Wrongful Death Actions

If a person dies due to the fault of another, a suit may be brought to recover damages that the statutory beneficiaries sustained as a result of the death[i].

A wrongful death statute provides that whenever the death of a person is caused by a wrongful act, neglect or default and the act, neglect or default is such as would, if death had not resulted, have entitled the party injured to maintain an action and recover damages, then the person who is liable if death had not resulted is liable for damages[ii].

The statute further provides that every action for wrongful death should be brought by and in the name of the personal representative of the deceased person. The amount recovered in every such action is for the exclusive benefit of the beneficiaries.

The purpose of a wrongful death statute is to compensate certain enumerated relatives of the deceased for the pecuniary loss occasioned to them through deprivation of the part of the earnings of the deceased which they would have received from him had he lived[iii].

The right of action for wrongful death is purely statutory and no right of action for wrongful death exists at common law[iv].  Therefore, because wrongful death actions are purely statutory, they exist only in the form and with the limitations chosen by the legislature.

In a wrongful death suit, the amount recovered is for the exclusive benefit of the surviving spouse and the next of kin of such deceased person[v].  Thus, the action is not for damages sustained by the decedent, but for damages to his/her family caused by the death.  The action does not compensate the decedent’s estate.

In an action for wrongful death, the surviving spouse, children, and parents of the decedent are all rebuttably presumed to have suffered damages by reason of the wrongful death[vi].  The right of the wrongful death beneficiaries to recover damages arises as a result of the suffering incurred by reason of the wrongful death of the decedent.

While the action itself arises out of the death of the decedent, the action is brought for the exclusive benefit of the decedent’s next of kin.  Therefore, a plaintiff’s injury in a wrongful death action occurs when the victim dies[vii].  Further, a wrongful death action can not arise until the date of the victim’s death.

The beneficiaries who may recover wrongful death action damages are[viii]:

  • The surviving spouse and child or children of the deceased, or either the spouse or the child or children.
  • The surviving father and mother of the deceased, or either of them if he left no spouse or child surviving.
  • The surviving brothers and sisters of the deceased, or any of them, if he left no spouse, child, or parent surviving.
  • The surviving grandfathers and grandmothers of the deceased, or any of them, if he left no spouse, child, parent, or sibling surviving.

A wrongful death statute grants no rights to the deceased[ix].  The statute provides a cause of action only to the living relatives or heirs of the deceased.

Similarly, a wrongful death act does not give a new cause of action but substitutes the right of the representative to sue in the place of the right which the deceased himself would have had if he had survived[x].

The cause of action contemplated by a statute is the tort which produces death and not the death caused by the tort[xi]. An action will not lie unless death follows the wrongful act which occasions it. However, death is not the tort but simply its consequence or result.

In the case of the death of an insured, the settlement proceeds under an uninsured motorist provision are to be distributed among those persons who are entitled by statute to bring a wrongful death action[xii].

In Clark v. Scarpelli, 91 Ohio St. 3d 271 (Ohio 2001), the court held that in attempting to limit wrongful death damages, insurers are not required to use the exact wording set forth in a statute or any other specific language.

When an insurance provider pays proceeds for the wrongful death of a policyholder, those proceeds are characterized as damages recovered by a personal representative regardless of how or why they are paid

As such, the damages recovered from an insurance provider are considered to have been recovered in an action brought by the personal representative of the decedent for the benefit of the statutory beneficiaries[xiii].

A wrongful death cause of action arises at the time of death and the law effective on the date of death applies to the wrongful death action[xiv].

In states where there is no specific statutory language governing venue in wrongful death cases, three approaches have emerged for determining where a cause of action for wrongful death arises or accrues for venue purposes[xv].

The three categories depend upon whether the state bases venue in the county where the death occurred, in the county where the injury occurred, or recognizes proper venue in both the counties where the death and the injury occurred.

In some jurisdictions, a wrongful death claim accrues and venue is proper in the county where the negligent acts which led to the death occurred.  In other jurisdiction, venue in a wrongful death action is proper in either the place of the injury causing death or the place of death.  Yet in some other jurisdiction, venue in a wrongful death action is proper at the place of death in addition to the county where the negligence leading to the death occurred.

The wrongful death action is not considered to be a derivative cause of action[xvi].  Rather, the wrongful death action is an independent and distinct action that arises even in the absence of a viable personal injury action by the direct tort victim and compensates the beneficiaries for their own individual injury arising out of the victim’s death.  The wrongful death cause of action therefore cannot be regarded as a secondary layer of tort liability to the primary victim[xvii].

However, a wrongful death action is derivative of the injury which would have supported the decedent’s own cause of action and is dependent upon the decedent’s cause of action being viable at the time of death[xviii].  As a general rule, no action for wrongful death can be maintained where the decedent, had he lived, could not himself have recovered for the injuries sustained.

The survival action and the wrongful death action are two different causes of action that arise at different times[xix]. Although both actions arise from a common tort, survival and wrongful death actions are separate and distinct.  Each right arises at a different time and addresses itself to the recovery of damages for totally different injuries and losses.

The survival action comes into existence simultaneously with the existence of the tort and is transmitted to beneficiaries upon the victim’s death and permits recovery only for the damages suffered by the victim from the time of injury to the moment of death.  It is in the nature of a succession right.  On the other hand, the wrongful death action does not arise until the victim dies and it compensates the beneficiaries for their own injuries which they suffer from the moment of the victim’s death and thereafter.   Wrongful death damages compensate beneficiaries for their own injuries.

However, if wrongful death and survival actions related to the same death are brought independently, they must be consolidated for trial[xx].

An action for wrongful death must be brought within two years of the death[xxi].  However, if at the time of death a negligence action, based on the injuries that led to the death, would have been time barred, the wrongful death action is also time barred.

The statute of limitations for a wrongful death claim begins to run when a pecuniary loss is sustained by the beneficiaries of the person who has died due to the tort of another[xxii].  This, invariably, is the date of death.

Since, death is not an event that is indefinite as to time of its occurrence and because survivors are immediately put on notice that they may proceed to determine the cause of death, the courts will not regard the cause of action for death as accruing at any time other than at death.

[i] Walls v. American Optical Corp., 740 So. 2d 1262 (La. Sept. 8, 1999)

[ii] 18-A M.R.S. § 2-804

[iii] Sunderland v. R.A. Barlow Homebuilders, 2002 PA Super 16 (Pa. Super. Ct. 2002)

[iv] Storm v. McClung, 334 Ore. 210 (Or. 2002)

[v] Mio v. Alberto-Culver Co., 306 Ill. App. 3d 822 (Ill. App. Ct. 2d Dist. 1999)

[vi] Clark v. Scarpelli, 91 Ohio St. 3d 271 (Ohio 2001)

[vii] Walls v. American Optical Corp., 740 So. 2d 1262 (La. Sept. 8, 1999)

[viii] Id

[ix] Shaw v. Jendzejec, 1998 ME 208 (Me. 1998)

[x] Holt v. Grange Mut. Cas. Co., 79 Ohio St. 3d 401 (Ohio 1997)

[xi] Sunderland v. R.A. Barlow Homebuilders, 2002 PA Super 16 (Pa. Super. Ct. 2002)

[xii] Holt v. Grange Mut. Cas. Co., 79 Ohio St. 3d 401 (Ohio 1997)

[xiii] Id

[xiv] Walls v. American Optical Corp., 740 So. 2d 1262 (La. Sept. 8, 1999)

[xv] Sunderland v. R.A. Barlow Homebuilders, 2002 PA Super 16 (Pa. Super. Ct. 2002)

[xvi] Ferrell v. Fireman’s Fund Ins. Co., 696 So. 2d 569 (La. July 1, 1997)

[xvii] Walls v. American Optical Corp., 740 So. 2d 1262 (La. Sept. 8, 1999)

[xviii] Moyer v. Rubright, 651 A.2d 1139 (Pa. Super. Ct. 1994)

[xix] Taylor v. Giddens, 618 So. 2d 834 (La. 1993)

[xx] Pa. R.C.P. No. 213

[xxi] Moyer v. Rubright, 651 A.2d 1139 (Pa. Super. Ct. 1994)

[xxii] Baumgart v. Keene Bldg. Prods. Corp., 633 A.2d 1189 (Pa. Super. Ct. 1993)


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