Claud “Tex” McIver during his trial on in April 2018 in Atlanta. (Bob Andres/Atlanta Journal-Constitution via AP, Pool)

An attorney representing imprisoned Atlanta lawyer Claud “Tex” McIver argued before the Georgia Court of Appeals Thursday that McIver is entitled to sue for his wife's wrongful death—even if it means suing himself and the star witness against him.

Arguing that a wrongful death suit against McIver should be dismissed, McIver counsel James Scarbrough contended that state law gives McIver, not his wife's estate, the right to sue, even though Tex McIver is serving a life sentence for Diane McIver's murder.

“There is nothing in the [wrongful death] statute to take that right away from him,” argued Scarbrough, a partner at Atlanta's Mabry & McClelland.

“Are you saying he [McIver] is entitled to … call a lawyer into his jail cell and basically bring an action against himself?” Judge Sara Doyle asked.

“He is entitled to bring this action,” Scarbrough replied.

The case is the first time in Georgia that a wrongful death action has been filed against a victim's spouse by the victim's estate, Scarbrough told the court, although he said it isn't the first time that a victim's estate has brought a wrongful death claim against a killer.

Judges Clyde Reese and Todd Markle joined Doyle in hearing oral arguments Thursday.

The wrongful death suit names two people as defendants equally responsible for Diane McIver's death: McIver, a former partner at Atlanta's Fisher & Phillips, and his wife's longtime friend, Dani Jo Carter.

Carter was driving the couple home from a weekend at their 85-acre ranch in September 2016 when McIver shot his wife while sitting behind her in the back seat. Carter, who drove to Emory University Hospital where Diane McIver died, was a star witness at Tex McIver's murder trial.

McIver currently has a motion for a new trial pending before Fulton County Superior Court Chief Judge Robert McBurney. The State Bar of Georgia last year suspended McIver's law license but didn't disbar him.

Scarbrough contended Thursday that Georgia's slayer statute, which bars killers from financially benefiting from their victims' deaths, doesn't prevent McIver from pursuing a wrongful death claim. Instead, Scarbrough  insisted the statute only applies to a killer's claims to the victim's assets.

“It doesn't apply here to deprive Mr. McIver of his right to bring a [wrongful death] claim,” he said.

Because McIver, as the surviving spouse, retains the right to sue over his wife's wrongful death, he also retains the option of suing Carter and relying on a jury to apportion responsibility for his wife's death even though he fired the fatal shot, Scarbrough argued.

Scarbrough appealed the case after a DeKalb County State Court judge denied his motion to dismiss it last year.

McIver was removed as executor of his wife's estate after he was charged with his wife's murder. Decatur attorney Mary Margaret Oliver sued McIver and Carter after she was appointed to administer Diane McIver's estate.

Carter's attorney, Lee Davis, said this week that the claim against Carter has no merit and that Carter did nothing wrong.

Atlanta attorney Robin Frazer Clark, who filed the suit on behalf of the estate, told the appellate court that the trial judge ruled correctly that the estate has standing to sue McIver.

Clark argued that Georgia's wrongful death law and the state's slayer statute, which strips killers of any ability to financially benefit from their victims' deaths, should be considered together rather than separately.

Clark contended the slayer statute does apply to litigation stemming from the wrongful death of a homicide victim. She argued that, under the statute, a killer is forced to forfeit all claim to a victim's estate and all rights to any benefits stemming from a wrongful death.

Under the slayer statute, a wrongful death claim must be litigated as if Tex McIver died before his wife, Clark argued.

Georgia law, she added, provides that “under any circumstance where there is a homicide … there will always be some recovery.”

Because the McIvers had no children, and Diane McIver left no surviving parents or siblings to sue over her death, her estate administrator has a legal right to step in, since Tex McIver is legally dead under the statute, Clark said.

Clark also branded as “wrong” Scarbrough's argument that the slayer statute doesn't apply in a wrongful death if the slayer is the victim's husband. Scarbrough's interpretation of the statute would lead to “the absurd result of a wrongdoer having to sue himself to recover for the wrongful death,” she said.

Doyle acknowledged from the bench that the idea that McIver could sue himself “is a strange concept.” But she suggested that the state's wrongful death and slayer statutes might not completely foreclose any claim by a killer husband—who might otherwise have standing to make a wrongful death claim—for his wife's murder.

“I am concerned there is a gap” in the statutes, Doyle said. “There shouldn't be a gap. But there might be a gap.”