Avoiding Wrong Turns in


Wrongful Death Actions by George S. Tolley, III


George S. Tolley, III is an attorney with Dugan & Jakubowski, P.A., in Timonium. He practices in the areas of medical malpractice, product liability and catastrophic personal injury. In his spare time, he enjoys reading 19th century case law.


Another serious accident has claimed another life. The surviving family mem- bers come to you for guidance, including assistance in pursuing their claims arising from the wrongful death of their loved one. Can you represent the clients well, without becoming a defendant yourself? This article will outline the wrongful death action in Maryland. Along the way, the article will raise some of the unusual issues involved in wrongful death litiga- tion.


At the outset, reference must be made to the historical distinction in Maryland between the wrongful death action — brought to compensate beneficiaries for their losses — and the survival claim — brought to compensate the estate for the damages and losses that the decedent might have recovered, if death had not ensued. Beynon v. Montgomery Cablevision L.P., 351 Md. 460, 474-75, 718 A.2d 1161, 1168 (1998); Stewart v. United Elec. Light & Power Co., 104 Md. 332, 65 A. 49 (1906). The survival claim is governed by Md. Estates & Trusts Code Ann. § 7-401(x) and Md. Cts. & Jud. Procs. Code Ann. §␣ 6-401. Survival ac- tions are not within the scope of this article. Wrongful death claims are governed by


the Maryland Wrongful Death Act, Md. Cts. & Jud. Procs. Code Ann. § 3-901 through 3-904, in conjunction with Rule 15-1001 (formerly Rules Q40 through Q44). Enacted in derogation of the com- mon law rule that no tort action existed for the death of a human being,1


the 1


This common law rule was first stated, in Baker v. Bolton, 1 Camp. 493, 170 Eng. Rep. 1033 (nisi prius 1808) (“in a civil court, the death of a human being cannot be com- plained of as an injury”). The rule was sim- ply stated, without citation to authority or even supportive reasoning. Recently, legal historians have questioned whether the American Colonies adopted or followed that particular “rule” of common law. See, e.g., Moragne v. State Marine Lines, Inc., 398 U.S. 375, 381, 90 S. Ct. 1772, 1777-78 (1970) (“Our analysis of the his- tory of the common law rule indicates that


Fall 2000


Wrongful Death Act is strictly construed by the Maryland courts. See, e.g., Weimer v. Hetrick, 309 Md. 536, 554, 525 A.2d 643, 652 (1997) (“The Maryland statute is in derogation of the common law and as such, should be strictly construed”). Because the courts strictly construe the


statutory language when deciding issues of law under the Wrongful Death Act, every lawyer preparing a wrongful death action would be well-advised to read and re-read these materials before filing suit, and again before the trial.


Who Can Sue?


More Plaintiffs Than You Might Think When preparing a wrongful death ac- tion, the attorney first must identify the class of plaintiffs, often called “beneficia- ries,” eligible to recover under the Act. In many cases, the class of plaintiffs will be


it was based on a particular set of factors that had [by 1886] long since been thrown into discard even in England, and that had never existed in this country at all”) (emphasis added). Some legal commentators posit that, if the common law recognized an action for wrongful death, then wrongful death stat- utes may in fact represent unconstitutional restrictions on the rights of parties to such actions. See Johnathan S. Massey and Ned Miltenberg, “Wrong ideas about wrongful death statutes,” TRIAL at 24 (ATLA Janu- ary 1997). An analysis of early Maryland colonial and state practices with regard to claims for wrongful death falls beyond the scope of this article.


limited to immediate family members, such as the spouse and minor children. In other cases, however, the list of benefi- ciaries may include folks who never came to your office. The starting point for determining who can sue for wrongful death is the statutory language. Section 3-904(a)(1) of the Act lists the “primary beneficiaries” — the wife, husband, parent, and child of the deceased person. If there are no primary beneficiaries, then a wrongful death action may be brought for the ben- efit of “secondary beneficiaries” — “any person related to the deceased person by blood or marriage who was substantially dependent upon the deceased.” Section 3-904(b).2


If any primary beneficiaries


exist, then no secondary beneficiary may recover. Flores v. King, 13 Md. App. 270, 274, 282 A,2d 521, 523 (1971). The list of primary beneficiaries in § 3-904(a) makes no distinction for troubled marriages; accordingly, even an estranged spouse may recover for wrong- ful death. See Baltimore & O. R.R. v. State to use of Chambers, 81 Md. 371, 32 A. 201 (1895) (widow recovered de- spite her testimony “that she had not seen or held any communication with [her husband] for a period of from two to three


(Continued on page 20) 2


For actions arising prior to October 1, 1997, section 3-904(b) restricts the class of second- ary beneficiaries to relatives “wholly depen- dent” upon the decedent.


MICHAEL A. CONTE, PH.D. Economic Analysis & Damages


Applied Data Resources, Inc. P.O. Box 32176, Baltimore, MD 21208 410-484-6624


Trial Reporter 19


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