Wrongful death and survival claims continue to coexist and provide valuable alternative approaches for plaintiffs seeking to recover for injuries that lead to death. Plaintiffs who do not meet all of the statutory requirements for a wrongful death claim may be able to follow a claim outside of the death act and can benefit from avoiding the death act's two-year statute of limitations and limitations on damages.
In 1940, the First Circuit Court of Appeals observed that the decisional law addressing the interrelationship between Maine's death and survival statutes was "perplexing."1 Not much has changed. Courts and practitioners are still struggling to understand the relationship between these two categories of claims that share at least one thing in common: they both originate with death. This article seeks to clarify some of the confusion surrounding the litigation of survival and death claims.
II. Survival And Death Act Claims
At common law, it was said to be cheaper for a tortfeasor to kill a person than to scratch him. This was because death extinguished the victim's legal rights and those of the victim's beneficiaries or heirs. In short, when a person died, his legal claims died with him. Maine's survival and wrongful death acts changed this harsh rule.
A. Survival Claims
Maine's survival statute provides that causes of action possessed by a deceased may be pursued after death by the estate, in the name of the personal representative.2 Damages recovered in a survival action go to the estate, not the personal representative in his or her individual capacity, and like other estate assets, are apportioned to all who have a legal interest in the estate, including creditors. .../...
Because the survival statute preserves only those claims possessed by the deceased, it goes without saying that a claim which the deceased never possessed in the first place cannot "survive." At common law, neither the deceased nor the deceased's next of kin could recover for the death itself. Thus, in a survival action, the jury is instructed to award only "such damages as the deceased suffered up to the last moments of his life, and no longer."3
B. Death Claims
In 1891, the Maine Legislature enacted Maine's death act to provide a new, distinct remedy for the death itself. The death statute was not enacted as an alternative means of relief to a survival claim, but rather to "give a new right of action in a class of cases where no means of redress had before existed."4
The original version of the death act permitted the deceased's beneficiaries to recover pecuniary losses caused by the death. .../...
Courts construed the "pecuniary loss rule" broadly to include both tangible losses, e.g., the deceased's future income stream, as well as intangible losses like the "education and training" a deceased parent would have provided to a minor child, or the "attention and kindness" a deceased child would have provided to a parent.5
C. The Early Distinction Between Survival And Death Claims
Although both are triggered by death, survival and death claims are largely distinct from one another. Survival claims belong to the deceased, and are brought by the deceased's estate. Death claims belong to the statutory beneficiaries, typically the surviving spouse or minor children of the deceased. A survival claim permits recovery of damages accrued up until the moment of death. A death claim enables the deceased's beneficiaries to recover for the future benefits that would have been received from the deceased, but for the untimely death.6
Distinguishing pre-death suffering from injuries caused by the death itself is a difficult task for a jury. Juries are asked to "grasp and apply the distinction between a loss which ends at death and a loss which ensues in consequence of death."7
D. The "Immediate Death" Rule
To help ease the distinction between death and survival claims, early case law construing Maine's original death act imposed the additional requirement that death follow "immediately" upon injury.8 Immediacy was determined upon whether the deceased regained consciousness after the injury, not upon much time elapsed between the injury and death. Thus, where an injured person lost consciousness and later died, the death was considered "immediate," even if there was a prolonged period of unconsciousness. But if the injured person regained consciousness, even briefly, the death was not considered "immediate," even if it followed closely on the heels of the injury.
Under the "immediacy rule," if death followed "immediately" after injury, there was no conscious pre-death pain and suffering to recover through a survival claim (although there may have been other damages like medical expenses, etc.). .../...
If the deceased regained consciousness after the injury, he endured conscious pain and suffering that could be recovered through a survival claim, but had no death claim because the "immediacy" requirement was not satisfied. This bright-line distinction between death and survival claims served to avoid the potential for overlapping damages and double recovery.9
However, the "immediacy" rule made little sense. The rule arbitrarily denied recovery to the deceased's beneficiaries, simply because the deceased managed to survive in a conscious state for some period of time before death. Thus, a wife who was entitled to recover for the immediate death of her husband would be denied any recovery if her husband remained conscious for an hour after the injury, and then died.
E. Death And Survival Claims Begin To Overlap: Pre-Death Medical Expenses
In 1939 the death act was amended to allow the personal representative suing for wrongful death to join a count for pre-death medical expenses and hospital care, for the benefit of the estate. Before that amendment, those same damages had been recoverable through a survival claim. The amendment did not supersede the survival claim, but merely supplied a "procedural convenience" as an alternative to a survival action.10
Thus, in a case of "immediate" death where there was no pre-death conscious pain and suffering, a plaintiff no longer needed to bring a separate survival action to recover for pre-death medical expenses and hospital care.11 Of course, if there was pre-death conscious suffering (and therefore no "immediacy"), a survival claim remained the only option.
F. Remedy For Non-Immediate Death: The 1943 Amendment to the Death Act
In 1943, the Maine Legislature amended the death act by adding a new section, 18-A M.R.S.A. 2-804(c), that allows recovery in cases of non-immediate deaths, i.e., those "following a period of conscious suffering." The new section provides that "the person who caused the personal injuries resulting in such conscious suffering and death shall . . . be liable in damages in a separate count in the same action for such death."
By its own terms, the new section 2-804(c) does not derogate pre-existing causes of action, but, to the contrary, applies "in addition to the action at common law and damages recoverable therein."
III. Litigating Death And Survival Claims
The 1943 amendment blurred the line between death and survival claims. For the first time, a death claim could be brought even where the decedent regained consciousness after an injury. At the same time, pre-death conscious pain and suffering continued to be recoverable through a survival claim.
A. Pleading Death Act And Survival Claims
The first question is whether death act and survival claims can or should be pursued within the same action. Historically there was "doubt" as to whether Maine law permitted joinder of death and survival claims,12 but it is now established that death and survival claims may be alleged within the same action.
There are some strict rules. Death and survival claims must be contained in separate counts of the complaint. A single count invoking ß 2-804(c) of the death act is not sufficient to allege both death act remedies as well as survival remedies for the decedent's pre-death conscious suffering. Claims seeking death act remedies must be separated by count from claims seeking survival remedies to "enable the jury to find the amount due for the conscious suffering and to separately find the amount due for the death."13
Additionally, to properly plead death act claims, one must remain cognizant of the statutory distinction between sections 2-804(a) and 2-804(c). Section 2-804(a), the historical death act provision, applies only if the "immediacy rule" is satisfied. .../...
Thus, where the injured person dies without ever regaining consciousness, the death claim is properly alleged under 2-804(a). Conversely, where the injured person does regain consciousness for a time, however brief, the death claim must be alleged pursuant to 2-804(c).
Importantly, whether the death claim falls under 2-804(a) or (c), the definition of statutory beneficiaries, as well as remedies and limitations, set out in 2-804(b), are exactly the same. Contrary to common belief, section 2-804(c) does not duplicate the survival claim by creating a death act remedy for pre-death conscious pain and suffering. Rather, it merely expands the availability of death act remedies to deaths that "follow" a period of conscious suffering.
What does this mean in practice? In means that every death action in which the deceased regains consciousness before death should contain at least two counts — a survival count and a death act count under 2-804(c). This is important, because there are remedies available for a survival claim that are not available in a death claim.
The current death act provides recovery of the following categories, provided the action is commenced within two years of the decedent's death:
- "pecuniary injuries" to the beneficiary;
- medical and funeral expenses to the deceased's estate;
- up to $400,000 in the aggregate to beneficiary for: (a) "loss of comfort, society and companionship" of the deceased; and (b) emotional distress suffered by the beneficiary "arising from the same facts" as the death claim; and
- up to $75,000 in punitive damages. .../...
As you can see, none of these statutory categories provide a remedy for the pain and suffering endured by the deceased from injury until death. The deceased's claim for pre-death injuries must still be alleged as a survival claim. Unlike the beneficiary's death claim, the deceased's survival claim is not subject to either the two-year statute of limitations or the limitations on damages contained in the death act. Of course, any recovery for survival goes to the decedent's estate, not the death act beneficiary, but often the death act beneficiary is also the beneficiary of the estate.
B. When Does A Death Act Claim Pose A Bar To Common Law Claims?
The first step in evaluating whether common law and death act claims can coexist is to distinguish those claims brought by or on behalf of the deceased from those brought by or on behalf of the deceased's beneficiaries. As discussed above, the death act permits direct recovery to the deceased only for medical and funeral expenses. The death act does not provide a remedy to the deceased for pre-death pain and suffering, emotional distress or property damage. Accordingly, the existence of a death act claim never bars the deceased's own common law claims (preserved through the survival statute).
The second step is to determine the identity of the death act beneficiary. The statute identifies beneficiaries in order of priority:
- surviving spouse and minor children;
- surviving spouse (if no minor children);
- children (if no surviving spouse); and
- deceased's "heirs" as defined in the intestacy rules (if no surviving spouse or minor children). .../...
The statutory beneficiary depends upon what relatives of the deceased are alive at the time of his death. If the beneficiary is the deceased's spouse, she remains the beneficiary even if she later dies as well. In other words, death act claims vest in a beneficiary at the time of death; they do not transfer to a second beneficiary if the first dies.
The identity of the statutory beneficiary is important for two reasons. First, damages recoverable under the death act are measured by the impact of the death upon the individual beneficiary. Thus, a spouse might be able to prove a large pecuniary loss, while a distant brother or sister could not. Second, by determining who is the beneficiary, you will have also determined who is not the beneficiary. This is important because while beneficiaries are restricted to recovering under the death act, non-beneficiaries may be entitled to assert common law claims with no limitations on damages.14
C. Death-Act Beneficiaries: Limited To Claims Under The Death Act
In addition to pecuniary losses and medical and funeral expenses, the death act entitles the beneficiary to recover for loss of consortium of the deceased ("society, comfort and companionship"). The statute makes clear that such loss of consortium "includes" damages for "emotional distress arising from the same facts as those constituting the underlying claim."15 The statute caps consortium and emotional distress damages in the aggregate at $400,000.
The Law Court has held that this provision of the statute bars beneficiaries from asserting common law claims arising from the same facts as the death claim.16 For instance, the Court has held that a beneficiary may not assert a bystander liability claim where the fatal accident witnessed by the beneficiary also gave rise to a death claim. Likewise, the Court held that a wife could not assert a loss of consortium claim based upon the withdrawal of her husband following the death of their daughter, where the wife as parent was a beneficiary under the death act.
D. Non-Beneficiaries: Entitled To Pursue Common Law Remedies
Unlike beneficiaries, non-beneficiaries may assert common law claims arising out of the same underlying facts that caused the death. Thus, if a young child dies leaving parents and a sister, the parents, as beneficiaries, are barred from asserting bystander liability claims, but the sister, as non-beneficiary, is not.17 The leads to the curious result that a beneficiary is potentially worse off than a non-beneficiary, because the non-beneficiary can pursue a claim for emotional distress which is not limited to the death act's $400,000 cap.
This makes little sense, as the purpose of the death act was to expand remedies for close family members of the decedent, not narrow them.
It also leads to arbitrary results. For instance, a parent who witnesses a fatal accident to his minor child is barred from asserting a common law bystander claim, because the parent is the death act beneficiary, while a parent who witnesses the same accident to a married adult child could pursue a bystander claim without limitation, because the deceased's spouse, not the parent, is the beneficiary.
E. Exceptions To The Death Act's Bar Against Beneficiary Claims
Those who would otherwise be considered death act beneficiaries can assert common law claims arising out of the same facts underlying the death in two instances: (1) if there is no causal relationship between the alleged negligence and the death; or (2) if the death occurs to an unborn fetus. An example of the first category is where a deceased patient was mistakenly told by her doctor that an earlier diagnosis would have enhanced her chances at recovery, but, as it turns out, the failure to diagnose had no causal relationship to her death. Under those circumstances, the estate of the patient can recover for negligent infliction of emotional distress caused by the conveyance of the misinformation.18
The second category involves death to an unborn fetus. The death act does not apply because an unborn fetus is not a "person" within the meaning of the death act.19 The death act only applies where there has been death to a "person." Accordingly, the woman is not limited by the death act, and may assert her own common claim for negligent infliction of emotional distress arising out of the death to her unborn fetus.
Wrongful death and survival claims continue to coexist and provide valuable alternative approaches for plaintiffs seeking to recover for injuries that lead to death. Plaintiffs' lawyers should always consider pleading both death and survival claims. Additionally, other causes of action, like negligent infliction of emotional distress or loss of consortium, may be available to plaintiffs who do not meet all of the statutory requirements for a wrongful death claim. Where a cause of action exists outside of the death act, plaintiffs can benefit from avoiding the death act's two-year statute of limitations and limitations on damages.
1 - Farrington v Stoddard, 115 F.2d 96, 98 (1st Cir.1940)
2 - 18-A M.R.S.A. § 3-817.
3 - Ramsdell v. Grady, 54 A. 763, 764 (Me. 1903)
4 - Ames v. Adams, 146 A. 257, 258 (Me. 1929).
5 - McKay v. New England Dredging Co., 43 A.29, 30 (Me. 1899).
6 - See Anderson v. Wetter, 69 A. 105, 109 (Me. 1907).
7 - See id.
8 - See Farrington, 115 F.2d at 101.
9 - See State v. Grand Trunk Ry. Co., 61 Me. 114; Sawyer v. Perry, 33 A. 660, 661 (Me. 1895).
10 - See id. at 100.
11 - Farrington, 115 F.2d at 98.
12 - Farrington, 115 F.2d at 102.
13 - Houge v. Roberge, 47 A.2d 727, 729 (Me. 1946).
14 - See Carter v. Williams, 792 A.2d 1093, 1098 (Me. 2002); see also Shields v. St. Joseph Hospital, 2002 WL 31546127, No. CV-98-046 (Sup. Ct. Oct. 24, 2002).
15 - See 18-M.R.S.A. § 2-804(b). In addition to the above, the statute permits the recovery of up to $75,000 in punitive damages.
16 - See Carter, 792 A.2d at 1099.
17 - See Carter, 792 A.2d at 1099.
18 - See Bolton v. Caine, 584 A.2d 615, 616 (Me. 1990).
19 - See Milton v. Cary Medical Center, 538 A.2d 252, 256 (Me. 1988).