Wrongful death cases at their very heart are seemingly simple: a person is killed as the
result of the negligence of another, and the person who caused the death is responsible to pay
damages. But these cases are really far from basic and issues abound with respect to who is
entitled to bring a wrongful death claim; to whom damages are paid; just what damages are
available; and how bystander negligent infliction of emotional distress claims are addressed.
Here is a primer on wrongful death cases and all that they entail.
Under 18-C M.R.S. § 2-807(2) “wrongful death actions must be brought in the name of
the personal representative or the special administrator of a deceased person…” The personal
representative will either be the person named in the decedent's will or, if there is no will,
pursuant to the Probate Code’s provisions as they relate to priority among persons seeking
appointment. 18-C M.R.S. § 3-203(1). The order is as follows:
A. The person with priority as determined by a probated will including a person nominated by a
power conferred in a will;
B. The surviving spouse of the decedent who is a devisee of the decedent;
C. Other devisees of the decedent;
D. The surviving spouse of the decedent;
E. The surviving domestic partner of the decedent;
F. Other heirs of the decedent;
G. Forty-five days after the death of the decedent, any creditor; and
H. Six months after the death of the decedent if no testacy proceeding have been held or no
personal representative has been appointed, the State Tax Assessor upon application by the State
Tax Assessor.
It is important to recognize, that only the personal representative can bring the claim.
While it may well be that the proceeds of a wrongful death action will go to someone other than
the personal representative, only the personal representative can bring the claim in the first place.
Wrongful death claims must be commenced within 2 years after the decedent's death,
except that if the decedent's death is caused by a homicide, the action may be commenced within
6 years of the date the personal representative or special administrator of the decedent discovers
that there is a just cause of action against the person who caused the homicide. 18-C M.R.S. § 2-
807(2). When medical malpractice causes the death of another person, the 3-year statute of
limitation applies instead of the 2-year statute of limitations. 24 M.R.S. § 2902; Butler v.
Killoran, 1998 ME 147.
Claims made for conscious pain and suffering of the decedent are not subject to the 2-
year statute of limitations, as these are separate claims under 18-C M.R.S. § 2-807(3).
Conceivably, the 2-year statute of limitations for a wrongful death claim could have passed and
the personal representative of the estate could still bring a claim for conscious pain and suffering
of the decedent, payable to the estate and distributed according to the will or the intestacy
provisions of the Probate Code. As will be noted below, damages for conscious pain and
suffering are also not subject to the limitations for the damages recoverable for wrongful death
actions. This is because of the separation between wrongful death statute claims for the
beneficiaries for whom the wrongful death action is brought, as opposed to monies that will go to
the estate and distributed as dictated by the will or pursuant to the intestacy statute.
Wrongful death actions are specifically brought by the personal representative and the
proceeds are distributed “directly to the decedent's heirs without becoming part of the probate
estate.” 18-C M.R.S. 2-807(2). The monies are for the “exclusive benefit of the deceased’s
heirs to be distributed to the individuals and in the proportions provided under the intestacy law
of this State in section 2-811 to 2-113.” Id. Accordingly, when you are trying to determine who
is entitled to monies from a wrongful death claim, you must look directly to the intestacy
statutes, which provide the order the priority, albeit with some complexity:
§2-102. Share of spouse
1. No descendant or parent. The entire intestate estate if:
A. No descendant or parent of the decedent survives the decedent; or
B. All of the decedent's surviving descendants are also descendants of the surviving spouse and
there is no other descendant of the surviving spouse who survives the decedent;
2. No descendant but parent survives. The first $300,000, plus 3/4 of any balance of the intestate
estate, if no descendant of the decedent survives the decedent, but a parent of the decedent survives
the decedent;
3. Descendants of both decedent and spouse, just spouse. The first $100,000, plus 1/2 of any
balance of the intestate estate, if all of the decedent's surviving descendants are also descendants of
the surviving spouse and the surviving spouse has one or more surviving descendants who are not
descendants of the decedent; and
4. Descendants of decedent, not spouse. One-half of the intestate estate, if there are surviving
descendants one or more of whom are not descendants of the surviving spouse.
§2-103. Share of heirs other than surviving spouse
1. Share of heirs other than surviving spouse; order. Any part of the intestate estate not passing to a
decedent's surviving spouse under section 2-102, or the entire intestate estate if there is no surviving
spouse, passes in the following order to the individuals who survive the decedent:
A. To the decedent's descendants per capita at each generation;
B. If there is no surviving descendant, to the decedent's parents equally if both survive or to the
surviving parent if only one survives;
C. If there is no surviving descendant or parent, to the descendants of the decedent's parents or either
of them per capita at each generation;
D. If there is no surviving descendant, parent or descendant of a parent, but the decedent is survived
on both the paternal and maternal sides by one or more grandparents or descendants of
grandparents:
(1) Half to the decedents paternal grandparents equally if both survive, to the surviving paternal
grandparent if only one survives or to the descendants of the decedent's paternal grandparents or
either of them if both are deceased, to be distributed to the descendants per capita at each
generation; and
(2) Half to the decedent's maternal grandparents equally if both survive, to the surviving maternal
grandparent if only one survives or to the descendants of the decedent's maternal grandparents or
either of them if both are deceased, to be distributed to the descendants per capita at each
generation;
E. If there is no surviving descendant, parent or descendant of a parent, but the decedent is
survived by one or more grandparents or descendants of grandparents on the paternal but not the
maternal side, or on the maternal but not the paternal side, to the decedent's relatives on the side
with one or more surviving members in the manner described in paragraph D; and
F. If there is no surviving descendant, parent or descendant of a parent, grandparent or descendant
of a grandparent, but the decedent is survived by one or more great-grandparents or descendants
of great-grandparents, half of the estate passes to the paternal great-grandparents who survive, or
to the descendants of the paternal great-grandparents if all are deceased, to be distributed per
capita at each generation as described in section 2-106; and the other half passes to the maternal
relatives in the same manner, but if there is no surviving great-grandparent or descendant of a
great-grandparent on either the paternal or maternal side, the entire estate passes to the relatives
on the other side in the same manner as the half.
The short version is this:
1. If the deceased has a surviving spouse, then all or some of the monies will go to the
surviving spouse, depending on whether the deceased had surviving children with the
surviving spouse, surviving parents, or surviving grandchildren.
2. If the deceased did not have a surviving spouse, then all or some of the monies go to
surviving children and grandchildren; if no surviving children to surviving parents;
and if no surviving parents to surviving siblings; and if no surviving siblings to nieces
and nephews.
Note that regardless of who may be named in the will, or who might have even been the
very closest to the decedent, it is the intestacy statute heirs and the heirs alone that are entitled to
the recovery from a wrongful death action. One can conceive of a situation where a spouse of a
decedent may not have been close to the decedent at all, and the decedent was really far closer to
the decedent’s siblings, but that will not make a difference when it comes to the recovery. It
must always be paid to the decedent’s heirs under the intestacy statute first, foremost, and only.
While it may well be that the recovery is different because of the lack of a close relationship
between the heir and decedent, that is simply a measure of damages to be assessed by a judge or
a jury. The benefit is “for the exclusive benefit of the deceased’s heirs to be distributed to the
individuals and in the proportions as provided under the intestacy laws of the State” and no other
fashion. The reasoning here is that the heirs would have suffered the loss of consortium with the
loved one, and that is what forms most of the wrongful death action damages.
When it comes to medical bills and reasonable funeral expenses, those damages are
presumed to be part of the wrongful death claim payable to the decedent’s heirs and not the
estate, unless “the jury specifically makes an award payable to the estate for reasonable expenses
of medical, surgical and hospital care and treatment and for reasonable funeral expenses or, in
the case of a settlement, the settlement documents specifically provide for such an allocation to
the estate for same.” 18-C M.R.S. § 2-807(2). In practical terms, wrongful death actions that
include medical bills, funeral bills and burial costs are usually wrapped all into one recovery for
the “exclusive benefit of the deceased’s heirs” and it is uncommon to have them listed as
separate allocations for medical, funeral, and burial expenses.
As of September 19, 2019, the cap for the “loss of comfort, society and companionship of
the deceased, including any damages for emotional distress arising from the same facts as those
constituting the underlying claim” may not exceed $750,000. 18-C M.R.S. § 2-807 (2). The
increase in the cap is not retroactive. Additionally, a jury “may also give punitive damages not
exceeding $250,000.” Id.
There is no cap on pecuniary damages, nor for conscious pain and suffering.
A Loss of comfort, society, and companionship
Wrongful death damages are for the for the “loss of comfort, society and companionship
of the deceased.” 18-C M.R.S. § 2-807(2). “Losses traditionally recoverable in loss of
consortium claims are ‘fellowship of husband and wife, and the right of each to the company,
society, cooperation, affection, and aid of the other in every conjugal relation . . . [and losses]
encompassing not only material services but such intangibles as society, guidance,
companionship, and sexual relations.’" Feighery v. York Hospital, 38 F.Supp. 2d 142, 150
(D.Me. 1999). citing Black's Law Dictionary 309 (9th ed.1990).
B. Conscious pain and suffering
Conscious pain and suffering claims require that there be “a factual determination that the
decedent experienced a period of conscious pain and suffering prior to death." Beale
v. Chisholm, 626 A.2d 345, 347 (Me. 1993). An award of damages for conscious pain and
suffering is for the benefit of the beneficiaries. 18-C M.R.S. § 2-807(3).
Note that there must be an actual “conscious” period of pain and suffering in order to
bring a separate claim here. This is because damages cannot be awarded when the only proof is
speculative. Wood v. Bell, 2006 ME 98, ¶21, 902 A.2d 843, 851; Carter v. Williams, 2002 ME
50, 59, 792 A.2d 1093, 1098; Michaud v. Steckino, 390 A. 2d 524, 530 (Me. 1978) In some
cases there may be challenges as to whether the decedent was conscious for a period of time
before they passed away. Obviously in cases where the decedent is severely injured and is
conscious and alive for a period of time after an accident, there is less of an issue because there
can be an easy determination that the decedent was aware, prior to their death, of their pain and
suffering. But if there is no “conscious” then any “suffering” becomes essentially irrelevant.
In order to bring a claim for conscious pain and suffering, this must be specifically
alleged in a separate count of the complaint. 18-C M.R.S. 2-807(3).
C. Pecuniary losses
Pecuniary losses have generated a significant amount of litigation over the years. These
losses are specifically payable to the beneficiaries and are unlimited. Typically, one would need
the services of an economist to detail just how much economic loss there was as a result of the
decedent’s death.
Importantly, the statute was amended in 2009 to delete the original language that required
that pecuniary damages recovery would be “to the persons’ for whose benefit the action is
brought.” Under the pre-2009 statute, the defendant could argue “the persons’ for whose benefit
the action is brought” suffered fewer financial damages under circumstances where there was no
real financial impact as a result of the death. One example would be the adult child of the
decedent who would not necessarily have received a financial benefit in life as they were already
adults at the time of the parent’s death, as opposed to a minor child or a spouse who would be in
a different financial position. The 2009 amendment was important as the pecuniary loss under
the statute is for the full amount of the pecuniary damages, regardless of the who might benefit
from it. The amendment thus made clear that the beneficiaries receive the full measure of the
pecuniary damages from a loss of life-long earning capacity, not just what financial impact it
might have had on the beneficiaries themselves. A recent Superior Court decision out of the
York County Superior Court, Estate of Smith v. Mercy Hospital/Eastern Maine Health,
interpreted the statute consistently and allowed for the recovery of the full future lost earning
capacity of a deceased child. This “loss to estate not beneficiary” approach and analysis is
consistent with the statute and Estate of Smith clears up any ambiguity, if there ever was such
ambiguity.
Pecuniary losses are reduced by the personal consumption of the deceased. What this
means is that simply computing out a person’s future lost earnings by multiplying expected
earnings times life expectancy will not be enough for an appropriate measure of damages; rather,
there has to be a reduction, because the net to the estate would have been less because of the
spending by the deceased throughout his/her life. Fitzpatrick v. Cohen, 777 F.Supp. 2d 193, 195
(D.Me. 2011). Again, an economist will be needed to make the appropriate reduction for the
decedent’s personal consumption so there can be an accurate amount presented as to pecuniary
damages.
D. Relational losses
When it comes to “relational” losses suffered by a minor child who loses a parent, a 1999
decision from the United States District Court, District of Maine addressed these issues as to
whether they were covered by the cap on wrongful death damages, as opposed to pecuniary
losses for which there is no cap: “Relational losses include the pecuniary value of [a decedent’s]
services, instruction, advise, counsel, parental training, care and guidance, assistance and
protection, as well as [the decedent’s] attention to the physical, moral, and educational welfare of
his children.” Feighery, 38 F.Supp. 2d at 150. The Maine Supreme Judicial Court has not yet
addressed the issue of whether it would recognize these separate damages as not being subject to
the cap on wrongful death damages, or even constitute a separate type of damages, but in a
recent decision from then Superior Court Justice Stanfill in the Androscoggin County Superior
Court, the Court ruled that those damages are not pecuniary losses and are subject to this
statutory cap. Coughlin, Personal Representative of the Estate of Crockett vs. Peterkin, M.D., et
al, Order on Summary Judgment, at 12.
What happens when a bystander family member witnesses the negligent action and death
of the decedent? If the bystander is a beneficiary of the estate, then that emotional distress claim
is subsumed by the wrongful death statute as these are “damages for emotional distress arising
from the same acts as those constituting the underlying claim.” 18-C M.R.S. § 2-807(2). But if
the bystander is a close family member and not a beneficiary, then they are allowed to bring their
own claim outside the wrongful death statute. For example, the sister of a decedent who is not
entitled to damages as a beneficiary because the decedent was married, can still bring a bystander
negligent infliction of emotional distress claim. She would not be a beneficiary, and yet she was
a bystander who suffered the negligent infliction of emotional distress from seeing the death of
her sibling.
Note that while the sister of the decedent would qualify as a “close relation” of the
decedent as required by Culbert v. Sampsons Supermarkets, 444 A.2d 423 (Me. 1982), the
question of just how expansive the definition of “closely related” is has been the subject of many
decisions. In Coughlin then Superior Court Justice Stanfill determined that the decedent’s ”live-
in intimate partner and the father of their child . . . could be considered ‘closely related to the
victim.’” Coughlin, Order at 7, citing 19-A M.R.S. sec. 4002(4)(individuals living as spouses and
parents of the same child are family or household members for purposes of domestic violence
statutes). Additionally, the contemporaneous perception of the event was determined to be
close enough where the bystander was within 100 feet of the accident, heard the accident take
place as well as the victim’s screams, and the bystander arrived within seconds to see what
happened. Coward v. Gagne & Sons, 2020 ME 112.
Additionally, when the negligence of an individual causes the death to an unborn fetus,
the wrongful death statute does not apply because the unborn fetus is not a “person” under the
act. Milton v. Cary Medical Center, 538 A.2d 252, 256 (Me. 1988). Because the wrongful death
statute only applies to a death involving a “person” the mother may assert her own claim for
negligent infliction of emotional distress from the death of her unborn fetus, and not be restricted
by the wrongful death statute.
So as you can see, wrongful death cases may appear simple but they are far from that.
Hiring an attorney to handle these cases is always a smart move given the many perils and
pitfalls at every stage.