The “USE” Plaintiff in Maryland Wrongful Death Cases: Some Ethical Observations by Robert R. Michael
Introduction This article offers some limited obser-
vations regarding the ethical challenges that may confront an attorney handling a wrongful death case in Maryland where the “use” plaintiff procedure is involved. My law partner, George W. Shadoan, Esquire, read an early rough draft of this article and warned that this “topic is dangerous territory” and noted that I was “marking a trail through a largely unmapped swamp.” It is appropriate to begin with this warning in mind. Unlike most other states, Maryland
has two independent causes of action for the negligent death of a person: wrongful death and survival. Differences between the two causes of action were sharply defined in Stewart v. United Elec. Light & Power Co., 104 Md. 332, 65 A. 49 (1906); Smith v. Gray Concrete Pipe Co., 267 Md. 149, 297 A.2d 721 (1972); over- ruled on other grounds, Owens-Illinois, Inc. v. Zenobia, 325 Md. 420, 601 A.2d 633 (1992); and Benyon v. Montgomery Cablevision Ltd. Partnership, 351 Md. 460, 718 A.2d 1161 (1998). Under the Maryland statutory scheme, an action for wrongful death is brought for the benefit of the wife, husband, parent, and child of the deceased person. MD. CODE ANN., CTS. AND JUD. PROC., § 3-904(a)(1) (2008 Replacement Volume). If there are no such persons, an action for wrongful death may be brought for the benefit of any person related to the decedent by blood or marriage who was “wholly dependent” on the decedent for cases arising before October 1, 1997, and “sub- stantially dependent” on the decedent for cases arising on or after October 1, 1997. See § 3-904(b). There are two classes of beneficiaries entitled to recover in a wrongful death action. The pri- mary class of beneficiaries are the wife,
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husband, parent, and child (whether minor or adult) of the deceased. The secondary class of beneficiaries consists of persons related to the decedent by blood or marriage who were dependent on the decedent. It is noteworthy that the statute is in the disjunctive, and the secondary class of beneficiaries cannot present a claim where there are any primary class beneficiary members. See Flores v. King, 13 Md. App. 270, 282 A.2d 521 (1971). In contrast, many other states require a cause of action to be brought exclusively
and ethical challenges for the plaintiff ’s attorney who is compelled by rule to file a lawsuit on behalf of plaintiffs the attorney does not represent and with whom the attorney may have a real or potential conflict of interest.
The Maryland Statutory and Rule Requirements
Under the common law, the right to
tort recovery for an injury causing death died with the plaintiff: “The common law not only denied
Unlike most other states, Maryland has two independent causes of action for the negligent death of a person: wrong- ful death and survival.
in the name of the personal representa- tive, executor, or administrator of the estate. When a wrongful death case is settled or results in judgment in these jurisdictions, the proceeds are distrib- uted according to statute. This scheme reduces conflict since all potential takers are represented by one plaintiff who is then charged with the responsibility of applying the statutory scheme in distrib- uting the proceeds. Maryland has a public policy that
a defendant should not be “vexed” by several suits instituted by or on behalf of different plaintiffs for the same injury when all the parties could be joined in one proceeding. Walker v. Essex, 318 Md. 516, 569 A.2d 645 (1990). Under modern practice, a plaintiff is required to account for and name in the complaint all potential takers, even those who do not join in the suit. See discussion of Rule 15-1001 of the Maryland Rules of Procedure below. This requirement by statute and case law creates both legal
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a tort recovery for injury once the tort victim had died, it also refused to recognize any new and indepen- dent cause of action in the victim’s dependents or heirs for their own loss at his death.” Prosser & Keeton on Torts § 127 at 945 (W. Page Keeton 5th ed. 1984). In response to this harsh rule, the English leg- islature created a cause of action for wrongful death by enacting the Fatal Accidents Act of 1846, also known as Lord Campbell’s Act. 9 & 10 Vict. c. 93. Every American state subsequently adopted its own wrongful death statute.” S. Speiser, Recovery for Wrongful Death 2d Ap- pendix A (1975, 1988 Supp.).
Walker v. Essex, 318 Md. at 522. It is noteworthy that under the Eng-
lish Lord Campbell’s Act, the statutory scheme authorizes a single cause of ac- tion which is brought by the executor
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