Imprisoned for the murder of his wife, suspended attorney Claud “Tex” McIver is asking the Georgia Court of Appeals to overturn a DeKalb County State Court judge and dismiss a wrongful death lawsuit brought by his wife’s estate.
The Georgia Court of Appeals is slated to hear oral arguments Thursday on McIver’s appeal. McIver counsel James Scarbrough of Atlanta firm Mabry & McClelland has asked the appellate court to reverse a ruling by Judge Mike Jacobs allowing the case to go forward. McIver sought to have the case dismissed, claiming that, as the surviving spouse of his wife, Diane, only he has the legal authority to make a wrongful death claim.
McIver fatally shot his wife in September 2016 while he was sitting in the back seat of the couple’s SUV as Diane McIver’s close friend, Dani Jo Carter, drove them home from a weekend at their 85-acre ranch southeast of Atlanta. McIver fired a single shot through the front passenger seat where his wife sat while the SUV was stopped at a traffic light across from Atlanta’s Piedmont Park.
In his appeal of the wrongful death claim, McIver—a former partner at Atlanta employment law firm Fisher & Phillips—acknowledges that under state law a person who intentionally kills, conspires to kill or procures the killing of another individual, forfeits all claims to the victim’s estate and can’t serve as the estate’s representative or trustee.
But McIver contends that state law doesn’t require him to forfeit the right to bring a wrongful death claim.
Atlanta attorney Robin Frazer Clark, who represents Diane McIver’s estate in the litigation, challenged that contention in her own appellate brief. “Georgia law is not so imbecilic, nonsensical or harsh as to ever reach the results urged by Tex McIver to avoid responsibility for his role in causing the death of his wife, Diane,” she contended.
“Tex McIver should not be permitted to use as a defense to the wrongful death case that the right to initiate such a claim would normally rest in him, and he ‘can’t sue himself,’” Clark wrote in an appellate brief. “Georgia law would simply never condone such an argument.”
McIver was removed as the executor of Diane’s estate in July 2017, and Atlanta attorney Mary Margaret Oliver, a Georgia state representative, was appointed as the estate administrator.
After McIver was convicted, Oliver sued him and Carter on behalf of Diane McIver’s estate, accusing them of negligence that resulted in Diane McIver’s death. The suit contends that, after Tex McIver shot his wife, Carter drove to Emory University Hospital’s emergency room at Tex McIver’s direction instead of calling 911.
Carter’s attorney, Lee Davis, said Wednesday that the estate’s wrongful death claim against Carter has no merit, although he decided not to appeal the ruling when Jacobs denied his motion to dismiss.
“I don’t think she did anything wrong,” Davis said of Carter. “I don’t think there is even any evidence she did anything wrong. I look forward to the opportunity to be able to prove that.”
McIver’s appeal, Davis said, “is just slowing that down and delaying our ability to have the merits heard at the state court level. … I hope we can get back there and address the merits pretty soon. ”
In arguing that the wrongful death case against McIver should be dismissed, Scarbrough contended that in filing the wrongful death claim, Oliver was suing for the benefit of McIver’s next of kin: her husband.
“As the trial court correctly held, Mr. McIver ‘cannot state a claim against himself’ because allowing an [estate] administrator’s claim for the next of kin to proceed against the next of kin is for all practical purposes one suing himself,” Scarbrough argued. “The wrongful death claim should have been dismissed.”
Clark countered that, once McIver was convicted of his wife’s murder, Georgia’s “slayer statute” dictates that he is “no longer entitled to bring a wrongful death claim for his wife in accordance with Georgia public policy that one is not entitled to benefit from his own misdeeds.”
Clark also argued that the slayer statute dictates that a convicted killer be treated under the law as if he died before the victim. Once the slayer statute is triggered, Clark said, if there is no person under the wrongful death statute entitled to file suit, the administrator or executor of the victim’s estate may do so.
“McIver argues he can’t sue himself, but that is exactly the concern this statute eliminates,” Clark said. “He may not sue himself so Georgia law vests that cause of action in the estate. It is the public policy of the state of Georgia to prohibit wrongdoers from profiting from their crimes. It would fly in the face of Georgia public policy for this court to prohibit the estate of Diane McIver from recovering the full value of her life because it was her spouse who killed her.”