Day on Torts
In at least some situations, a surviving spouse can properly file a pro se wrongful death complaint, because the decedent’s right of action actually “passes to” the surviving spouse under Tennessee’s wrongful death statutes.
In Beard v. Branson, No. M2014-01770-SC-R11-CV (Tenn. Aug. 30. 2017), plaintiff’s wife died of sepsis after being treated by defendants. Plaintiff filed a pro se wrongful death action, and defendants moved to dismiss on the grounds that the complaint “was filed in a representative capacity on behalf of the decedent and, as a non-attorney, [plaintiff] could not file a lawsuit for another in a representative capacity.” After the motions to dismiss were filed and after the one-year statute of limitations had run, plaintiff retained an attorney, who filed a notice of appearance and an amended complaint. The trial court denied the motions to dismiss, holding that plaintiff “was permitted to file the wrongful death action pro se because, under section 20-5-106, the decedent’s cause of action passed to [plaintiff] as the surviving spouse, and the decedent had no other statutory beneficiaries.”
During discovery, it came to light that the plaintiff and decedent had two adult daughters. Based on this information, defendants filed a motion to dismiss, arguing that plaintiff’s initial pro se complaint was void because “he was asserting a wrongful death claim in a representative capacity on behalf of the other statutory beneficiaries.” Defendants asserted that because his first complaint was void, his amended complaint could not relate back to that filing date, and that therefore the complaint filed by the attorney was barred by the statute of limitations. The trial court, though, again rejected defendants arguments, finding that because plaintiff was at least partially representing himself, “[t]he action, as filed, was partially proper. …The complaint stated a cause of action which the courts will recognize. One of the elements of damages in the cause of action contained in the complaint was improper. This may be cured by proper amendment. The filing of the complaint therefore presented a claim which is sufficient to toll the statute of limitations.” The case was ultimately tried by a jury, and the jury awarded plaintiff $750,000 in damages.
Defendants appealed the trial court’s decision to the Court of Appeals, which reversed the trial court and held that plaintiff’s initial complaint was invalid. The Supreme Court, however, reversed the Court of Appeals and reinstated the trial court’s reasoning.
In Tennessee, “a person who is not an attorney may conduct and manage the person’s own case in any court of this state without violating the prohibition against the unauthorized practice of law,” however, “a non-attorney may not conduct litigation on behalf of an entity or another individual[.]” Thus, “the primary issue…[was] whether, under Tennessee’s wrongful death statutes, [plaintiff’s] wrongful death case is his ‘own case’ brought pursuant to his right to self-representation, or whether it is brought in a representative capacity on behalf of either the decedent or the other statutory beneficiaries.”
After a lengthy review of Tennessee wrongful death law, the Court stated that the “answer” to “whether the spouse files the wrongful death lawsuit in a representative capacity on behalf of the decedent” could be found “in the plain language of…section 20-5-106(a).” That statute states:
The right of action that a person who dies from injuries received from another, or whose death is caused by the wrongful act…by another, would have had against the wrongdoer, in case death had not been ensued, shall not abate or be extinguished by the person’s death but shall pass to the person’s surviving spouse and, in case there is no surviving spouse, to the person’s children or next of kin[.]
Based on this language, the Court reasoned:
Thus, under the statute’s plain language, the decedent’s right of action that, under the common law, would have extinguished upon his death instead passes to the spouse. The statute does not merely authorize the surviving spouse to file the wrongful death action on behalf of the decedent; it “passes” or transfers the right of action to the spouse. This indicates that, in filing a wrongful death lawsuit, the surviving spouse does not represent the decedent but instead asserts the spouse’s own right of action.
Further, the Court pointed out that the fact that the proceeds from a wrongful death suit go immediately to the surviving spouse or other beneficiaries and are not subject to claims from the decedent’s creditors supports this interpretation. On this issue, then, the Court held that “in filing the initial pro se wrongful death lawsuit in this case, [plaintiff] was not representing the legal interests of either the decedent or her estate.”
Next, defendants argued that even if a surviving spouse can represent himself when filing a wrongful death action, the complaint in this particular case was invalid because decedent also had two adult daughters, and plaintiff was thus acting as a representative for them. The Court rejected this argument, reasoning:
[W]e cannot square [defendants’] argument with the plain language of section 20-15-106(a), which provides that the wrongful death right of action “passes to” the surviving spouse for the benefit of the spouse and the other beneficiaries. Our decision on this issue must be controlled by Tennessee’s unique wrongful death statutes….[T]he decedent’s surviving spouse has the “superior right above all others” to assert the right of action in a wrongful death lawsuit and to control the proceedings. …The question we must decide is whether the entire pro se complaint is rendered void ab initio, a nullity, by the fact that other beneficiaries’ interests are encompassed within the right of action asserted by the surviving spouse. We hold that it is not.
(internal citation omitted).
The Court determined that plaintiff, in filing the complaint, “was acting primarily on his own behalf,” and it noted that this reasoning was “consistent with other cases in which our courts have regularly permitted liberal amendments to wrongful death complaints, particularly with respect to substituting party plaintiffs.” Further, the Court pointed out that “defendants were notified of [plaintiff’s] claim in a timely manner, and they were not prejudiced in any way by [plaintiff’s] temporary lack of legal representation.”
For all these reasons, the Supreme Court held that the original pro se complaint was not a nullity and that the suit was not time-barred.
Based on the language of the Tennessee wrongful death statute, the Supreme Court correctly analyzed this case. That said, don’t try this at home.