The following section from Day on Torts Leading Cases in Tennessee Tort Law​​​ is out of date and should not be used. It remains a part of this site for historical purposes only. An updated version of the book is available by subscription at (Additional information below.)

§78.1 Common Fund Doctrine

The Case: Kline v. Eyrich , 69 S.W.3d 197 (Tenn. 2002).

The Basic Facts: Plaintiffs were the wife and children of a man killed in a motorcycle accident who brought a wrongful death suit against the Defendant motorist. The children and wife initially filed separate suits, but the trial court then consolidated the cases, giving the wife the authority to prosecute the singular wrongful death action. After reaching a settlement, the court ruled that the wife's attorney was entitled to a one-third contingency fee before the funds were distributed among the parties.

The Bottom Line:

  • "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. In a dispute between the surviving spouse and the children of the decedent as to who may maintain the action, the surviving spouse clearly has 'the prior and superior right above all others . . . .'Foster v. Jeffers, 813 S.W.2d 449, 451 (Tenn. Ct. App. 1991); see also Tenn. Code Ann. § 20‑5‑107 (1994); Busby v. Massey, 686 S.W.2d 60, 62 (Tenn. 1984). In fact, the children of the deceased may maintain an action only if the decedent is not survived by a spouse or if the surviving spouse has waived his or her right of priority. See Tenn. Code Ann. § 20-5-107; Foster, 813 S.W.2d at 453. Consequently, once the surviving spouse has asserted his or her right or priority, the statutes give to the surviving spouse complete 'control over the right of action until he or she waives that right.' Estate of Baker ex rel. Baker v. Maples, 995 S.W.2d 114, 115 (Tenn. Ct. App. 1999)." 69 S.W.3d at 207.
  • "As part of this right of control over the action, the surviving spouse is entitled to control the litigation and to hire the attorney or attorneys needed to prosecute the action. More importantly, however, the surviving spouse also has the discretion either to litigate the claim or to settle it in a manner that is binding upon the children. See Tenn. Code Ann. § 20-5-110(b). Therefore, absent proof of bad faith or lack of diligence in representing their interests, see Busby, 686 S.W.2d at 63, the children of a decedent simply have no right to representation under these circumstances except through the surviving spouse. Although the surviving spouse may consent to other assistance in litigating or settling the wrongful death claim, he or she is under no statutory obligation to do so." Id.
  • "As the Court of Appeals noted in its decision below, the trial court in this case essentially permitted the children to intervene in the appellant's action to establish their own damages for loss of consortium. Clearly, a claim for loss of consortium does not, in any way, represent a claim for damages separate from the wrongful death action itself. Rather, a claim for consortium merely embodies one component of the decedent's pecuniary value of life. See Hancock v. Chattanooga-Hamilton County Hosp. Auth., 54 S.W.3d 234, 237 (Tenn. 2001); Hill, 31 S.W.3d at 239; Jordan, 984 S.W.2d at 601. Consequently, to avoid situations similar to this in future cases, trial courts should dismissin toto any other pending wrongful death actions upon the proper filing of an action by the surviving spouse.See Swanson v. Peterson, [No. M1999‑00241‑COA‑R3‑CV, 2000 WL 48502 (Tenn. Ct. App. Jan. 21, 2000)] (citing Dockery v. Dockery, 559 S.W.2d 952, 954 (Tenn. Ct. App. 1977) (stating that a properly filed suit should be dismissed when it loses its 'essential character' before adjudication)). Accordingly, we hold that the trial court may employ the common fund doctrine to award the appellant's attorney an additional fee from the children's portion of the wrongful death settlement." Id. at 207-08.

Recent Cases: Shamblin v. Sylvester , No. E2008-01440-COA-R3-CV, 2009 WL 981700 (Tenn. Ct. App. Apr. 13, 2009) (upholding trial court's ruling that settlement proceeds in wrongful death action constituted common fund and finding mother who was passive beneficiary of fund was obligated to pay one-third attorney fee).

After an accident, many injury victims and their families want more information on the accident and their legal rights. Consequently, many of them have found their way to these pages. While we are happy you are here, please understand Day on Torts: Leading Cases in Tennessee Tort Law was written to be a quick, invaluable reference for Tennessee tort lawyers. While the book provides the leading case for more than 300 tort law subjects and thousands of related case citations, it is not a substitute for personalized legal advice from a qualified lawyer.

Rather than researching these legal issues alone, we urge you to contact one of our award-winning lawyers who can sit down with you, review your case, answer your questions and clearly explain your rights and your options in a no-cost, no-obligation consultation. Our experienced attorneys handle all personal injury and wrongful death cases on a contingency basis, so we only get paid if we win. If for any reason you are unable to come to our office, we will gladly come to you.

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The foregoing is an excerpt from Day on Torts: Leading Cases in Tennessee Tort Law, published by John A. Day, Civil Trial Specialist, Fellow in the American College of Trial Lawyers, recipient of Best Lawyers in America recognition, Martindale-Hubbell AV® Preeminent™ rated attorney, and Top 100 Tennessee Mid-South Super Lawyers designee. Read John’s full bio here.

The book is now available electronically by subscription at The new format allows us to keep the book current as new opinions are released. BirdDog Law also has John's Tennessee Law of Civil Trial and Compendium of Tennessee Tort Reform Statutes available by subscription, as well as multiple free resources to help Tennessee lawyers serve their clients

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