Wrongful Death and Survival Action

The wrongful death statute and the survival statute have different purposes. These causes of action are brought by different persons. The damages are recovered for different reasons. The causes of action, though growing out of the same wrongful act, are entirely different. The wrongful death statute purpose is to provide the decedent’s relatives with recovery for lost support or benefits that would have been provided to them had the decedent not died because of another’s negligence. The survival statute purpose is to provide for the recovery of damages incurred by the deceased during their life that would have been recoverable had they survived. A loss to the decedent’s estate in a survival action concerns only damages sustained by the decedent, not for damages sustained by the decedent’s relatives which are covered by a wrongful death action brought by a Baltimore wrongful death lawyer.

Maryland’s wrongful death statute allows certain relatives of a victim who died to bring a cause of action for injuries to them as a result of the death. The damages recoverable under a wrongful death claim include pecuniary losses to the claimant as a result of the decedent’s death, such as medical and funeral expenses, emotional pain and suffering, and loss of support, as well as non-pecuniary damages. The wrongful death statutes purpose is to provide decedent’s relatives with an award for the lost support that they would have received had the decedent not died.

Whereas, the purpose of the survival statute is to provide for the recovery of damages, sustained by the decedent in life, which the decedent could have recovered had he survived.

Separate Causes of Action Under Each Claim· A wrongful death action and a survival action, though growing out of the same wrongful or negligent act, are two separate causes of action. An action for wrongful death is a cause of action, that can be brought by relatives of the decedent. A survival action is an existing cause of action that survives the decedent and can be pursued by the personal representative on the decedent’s behalf.

1.  Wrongful Death Act: Cts. & Jud. Proc. §§ 3-901 – 3-904
2.  Qualified Beneficiaries
3.  Primary– Wrongful death actions are for the benefit of the spouse, the parent, and the child of the deceased person. Cts. & Jud. Proc § 3-904(a)(1)
4.  Secondary– If there are no primary beneficiaries, an action shall be for the benefit of any person related to the deceased person by blood or marriage who was “substantially dependent” upon the deceased. Cts. & Jud. Proc § 3-904(b)
5.  Statute of Limitations
6.  Except in the case of “occupational disease,” a wrongful death action must be commenced within three (3) years after the death of the injured person. Cts. & Jud. Proc. §3-904(g)(1)
7.  If an occupational disease was the cause of a person’s death, an action shall be filed within ten (10) years of the time of death or within three (3) years of the date when the cause of death was discovered, whichever is the shorter. Cts. & Jud. Proc. §3-904(g)(2)(ii)
8.  Condition Precedent– The statute of limitations in a wrongful death action must be affirmatively alleged in the complaint.
9.  Minority– A minor shall file an action within three years of their 18^th birthday. Cts. & Jud. Proc. § 5-201(a)

III.  Damages

1. Noneconomic Damages– In an action for wrongful death, noneconomic damages include damages for each beneficiary’s mental anguish, emotional pain and suffering, loss of society, companionship, comfort, protection, care, marital care, parental care, filial care, attention, advise, counsel, training, guidance, or education, or other noneconomic damages authorized under Title 3, Subtitle 9 of this article. Cts. & Jud. Proc. § 11-108(a)(2)(i)(2); Cts. & Jud. Proc. § 3-904(d)

2.  Economic Damages (“Pecuniary Loss” or “Pecuniary Benefit”)– Economic damages are based on the evidence and the relationship of each plaintiff to the deceased person.

3.  Spouse of Deceased– The economic losses to be considered include the financial support as well as the replacement value of the services that the deceased furnished or probably could have been expected to furnish. You may consider the deceased’s earnings and future earning capacity for the probable time both had been expected to live to determine the amount that the surviving spouse could reasonably have expected to receive. MPJI 10:22
4.  Parent of Deceased Child– The economic losses to be considered are any financial benefits a parent would have been expected to receive from the deceased child. MPJI 10:23
5. Minor child

A parent is entitled to recover for the loss of services of a child resulting from the negligent injuring of the latter by another, as long as such loss can be proven. Hudson v. Hudson, 226 Md. 521, 174 A.2d 339 (1961). In Maxworthy v. Horn Elec. Serv., Inc., 452 F.2d 1141 (4th Cir. 1972), a jury award of $ 30,000 to a father for the loss of services and medical expenses of a four-year-old daughter was affirmed on appeal. The parent must be able to show that he or she was entitled to the services and that the services were actually lost. PROSSER, LAW OF TORTS, 4TH ED., p. 890.

1. Adult child

Maryland has not addressed the question of whether the deprivation of reasonably expected services from an adult child who has been negligently injured is compensable to the parents. There is no apparent reason that the services received from a minor child may be a compensable element of damages whereas the same services from an adult child should be regarded as non-compensable. However, the historic Maryland position respecting the compensation for expected services of children who have been killed must be considered. There the court examined the Maryland position under early cases holding that parents of a deceased child were restricted to claims for pecuniary loss sustained during the child’s minority because of the “speculative” character of services which might be received after minority. The court held that this precedent did not permit restricting claims of solatium to the child’s minority. Consequently, parents who have been deprived of services from an injured adult child may find these losses compensable despite the old Maryland authority to the contrary in death cases.

1. Prenatal injuries

A viable child injured while en ventre sa mere may recover for the injuries sustained by the child, whether born alive or not. Odham v. Sherman, 234 Md. 179, 198 A.2d 71 (1964); Damasiewicz v. Gorsuch, 197 Md. 417, 79 A.2d 550 (1951). Maryland also recognizes a cause of action for the wrongful death of a live-born child, even if the child sustained the actionable injuries prior to viability. Group Health Ass’n, Inc. v. Blumenthal, 295 Md. 104, 453 A.2d 1198 (1983).

An injured pregnant woman may, as part of her injury claim, recover for loss of a fetus. Smith v. Borello, 370 Md. 227, 804 A.2d 1151 (2002).

3.  Minor Child of Deceased Parent– The economic losses to be considered include the financial support as well as the replacement value of the services that the deceased furnished or probably would have been expected to furnish. MPJI 10:24

A minor child may recover for the loss of parental services in a wrongful death action. Yet recovery has almost universally been denied in situations where negligent injury may have caused irreparable damage short of death.

4. Damages A. Statutory Caps on Damages There is no cap on economic damages (medical bills, lost wages, property damages) or punitive damages.
5. Death cases require the giving of an instruction, when requested, that lost earnings should be reduced to present value, and it is reversible error to fail to give such an instruction. Walston v. Sun Cab Co., Inc., 267 Md. 559, 298 A.2d 391 (1973). That holding was extended to all personal injury actions by the Court of Appeals in Dennis v. Blanchfield, 48 Md. App. 325, 428 A.2d 80 (1981), modified, 292 Md. 319, 438 A.2d 1330 (1982). However, the Court of Appeals expressly reserved decision on this question. Blanchfield v. Dennis, 292 Md. 319, 322, n.3, 438 A.2d 1330, 1332, n.3 (1982). Historically, Maryland has not required that future lost earnings in personal injury (as opposed to death) actions be reduced to present value. Hutzell v. Boyer, 252 Md. 227, 237-38, 249 A.2d 449, 455 (1969). In personal injury actions, the defendant may introduce evidence of present value, but may not ask that the jury be given a present value instruction in the absence of such evidence.

Income tax consequences

In personal injury actions, the jury must be instructed, upon request, as to the federal and state income tax exclusion of personal injury awards. Blanchfield v. Dennis, 292 Md. 319, 438 A.2d 1330 (1982). The court in Blanchfield left open the question of whether an economist must take taxes into account in the calculations. If he or she does so, the tax on investment income should also be considered in reducing to present value.

Inflationary factors and increased cost of living may be considered in an award for impaired earning capacity, especially when there is evidence of reduction of damages to present value, but such factors should be based upon competent information and expert testimony so as not to be speculative. It would appear that the “increased productivity” factor would be subject to the same analysis.

1. Noneconomic Damages Cap

2.  If One Beneficiary– In any action for damages for wrongful death in which the cause of action arises on or after October 1, 1994, an award for noneconomic damages may not exceed $500,000. Cts. & Jud. Proc. § 11-108 (b)(2)(i)

3.  Yearly Increase– The limitation on noneconomic damages shall increase by $15,000 on October 1 of each year beginning on October 1, 1995. The increased amount shall apply to causes of action arising between October 1 of that year and September 30 of the following year, inclusive. Cts. & Jud. Proc. § 11-108 (b)(2)(ii) Therefore, after October 1, 2017 the cap has increased to $845,000.00. The cap will continue to increase by $15,000.00 per year for every year that passes after October 1, 2017.

4.  If Two or More Beneficiaries– In a wrongful death action in which there are two or more claimants or beneficiaries, an award for noneconomic damages may not exceed 150% of the limitation for one beneficiary, regardless of the number of claimants or beneficiaries who share in the award. Cts. & Jud. Proc. § 11-108 (b)(3)(ii). Therefore, after October 1, 2017 the cap has increased to $1,267,500.00. The cap will continue to increase by $15,000.00 per year for every year that passes after October 1, 2017.

1. Punitive damages

The “cap” does not apply to punitive damages. Cts. & Jud. Proc. § 11-108(a)(2).

1.  Survival Action
2.  Damages– In an action instituted by the personal representative against a tort-feasor for a wrong which resulted in the death of the decedent, the personal representative may recover the funeral expenses of the decedent up to the amount allowed under § 8-106(b) of the Estates and Trusts Article in addition to other damages recoverable in the action.  EST. & TRUSTS § 7-401(y)(2)
3.  Noneconomic Damages
4.  Conscious pain and suffering (between the time of injury and the time of death)
5.  Mental anguish including pre-impact fright

Plaintiff may recover for mental suffering from the moment he or she sees the danger until the time of impact if physical injury results from the impact.

2.  Economic Damages
3.  Funeral expenses up to $5,000 or $10,000
4.  Expenses, including medical expenses (between the time of injury and the time of death)
5.  Loss of wages (between the time of injury and the time of death)

3. Punitive damages