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Who Has the Right to File a Wrongful Death Lawsuit?


In most personal injury lawsuits, the plaintiff is the person who suffered an injury due to the defendant’s negligence. Sadly, there are cases where the victim died because of the defendant’s actions. When this occurs the right to sue for “wrongful death” passes under Tennessee law to the victim’s surviving spouse or next of kin.

Husband Cannot Be Plaintiff & Defendant in Wife’s Wrongful Death Case

If there is a surviving spouse, he or she has the right to bring a wrongful death claim before any children or other next of kin. But what if the surviving spouse’s negligence may have caused the victim’s death? The Tennessee Court of Appeals recently addressed this issue.

The victim in this case was a married woman who died while a passenger in a car driven by her husband. The husband’s car was involved in a multi-vehicle accident in Sumner County, Tennessee. The husband’s car collided with a second vehicle, which subsequently caused both vehicles to cross into the opposing traffic lane and hit two other cars.

The husband and the victim’s daughter from a prior marriage separately filed wrongful death lawsuits arising from the wife’s death. The husband’s lawsuit claims the second driver was solely responsible for the accident. The daughter’s lawsuit alleged the husband and the second driver were both at fault. These lawsuits were eventually consolidated with a third complaint filed by the driver of one of the other vehicles, which also named the husband as a co-defendant.

The trial court dismissed the daughter’s wrongful death lawsuit, holding it was superseded by her stepfather’s superior claim. The daughter appealed.

On January 18, the Court of Appeals reversed in favor of the daughter. The appeals court said, in effect, the husband could not be a plaintiff and defendant in the same case. The problem is that the husband “has an inherent conflict: his conduct is part of the cause of action for [his wife’s] wrongful death, but his complaint does not name him as a defendant nor include the allegation that he is a wrongdoer.” Put another way, if the husband is, as the daughter alleges, partly responsible for the accident, then he is also partially liable for the wrongful death claim.

As the court explained, the entire wrongful death claim “is preserved” in the daughter’s lawsuit, so it should continue. The court added, however, that the husband could still pursue other tort claims arising from the “loss of consortium or loss of services” due to his wife’s death. Nor did the court rule on the merits of the wrongful death claim, i.e. who was actually responsible for the accident.

Get Help from a Knoxville Wrongful Death Attorney

The loss of a parent, spouse, or any family member is tragic. When potential litigation is involved, the emotional toll is even greater. But if your loved one’s death is due to someone else’s negligence, you have the right to seek justice and recover damages. If you need help from an experienced Tennessee personal injury lawyer, contact the offices of Fox, Farley, Willis & Burnette, Attorneys at Law, in Clinton or Knoxville today.



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