The team at Dodson Parker Behm & Capparella, PC shares updates and thoughts on developments in the law.

Wrongful Death Claims Present Challenges for Surviving Family Members

March 15, 2017

The recent Tennessee Court of Appeals case Nelson v. Myres, offers a succinct and helpful analysis as to who has the priority right to bring a wrongful death claim, particularly in the situation where the surviving spouse may bear some responsibility for the death.

Sharon Myres died following a car accident.  She was a passenger in a car being driven by her husband Charles Myres, and there were multiple other cars involved in the fatal collision.  Two people brought wrongful death actions on Mrs. Myres’s behalf: her husband and her only child from a previous marriage.  Her husband sued the driver of the car that struck his car, defendant Justin Bennett.  Her daughter’s suit named both Mr. Bennett and  Mr. Myres.

Mr. Bennett’s insurers and Mr. Myres filed a motion to dismiss the daughter’s lawsuit, arguing that she had no standing to bring the lawsuit, and that the husband had a superior right to bring the wrongful death claim under the wrongful death statute.  The daughter then filed a motion to intervene in the husband’s lawsuit, requesting that she be substituted as the plaintiff in his suit.

After a hearing, the trial court dismissed the daughter’s lawsuit, concluding that her claim must yield to the claim of the decedent’s surviving spouse.  The daughter appealed.


On appeal, the central question for the Court was whether the husband retained priority to prosecute the action for Sharon Myres’ wrongful death.  The Court first examined the wrongful death statute, Tenn. Code Ann. §§ 20-5-106 to -113.  Section 106(a) provides that a wrongful death claim passes “to the person’s surviving spouse and, in case there is no surviving spouse, to the person’s children or next of kin…”

Courts interpreting the wrongful death statute have observed that the statute is intended to preserve the decedent’s own cause of action against the tortfeasor for damages arising from the injuries that resulted in death.  Furthermore, the statute is read to contemplate that only one lawsuit may be filed on behalf of the decedent.

The Court noted that the statute is clear that the surviving spouse has the prior and superior right to bring the wrongful death claim.  Citing several prior cases, the Court also noted, however, that “[w]hen a surviving spouse fails to maintain control of the suit or takes action or fails to take action that is inconsistent with the decedent’s claim, this constitutes a waiver of his or her right to prosecute the wrongful death action.”

In examining the circumstances presented in this case, the Court recognized that in order to prosecute Sharon Myres’ wrongful death claim, her husband needed to be named as a defendant since she was a passenger in the car that he was driving when the collision causing her death occurred.  The husband was, therefore, in an impossible position to name himself as a defendant in the lawsuit he brought.  The daughter’s lawsuit, however, fully preserved her mother’s wrongful death claims.

For these reasons, the Court reversed the dismissal of the daughter’s lawsuit and remanded the case with an order that the daughter’s case be reinstated.


It is an unfortunate situation where a surviving spouse may bear some responsibility for his spouse’s death.  In such a scenario, the surviving spouse cannot possibly prosecute a lawsuit that fully preserves the rights of the decedent, which is exactly what the wrongful death statute is intended to do.  The result makes sense, but, of course, it leads to a further unfortunate situation of putting a child or step-child in the position of suing a parent or step-parent.

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