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McIver v. Oliver

Court of Appeals of Georgia, Fourth Division

October 23, 2019

MCIVER
v.
OLIVER.

          DOYLE, P. J., REESE and MARKLE, JJ.

          Doyle, Presiding Judge.

         In this interlocutory appeal, Claud Lee McIver III ("McIver") challenges the denial of his motion to dismiss a wrongful death lawsuit filed against him and Patricia Diane Carter by Mary Margaret Oliver as the administrator of the estate of his deceased wife, Diane Smith McIver ("Diane"). McIver, who already has been found guilty of causing Diane's death by felony murder, [1] contends that the state court erred by concluding that Oliver has standing to sue under the wrongful death statute because the statute authorizes him, as the surviving spouse, to bring any wrongful death claim. For the reasons that follow, we vacate the order of the state court and remand with direction to transfer the case to the superior court.

On appeal, we conduct a de novo review of a trial court's ruling on a motion to dismiss. Our role is to determine whether the allegations of the complaint, when construed in the light most favorable to the plaintiff, and with all doubts resolved in the plaintiff's favor, disclose with certainty that the plaintiff would not be entitled to relief under any state of provable facts.[2]

         The relevant facts are not in dispute. The complaint alleges that McIver, Diane, and Carter were returning to Atlanta from a weekend away at the McIvers' family farm in Putnam, Georgia. Carter was driving a vehicle owned by the McIvers, and Diane rode in the front passenger seat, with McIver in the back seat behind her. As they drove into downtown Atlanta, McIver asked Diane to retrieve his handgun from the glove compartment, and she did so. Shortly thereafter, McIver suddenly and unexpectedly discharged the weapon, shooting Diane through the seat and striking her in the back. The complaint further alleges that instead of stopping and calling 911, McIver directed Carter to drive to the Emory Hospital emergency room. Carter did so, and Diane died at Emory Hospital three hours later.

         Based on the shooting, McIver was indicted and found guilty by a jury of felony murder of Diane. Acting as the administrator of Diane's estate, Oliver filed this wrongful death action in the State Court of DeKalb County against McIver and Carter. The complaint alleges that McIver caused Diane's death by negligently discharging the firearm, and it alleges that Carter was negligent in her driving. Carter and McIver moved to dismiss the complaint on different grounds, and the state court granted Carter's motion in part and denied McIver's motion. Relevant to this appeal, the state court denied McIver's motion on two grounds: (i) Georgia's "Slayer Statute," OCGA § 53-1-5, treats McIver as though he has predeceased Diane for purposes of distributing her property and appointing personal representatives, and (ii) McIver cannot sue himself, so OCGA § 51-4-5(a) authorizes Oliver to bring the claim for the benefit of Diane's next of kin. The state court issued a certificate of immediate review of its denial of McIver's motion, and this Court granted McIver's application for interlocutory appeal.[3]

         1. McIver contends that the state court erred by concluding that Oliver has standing to bring this claim on the ground that the wrongful death statute gives him (and not any other party) the right to bring a wrongful death claim based on the death of his spouse. We disagree.

         Our statutory analysis is guided by the following principles:

A statute draws its meaning, of course, from its text. Under our well-established rules of statutory construction, we presume that the General Assembly meant what it said and said what it meant. To that end, we must afford the statutory text its "plain and ordinary meaning," we must view the statutory text in the context in which it appears, and we must read the statutory text in its most natural and reasonable way, as an ordinary speaker of the English language would. Though we may review the text of the provision in question and its context within the larger legal framework to discern the intent of the legislature in enacting it, where the statutory text is clear and unambiguous, we attribute to the statute its plain meaning, and our search for statutory meaning ends.[4]

         "The right to file a claim for wrongful death did not exist at common law; it is entirely a legislative creation and is authorized in Georgia by the Wrongful Death Act, OCGA § 51-4-1 et seq."[5] Georgia courts have described the statute in this way:

The aim of these [wrongful death] statutes is to strike at the evil of the negligent destruction of human life, by imposing liability upon those who are responsible either directly through themselves or indirectly through their employees for homicides. It is not beyond the power of the legislature to attempt to preserve human life by making homicide expensive. "By making homicide expensive," the person who causes the wrongful death of another is forced to suffer a monetary "penalty to go to the person who is authorized to sue for the negligent homicide."[6]

         Despite this context, McIver argues that he (and therefore not Oliver) is entitled to bring a wrongful death claim, relying on OCGA § 51-4-2 (a). That Code section provides: "The surviving spouse or, if there is no surviving spouse, a child or children, either minor or sui juris, may recover for the homicide of the spouse or parent the full value of the life of the decedent, as shown by the evidence." Based on this language alone, McIver argues that because he is Diane's surviving spouse, he retains the authority to bring a wrongful death claim for her death.

         But this ignores the fact that McIver himself caused Diane's death, and "[a]lthough the law contemplates that there should be a right of recovery, it does not authorize a surviving spouse to benefit from his own wrong."[7] Well-settled Georgia law holds that "[a] person cannot sue himself; the same person cannot be both plaintiff and defendant in the same action, even in different capacities."[8] Such a suit is "void from its inception;"[9] accordingly, the law does not authorize McIver to sue himself for wrongful death as the surviving spouse of Diane, whom he feloniously killed. In other words, "the question is not the plain language of the statute[, ] which orders a recovery for the surviving spouse, but whether [McIver] should be deemed a surviving spouse so as to hold the right of action for the wrongful death. And the answer to this question must be 'no.'"[10]

         In light of this, we turn to OCGA § 51-4-5 (a) which provides: "When there is no person entitled to bring an action for the wrongful death of a decedent under Code Section 51-4-2 [death of spouse or parent] or 51-4-4 [death of child], the administrator or executor of the decedent may bring an action for and may recover and hold the amount recovered for the benefit of the next of kin." It is undisputed that Diane has no children, and as explained above, McIver is not "entitled to bring an action for the wrongful death of" ...


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