LWDN Quick Flash ~ Oct 2011
The New Priority Right To Recover for Wrongful Death in Tennessee
‘Til Death Do Us (Sometimes) Part:
The New Priority Right to Recover for Wrongful Death in Tennessee
Seasoned claim handlers and lawyers realize that a civil defendant’s potential exposure for causing a fatal accident may often be less than the exposure for inflicting a catastrophic but non-fatal injury. However, did you know that the common law initially did not allow recovery at all for wrongful death? Criminal sanctions aside, the English common law rule was that “the death of a human being could not be complained of as an injury.” In 1846, Lord Campbell’s Act finally granted recovery to the families of English persons killed by tortious conduct, and most states have since enacted statutes creating and otherwise governing wrongful death claims. Tennessee’s version of the so-called “wrongful death act” was first passed in 1850, and is currently codified at Tennessee Code Annotated § 20-5-106, et seq.
The Tennessee version of these statutes establish “that in a wrongful death suit only one right of action exists: the action that the decedent would have had, absent death, against the negligent wrongdoer . . . [t]he decedent is the sole party who holds a right of action or claim in a wrongful death suit.” Any potential right of recovery in a wrongful death case therefore begins with the premise that “[t]he decedent's survivors are only asserting the decedent's right of action on behalf of the decedent.” In other words, “[i]n Tennessee, a wrongful death action belongs to the deceased person and not to his survivors.” Although a decedent’s living beneficiaries may seek a limited recovery for their own losses (for loss of consortium, for example) in addition to those of the decedent, “the right of action itself remains one that is single, entire, and indivisible.”
“Because multiple actions may not be brought to resolve a single wrongful death claim, the statutes carefully prescribe the priority of those who may assert the action on behalf of the decedent and any other beneficiaries.” Accordingly, prior to the amendment of Tenn. Code Ann. § 20-5-106, Tenn. Code Ann. § 20-5-107, and Tenn. Code Ann. § 20-5-110 earlier this year, the statutes assigned the exclusive right to pursue a wrongful death claim to the decedent’s surviving spouse. The assignment of the priority right of action to the surviving spouse was unequivocal, meaning that the statutes did not account for the nature of the relationship between the decedent and the spouse at the time of the fatal event, nor did they attempt to accommodate the obvious peril of a situation in which the decedent was survived by children from another marriage or who devoted equal or greater time and effort to their relationship with the decedent than the spouse. Under the old law, the surviving spouse alone was entitled to “control the litigation,” hire a lawyer, fire that lawyer, and ultimately settle a wrongful death case pursuant to an agreement which was binding upon all other beneficiaries whether the beneficiaries liked it or not. In the event the decedent was survived by a spouse, even one who had been notably absent from the lives of the decedent and his or her children, the children did not even have the right to independent representation absent a showing of “bad faith or lack of diligence in representing their interests” by the spouse.
The extent to which the surviving spouse has “automatic” priority to pursue and control a wrongful death claim changed, however, with the enactment of amendments to Tenn. Code Ann. § 20-5-106, Tenn. Code Ann. § 20-5-107, and Tenn. Code Ann. § 20-5-110 this year. The old statutory scheme permitted a finding that the surviving spouse had waived his or her right to recover, but required the submission of independent evidence of waiver that was subject to evaluation based on uncertain criteria. The new amendments to the statute, by contrast, provide that a surviving spouse’s cause of action is waived if the spouse “abandons” or “willfully withdraws” from the decedent for a period of two years. The amendments were originally introduced as House Bill 789, and with regard to Tenn. Code Ann. § 20-5-106, provide:
SECTION 1. Tennessee Code Annotated, Section 20–5–106 is amended by designating the following language as subsection (c) and by re-lettering present subsection (c) accordingly:
c)(1) Notwithstanding any other law to the contrary, the right to institute and the right to collect any proceeds from a wrongful death action granted by this section to a surviving spouse shall be waived, if the children or next of kin establish the surviving spouse has abandoned the deceased spouse as described in § 36–4–101(a)(13) or otherwise willfully withdrawn for a period of two (2) years.
(2) If the period of two (2) years has passed since the time of abandonment or willful withdrawal, then there is created a rebuttable presumption that the surviving spouse abandoned the deceased spouse for purposes of this section.
(3) In an action under this section, the child or next of kin shall serve the surviving spouse with process as provided in the rules of civil procedure or by constructive service as may otherwise be provided by law.
Similar amendments were also passed to Tenn. Code Ann. § 20-5-107 and Tenn. Code Ann. § 20-5-110. Section (c) interestingly references Tenn. Code Ann. § 36-4-101(a)(13), which is part of the larger statutory delineation of grounds for divorce. The subsection of the divorce statute referenced in the wrongful death amendment provides that just cause for divorce exists if “[t]he husband or wife has abandoned the spouse or turned the spouse out of doors for no just cause, and has refused or neglected to provide for the spouse while having the ability to so provide.” The divorce statute, however, elsewhere lists “willful or malicious desertion or absence of either party, without a reasonable cause, for one (1) whole year” as just cause for divorce, while the new amendments to the wrongful death statutes affix the period for “abandonment” at two years. Interestingly, the divorce statute also allows for divorce following a two-year period during which one party moves to Tennessee and the other party refuses to join him or her. Thus, while the new amendments do not precisely define what constitutes “abandonment” or “willful withdrawal” sufficient to create a presumption that a surviving spouse has waived his or her wrongful death cause of action, the statute arguably makes the extent of financial support and the geographic distance between the spouse and the decedent relevant inquiries.
The new amendments also importantly provide that if the criteria for “abandonment” or “willful withdrawal” are met, the surviving spouse not only loses the right to file and control a wrongful death action, but also loses the right to “collect any proceeds” from the action at all. By contrast, the new statutes do not alter the rule that children of a decedent are entitled to recover damages for loss of consortium, but a child’s loss of consortium remains only one component of the larger value known as the pecuniary value of the decedent’s life. In other words, a child’s claim for loss of consortium “does not, in any way, represent a claim for damages separate from the wrongful death action itself.” While a surviving child’s loss of consortium may be considered as part of the larger pecuniary value of the decedent’s life, the new amendments to Tenn. Code Ann. § 20-5-106, Tenn. Code Ann. § 20-5-107, and Tenn. Code Ann. § 20-5-110 seemingly preclude a spouse who has abandoned the decedent for a period of two years from either maintaining a wrongful death claim in his or her own name or recovering loss of consortium damages.
Finally, the new amendments contain two provisions which address a situation in which a surviving spouse files a wrongful death action notwithstanding the statutory waiver. First, Tenn. Code Ann. § 20-5-107(e)(4) provides that a suit filed by a spouse whose rights are deemed waived is not time-barred even if the proper party does not establish priority until after the statute of limitations has expired. Second, Tenn. Code Ann. § 20-5-110(c)(4) provides that a release entered into by a surviving spouse is binding upon a decedent’s children or other beneficiaries “unless a copy of an order finding waiver of rights pursuant to this section was served or delivered to the released parties prior to the execution of the release or distribution of funds, whichever occurs first.”
The question which will necessarily need to be answered by our appellate courts is whether proving waiver of the right to institute a wrongful death action under the new amendments is as simple as demonstrating that the surviving spouse has “r-u-n-n-o-f-t.”