A Guide to Victim Centered Advocacy in Fatal Criminal Conduct Cases

Below is an outline of a presentation given by firm partners Judson H. Lipowitz and Keith S. Franz.  The outline was written by Judson H. Lipowitz and Paul J. Schwab.

Wrongful Death and Survival Action Law Outline

I.  Wrongful Death Act: Cts. & Jud. Proc. §§ 3-901 – 3-904

A.  Qualified Beneficiaries

1.  Primary – Wrongful death actions are for the benefit of the spouse, the parent, and the child of the deceased person. Cts. & Jud. Proc § 3-904(a)(1)

2.  Secondary – If there are no primary beneficiaries, an action shall be for the benefit of any person related to the deceased person by blood or marriage who was “substantially dependent” upon the deceased. Cts. & Jud. Proc § 3-904(b)

II.  Wrongful Death Action

A.  One Action Rule – Only one action under this subtitle lies in respect to the death of a person. Cts. & Jud. Proc. §3-904(f)

B.  Use-Plaintiffs

1.  Plaintiff – All persons who are or may be entitled by law to damages by reason of the wrongful death shall be named as plaintiffs whether or not they join in the action. The words “to the use of” shall precede the name of any person named as a plaintiff who does not join in the action.  Md. Rule 15-1001(b). Walker v. Essex, 318 Md. 516, 569 A. 2d 645 (1990); Williams v. Work, 192 Md. App. 438, 995 A.2d 744 (2010), aff’d, Ace Am. Ins. Co. v. Williams, 2011 WL 941342 (Md. 2011).

2.  Notice to Use Plaintiff – The party bringing the action shall mail a copy of the complaint by certified mail to any use plaintiff at the use plaintiff’s last known address. Md. Rule 15-1001(c).

3.  Complaint – The complaint shall state the relationship of each plaintiff to the decedent whose death is alleged to have been caused by the wrongful act. Md. Rule 15-1001(d).

C.  Statute of Limitations

1.  Except in the case of “occupational disease,” a wrongful death action must be commenced within three (3) years after the death of the injured person. Cts. & Jud. Proc. §3-904(g)(1)

2.  If an occupational disease was the cause of a person’s death, an action shall be filed within ten (10) years of the time of death or within three (3) years of the date when the cause of death was discovered, whichever is the shorter. Cts. & Jud. Proc. §3-904(g)(2)(ii)

3.  Condition Precedent – The statute of limitations in a wrongful death action is a condition precedent to filing suit and must be affirmatively alleged in the compliant. 

4.  Minority – A minor shall file an action within the lesser of three years or the applicable period of limitations after the date the disability is removed. Cts. & Jud. Proc. § 5-201(a) 

5.  Fraudulent Actions – If the knowledge of a cause of action is kept from a party by the fraud of an adverse party, the cause of action shall be deemed to accrue at the time when the party discovered, or by the exercise of ordinary diligence should have discovered the fraud. Cts. & Jud. Proc. § 5-203

III.  Damages

A.  Noneconomic Damages – In an action for wrongful death, noneconomic damages include damages for each beneficiary’s mental anguish, emotional pain and suffering, loss of society, companionship, comfort, protection, care, marital care, parental care, filial care, attention, advise, counsel, training, guidance, or education, or other noneconomic damages authorized under Title 3, Subtitle 9 of this article. Cts. & Jud. Proc. § 11-108(a)(2)(i)(2); Cts. & Jud. Proc. § 3-904(d)

B.  Economic Damages (“Pecuniary Loss” or “Pecuniary Benefit”) – Economic damages are based on the evidence and the relationship of each plaintiff to the deceased person.

1.  Spouse of Deceased – The economic losses to be considered include the financial support as well as the replacement value of the services that the deceased furnished or probably could have been expected to furnish. You may consider the deceased’s earnings and future earning capacity for the probable time both had been expected to live to determine the amount that the surviving spouse could reasonably have expected to receive. MPJI 10:22

2.  Parent of Deceased Child – The economic losses to be considered are any financial benefits a parent would have been expected to receive from the deceased child. MPJI 10:23

3.  Minor Child of Deceased Parent – The economic losses to be considered include the financial support as well as the replacement value of the services that the deceased furnished or probably would have been expected to furnish. MPJI 10:24

IV.  Damages Awarded In Proportion To Injury

A. Damages may be awarded to the beneficiaries proportioned to the injury resulting from the wrongful death. Cts. & Jud. Proc. § 3-904(c)(1)

B. The amount recovered shall be divided among the beneficiaries in shares directed by the verdict. Cts. & Jud. Proc. § 3-904(c)(2)

V.        Noneconomic Damages Cap

A.  If One Beneficiary – In any action for damages for wrongful death in which the cause of action arises on or after October 1, 1994, an award for noneconomic damages may not exceed $500,000. Cts. & Jud. Proc. § 11-108 (b)(2)(i)

B.  Yearly Increase – The limitation on noneconomic damages shall increase by $15,000 on October 1 of each year beginning on October 1, 1995. The increased amount shall apply to causes of action arising between October 1 of that year and September 30 of the following year, inclusive. Cts. & Jud. Proc. § 11-108 (b)(2)(ii)

C.  If Two or More Beneficiaries – In a wrongful death action in which there are two or more claimants or beneficiaries, an award for noneconomic damages may not exceed 150% of the limitation for one beneficiary, regardless of the number of claimants or beneficiaries who share in the award. Cts. & Jud. Proc. § 11-108 (b)(3)(ii)

D.  Juries Not To Be Informed of Limitations – In a jury trial, the jury may not be informed of the limitation on noneconomic damages. Cts. & Jud. Proc. § 11-108 (d)(1)

E.  Award Reduced Proportionately by Court – In a wrongful death action in which there are two or more claimants or beneficiaries, if the jury awards an amount for noneconomic damages that exceeds the limitation on noneconomic damages, the court shall reduce each individual award of a primary claimant proportionately to the total award of all of the primary claimants so that the total award to all claimants or beneficiaries conforms to the limitation. Cts. & Jud. Proc. § 11-108 (d)(2)(ii)(1)(A)

VI.  Survival Action

A.  Damages – In an action instituted by the personal representative against a tort-feasor for a wrong which resulted in the death of the decedent, the personal representative may recover the funeral expenses of the decedent up to the amount allowed under § 8-106(b) of the Estates and Trusts Article in addition to other damages recoverable in the action.  EST. & TRUSTS § 7-401(y)(2)

1.  Noneconomic Damages

a.  Conscious pain and suffering (between the time of injury and the time of death)

b.  Mental anguish including pre-impact fright

2.  Economic Damages

a.  Funeral expenses up to $5,000 or $10,000

b.  Expenses, including medical expenses (between the time of injury and the time of death)

c.  Loss of wages (between the time of injury and the time of death)

B.  Counsel Fee – An attorney is entitled to reasonable compensation for legal services rendered to the estate and/or the personal representative. Upon the filing of a petition in reasonable detail by the personal representative or the attorney, the court may allow a counsel fee to an attorney employed by the personal representative for legal services. The compensation shall be fair and reasonable in the light of all the circumstances to be considered in fixing the fee of an attorney. Est. & Trusts § 7-602(a)-(b)