterus.”)  

It is interesting that the same result is not true if a person kills a non-viable fetus while committing a criminal act. T.C.A. Sec. 39-13-107. So, in Tennessee, we are willing to subject a person to a charge of murder for causing the death of an unviable fetus but we are refuse to hold the same person responsible for paying monetary damages for that same act. 

The first law review article on the topic of "Wrongful death of children in foster care" has recently been published in the University of La Verne Law Review, 31(1), 25-44.  The article is co-authored by Daniel Pollack, Professor, School of Social Work, Yeshiva University, and a frequent expert witness in child welfare and foster care cases, and Gary L. Popham, Jr., an attorney in Arizona.

The article surveys wrongful death cases filed in various states involving the death of children in foster care. Part I discusses wrongful death claims in general, and Part II discusses foster care. Part III discusses specific cases involving claims of wrongful death filed in various states which arose from the death of a child in foster care. Lastly, Part IV briefly reviews the key aspects of foster care wrongful death cases.

For a copy of "Wrongful death of children in foster care" please contact Professor Pollack at dpollack@yu.edu.