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§78.9 Waiver of Right to Portion of Wrongful Death Proceeds

Author’s Note:  This opinion fails to take into consideration that fact that, assuming child support was paid and there was requisite contact between father and child (Tenn. Code Ann. § 20-5-107), the father had an absolute right to one- half of the proceeds in this case.  There is no need for every wrongful death beneficiary to bring a lawsuit or intervene in a lawsuit filed by another beneficiary in order to preserve his or her right to receive a portion of the wrongful death proceeds.  The person who brings a wrongful death lawsuit holds the proceeds as a fiduciary for the other beneficiaries.

The Case:  Shedd v. Community Health Systems, Inc., No. W2010-02140-COA- R3-CV, 2010 WL 4629020 (Tenn. Ct. App. Nov. 12, 2010).

The Basic Facts:  Mother filed wrongful death claim on behalf of child.  After settlement of the case against one defendant and a defense verdict in favor of the other defendant, father filed a motion to intervene to seek an equitable division of the settlement proceeds.  The trial court found that father had waived his rights to a share of the proceeds because he delayed making his claim.

The Bottom Line:


·         “To constitute the waiver of a legal right


there must be a clear, unequivocal, and decisive act of the party showing such a purpose, or acts amounting to an estoppel on [its] part. Abandonment or waiver of a right important to parties cannot be made out by uncertain implication, but ought clearly to appear. To constitute such a waiver of a benefit there must be clear, unequivocal, and decisive acts of the party, an act which shows a determination not to have the benefit intended.


Kentucky Nat. Ins. Co. v. Gardner, 6 S.W.3d 493, 498-99 (Tenn. Ct. App. 1999) (quoting Charleston, S.C., Mining & Mfg. Co. v. American Agric. Chem. Co., 150 S.W. 1143, 1146 (Tenn. 1911)) (internal and external citations omitted). ‘In order to establish waiver by conduct, the proof must show some ‘absolute action or inaction inconsistent with the claim or right’ waived.’ Id. (quoting Koontz v. Fleming, 65 S.W.2d 821, 825 (Tenn. Ct. App. 1933)).” 2010 WL 4629020, at *2-3.


·       “Without evidence of publication to support the trial court’s finding of knowledge and strategic delay, we find that the trial court abused its discretion in declaring Father’s motion to intervene untimely. Furthermore, insofar as the trial court’s knowledge finding was a credibility determination, we find clear and convincing evidence to the contrary. See Wells v. Tenn. Bd. of Regents, 9 S.W.3d 779, 783 (Tenn. 1999) (citations omitted). Again, no evidence of publication was presented at the hearing, and Father offered uncontroverted testimony that he was unaware of circumstances warranting the filing of a lawsuit, that he did not learn of Mother’s lawsuit until July 2009, and that he contacted an attorney immediately after learning of the suit. Moreover, at the hearing, Mother offered no testimony regarding prejudice to her, and in her appellate brief she states only that ‘Larry Woods’ failures and delays prejudiced Appellee Donna Shedd. She alone was required to bear these burdens, struggle through the ordeal, and carried the weight.’ Based on the factors regarding timely intervention as well as the elements of waiver, we find that the trial court abused its discretion in denying Father’s motion to intervene. The order of denial is vacated, and the case remanded for further proceedings.”  Id at *5.

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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.

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