McIver v. Oliver

• Decision Date: 23 October 2019
• Docket Number: A19A1230
• Parties: MCIVER v. OLIVER.
• Court: Georgia Court of Appeals

353 Ga.App. 106
836 S.E.2d 535

MCIVER
v.
OLIVER.

A19A1230

Court of Appeals of Georgia.

October 23, 2019
Reconsideration Denied November 12, 2019

836 S.E.2d 536

Dawn Nicole Pettigrew, James William Scarbrough, Keith B. Romich Romich, Rachel E. Reed, Atlanta, for Appellant.

Robin Frazer Clark, Atlanta, for Appellee.

Doyle, Presiding Judge.

353 Ga.App. 106

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

353 Ga.App. 107

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

836 S.E.2d 537

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

353 Ga.App. 108

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

...