Limit on Right of Surviving Spouse to Bring Wrongful Death Claim

While a surviving spouse typically has the superior right to bring a wrongful death suit, there are certain exceptions to that rule. In Nelson v. Myres, No. M2015-01857-COA-R3-CV (Tenn. Ct. App. Jan. 18, 2017), the Court held that a suit filed by the deceased’s daughter rather than her husband could proceed, as the husband was alleged to have at least partially caused her death.

Wife died in a multi-car accident while she was a passenger in a vehicle driven by her husband. In the accident, husband and a car driven by Mr. Bennett collided, then those two vehicles crossed into opposing traffic and hit two other vehicles. Both the husband and daughter of deceased wife filed wrongful death actions. The trial court dismissed daughter’s action, holding that her action “must yield to the claim of the surviving spouse.” The Court of Appeals reversed and reinstated daughter’s complaint.

In her complaint, daughter named husband as a defendant and alleged that husband was guilty of negligence and negligence per se because he was driving under the influence and was traveling at a high rate of speed, racing Mr. Bennett. In the suit filed by husband, Mr. Bennett was the only defendant named, and husband alleged that “Mr. Bennett’s actions were the sole cause of the accident and death of [wife].”

While analyzing this case, the Court of Appeals pointed out that a surviving spouse “has the prior and superior right above all others to bring a wrongful death action[.]” However, “[w]hen a surviving spouse fails to maintain control of the suit or takes action or fails to take action that is inconsistent with the decedent’s claim, this constitutes a waiver of his or her right to prosecute the wrongful death action, and the next of kin can bring suit.” When looking at the wrongful death statutes, the Court noted that it “must treat the wrongful death action as if the injured party had brought it.” (internal quotation and citation omitted).

With regard to this particular factual scenario, the Court reasoned:

Mr. Bennett (as well as parties involved in the other suits which were consolidated) raised the affirmative defense of [husband’s] comparative negligence in causing the death of [wife]. In order to fully prosecute [wife’s] wrongful death cause of action, [husband] would be placed in an inconsistent and impossible position as both plaintiff and defendant, the effect of which is to vitiate the cause of action created by the statute and the relief available to the heirs of [wife]. …Under the circumstances presented, [husband] has an inherent conflict; his conduct is part of the cause of action for her wrongful death, but his complaint does not name him as a defendant nor include the allegation that he is a wrongdoer and bears responsibility for the death of [wife]. The entire claim, as created by the statute, is preserved in [daughter’s] suit.

The Court of Appeals accordingly reversed the dismissal of daughter’s claim and reinstated her complaint. It also specifically noted that this holding did not affect husband’s claims for loss of consortium or loss of service, and did not affect how any proceeds from the wrongful death claim would be distributed.

The Court of Appeals was correct in reversing the trial court here. Husband was alleged by multiple parties to have caused or contributed to wife’s death through his own negligence; it would have been impossible for him to fully pursue the wrongful death claim, as it likely would involve a recovery against himself. In this factual scenario, allowing daughter to bring the wrongful death claim was the correct and logical decision.

Let me add while the Court said the holding did not affect how any proceeds from the wrongful death claim would be distributed, there will be a fight over this at the end of the case if Husband is found to have negligently contributed the death of his wife.  This type of fight was forecasted in our book, Tennessee Law of Comparative Fault, and will raise some very complicated issues that have not yet been decided by the Tennessee Supreme Court. I will write another post about this issue in later weeks.