those entitled, equivalent to the pecuni- ary benefits which they might have reasonably expected from the continuance of his life”). An award of future pecuni- ary damages must be reduced to present value. Sun Cab Co. v. Walston, 15 Md. App. 113, 128-29, 289 A.2d 804, 813 (1972), aff ’d, 267 Md. 559, 575, 298 A.2d 391, 400 (1973). Additionally, § 3-904(d) and (e) per- mit primary beneficiaries — spouses, parents and children — to recover dam- ages for “mental anguish, emotional pain and suffering, loss of society, companion- ship, comfort, protection, marital care, parental care, filial care, attention, advice, counsel, training, guidance, or educa- tion.”7
Although these “solatium
damages” are not reduced to present value, they may be subject to Maryland’s cap on non-economic damages, Md. Cts. & Jud. Procs. Code Ann § 11-108. Anchor Pack- ing Co. v. Grimshaw, 115 Md. App. 134, 152-55, 692 A.2d 5, 14-15 (1997), va- cated on other grounds sub nom. Porter-Hayden Co. v. Bullinger, 350 Md. 452, 713 A.2d 962 (1998). The cap ap-
plies only where injury or death arose af- ter October 1, 1994.8 It generally has been held that puni-
8 7
Prior to October 1, 1997, only primary ben- eficiaries identified in § 3-904(d) were au- thorized to recover solatium damages. Regrettably, the contorted syntax of § 3-
904(e) renders the entitlement of all primary beneficiaries to solatium damages somewhat difficult to decipher. Under § 3-904(d), so- latium damages are authorized for the death of a spouse, a minor child, the parent of a minor child, and certain adult children. Under § 3-904(e), solatium damages are authorized for the death of all other children and all other parents. Taking both subsec- tions together, all primary beneficiaries are now entitled to solatium damages.
Effective October 1, 1994, § 11-108 was amended to include awards in wrongful death actions. At that time, the Legislature increased the cap from $␣ 350,000.00 to $␣ 500,000.00, and a provision was added to increase the cap by $ 15,000.00 on October 1 each year thereafter. Moreover, where there are two or more beneficiaries in a single wrongful death action, the applicable cap is multiplied by 150%. As a result of these changes, determining the applicable cap in a wrongful death ac- tion requires some mathematical calculation. Where only one beneficiary is involved, the applicable cap is equal to $␣ 500,000.00 plus $ 15,000.00 for each full year that elapsed between October 1, 1994 and the date of death. If two or more beneficiaries are in- volved, the cap is multiplied by 150%. An illustration: Decedent Doe died De- cember 15, 1998, with only a surviving spouse. Because four years elapsed between October 1, 1994 and December 15, 1998, the applicable cap is $␣ 560,000.00. Alter- natively, if Doe also had had an eligible sur- viving minor or adult child or an eligible surviving parent (remember the eligibility problems associated with fathers of illegiti- mate children — § 3-904(h)!), then the cap would have been increased to $␣ 840,000.00 ($␣ 560,000 x 1.5). Correspondingly, if Doe had died June 15, 1998, then the applicable cap would have been $␣ 545,000.00 for a single eligible beneficiary or $␣ 817,500.00 for two or more eligible beneficiaries. Of course, the cap on non-economic dam- ages violates the rights of Maryland citizens secured by, inter alia, the State Constitution and the Maryland Declaration of Rights, on grounds not yet addressed by any Maryland appellate court. At the present time, a num- ber of MTLA members are working in con- cert to overturn the cap in several appeals, including one wrongful death action involv- ing the author of this article. However, the unconstitutionality of the cap is also beyond the scope of this article.
tive damages are not recoverable in a wrongful death action. United States v. Streidel, 329 Md. 533, 552, 620 A.2d 905, 915 (1993) (citing Smith v. Gray Concrete Pipe Co., 267 Md. 149, 158- 159, 297 A.2d 721, 726-727 (1972)); Baltimore & O. R.R. v. State to use of Kelly, 24 Md. 271 (1866); State to use of Coughlan v. Baltimore & O. R.R., 24 Md. 84 (1866). But see U.S. Gypsum Co. v. Mayor and City Council of Balti- more, 336 Md. 145, 185, 647 A.2d 405, 424-25 (1994) (“in a non-intentional tort action where damages are sought for per- sonal injury or wrongful death, we have held that punitive damages are recover- able if the defendant acted with actual malice”) (emphasis added) (citing Eagle- Picher v. Balbos, 326 Md. 179, 233-234, 604 A.2d 445, 471-472 (1992)). Where there are two or more benefi- ciaries, damages are distributed “proportioned to the injury resulting from the wrongful death.” §␣ 3-904(c)(1). The jury verdict should specify how the award is to be distributed, § 3-904(c)(2), and although failure to ask the jury to specify the distribution is not fatal to the claim, Passapae v. Oehring, 141 Md. 60, 118 A. 130 (1922), a conflict of interest is gen- erated for the plaintiff’s attorney when multiple clients must divide a finite award. See Scamardella v. Illiano, 126 Md. App. 76, 88-89, 727 A.2d 421, 427 (1999) (settlement of wrongful death action gen- erated conflict of interest for plaintiff’s attorney where multiple beneficiaries had not previously agreed to the distribution of proceeds; the conflict was resolved when all beneficiaries obtained indepen- dent counsel).
What Limitations Apply? No Discovery Rule For
Wrongful Death Action, But . . . No discussion of the pitfalls of litiga- tion would be complete without a
(Continued on page 22)
Fall 2000
Trial Reporter
21
Page 1 |
Page 2 |
Page 3 |
Page 4 |
Page 5 |
Page 6 |
Page 7 |
Page 8 |
Page 9 |
Page 10 |
Page 11 |
Page 12 |
Page 13 |
Page 14 |
Page 15 |
Page 16 |
Page 17 |
Page 18 |
Page 19 |
Page 20 |
Page 21 |
Page 22 |
Page 23 |
Page 24 |
Page 25 |
Page 26 |
Page 27 |
Page 28 |
Page 29 |
Page 30 |
Page 31 |
Page 32 |
Page 33 |
Page 34 |
Page 35 |
Page 36 |
Page 37 |
Page 38 |
Page 39 |
Page 40 |
Page 41 |
Page 42 |
Page 43 |
Page 44 |
Page 45 |
Page 46 |
Page 47 |
Page 48