A Hollow Victory for Mr. Myres?

Mrs. Myres was killed in a multi-car motor vehicle crash. She was a passenger in the car driven by her husband, Charles Myres. Justin Bennett was the driver of one of the other cars involved in the crash. There were allegations of road rage between Bennett and Mr. Myres, who was allegedly under the influence of alcohol at the time of the crash and who was later imprisoned for vehicular homicide in connection with the crash.[1]

Mrs. Myres has a daughter, Brittany Nelson (“Daughter”). Charles Myres (“Stepfather”) is Brittany Nelson’s stepfather. Stepfather and Daughter filed competing wrongful death actions. Stepfather sued only Bennett (the other driver), and Daughter sued Stepfather, Bennett and Stepfather’s employer. Stepfather alleged that, as the surviving spouse of his deceased wife, he had the superior right to maintain the action. Daughter maintained that she should have the right to bring and control the wrongful death action, arguing that (a) given the circumstances, the wrongful death statute should be interpreted to give her the superior right to bring suit; (b) Stepfather waived his right to file and control the action because he failed to join himself and his employer as party defendants; and (c) Stepfather (and his counsel) had a conflict of interest.[2]

The Tennessee Supreme Court ruled that only Stepfather had the right to bring the claim. The court explained that a wrongful death action is a creature of statute, and the statute tells us who has the right to bring the action. Although there are at least two scenarios where the person otherwise determined to be the party entitled to bring a wrongful death action can lose the right to do so,[3] no such exception exists when there is an allegation that the party who has the right to bring the action negligently contributed to cause the death of the decedent.[4]

The court also rejected the notion that Stepfather waived the right to bring the action by failing to sue himself and his employer. The court said a holding that Stepfather “waived his right to file the wrongful death action despite actually filing a complaint would be an unwarranted expansion of the doctrine of waiver.”[5]

Wrapped in all of Daughter’s arguments was the general notion that because she was a wrongful death beneficiary, she had an interest in seeing that all tortfeasors who contributed to cause her mother’s death were brought before the court as party defendants. The court shot down that argument with these words:

[Daughter] maintains that the only way that [her late mother] could receive “complete justice” is if [Daughter] is allowed to proceed as plaintiff. Woven through [Daughter]’s arguments is the idea that the wrongful death proceeds would be diminished or, if [Stepfather] was held 50 percent at fault or greater, nonexistent. However, the questions of who may institute and control the litigation and who may benefit from the wrongful death proceeds are separate and distinct. Only the former question is presented in this case because of its procedural posture as an appeal from a dismissal for failure to state a claim for which relief can be granted.[6]

The court has said what it has said, and this opinion is now the law of the land. Does this mean Daughter has no rights?

No. Daughter will be entitled to a share of any wrongful death proceeds to the extent that fault is established against, and money is collected from, the other driver (Bennett). A 50 percent or more finding of fault against Stepfather will not bar recovery — it is the fault of the decedent, not the fault of a beneficiary (even a party plaintiff beneficiary), that is used in applying the 50 percent comparative fault bar rule.[7] Thus, even if Stepfather is found, say, 60 percent at fault and Bennett is found 40 percent at fault, Bennett will be liable 40 percent of the damages. If the value of the life is found to be, for example, $2 million, Bennett will have a judgment entered against him in the amount of $800,000. The dollar value of the nonparty liability (that of Stepfather) will be $1,200,000.

Assuming collectability is not an issue, Stepfather and Daughter would ordinarily share the Bennett-paid proceeds equally — $400,000 each.[8] But you can expect that Daughter will challenge the right of Stepfather to take payment of what would otherwise be his share.

How can Daughter make such an argument? She will argue that a wrongful death plaintiff serves as a fiduciary,[9] which gives rise to a duty owed to the wrongful death beneficiaries. She will argue that Stepfather’s’ conduct must be tested under the “good faith and due diligence” rules applicable to fiduciaries generally.

Thus, under the hypothetical result posited above, expect Daughter to argue that (a) a jury has found that Stepfather contributed to cause the death of his wife; (b) Stepfather (and his lawyers) should have foreseen such a result (especially given the criminal court conviction) and thus should have known that proceeding as a party plaintiff presented a risk of financial loss to Daughter, a beneficiary; (c) an alternative plaintiff (Daughter or an executor or administrator of Daughter’s mother’s estate) would have sued Stepfather under the circumstances;[10] (d) if Stepfather had been sued the jury verdict likely would have been the same as it was when he was not sued; (e) when substantial fault was assessed against Stepfather, he quantified a loss arising from a breach of the fiduciary duty he assumed when he chose to proceed as a party plaintiff; (f) the damage caused by this breach of fiduciary duty was equal to the value of one-half of the 60 percent fault assessed against Stepfather ($600,000), because such would have been Daughter’s share of the proceeds of the fault assessed against him; (g) Daughter is entitled to a setoff from the money Stepfather would otherwise be entitled to collect from Bennett ($400,000) because, if Stepfather had not breached his fiduciary duty, she would have been able to collect that amount (and perhaps more, depending on his assets, etc.[11]) against Stepfather as a party defendant; and (h) Stepfather is personally liable (for breach of fiduciary duty) for the remaining unpaid portion of the judgment ($200,000) that would have otherwise been entered against him had he been a party defendant.[12]

Now I can hear some of you thinking: there he goes (again). Day is sitting in his La-Z-Boy, on his second Memphis Toddy, speculating about the future but forgetting that the court has already ruled that Stepfather had the sole right to bring the claim, so the scenario fleshed out above simply ain’t gonna happen.

You are half-right, but I suggest you may be wrong about the important part. The court said Stepfather had the legal right to bring the claim. But the court did not say (a) he should bring the claim or (b) there would be no consequences to him personally for bringing the claim under these circumstances. No, the right to bring a claim does not mean that one can bring one and eliminate the risk for violating the fiduciary duty that is owed to the other beneficiary (Daughter).[13] Why? Because Stepfather had the right to bring the claim, but he also had the right to abandon it and allow Daughter to bring it.[14] So, his decision to bring the claim carries with it the fiduciary responsibility recognized in the law and the risk — a clearly foreseeable risk under these facts — of financial liability.

So, I think what the court is telling us here is nothing more than Stepfather has the statutory right to bring an action. The court is not giving its stamp of approval on his decision to do so or what consequences he risks by his decision. Stepfather Myres may have won this battle, but the war has just begun.

Notes

  1. Nelson v. Myres, — S.W.3d —, No. M2015-01857-SC-R11-CV, 2018 WL 1151012, at *1 (Tenn. Mar. 5, 2018).
  2. Id. at *3.
  3. The Legislature prohibits a spouse from bringing a wrongful death action when he or she had abandoned his or her spouse (Tenn. Code Ann. § 20-5-106(c)) or when a parent had essentially abandoned his or her child (Tenn. Code Ann. § 20-5- 107(c)).
  4. Nelson, 2018 WL 1151012, *3. Tortphiles may wonder why the Slayer Statute — the statute that prohibits one who kills another from benefiting from the decedent’s death — did not mandate dismissal of Stepfather’s wrongful death action. The Court explained that even if the Slayer Statute applied to the issue of who had the right to maintain a wrongful death action, the version of the statute in effect at the time applied to only impact the rights of those who intentionally, as opposed to negligently, killed another. The statute was recently modified to make that crystal clear. Tenn. Code Ann..§ 31-1-106.
  5. Id. at *4.
  6. Id. at *5.
  7. Tenn. Code Ann. § 29-39-102(b) (damages “shall be apportioned among the defendants based upon the percentage of fault for each defendant, so long as the plaintiff's comparative fault (or in a wrongful death action, the fault of the decedent) is not equal to or greater than fifty percent (50%), in which case recovery for any damages is barred.”).
  8. Wrongful death proceeds pass under the law of intestate succession. The example assumes that Daughter is the sole child of the decedent. It also, deliberately, ignores the issue of an attorneys’ fees claim against the common fund created by the judgment, which will result in yet another battle beyond the scope of this discussion.
  9. Estate of Baker ex rel. Baker v. Maples, 995 S.W.2d 114, 116 (Tenn. Ct. App. 1999).
  10. For simplicity, the alleged liability of Stepfather’s employer is not discussed. Also, remember that spousal immunity was abolished thirty-five years ago, Davis v. Davis, 657 S.W.2d 753 (Tenn. 1983), and thus there is a legally cognizable claim against Stepfather.
  11. Most motor vehicle liability policies prohibit one spouse from collecting money from the insurer because of injuries or death caused by the other spouse. Thus, and depending on the language of the policy, if Daughter had been permitted to sue Stepfather, any liability insurance covering him likely would not be available to satisfy a judgment.
  12. Of course, the surviving spouse has the right to compromise and settle a wrongful death claim. Tenn. Code Ann. § 20-5-110(b). But, expect any effort by Stepfather to do so and take his share of the proceeds to be challenged by Daughter, who will be intensely monitoring this litigation. How can she object? The statute permits only a bona fide compromise, and Nelson will likely take issue with the amount of any settlement and Stepfather taking any share of it.
  13. For example, a bank serving as trustee does not breach fiduciary duty by purchasing stock of the bank with trust monies. But, if the bank stock value goes down or underperforms the market generally, the risk of a breach of fiduciary duty claim increases significantly.
  14. Foster v. Jeffers, 813 S.W.2d 449, 451 (Tenn. Ct. App. 1991), cited with approval in Kline v. Eyrich, 69 S.W.3d 197, 202 (Tenn. 2002).

John Day JOHN A. DAY, a trial lawyer with offices in Brentwood and Murfreesboro, has represented plaintiffs in wrongful death cases for more than 30 years.

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