The following is an excerpt from legal memoranda filed in a survival action and wrongful death suit arising out of a commercial motor vehicle accident recently defended by Gorman & Williams. On brief were Francis J. Gorman, P.C. and Charles L. Simmons, Jr.
I. The “Survival Action”
A “survival action” is a creation of statute permitting an action at law to survive the death of a party. Md. Code Ann., Cts. & Jud. Proc., : 6-401. The personal representative of an estate has the right to prosecute or defend litigation on behalf of the decedent:
Md. Code Ann., Est. & Trusts : 7-401(x).
A survival action is nothing more than a claim that could have been asserted by the decedent had he or she survived. Therefore, damages are limited to those that would have been recoverable by the decedent had he or she lived:
Smallwood v. Bradford, 352 Md. 8, 25 (1998) (bracketed language in original; citations omitted).
Damages claimed in a survival action case often include: (1) conscious pain and suffering; (2) pre-impact fright; (3) punitive damages; (4) future lost earnings; and (5) burial and funeral expenses.
A. Conscious Pain And Suffering
A personal representative in a survival action may not recover damages for pain and suffering if there is no evidence that the decedent experienced “conscious” pain and suffering between the time of injury and death:
Ory v. Libersky, 40 Md. App. 151, 159-60 (1978) (emphasis added). In that case there were no verbal communications and no body movements from the decedent. Id. at 162. The court determined as a matter of law that labored breathing and gurgling, without more, was insufficient evidence of “conscious pain.” Id.
B. Pre-Impact Fright
In order for there to be recovery on a theory of pre-impact fright in a survival action, there must be evidence that the decedent experienced “fear or fright” :
Beynon v. Montgomery Cablevision Ltd. Partnership, 351 Md. 460, 508 (1998) (emphasis added). In that case, the evidence of fright was the 71 – feet of skid marks made by the decedent prior to colliding with a tractor trailer:
Id. at 508-09.
C. Punitive Damages
The law in non-intentional tort cases is that punitive damage are not available unless there is evidence of “actual malice”:
Owens-Illinois v. Zenobia, 325 Md. 420, 460 (1992) (citations omitted). The Court of Appeals has conclusively rejected the “implied malice” standard in tort cases involving drivers under the influence of alcohol:
Komornik v. Sparks, 331 Md. 720, 730 (1993).
D. Future Lost Earnings
Future lost wages are unavailable in a survival action where no wages were actually lost between the time of injury and the time of death. In a recent case, the Maryland Court of Appeals affirmed a grant of partial summary judgment for defendant on the grounds that the estate could not recover damages for future lost earnings where the decedent died instantly. Jones v. Flood, 351 Md. 120 (1998).
In Flood, plaintiff as personal representative of the estate brought a survival action seeking damages for the future lost earnings of the decedent who was killed instantly in a motor vehicle accident. Id. at 120-22. The court held, as a matter of law, that an estate is not entitled to future lost earnings when the decedent died before any lost wages were incurred:
Id. at 130-31.
E. Burial Expenses are Statutorily Capped at $5,000
The maximum allowable damages available to an estate for burial and funeral expenses is governed by statute:
Md. Code Ann., Est. & Trusts, 7-401(x). Section 8-106(b) of that article imposes a $5,000 cap on an estate’s recovery of funeral and burial expenses:
Id. at 8-106(b) (1998 Supp.).
II. The Maryland Wrongful Death Act
The legal cause of action for wrongful death was created in Maryland by the adoption of “Lord Campbell’s Act” from British common law. The General Assembly first passed legislation creating the cause of action in 1852:
State, Use of Coughlan v. Baltimore & Ohio R.R. Co., 24 Md. 84, 100 (1866). The statute, Md. Code Ann., Cts. & Jud. Proc., 3-904, created a new cause of action for family members of persons killed by another’s negligence, i.e. it created the right to sue for the damages which resulted from the decedent’s death. Smith v. Westinghouse Elec. Corp., 266 Md. 52 (1972).
Maryland’s Wrongful Death Act is in derogation of the common law and must, therefore be strictly construed:
Calhoun v. Eagan, 111 Md. App. 362, 387-88 (1996) (citations omitted). Thus, a successful plaintiff in a wrongful death action may only recover those categories of damages specifically permitted by the statute. United States v. Streidel, 329 Md. 533 (1993).
Damages claimed in a Wrongful Death suit often include: (1) non-economic damages; (2) lost services; (3) lost financial benefits; and (4) punitive damages.
A. Non-Economic Damages
Maryland’s Wrongful Death statute underwent substantial modifications in 1997. The 1997 revisions expanded the class of plaintiffs who could recover non-economic damages in a wrongful death action.
Prior to the 1997 revisions, a parent of an adult child could recover non-economic damages for the wrongful death of an adult child only if: (1) the child was 21 years of age or younger; or (2) the parent provided 50% or more of the adult child’s support. See Md. Code Ann., Cts. & Jud. Proc., 3-904(e) (1995 Repl. Vol.). Following the revisions, parents of adult children are entitled to recover non-economic damages for the wrongful death, regardless of age or the amount of support provided to the child. See 3-904(e) (1998 Supp.).
There is, however a substantial caveat concerning the application of the 1997 revisions. The revisions (including the expansion of the class of parents entitled to recover non-economic damages for the death of an adult child) apply only to causes of action accruing after October 1, 1997:
See version of House Bill 770, Chpt. 318 (attached to Motion as Exhibit 15) in the form signed by the Governor on May 8, 1997.
The applicable law for Wrongful Death Actions accruing before October 1, 1997 is as stated in the statute prior to the 1997 revisions. Parents are precluded from recovering non-economic damages for the death of an adult child unless: (1) the child was 21 years old or younger; or (2) the parents provided at least 50% of the adult child’s support:
(2) A parent contributed 50 percent or more of the child’s support.
Md. Code Ann., Cts. & Jud. Proc. 3-904 (1995 Repl. Vol.).
B. Lost Services
Wrongful death plaintiffs are entitled to damages for the loss of service if it can be shown that there was a reasonable expectation of pecuniary benefit from the continuation of the life of the person killed. B&O R.R. Co. v. State, Use of Mahone, 63 Md. 135, 145-46. The expectation of the benefit must be based on more than mere speculation:
Id. at 147 (emphasis added).
C. Future Pecuniary Benefit
In Maryland wrongful death cases an award of pecuniary loss can only be based on past and “probable” future economic losses:
Baltimore Transit Co. v. State, 194 Md. 421, 436 (1950) (emphasis added).
Only “reasonably expected” future pecuniary benefits can form the basis of an award:
Baltimore & Ohio R.R. v. State Use of Hauer, 60 Md. 440, 467 (1883).
In the instance of the death of a minor child, parents are entitled to the economic value of the future services of the minor child. However, a parent can recover for pecuniary damages for the lost services of a child only up to the date the child reaches the age of majority. Pecuniary benefits beyond the age of majority are not “reasonably foreseeable” and, therefore not subject to calculation, and therefore not awardable:
Agricultural & Mechanical Ass’n of Washington County v. State, Use of Carty, 71 Md. 86, 101-02 (1889) (emphasis added).
Carty involved an emancipated minor child who was killed by a falling pole erected at a county fair that the boy was attending. The father brought suit under the Wrongful Death Act existing at the time of the occurrence. The father claimed that he was entitled to future pecuniary losses based on the son’s promise to provide future benefit to the father:
Carty, 71 Md. at 88. The court held that such a promise was insufficient to submit to the jury a claim for future pecuniary losses:
Id. at 104.
Other cases have held that to permit damages for future pecuniary benefits to parents beyond the age of majority of a child would be to engage in speculation:
State, Use of Coughlan v. Baltimore & Ohio R.R. Co., 24 Md. 84, 107-08 (1866) (emphasis added).
A similar result was reached in the case of Mahone, supra. There the court had before it claims by adult children for the wrongful death of their mother. The only evidence at trial of a pecuniary loss to the mother’s two sons was testimony that she occasionally assisted in nursing sick family members. Mahone, 63 Md. at 147. There was no evidence of the number of times she performed these services, how long she remained when she did attend to the families, or what the value of the services were. Id. Further, the sons failed to prove that they were obligated to hire a replacement to provide the services of the deceased mother. Id. The court found this evidence insufficient to form a foundation of an award of future pecuniary loss:
Maryland courts have held in certain circumstances that even where a pecuniary benefit was provided to the wrongful death plaintiff prior to death, there can still be no allowance for future pecuniary benefits. See State, Use of Elder v. Baltimore & Ohio R.R. Co., 126 Md. 497 (1915). In that case, the father of adult children was killed by an act of negligence of the part of the B&O Railroad Company. Testimony was offered at trial that the father gave his daughters each year “a sow or two shouts.” Id. at 499. The declared value of this livestock was said to be between $15 or $20 per year. Id. The court held that the occasional gifts were insufficient to form the basis of a reasonable belief of future pecuniary benefits by the daughters:
Id. at 503-04 (emphasis added). In short, even provable pecuniary benefits provided prior to the death of the decedent will not necessarily provide the basis for “reasonable expectation” of future pecuniary benefit.
D. Punitive Damages
Maryland’s wrongful death act is in derogation of the common law. See discussion above. As such, the statute is subject to strict construction. Calhoun, 111 Md. at 387-88. Only those categories of damages specifically authorized in the statute are available to wrongful death plaintiffs. Streidel, 329 Md. at 552.
Punitive damages are not a category of damages authorized by the statute and are, therefore unavailable in a wrongful death action:
Id. (emphasis added) (citations omitted).