Raybin & Weissman, P.C.

Wrongful Death Plaintiff

CaseBrittany Noel Nelson, et al v. Charles W. Myres, et al.

Issue:  Does a spouse get priority over a child in a wrongful death case where the spouse is alleged to be at fault?

Facts:  A woman died in an accident in which her husband was allegedly at fault, along with others. Her husband and daughter both filed wrongful death actions. The daughter’s suit named the husband and others as defendants. The husband’s suit named another driver 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. Tenn. Code Ann. § 20-5-106(a).

Appellate Decision:  The intermediate court reversed and ruled for the daughter: “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.”

Review Granted:  May 18, 2017.

Prediction:  Ben thinks the supreme court will reinstate the trial court’s holding in favor of the surviving spouse. Although there is a potentially troubling result, the statutory language appears clear that the surviving spouse has priority. Moreover, under the intermediate court’s ruling a child could potentially “jump” the parent in priority simply by alleging the parent was at fault. It is unclear what would happen if the child were given priority but the parent was later determined not to be at fault. Additionally, the supreme court squarely held in Beard v. Branson (Tenn. 2017) that the decedent’s right of action passes to the surviving spouse if there is one.