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Wrongful Death Actions (Continued from page 26)

on the grounds that grandmother did not qualify as a primary beneficiary). Consequently, traditional marriage is not a prerequisite to primary beneficiary status. Blaw-Knox Constr. Equip. Co. v. Morris, 88 Md. App. 655, 596 A.2d 679 (1991) (although common law marriage is not recognized in Maryland, evidence was sufficient to permit jury to find that plaintiff was decedent’s common law wife for purposes of recovering under the Act). Estranged spouses also qualify as primary beneficiaries. See Baltimore & O. R.R. v. State to use of Chambers, 81 Md. 371, 32 A. 201 (1895) (widow recovered despite her own testimony “that she had not seen or held any communication with [her husband] for a period of from two to three years prior to his death”). Moreover, sub- sequent remarriage does not extinguish the right to recover under the Act. Balti- more 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 pecuniary loss aris- ing out of the death of her husband”). The ruling of the Circuit Court in Deane v. Conaway, Civil No. 24-C-04005390, 2006 WL 148145 (Baltimore City Jan.

20, 2006) (Murdock, J.) (invalidating Md. Fam. Code Ann. § 2-201 as unconstitu- tional), and other similar rulings elsewhere, may further expand the mean- ings of “wife” and “husband” beyond their traditionally understood boundaries. Correspondingly, the definition of “fa-

ther” under the Act is not dependent upon genetics. See Evans v. Wilson, 382 Md. 614, 856 A.2d 679 (2004) (denying re- quest of putative biological father for genetic testing to determine paternity of child born to married couple). In particu- lar, a child born out-of-wedlock may be legitimated by the post-delivery conduct of any man, without regard to whether he is the genetic “father” of the child. Md. Fam. Code Ann. § 1-208; Md. Cts. & Jud. Procs. Code Ann. § 3-904(h). See, e.g., Monroe v. Monroe, 329 Md. 758, 621 A.2d 898 (1993) (in a custody case, court held that actions of non-biological father legitimated child born out-of-wedlock). The existence of a legitimating father- child relationship qualifies the surviving father or child as a primary beneficiary under the Act. Md. Cts. & Jud. Procs. Code Ann. § 3-904(h). But see Bell v. Heitkamp, Inc., 126 Md. App. 211, 728 A.2d 743 (1999) (holding that a putative father’s conduct prior to birth of child could not qualify the child, born after the

father’s death, as a primary beneficiary). If there is no surviving wife, husband,

parent or child of the deceased, then an action will be for the benefit of “second- ary beneficiaries” — “any person related to the deceased person by blood or mar- riage who was substantially dependent upon the deceased.” Section 3-904(b).2


the sole reported case on this subject, the Court of Special Appeals affirmed a ver- dict in favor of the sister and niece of a decedent (who all lived together in one household), holding that the evidence supported a jury finding of substantial dependence, because the decedent’s con- tributions benefited the others greatly and were “of real worth and considerable value” (despite representing only 36% of household income, less in fact than the sister’s own contribution). Ditto v. Stoneberger, 145 Md. App. 469, 805 A.2d 1148 (2002) (thoroughly surveying case law in Maryland and elsewhere). It is important for the practitioner to attempt to identify all potential primary or secondary beneficiaries prior to filing suit. Rule 15-1001(b) provides that all statutory beneficiaries “shall be named as plaintiffs whether or not they join in the action.” Any statutory plaintiffs who do not join the action are designated as “use plaintiffs” and must receive a copy of the complaint by certified mail. Rule 15- 1001(c).3

In this context, hypothetically,

imagine that a father dies as a result of a wrongful act, with a surviving parent and surviving children from several romantic relationships. Even if only one of the chil- dren retains an attorney to pursue the matter, all of the surviving family mem- bers entitled to recover damages under


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).


Technically, it remains an open question whether non-compliance with Rule 15-1001 can be raised as an affirmative defense to li- ability in a wrongful death action; under the former practice, failure to name all plaintiffs was not a defense, Deford v. State ex rel. Keyser, 30 Md. 179, 1869 WL 2820 (1869), and nothing in Rule 15-1001 indicates that the ultimate, drastic sanction of dismissal (rather than an alternative, such as joinder) is an ap- propriate remedy for failure strictly to com- ply with a rule of procedure. See, e.g., Faith v. Keefer, 127 Md. App. 706, 736 A.2d 422 (1999) (failure to comply with discovery rule did not warrant dismissal of wrongful death action).

28 Trial Reporter Spring 2006

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