January 29, 2020 Adventures in the Law

Chutzpah Redefined

By Norman G. Tabler, Jr.

Claud “Tex” McIver must have figured it was time for a new definition of chutzpah. After all, everyone has wearied of the classic definition: “Chutzpah is what enables a man who has killed his parents to ask for mercy because he’s an orphan.”

Tex not only provided a new definition of chutzpah; he made himself its personification.

One day in 2016 Tex, a prominent Atlanta lawyer, was riding in the back seat of an SUV. His wife, Diane, was in the front passenger seat. The driver was Diane’s longtime friend Dani Jo. Tex asked Diane to hand him his gun. When she did, he fired a bullet through Diane’s seatback, striking her in the back. Rather than dialing 911, Tex directed Dani Jo to mosey along to Emory Hospital, cautioning her to drive carefully because, “there might be people walking with baby carriages.” Diane died at the hospital.

At Tex’s trial for murdering Diane, his lawyer argued that the shooting was an accident. Tex chose not to take the stand. It didn’t help his case that he stood to profit handsomely from Diane’s death. Tex was convicted of felony murder and sentenced to life in prison. Fortunately, he will be eligible for parole in 30 years: unfortunately, he will then be 105.

It was when the administrator of Diane’s estate filed a wrongful death suit against Tex that he showed his chutzpah. He moved to dismiss the case. His argument was simple: Under the statute it’s the surviving spouse who has the right to recover for the homicide of a deceased spouse. I’m Diane’s surviving spouse; ergo, only I can sue for her wrongful death. Q.E.D.

The trial court may have been impressed with Tex’s chutzpah, but not with his legal argument. Invoking a Georgia law ominously titled The Slayer Statute, the court ruled that Tex should be treated as having predeceased Diane. The court also made the cogent observation that Tex could not sue himself.

Having little else to do in prison, Tex filed an interlocutory appeal of the denial of his motion to dismiss. The appellate court was, if anything, even less impressed with Tex’s legal position than the trial court had been. The court affirmed the denial of Tex’s motion to dismiss, observing that “the legislature did not intend that a murdering spouse financially benefit from the murder by possessing the ability to pursue a right of action for the victim’s death...”

So there you have it, a new definition of chutzpah: It’s what enables a husband who has murdered his wife to claim that as the surviving spouse, he alone can sue to recover for her wrongful death.

The case is McIver v. Oliver, Ga. Ct. of Apps. 

Author

Norman  G. Tabler, Jr. is a retired lawyer in Indianapolis. He serves on the editorial advisory boards of the ABA Senior Lawyers Division’s Voice of Experience and the ABA Health Law Section’s The Health Lawyer and is host of the American Health Lawyers Association’s podcast, The Lighter Side of Health LawEmail Norm.