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Thursday, January 19, 2017

New Wrongful Death Opinion: Surviving Spouse's Prosecution of Claim Disallowed on Appeal; Decedent's Daughter Allowed to Prosecute Claim Instead

The Tennessee Court of Appeals, Middle Section, just released its opinion in Nelson v. Myres, No. M2015-01857-COA-R3-CV (Tenn. Ct. App. Jan. 18, 2017). The syllabus from the slip opinion states as follows:
A woman died in a multi-vehicle accident. Two wrongful death actions were filed, one by the woman's daughter, the other by the woman's husband. The daughter's suit named the husband and others as defendants. The husband's suit named one of the other drivers as the only defendant. The trial court dismissed the daughter's complaint, holding that Tennessee's wrongful death statute creates only one cause of action and that the husband, as the surviving spouse, was granted priority to prosecute the action under the statute. The daughter appeals the dismissal of her complaint. Because the husband is unable to name himself as a defendant in the suit he has filed, he is not able to prosecute the wrongful death action in a manner consistent with the right of the decedent to sue all wrongdoers whose actions are alleged to have led to her death; accordingly, we reverse the judgment of the trial court dismissing the daughter's complaint, reinstate the complaint, and remand the case for further proceedings.
(Emphasis added.)

 Here is a link to the slip opinion:

http://www.tncourts.gov/sites/default/files/nelson.brittany.opn_.pdf

NOTE: This is a must-read opinion for any Tennessee practitioner who handles wrongful death claims.  It is a good reminder of how the abolition of interspousal immunity, see generally Davis v. Davis,  657 S.W.2d 753, passim (Tenn. 1983), affects these types of claims.  While Davis is not mentioned per se herein, it is the reason this wrongful death claim, which is the claim of the decedent, can be maintained against her husband (who is alleged to have contributed to her wrongful death)---and why he is disqualified from prosecuting this action (although he may still be a beneficiary and share in any recovery).

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