Fall 2005 #4. Survival and wrongful death claims in Maine.

Author:By Benjamin R. Gideon

Maine Bar Journal


Fall 2005 #4.

Survival and wrongful death claims in Maine

Maine Bar JournalFall 2005SURVIVAL AND WRONGFUL DEATH CLAIMS IN MAINEBy Benjamin R. GideonIn 1940, the First Circuit Court of Appeals observed that the decisional law addressing the interrelationship between Maine's death and survival statutes was "perplexing."(fn1) Not much has changed. Courts and practitioners are still struggling to understand the relationship between these two categories of claims that share at least one thing in common: they both originate with death. This article seeks to clarify some of the confusion surrounding the litigation of survival and death claims.

Survival and Death Act Claims

At common law, it was said to be cheaper for a tortfeasor to kill a person than to scratch him. This was because death extinguished the victim's legal rights and those of the victim's beneficiaries or heirs. In short, when a person died, his legal claims died with him. Maine's survival and wrongful death acts changed this harsh rule.

Survival claims - Maine's survival statute provides that causes of action possessed by a deceased may be pursued after death by the estate, in the name of the personal representative.(fn2) Damages recovered in a survival action go to the estate, not the personal representative in his or her individual capacity, and like other estate assets, are apportioned to all who have a legal interest in the estate, including creditors.

Because the survival statute preserves only those claims possessed by the deceased, it goes without saying that a claim which the deceased never possessed in the first place cannot "survive." At common law, neither the deceased nor the deceased's next of kin could recover for the death itself. Thus, in a survival action, the jury is instructed to award only "such damages as the deceased suffered up to the last moments of his life, and no longer."(fn3)

Death claims - In 1891, the Maine Legislature enacted Maine's death act to provide a new, distinct remedy for the death itself. The death statute was not enacted as an alternative means of relief to a survival claim, but rather to "give a new right of action in a class of cases where no means of redress had before existed."(fn4)

The original version of the death act permitted the deceased's beneficiaries to recover pecuniary losses caused by the death. Courts construed the "pecuniary loss rule" broadly to include both tangible losses, e.g., the deceased's future income stream, as well as intangible losses like the "education and training" a deceased parent would have provided to a minor child, or the "attention and kindness" a deceased child would have provided to a parent.(fn5)

The early distinction between survival and death claims - Although both are triggered by death, survival and death claims are largely distinct from one another. Survival claims belong to the deceased, and are brought by the deceased's estate. Death claims belong to the statutory beneficiaries, typically the surviving spouse or minor children of the deceased. A survival claim permits recovery of damages accrued up until the moment of death. A death claim enables the deceased's beneficiaries to recover for the future benefits that would have been received from the deceased, but for the untimely death.(fn6)

Distinguishing pre-death suffering from injuries caused by the death itself is a difficult task for a jury. Juries are asked to "grasp and apply the distinction between a loss which ends at death and a loss which ensues in consequence of death."(fn7)

The 'immediate death' rule - To help ease the distinction between death and survival claims, early case law construing Maine's original death act imposed the additional requirement that death follow "immediately" upon injury.(fn8) Immediacy was determined upon whether the deceased regained consciousness after the injury, not upon much time elapsed between the injury and death. Thus, where an injured person lost consciousness and later died, the death was considered "immediate," even if there was a prolonged period of unconsciousness. But if the injured person regained consciousness, even briefly, the death was not considered "immediate," even if it...

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