Tort Law

Lawyer convicted of wife's murder argues only he can represent her estate in wrongful death case

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A former Atlanta lawyer convicted of felony murder in the fatal shooting of his wife is arguing that only he has the right to represent her estate—and that means a wrongful death suit filed against him by the estate must be tossed.

The former lawyer, 77-year-old Claud “Tex” McIver, was represented by lawyer James Scarbrough in oral arguments Thursday before the Georgia Court of Appeals, report the Daily Report and the Atlanta Journal-Constitution. McIver is a former partner with Fisher & Phillips.

Scarbrough argued that the state’s wrongful death statute does not take away McIver’s right to sue as the surviving spouse. Scarborough acknowledged that Georgia has a slayer’s statute that bars killers from benefiting financially from the death of their victims. But Scarbrough said the slayer statute bars claims to the victim’s assets and does not apply to wrongful death actions.

The Daily Report highlights an exchange between Judge Sara Doyle and Scarbrough. Doyle asked whether Scarbrough was saying that McIver is entitled to “call a lawyer into his jail cell and basically bring an action against himself.”

Scarbrough replied that McIver is “entitled to bring this action.”

McIver’s law license was suspended last year. He is one of two defendants in the wrongful death case. The other defendant is Dani Jo Carter, the woman who was driving the SUV in September 2016 when McIver shot his wife, Diane, from the back seat where he was riding. Diane was in the passenger seat.

The wrongful death suit said Carter should have called 911 rather than driving the car to the hospital where Diane McIver died. Carter testified against McIver at the trial last year.

McIver had maintained that the shooting was an accident, and he pulled the trigger while falling asleep. Prosecutors introduced evidence that McIver’s income had declined, and he was facing financial problems. His wife, however, was wealthy.

The lawyer who sued on behalf of the estate, Robin Frazer Clark, argued that the wrongful death law and slayer’s statute should be considered together. The wrongful death suit must be litigated as if McIver died before his wife, Clark said.

McIver was convicted in April 2018 of felony murder, aggravated assault with a deadly weapon, possession of a firearm in the commission of a felony, and influencing a witness. He was sentenced to life in prison in May 2018.

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