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A former Barnesville, Ga., police captain who murdered her husband is the only person entitled to sue for his wrongful death, a federal judge has ruled. That ruling, in an April 27 order by U.S. District Court Judge Hugh P. Lawson, may end a $4 million wrongful death suit brought by the victim’s mother, Deborah Carringer, against her daughter-in-law, Ethel Elizabeth “Beth” Tessmer. Despite the ruling, Carringer maintains her suit against the city of Barnesville and its police chief, Stanley Rodgers, seeking compensation for her son’s lost life, funeral expenses and attorney fees. Carringer’s claim against Tessmer over the January 1998 death of David Newton apparently was doomed by the statute of limitations and the peculiarities of Georgia’s wrongful death statute. These factors mean no one but Newton’s wife of five months can recover for his death, despite her conviction for his murder. Tessmer, 43, has not sued. Tessmer was captain of the department’s domestic violence squad when she shot her 27-year-old husband, a fact she never disputed at her criminal trial. She said the gun discharged accidentally. Tessmer was convicted Aug. 15, 1998 and sentenced to life. She is appealing. Three months after marrying Newton, Tessmer allegedly attempted suicide by taking about a half-dozen Xanax tablets, according to Carringer, who cites the alleged attempt in her wrongful death suit. Before the shooting, Chief Rodgers ordered Tessmer to remove all firearms from her home but Tessmer kept her city-issued .40-caliber Glock, the weapon experts said she used to kill her husband in their apartment, according to Carringer’s complaint. Carringer v. Tessmer, No. 5:00-CV-14 (M.D. Ga. Jan. 14, 2000). CITY, POLICE CHIEF BLAMED Carringer claims in her suit that the city and Rodgers “failed to take adequate procedures to identify officers who were unfit to carry weapons.” She also claims they didn’t relieve Tessmer of duty after her suicide attempt or order psychological testing. However, Lawson dismissed Carringer’s claims against Tessmer last month, finding the law gave only Tessmer the right to sue and to recover for Newton’s death. Carringer’s lawyer, Decatur sole practitioner Ralph S. Goldberg, calls the judge’s decision “a calloused misreading of Georgia law” and says he’ll appeal it to the 11th U.S. Circuit Court of Appeals. Kenneth S. Canfield, who also handles wrongful death cases, says, “It would be ludicrous to expect that a person responsible for a person’s death should decide if a suit should be filed.” Canfield, a partner at Atlanta’s Doffermyre Shields Canfield Knowles & Devine, says the ruling “intrinsically makes no sense.” But Lawson wrote that under Georgia’s wrongful death statutes, “the right to recover for Newton’s death vests in Tessmer, not Carringer.” O.C.G.A. 51-4-2 provides that a “surviving spouse or, if there is no surviving spouse, a child or children … may recover for the homicide of the spouse or parent full value of the life of the decedent….” STILL ‘SURVIVING SPOUSE’ “Although apparently the cause of his death, Tessmer is, in fact, Newton’s ‘surviving spouse,’” Lawson wrote. The plain language of the law, he added, meant only Tessmer was entitled to recover. And while she couldn’t be plaintiff and defendant in the case, he continued, “the fact that she contributed to Newton’s wrongful death does not automatically foreclose on her right to bring a wrongful death action.” Lawson pointed out that Tessmer’s role in Newton’s death hasn’t been conclusively established, since her conviction is on appeal. Had the conviction been upheld before the two-year statute of limitations for filing a wrongful death claim expired, Lawson wrote, “the court may have determined that Tessmer’s right to bring a claim was foreclosed. However, as this case presently stands, nothing but the expiration of the statute of limitations appears to foreclose on Tessmer’s right to bring a claim for wrongful death.” Carringer had argued that as Newton’s parent, she was entitled to recover for his death, and cited state laws that provide that “in every case of the homicide of a child … there shall be some party entitled to recover.” Lawson wasn’t convinced. “Although Carringer’s arguments have superficial appeal, in the Court’s view, the wrongful death statutory scheme does not invite such a result,” he wrote. His order points out that a wrongful death claim vests first with a surviving spouse or child and then with a parent only if there is no surviving spouse or child. Tessmer and Newton had no children. PREDECEASED ARGUMENT Carringer also had argued that the court should treat Tessmer as though she had predeceased Newton, citing O.C.G.A. 53-1-5, which prevents criminals from profiting from their crimes. That law provides that a person responsible for the murder of another may take no interest from the deceased’s estate and is to be treated as though they predeceased the victim. The problem, Lawson pointed out, is that the statute is aimed at preventing the criminal from profiting from the victim’s estate. But a wrongful death cause of action, he wrote, is not an asset or claim of the victim’s estate. “Thus, the limitations placed on the right of inheritance by O.C.G.A. 53-1-5 do not necessarily carry over to the right to bring a claim for wrongful death,” he concluded. A parent may only bring the claim when there is no spouse, Lawson concluded, not when the spouse entitled to bring it chooses not to do so. And by failing to exercise her right to sue, he added, “Tessmer has, in effect, insulated herself from liability.” The case is a complicated one, says Tessmer’s attorney, Sandra J. Popson, a partner with Katz, Flatau, Popson & Boyer in Macon. But simply put, Carringer has no right to sue for her son’s wrongful death until all appeals of the murder conviction have been exhausted, Popson says. Yet Carringer cannot wait to sue. The length of the appeals process already has passed the two-year statute of limitations on a wrongful death claim, Popson says. CITY TO SEEK DISMISSAL Although Carringer’s claims against the city and police chief are pending, defense attorney Jacob A. Maurer, whose firm is representing the city, says he will file an order for dismissal. “Our position, of course, is that if Mrs. Carringer doesn’t have standing to pursue claims against Tessmer, she doesn’t have the standing to pursue claims against the city (or police chief), either,” says Maurer, an associate with Mullins & Whalen in Griffin. Canfield says the situation is troubling. A person cannot sue himself, he says, yet “somebody should have the right to bring the action.” Canfield says he agrees with Carringer and Goldberg that the convicted murderer, when a spouse, should be treated as if he or she predeceased the victim. DEKALB CASE CITED Canfield cites a case he tried involving a DeKalb County man, Hans-Juergen Krause. Krause was suspected, but never charged, in connection with the death of his wife, Connie Vance Krause. Her nude body was found stuffed in the trunk of her car at the Lindbergh MARTA station in Atlanta Nov. 4, 1989. She had been strangled. Canfield successfully represented Connie Krause’s parents and her four siblings in a suit against Hans Krause, which alleged that he killed his wife and should be prevented from collecting nearly $380,000 in insurance. Vance v. Krause, No. 90-1687-5 (DeKalb Super. filed Jan. 25, 1990). But that was not a wrongful death complaint. “Had we decided to bring it as a wrongful death suit, we would have run into this issue,” Canfield says of Carringer’s inability to sue Tessmer. Carringer, who lives in Fayetteville, Ga., also vows to appeal any dismissal of her claims against the city and the chief. She says she knows money can’t bring back her son, but adds that the case is still important to her. “My every waking thought has some part of this lawsuit in it,” she says. Mara Shalhoup is a staff reporter with The Macon Telegraph.

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