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Articles Posted in Wrongful Death

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.

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?

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 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. 

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

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:

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

When a person dies as a result of someone else’s negligence, Tennessee law permits only certain people to assert a claim to recover damages for the death. This article does not discuss who receives the damages awarded by settlement or judgment of the case, but only who has the right to file suit.


If the decedent was married, his or her spouse normally has the highest right to pursue the wrongful death claim. A court may deny the surviving spouse the right to bring a wrongful death claim only if the spouse is not legally competent (that is, has some sort of mental problem that would affect his or her ability to bring and pursue a lawsuit), has shown that he or she cannot be trusted to bring the claim (for example, the parties were in a bitter divorce fight at the time of the death), or some other factor (for example, the parties had not lived together for years at the time of the death but had never divorced).

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