BRITTANY NOEL NELSON, ET AL.
CHARLES W. MYRES, ET AL.
October 10, 2016 Session
from the Circuit Court for Sumner County No. 2012CV567 Joe
died in a multi-vehicle accident. Two wrongful death actions
were filed, one by the woman's daughter, the other by the
woman's husband. The daughter's suit named the
husband and others as defendants. The husband's suit
named one of the other drivers 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. The daughter appeals the dismissal of her
complaint. 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; accordingly, we
reverse the judgment of the trial court dismissing the
daughter's complaint, reinstate the complaint, and remand
the case for further proceedings.
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
Court Reversed and Case Remanded
F. Mink, Charles M. Duke, and William M. Leech, Nashville,
Tennessee, for the appellant, Brittany Noel Nelson.
Russell E. Edwards, Hendersonville, Tennessee, for the
appellee, Charles W. Myres.
R. Tomkins, Nashville, Tennessee, for the appellee, Adenus
Solutions Group, LLC; Adenus Group, LLC, Adenus Utilities
Group, LLC, and Adenus Operations, LLC.
Cope, Knoxville, Tennessee, for the appellee, Westfield
Richard H. Dinkins, J., delivered the opinion of the court,
in which Frank G. Clement, Jr., P.J., M.S., and Kenny W.
Armstrong, J., joined.
RICHARD H. DINKINS, JUDGE
Factual and Procedural History
appeal involves the dismissal of a wrongful death lawsuit
arising from a four-vehicle accident which occurred in Sumner
County on March 23, 2012. The decedent, Sharon Myres, was a
passenger in a vehicle being driven by her husband, Charles
Myres, and died as a result of injuries she sustained in the
accident. Justin Bennett, Joseph Groves, and James Berryman
were the operators of the other vehicles involved. The
accident is alleged to have occurred when the vehicles driven
by Mr. Myres and Mr. Bennett collided and crossed into the
opposing lanes of traffic, striking the vehicles driven by
Mr. Groves and Mr. Berryman.
suits were filed as a result of the accident. On May 8, 2012,
Brittany Nelson, Sharon Myres' only child from a previous
marriage, filed suit pursuant to Tennessee Code Annotated
section 20-5-106 to recover for her mother's wrongful
death; she also asserted a claim for damages pursuant to
section 20-5-113 ("the Nelson suit"). Ms. Nelson
named Mr. Myres and Mr. Bennett as defendants. The day after
the Nelson suit was filed, Charles Myres filed suit,
individually and as surviving spouse of Sharon Myres
("the Myres suit"), naming Mr. Bennett as defendant
and alleging, inter alia, that Mr. Bennett's
actions were the sole cause of the accident and death of
Sharon Myres. A third suit was filed by Mr. Groves and his
wife, Stacy Groves ("the Groves suit"); this suit
named Charles Myres, Mr. Bennett, and other entities as
defendants. In due course, Ms. Nelson moved to
consolidate her suit with the Myres suit, and the trial court
entered an order consolidating the cases, along with the
Groves suit, on July 19, 2012. Thereafter the parties filed
numerous amendments to their complaints and answers.
complaint in the Nelson suit alleged that Mr. Myres' and
Mr. Bennett's negligence, negligence per se, and
willful, wanton, and reckless conduct caused the death of her
mother, and that Mr. Myres was "disqualified" from
bringing the action "because his felonious actions
caused the decedent's death." Mr. Myres
answered, asserting as affirmative defenses that "the
negligence of Sharon G. Myres relating to the incident in
question exceeds any negligence on the part of the Defendant
Charles W. Myres, " thereby barring her recovery, as
well as comparative fault on the part of Mr. Bennett. In his
answer to the Nelson suit, Mr. Bennett denied that his
conduct was the cause of Sharon Myres' death and pled the
doctrine of sudden emergency, specifically, that "the
purported Defendant, Charles W. Myres while driving at a very
high rate of speed tried to run this Defendant off of the
road." After the Adenus entities were added as
defendants in the Nelson suit, they filed an answer
admitting, inter alia, that on the date of the
accident, Mr. Myres was employed by Adenus Operations, LLC,
and was operating a vehicle owned by Adenus Utilities Group,
LLC; they asserted as an affirmative defense that, if either
of the Adenus defendants was held at fault, "its fault .
. . should be compared against the fault of Plaintiffs and/or
against Defendant Justin Bennett."
suit, Mr. Myres sought to recover for his wife's wrongful
death, as well as his loss of consortium and
services. Even though Mr. Bennett was named as the
only defendant, numerous answers were filed. On June 2, 2012,
Allstate Insurance Company, stating that it had been
"served as the alleged uninsured/underinsured carrier,
" filed an answer in the Myres suit (number
2012-CV-572). The record shows that on July 23, 2012, an
answer was filed in case 2012-CV-572 by Westfield Insurance
Company, stated to be "the uninsured/underinsured
motorist carrier." The record also shows that on August
14, 2012, an "Answer To Charles Myres Complaint"
was filed under docket number 2012-CV-567 by Mr.
noted in footnote 1, the initial complaint in the Groves suit
is not part of the record on appeal. The record contains an
answer filed by Mr. Bennett, which asserts, inter
alia, the affirmative defenses of sudden emergency and
comparative fault. After being added as defendants, the
Adenus entities answered, raising the comparative fault of
Mr. Bennett as an affirmative defense. An answer was also
filed by Charles Myres, likewise raising, inter
alia, the affirmative defense of the comparative fault
of Mr. Bennett.
Adenus entities and Westfield Insurance Company filed a joint
motion to dismiss Ms. Nelson's complaint for failure to
state a claim for relief, asserting that Charles Myres
"has the superior right to bring an action for [Sharon
Myres'] wrongful death, that he has done so, and that . .
. Ms. Nelson has no right or standing to pursue her
action." Mr. Myres filed a motion to dismiss on the same
ground. Ms. Nelson subsequently filed a motion to intervene
in the Myres suit, to disqualify Mr. Myres and substitute
herself as plaintiff in his suit, and "for a misjoinder
or non-joinder of this action severing the wrongful death
case of Sharon Myres from the injury case of Charles Myres
pursuant to Rule 21 of the Tennessee Rules [of] Civil
hearing, the court dismissed Ms. Nelson's complaint,
concluding that Tennessee Code Annotated section 20-5-106
"contemplate[s] only one cause of action for wrongful
death" and "[Ms.] Nelson's claim must yield to
the claim of the decedent's surviving spouse." The
court considered Ms. Nelson's motions to be pretermitted.
Pursuant to Rule 54.02 of the Tennessee Rules of Civil
Procedure, the court designated the order as a final order,
and Ms. Nelson appeals. Stated succinctly, the question we
resolve is whether, under the circumstances presented,
Charles Myres retains priority to prosecute the action for
Sharon Myres' wrongful death.
Standard of Review
case was resolved upon a Rule 12.02(6) motion for dismissal
for failure to state a claim. The standard of review we
employ was explained by ...