A Recent Amendment to Maine’s Wrongful Death Statute Expands Recovery of Decedent’s Lost Earnings

For some time now, those who represent victims in wrongful death cases have been advocating for legislative action to enhance the fairness and the scope of recovery under Maine’s death act. As a result of these efforts, effective September 12, 2009, the Legislature enacted two important changes to the statute, 18-A M.R.S.A. § 2-804. While one of these changes, raising the cap on recoverable punitive damages from $75,000 to $250,000, is self-explanatory, the other, relating to recovery of pecuniary damages for a decedent’s future lost earnings is not, and some background is required to fully appreciate its potentially expansive effect on the recovery of such damages.

Of course, all wrongful death statutes were designed to change the common law rule that a cause of action for personal injuries abates upon the death of the injured person. In redressing this draconian rule, states have used two basic approaches: there are “survival” statutes and “death” statutes. A “survival” statute provides that a cause of action for personal injuries survives death for the benefit of the estate. Under such statutes, the damages are recovered by the estate. A “death” statute provides for direct recovery by statutory beneficiaries. The Maine death statute is of the latter type. While the action must be brought in the name of the personal representative of the estate of the decedent, the statute provides a cause of action only to the identified statutory beneficiaries.

Complicating the situation, Maine, like many other states, has both a wrongful death statute and a separate “survival statute,” which provides that no personal cause of action is lost by the death of the decedent. 18-A M.R.S.A. § 3-817. In states having both a survival statute and a wrongful death statute, an issue has frequently arisen regarding recovery of a decedent’s lost earnings and avoidance of possible double recovery if the estate recovers under the survival statute and the individual beneficiaries recover under the wrongful death statute. Holding that wrongful death damages begin with the death of the victim and that survival damages end with the death, many courts, including Maine’s, limit recovery of lost earnings under a survival statute to the period prior to death.

Maine’s wrongful death statute has been interpreted to limit recovery to the damages as measured by the death’s pecuniary impact upon the specific wrongful death beneficiaries, thus making it arbitrarily dependent on the identity of the particular surviving beneficiaries and their economic relationship to the decedent. This limitation on recovery raises the possibility that a defendant whose negligence caused the death may receive a windfall depending on who has survived the decedent. For example, a spouse would recover the decedent’s lost earnings over his or her life expectancy, because of the anticipated personal benefit from those earnings, an adult child of the same decedent would likely not be able to demonstrate any personal economic loss resulting from the death. The allowance of such a windfall partakes of the unfairness that the wrongful death statute was intended to eliminate, merely substituting the fortuity of death for the fortuity of survival.

In order to remedy this injustice, the bill that amended Maine’s wrongful death statute, L.D. 482, sought to clarify the law in two, arguably duplicative, ways: 1) it amended § 2-804 (b) to strike the language that limited pecuniary damages recovery “to the persons for whose benefit the action is brought,” thus providing for recovery of pecuniary damages without regard to the identity of the particular wrongful death beneficiaries; and 2) it amended 18-A M.R.S.A. § 3-817 (a) to provide explicitly for the survival of “claims for pecuniary losses of the deceased that would have been realized but for the death….”

While the Legislature decided not to change the limitation of the survival statute to pre-death damages, the change to § 2-804(b) makes clear that the recovery of lost earnings is no longer arbitrarily limited to the damages provable by “the persons for whose benefit the action is brought,” and that regardless of the identity of the particular statutory beneficiaries, the measure of damages is the decedent’s probable lifetime earnings. All of us in bringing these actions should therefore be prepared to advocate strongly that neither the admissibility nor the measure of damages for a decedent’s post-death lost earnings is limited by the identity of the beneficiaries or their relationship to the decedent, making the decedent’s future earnings the exclusive determinant of recovery.