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.