IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

October 8, 2009 Session

MARY F. LAWSON v. BRAD LAWSON

Appeal from the Circuit Court for Sumner County

No. 31896-C C. L. Rogers, Judge

No. M2009-00537-COA-R3-CV - Filed September 28, 2010

Uninsured motorist carrier voluntarily tendered the limits of its liability coverage into the

probate proceeding administering the decedent’s estate and not in the wrongful death tort

action. The trial court dismissed the carrier from this wrongful death tort action since it had

tendered its limits of liability. We find the dismissal was in error since any voluntary tender

of insurance proceeds for wrongful death should be made into the wrongful death tort case,

and tendering the limits elsewhere is not grounds for dismissal.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court

Reversed and Remanded

PATRICIA J. COTTRELL, P.J.,M.S., delivered the opinion of the court, in which FRANK G.

CLEMENT, JR. and ANDY D. BENNETT, JJ., joined.

David J. Waynick, Thomas B. Luck, Nashville, Tennessee, for the appellant, Mary Lawson.

Erica L. Tisinger, Raymond Lackey, Franklin, Tennessee, for the appellee, Travelers

Personal Security Insurance Company.

OPINION

The issue on appeal involves whether an insurer who voluntarily tenders its limits of

liability should direct the proceeds to a wrongful death case brought by the widow or to the

estate administration proceeding in probate court.

The material facts are not at issue, and the parties agree to the following facts which

are assumed to be true for the purposes of appeal. The decedent, Elmer Lawson, had an
uninsured motorist policy with Travelers Personal Security Insurance Company (“Travelers”)

which had liability limits of $300,000.

The widow of Elmer Lawson filed suit against Brad Lawson for negligence seeking

to recover damages for the death of Elmer Lawson on August 15, 2008. The complaint

provides that she is suing “in her own right, and as surviving widow of Hamilton Elmer

Lawson.” This proceeding, herein referred to as the “tort action,” is the subject of this

appeal. Travelers was served a copy of the complaint as the uninsured motorist carrier on

November 13, 2008.

At some point, the executor of Elmer Lawson’s will, Mary Duffer, filed a petition to

admit the will of Elmer Lawson into probate, resulting in a second civil proceeding, the

“probate proceeding.” Before Travelers was served with the tort action complaint, Travelers

tendered a check for $295,000 representing the limits of its coverage to “Mary Duffer,

1

Executrix of Elmer Lawson’s Estate.” The estate filed a motion with the probate court for

direction about how to handle the check. The probate court entered an order dated November

8, 2008, which stated as follows:

that the $295,000 check payable to Mary A. Duffer as Executrix of the Elmer

Lawson Estate by the Travelers Insurance Company . . . shall be returned to the

Travelers Insurance [Company] which is requested by this Court to tender

these funds into the registry of the Clerk and Master of Sumner County,

Tennessee by Intervening Petition in this proceeding.

Consequently, on December 12, 2008, Travelers filed an Intervening Petition in the

probate proceeding and deposited the limits of liability into the Registry of the Clerk and

Master of Sumner County.

Since Travelers had paid the limits of liability into the court in the probate proceeding,

Travelers filed a motion seeking dismissal in the tort action. The trial court granted

Travelers’ motion to dismiss on March 4, 2009. The widow appeals, arguing that the

dismissal was in error.

The check was for $295,000 since Travelers had paid $5,000 for Elmer Lawson’s funeral. No one 1

disputes that Travelers appropriately paid for the funeral or that Travelers is not entitled to this credit.

-2-
I. ANALYSIS

Both parties agree that under Tenn. Code Ann. § 20-5-106, the decedent’s wife has

priority to bring a wrongful death action for the death of her husband. Tennessee Code

Annotated § 20-5-106(a) provides as follows:

(a) The right of action that a person who dies from injuries received from

another, or whose death is caused by the wrongful act, omission, or killing by

another, would have had against the wrongdoer, in case death had not ensued,

shall not abate or be extinguished by the person’s death but shall pass to the

person’s surviving spouse and, in case there is no surviving spouse, to the

person’s children or next of kin; to the person’s personal representative, for the

benefit of the person’s surviving spouse or next of kin; to the person’s natural

parents or parent or next of kin if at the time of death decedent was in the

custody of the natural parents or parent and had not been legally surrendered

or abandoned by them pursuant to any court order removing such person from

the custody of such parents or parent; or otherwise to the person’s legally

adoptive parents or parent, or to the administrator for the use and benefit of the

adoptive parents or parent; the funds recovered in either case to be free from

the claims of creditors.

The widow argues that under Tenn. Code Ann. § 20-5-106(a), she controls her

husband’s wrongful death claim and, consequently, Travelers erred by paying the proceeds

into the probate court. Travelers argues, on the other hand, that since it paid the limits of its

coverage with no dispute as to liability, and since the wrongful death damages are distributed

by the law of intestate succession, it did not err by paying the amount into the probate court.

Any insurance proceeds payable for wrongful death voluntarily tendered should be

paid into the wrongful death tort proceeding and not into the probate proceeding

administering the estate. This is true for several reasons. The first reason is clear and quite

simple. The insurance proceeds are for wrongful death and, as such, should be filed in the

wrongful death action brought by the person who by statute controls the proceedings.

Second, assuming that the trial court finds the uninsured motorist liable, the court in the tort

action determines the amount of damages. The insurance proceeds will be applied by the

trial court in the tort action. This has practical effect since the damages may or may not

exceed $300,000 and damages recoverable in the wrongful death claim may be applied to

defray costs of recovery, including possible attorneys’ fees. Third, the probate court is

overseeing the administration of the estate of Mr. Lawson and has no control over the

wrongful death claim or recovery thereunder. It is clear that the damages assessed in the

-3-
wrongful death case are not a part of the decedent’s estate that pass by will but, instead, pass

by statute to specified individuals. Foster v. Jeffers, 813 S.W.2d 449, 452 (Tenn. Ct. App.

1991). The damages recovered in a wrongful death claim are free from the claims of

creditors, Tenn. Code Ann. § 20-5-106(a), which would include creditors of the estate.

Travelers’ primary argument is that it should not be ordered to pay the insurance

proceeds twice. First, the probate court did not order Travelers to pay the proceeds into

probate court but “requested” it be done. Second, this decision does not order Travelers to

tender the proceeds into the wrongful death action, only that if it elects to tender insurance

proceeds, it should be done in the wrongful death action and tendering the proceeds

elsewhere does not entitle Travelers to dismissal.

The trial court is reversed in its decision to dismiss Travelers due to its tender of the

limits of liability in probate court. Costs of appeal are assessed against Travelers Personal

2

Security Insurance Company for which execution may issue if necessary.

____________________________________

PATRICIA J. COTTRELL, P.J., M.S.

The widow alternatively claimed before the trial court and on appeal that Travelers should not have 2

been dismissed due to another insurance obligation allegedly owed the widow by Travelers under the

“Homesaver Policy.” It does not appear in the record before us, however, that the widow ever made a claim

against Travelers under anything except uninsured motorist coverage until it was raised in opposition to

Travelers’ motion to dismiss. Since we reverse the trial court on other grounds and the matter is being

remanded, we decline to rule on these issues.

-4-