“The wheels of justice turn slowly, but grind exceedingly fine.” Litigation is often a lengthy process and the old proverb is certainly true for the inundated Massachusetts courts. In 2017 close to 7,000 cases have been filed in the Superior Courts of Essex County and Middlesex County alone. It comes as no surprise that litigation can languish for years before a case is resolved.
With the Court backlog and typical litigation delays there are more and more instances where an injured party (Plaintiff in a tort lawsuit) may pass away before the case reaches trial and is resolved at the appellate level. When a tort Plaintiff dies before the case ends, what happens to the personal injury claim? Under Massachusetts statute and common law, certain actions survive the death of the claimant. For example, Massachusetts common law allows contract actions to automatically survive the death of a claimant; however, personal injury claims do not. Personal injury actions are defined as “survival actions” under M.G.L. c. 228 §1, which provides that survival actions include:
“Actions of tort (a) for assault, battery, imprisonment or other damage to the person; (b) for consequential damages arising out of injury to the person and consisting of expenses incurred by a husband, wife, parent or guardian for medical, nursing, hospital or surgical services in connection with or on account of such injury; (c) for goods taken or carried away or converted; or (d) for damage to real or personal property…”
The survival action may be maintained by the duly appointed personal representative of the deceased plaintiff’s estate.
In the Massachusetts Superior Court case of Matckie v. Great Divide Insurance Co., (Lawyers Weekly No. 12-076-17) the plaintiff filed a complaint in April of 2012 for injuries she sustained from tripping on plywood boards that had been placed on the field at Gillette Stadium. In December of 2015 the plaintiff died while her case was pending (yes it was more than 3 years from the date of the accident). The action was taken over by the personal representative of the plaintiff’s estate and a trial was held in May 2016. The plaintiff was awarded damages for her medical expenses, lost earnings and pain and suffering. Further, the court in Matckie held that the plaintiff’s M.G.L. c. 93A claim against an insurer alleging unfair settlement practices survived her death and could be maintained by the personal representative of her estate.
In many circumstances, if a tort plaintiff dies from injuries caused by the accident, before the case is resolved, it will be important to analyze whether or not the death gives rise to a new cause of action for wrongful death. MA wrongful death claims are provided for by M.G.L. c. 229, §2. Unlike survival actions, a claim for wrongful death requires that the defendant had caused the death of another. In Matckie, no claim for wrongful death could be made because the plaintiff died from liver and kidney failure that were determined to be wholly unrelated to her trip and fall injury. Another critical distinction between the survival actions and wrongful death claims is the identity of the beneficiary of the claim.
Survival actions are maintained on behalf of the deceased claimant for damages suffered between the time of injury and time of death. Any recovery in a survival action becomes an asset of the decedent’s estate. Like survival actions, wrongful death claims must be maintained by the personal representative of the decedent’s estate. However, the beneficiaries of wrongful death claims are the decedent’s surviving relatives; not the decedent’s estate.
At times a single case may involve both a survival action and wrongful death claims. In Klairmont v. Gainsboro Restaurant, Inc., the plaintiffs alleged that their son had died from injuries sustained from falling down a stairway constructed and maintained by the defendants. The plaintiffs were the administrators of the decedent’s estate and asserted claims for wrongful death and violations of M.G.L. c. 93A. The defendants argued that “in all cases raising a claim of a tortiously or otherwise wrongfully caused death, the only vehicle for awarding damages is the wrongful death act.” The court in Klairmont rejected the defendant’s argument and concluded that “the plaintiffs were entitled to bring a claim under c. 93A pursuant to the Massachusetts survival statute…distinct from their claims under the wrongful death act…but they may only recover damages under c. 93A to the extent that the decedent…would have been able to recover, had he survived.”