Avoiding Wrong Turns (Continued from page 19)


years prior to his death”). Moreover, re- marriage does not extinguish the right to recover. Baltimore Transit Co v. State to use of Castranda, 194 Md. 421, 437, 71 A.2d 442, 448-49 (1950) (“remarriage of a widow neither bars nor mitigates her pe- cuniary loss arising out of the death of her husband”). A parent or child (even an adult child) is almost always a primary beneficiary under the Act. Section 3-904(h). How- ever, the statute does list exceptions — for example, a parent who has commit- ted certain sex crimes is excluded, §␣ 3-904(a)(2),3


and the father of a de-


ceased illegitimate child has no right to recover, unless he satisfies the qualifica- tions spelled out in § 3-904(h).4


Under 3


This restriction was added in 1999 Acts, ch. 685, effective May 29, 1999. Presumably, such parents still may recover where the death occurred before the effective date of the amendment.


4


The qualifications in § 3-904(h) mirror the requirements set forth in Md. Estates & Trusts Code Ann. § 1-208 for determining whether an illegitimate child may inherit from the father.


5


Strictly construing the statute, the Court of Special Appeals in Bell concluded that the definition of the term “person” in section 3- 901(d) does not include a fetus. Bell, 126 Md. App. at 233, 728 A.2d at 753. How- ever, in a case not cited by the Court in Bell, the Court of Appeals held that a viable un- born fetus is a “person” under the Act. State to use of Odham v. Sherman, 234 Md. 179, 198 A.2d 71 (1964). Although the fetus in Bell was not yet viable, it does not appear from the opinion that the Court relied upon that fact in reaching its conclusion.


certain circumstances, an unborn child may become a beneficiary at birth. Lopez v. Maryland State Hwy. Admin., 327 Md. 486, 610 A.2d 778 (1992) (discussing rights of unborn fetus to pursue wrong- ful death claim after birth). But see Bell v. Heitkamp, Inc., 126 Md. App. 211, 728 A.2d 743 (1999).5 It is critical to identify all beneficiaries


before filing suit. Under Rule 15- 1001(b), all of the statutory beneficiaries “shall be named as plaintiffs whether or not they join in the action.” Plaintiffs who do not join the action must be designated as “use plaintiffs” and must receive a copy


of the complaint by certified mail. Rule 15-1001(c).6 In this context, imagine a situation


where a father dies, with surviving chil- dren from relationships with several women. Even if only one such child re- tains an attorney, all of the children entitled to recover damages must be iden- tified and named in the suit. Although failure to join all of the beneficiaries may not be fatal to the action, Deford v. State to use of Keyser, 30 Md. 179, 208 (1869) (defendant had no grounds to appeal from jury verdict on grounds of failure to join all of the decedent’s children as use plain- tiffs), such failure can complicate settlement discussions. See Walker v. Essex, 318 Md. 516, 569 A.2d 645 (1990) (order enforcing settlement of wrongful death action in favor of named plaintiffs vacated on grounds that settlement was not approved by unnamed beneficiaries omitted from the initial complaint). It and may also expose plaintiff’s counsel to li- ability to the unnamed beneficiaries, particularly where the requirements of Rule 15-1001 are not followed.


How Much Is Recoverable? Get Out Your Calculators


Under the Wrongful Death Act, all ben- eficiaries are entitled to recover pecuniary damages resulting from the death of the decedent. Stewart v. United Elec. Light & Power Co., 104 Md. 332, 65 A. 49 (1906) (“The injury for which the equitable plain- tiffs are compensated is the pecuniary loss sustained by reason of the death of the per- son through the wrongful act, neglect, or default of the defendant”). Pecuniary damages include the loss of income and services that the beneficiary reasonably could have expected from the decedent. Carolina Freight Carriers Corp. v. Keane, 311 Md. 335, 339-40, 534 A.2d 1337, 1339-40 (1988); Baltimore & O. R.R. v. State to use of Hauer, 60 Md. 449, (1883) (“the damages to be allowed for the injury sustained should be a compen- sation to the family of the deceased, or


6


This aspect of the wrongful death action raises interesting questions that defy easy resolution. What responsibility does plaintiff ’s counsel have to protect the inter- ests of a use plaintiff? What if the clients specifically instruct plaintiff’s counsel to ex- clude the use plaintiff from the action? Must a use plaintiff be permitted to testify at trial, and if so, then in whose case? And finally, in the absence of a retainer agreement, to what extent must a use plaintiff compensate plaintiff ’s counsel at all?


20 Trial Reporter Fall 2000


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