August 2019 Millar's JurisDiction - Suit Yourself

by Richard W. Millar, Jr.

There was the joke floating around during the trial of the Menendez brothers who were ultimately convicted of killing their parents: they would beg for mercy because they were orphans. I bring you now a variant on that theme with the exception that it is real, although it may also be a joke, if you get my drift.

No doubt many of you read of the trial of former Fisher and Phillips partner Claud “Tex” McIver who was ultimately convicted of the murder of his wife. The objective facts were simple: there were three people in a car. Mr. McIver was in the back seat on the passenger side. Directly in front of him in the front passenger seat was Mrs. McIver. The car was being driven by Mrs. McIver’s best friend, Dani Jo Carter. For some reason, Mr. McIver had a gun in his lap. In the course of the drive, the gun went off and Mrs. McIver was killed.

The fact that Mrs. McIver was wealthy and Mr. McIver allegedly had financial problems provided additional chum for a media frenzy.

At trial, Mr. McIver claimed he was asleep when the gun discharged. While that was doubtless a hard sell, there were few plausible alternatives and it probably didn’t help that Ms. Carter, the driver, was the “star” witness against him. In any event, the jury didn’t buy it and convicted him. In May of last year, he was sentenced to life in prison.

Mr. McIver was removed as executor of his wife’s estate after he had been charged with her murder and he was replaced by a Decatur attorney who was appointed as administrator.

The new administrator filed a wrongful death suit against both Mr. McIver and Dani Jo Carter, the driver. The theory against her apparently was the claim that she should have called 911 rather than drive to the nearest hospital.

Ms. Carter’s lawyer says she did nothing wrong.

Mr. McIver, on the other hand, moved to dismiss. His grounds—you guessed it—were that only he, as surviving spouse, had the right to bring a wrongful death suit.

In other words, only he had the right to sue himself.

That must have sent the other side running to the law books, screaming “That can’t be right!”

Georgia has a wrongful death statute and a “slayers” statute that bars killers from financially benefiting by their victim’s death. But, they don’t necessarily dovetail.

For example, Mr. McIver argues that the proceeds of a wrongful death action do not become part of the estate and that there is nothing in the wrongful death statute that would take the right to sue away from him.

The trial judge ruled that the administrator had standing, and denied Mr. McIver’s motion to dismiss. Mr. McIver appealed, and the case was recently argued but not yet decided.

According to reports, Mr. McIver’s lawyer in oral argument was asked if Mr. McIver was ‘’entitled to call a lawyer into his jail cell and basically bring an action against himself.” The lawyer replied that he was so entitled.

I can see it all now. He sues himself and, while conceptually he would win no matter what, he obtains a verdict that her death was an accident so he can then have the administrator removed and take over his late wife’s estate to fund his criminal appeal.

Makes perfect sense to me. If I had a preference, I would prefer suing myself over having someone else do it. Plus, I could be assured of victory. Doesn’t get much better than that.

Richard W. Millar, Jr. is Of Counsel with the firm of Friedman Stroffe & Gerard in Irvine. He can be reached at rmillar@fsglawyers.com.