Day on Torts
Where decedent was survived by two children, and those two children filed a wrongful death claim pro se purporting to assert claims on their own behalf and on behalf of the other four children, the complaint was only proper to the extent the two plaintiffs were asserting their own right under the wrongful death statutes.
In Grose v. Stone, No. W2023-00090-COA-R3-CV (Tenn. Ct. App. April 25, 2024), decedent died in a car accident. Thereafter, two of decedent’s six children filed a wrongful death claim. The complaint stated that plaintiffs were acting on their own behalf, and on behalf of decedent’s other four children as administrators of decedent’s estate.
After multiple opportunities to hire counsel and several court dates, the trial court ultimately dismissed the complaint as a whole. The trial judge found that the complaint was void ab initio and constituted the unauthorized practice of law by the two plaintiffs. Plaintiffs appealed this ruling, and the Court of Appeals reversed dismissal, finding that the complaint was partially proper.
In a lengthy opinion, the Court of Appeals reviewed Tennessee wrongful death law regarding who can institute a wrongful death action. Looking to Beard v. Branson, 528 S.W.3d 487 (Tenn. 2017), the Court noted that the Tennessee Supreme Court has ruled that a surviving spouse who files a pro se wrongful death action is “acting primarily on his own behalf pursuant to his right of self-representation,” such that a complaint filed pro se by a surviving spouse is not a nullity. Here, however, rather than a single surviving spouse having the right to initiate the wrongful death claim, decedent left behind six children, all of whom are authorized by the wrongful death statutes to file an action.
The Court considered Tennessee law, noting that “our wrongful death statutes…provide[] for a single, entire, and indivisible right of action.” (internal citation omitted). Because only one action can be brought, “all heirs should join or be joined and…a single verdict should be rendered for all damages…” (internal citation omitted). The Court also acknowledged that a non-lawyer cannot represent another party in litigation. Based on these principles, the Court found that the two plaintiffs “can proceed pro se to the extent that they are asserting their own right of action pursuant to their right of self-representation,” but that the complaint was void to the extent it purported to represent the rights of the other four children.
Having determined that the complaint was partially proper and partially void, the Court then turned to whether the wrongful death action could proceed without the other four beneficiaries as parties. The Court cited other state and federal cases that allowed a necessary wrongful death plaintiff to be added, and further allowed such an amendment to relate back to the filing of the original summons. The Court determined that “a similar approach [was] appropriate in this case.” The Court remanded the case to allow the additional siblings an opportunity to file a motion to intervene. If such a motion was not filed, the Court instructed the trial court to consider whether the additional siblings should be joined under Tennessee Rules of Civil Procedure 19.01 and 19.02.
This opinion highlights the important of hiring an experienced lawyer when pursuing a wrongful death claim. Wrongful death is a complicated area of law, and the failure to follow the law can lead to disastrous results at worst and a procedural quagmire at best. The decedent died in 2015 (9 years ago!) and it appears that this case has not moved one inch on the merits.
The Court of Appeals released this opinion five months after oral arguments in this case.