SJC rules wrongful death claims are derivative.

Byline: Kris Olson

The issue was straightforward enough, as was its resolution.

The question posed to the Supreme Judicial Court in two companion cases decided on Feb. 27 was whether the state's wrongful death statute, G.L.c. 229, 2, provides rights to statutory beneficiaries that are "derivative" or "independent" from what would have been the decedent's own cause of action for the injuries causing his death.

By deciding that they are derivative, the SJC determined that contracts entered into by a decedent or on his behalf are binding on the beneficiaries of a wrongful death claim.

In GGNSC Administrative Services, LLC, et al. v. Schrader, the contract was an arbitration agreement that would force out of federal court the daughter and personal representative of a woman whose death was allegedly caused by a nursing home's negligence.

In Doherty v. Diving Unlimited International, Inc., et al., the agreement was a release from liability and a covenant not to sue that the decedent had signed just before drowning during a scuba diving expedition.

While the nursing home case was merely about forum selection, the scuba diving case illustrates that, with respect to the death resulting from a risky recreational activity, the SJC's ruling may leave survivors without a remedy after the loss of a family member who may have been a primary source of income, which even defense attorneys acknowledge is a harsh result.

Whether the Legislature intervenes to reduce that impact or what some fear will be an unfortunate spike in the use of arbitration agreements in the nursing home context remains to be seen.

In the meantime, the court has brought newfound clarity to a longstanding murky issue, which is bound to have an impact in several respects, attorneys say.

The full text of Schrader, Lawyers Weekly No. 10-035-20 (22 pages), can be found here. The full text of Doherty, Lawyers Weekly No. 10-036-20 (seven pages), can be found here.

Basis of decision

The "meat" of the SJC's decision is laid out in its holding in the Schrader case, in which the court was responding to a question certified by the 1st U.S. Circuit Court of Appeals.

The SJC explained that, by characterizing claims of beneficiaries under a wrongful death statute as "derivative," it would be saying that "wrongful death liability is but an extension of the decedent's personal injury claim." In other words, beneficiaries would be able to sue only if the decedent would still be in a position to sue if...