The “USE” Plaintiff (Continued from page 9)
or administrator of the deceased for the “use” of any heirs or beneficiaries. This approach, as noted above, is still used by many states today. Maryland first adopted an act pat-
terned after the Lord Campbell’s Act in 1852. The Maryland “Lord Campbell’s Act” has been amended a number of times over the years. However, a consis- tent requirement from the outset, which has never changed, is found in Section 3-904(f) and states: (f) Restriction to one action under this subtitle. Only one action under this subtitle lies in respect to the death of a person.
MD. CODE ANN., CTS. AND JUD. PROC., § 3-904(f) (2008 Replacement Volume). Consistent with only one action being permitted is the requirement of Section 3-904(c) which directs that “the amount recovered shall be divided among the beneficiaries in shares directed by the verdict.” However, although only one action for wrongful death lies in respect to the death of a person, the plaintiff may separately sue different joint tortfeasors since the object of the statute is to pro- tect a defendant from several suits for the same injury. See State v. Boyce, 72 Md. 140, 19 A. 366 (1890). Maryland follows the doctrine that
statutes in derogation of the common law are strictly construed. Since the common law, as stated above, did not recognize an action in either wrongful death or survival, these statutory ac- tions are narrowly construed. Calhoun v. Eagan ex rel. Calhoun, 111 Md. App. 362, 681 A.2d 609 (1996). In addition to the specific statu-
tory sections authorizing both of these causes of action, Maryland has adopted a general statute preventing the abate- ment of a cause of action because of death. Section 6-401, “Effect of death on actions,” states in section (a) that except for slander, “a cause of action at law, whether real, personal, or mixed, survives the death of either party.” MD. CODE ANN., CTS. AND JUD. PROC., § 6-401
Fall 2008 Trial Reporter 11
(2007 Supplement). Chapter 1000 of the Maryland Rules
of Civil Procedure is entitled “Wrongful Death.” Rule 15-1001, effective January 1, 1997, consolidated and replaced for- mer Rules Q 40-44. Since the original adoption of the “Q” Rules in 1965, suits for wrongful death in Maryland are no longer brought in the name of the State and are now brought in the name of the real parties in interest, i.e., the statutory primary or secondary class beneficiaries. Robinson v. Lewis, 20 Md. App. 710, 317 A.2d 854 (1974). Note also that the standing to sue for wrongful death is a procedural and not substantive law issue and therefore determined by application of Rule 15-1001. See Jones v. Prince George’s County, 378 Md. 98, 635 A.2d 632 (2003). Section (a) of Rule 15-1001 makes the
Rule apply to an action involving a claim for damages for wrongful death. Section (b) requires that all persons who “are or may be . . . entitled by law to damages by reason of wrongful death shall be named as plaintiffs whether or not they
join in the action.” For such persons not joining in the action, their names shall be preceded by the words “to the use of.” Section (c) requires that the party bringing the action shall mail a copy of the complaint by certified mail to any “use” plaintiff at that party’s last known address. The party bringing the action must then file proof of mailing consis- tent with the requirements of Rule 2-126 which requires the filing of the “original return receipt.” See Rule 2-126 (a)(3).
Ethical Considerations
Arguably, the requirements of Rule 15-1001 are without parallel in Mary- land law in placing counsel in a real or potential conflict of interest position with his or her clients. An attorney representing some of the beneficiaries in order to comply with the “use” re- quirements for filing the complaint is required to investigate the existence of any other potential beneficiaries. Once
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