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Fall 2012
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The Defense Line: Fall 2012

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The Defense Line: A Publication From The Maryland Defense Counsel, Inc.

Stop Paying Money To Settle Phantom Wrongful Death Claims

Neal M. BrownChristina N. BillietNeal M. Brown & Christina N. Billiet
“I need another $50K for the wrongful death part of all this,” claims the plaintiffs’ lawyer. “After all, with these serious injuries, my client likely will be dead in a year and leave behind the claims of her husband and all 10 kids!”

This is a situation many defense counsel face — your client wants to settle a personal injury case, but plaintiff’s counsel presses for more money arguing his client is on her deathbed. A little extra settlement money now will “buy out” the future wrongful death claim. That makes sense. Or does it?

We all know that a wrongful death claim is a separate cause of action that belongs to the family of the injured party; it cannot arise until his or her death. Therefore, plaintiffs suggest, unless the wrongful death action is specifically settled during the settlement process, it remains lurking in the background as a compensable action. Don’t fall for it.

Bottom line, once the personal injury lawsuit has been adjudicated or settled, a cause of action for wrongful death for the same wrong no longer exists. There is, therefore, no need to pay “extra” to plaintiffs for this phantom claim.

Why Does This Matter?

This issue arises frequently in serious accident or malpractice claims. For example, suppose you represent a radiologist who allegedly failed to diagnose a mass consistent with metastatic melanoma in his patient’s stomach. Several years later, when the personal injury suit is being negotiated, plaintiff sadly has confirmed stage IV melanoma and likely only months to a year to live. At mediation, plaintiff’s counsel suggests that the case can be settled only if the dollar amount reflects some compensation for the husband and two minor children, soon to be without their mom/wife.

Or, you represent an insured driver who allegedly caused a near fatal car accident. The plaintiff, severely injured in the accident, likely will never fully recover for her injuries. According to her lawyer, the plaintiff will “probably die before trial,” leaving the husband and two minor kids to fend on their own. Plaintiffs’ counsel wants to settle the case, but insists that it requires more money than usual since it really should be considered a “wrongful death case, not a simple personal injury case.”

In each instance, you point out, correctly, that the injured party is not dead! The plaintiffs chose to file a personal injury lawsuit – not a wrongful death lawsuit. But the plaintiff’s lawyer keeps pushing, arguing that unless you pay her what she wants, she will reserve the right to file a wrongful death claim after her clients passing. You think, “do I have a choice;” “I need to protect my client from any future lawsuits.”

A Little Background

Some background is helpful. Prior to 1852, the family of a person killed by the negligence of another had no recourse. In that year, the Maryland legislature created an act to “compensate the families of persons killed by the wrongful act, neglect, or default of another person.”1 This act was the precursor to our current wrongful death statute. In 1888, Maryland’s first survival statute was enacted. It prevented an injured person’s lawsuit from abating at the time of their death and also permitted a personal representative to commence an action subsequent to death.2

In the context of these original wrongful death and survivor statutes, Maryland courts began addressing the potential interrelationship between these claims. In Melitch v. United Railways & Electric Company, the widow of a man killed in a railroad accident brought a wrongful death action against the railway.3 Prior to his death, however, the plaintiff’s husband had settled his injury claim and executed a release with the defendant “by deed, for valuable consideration.”4 The defendant railway pleaded this release as a complete bar to the widow’s wrongful death action. Judge Harlan of the Court of Appeals framed the question as follows:

The sole question presented by the record is this: Does the release constitute an effectual bar to a recovery in this case?5

Judge Harlan’s answer was yes – the right of the relatives is contingent on the death of the injured person without having satisfied his claim for damages.6

A Wrongful Act – And When It Disappears

The venerable nature of the ruling by Judge Harlan notwithstanding, Maryland courts have repeatedly reaffirmed the position.7 The reasoning has, however, changed. Courts get there through construction of the requirement that an action for wrongful death requires a showing of a “wrongful act.”8

A “wrongful act” encompasses “an act, neglect, or default including a felonious act.”9 In addition, however, the wrongful act must have “entitled the party injured to maintain an action and recover damages if death had not ensued.10

Maryland courts have interpreted the second part of this definition to mean “that the decedent must have been able to maintain a compensable action as of the time of death.11 In other words, in order for an act to be wrongful, the decedent must have had a compensable action at the time of death.” If a defense to the decedent’s action existed prior to death – such as prior settlement or adjudication of the claim — then there can be no “wrongful act” and by extension no wrongful death action.12

In each of the examples discussed above, the plaintiff settled her personal injury lawsuit prior to her death. As a result, she no longer has a “compensable cause of action” because, on her death, there is no viable “wrongful act.” Thus, at the time of her death, a “wrongful act” to support a claim by her family for wrongful death would not exist.

In Sum...

Happily for defense lawyers, Maryland law already protects your client from having to defend a wrongful death claim after a personal injury has been settled or tried. We hope this analysis assists you in negotiations with plaintiffs’ lawyers, and gives you (and your clients!) some peace of mind when refusing to pay more to settle that phantom wrongful death claim or the right to insert wrongful death language into the release without paying more!13


1 Benjamin v. Union Carbide Corp., 162 Md. App. 173, 187, 873 A.2d 463, 471 (2005) aff’d sub nom. Georgia-Pac. Corp. v. Benjamin, 394 Md. 59, 904 A.2d 511 (2006).
2 Id. at 187.
3 Melitch v. United Rys. & Elec. Co. of Baltimore, 121 Md. 457, 88 A. 229 (1913).
4 Id. at 229.
5 Id.
6 Id. at 230. In coming to this conclusion, Judge Harlan took guidance from Lord Blackburn’s opinion in Read v. Great Eastern Railway Company, 3 Queen’s Bench. In that case, a widow sought to bring an action for wrongful death despite the fact that the husband had already “compromised his claim against the railway company” before dying of the same injuries. Lord Blackburn reasoned that “since the settlement made by the husband would have precluded [the husband] from recovering ‘if death had not ensued,’ the widow by the terms of the statute could have no better right.” Judge Harlan noted that the interpretation of Lord Campbell's Act “has been, without question, uniformly followed by the English courts; and, if we are to be guided by the construction placed upon the statute by those courts, the release set up in this case constitutes a complete bar to the action.” (emphasis added).
7 Md. Code Ann., Cts. & Jud. Proc. §§ 3-901, et seq.
8 Benjamin, supra, at 188.
9 Md. Code Ann., Cts. & Jud. Proc. § 3-901(e); see also, Benjamin, supra, at 188.
10 Id.
11 Id. at 188-89.
12 Id. at 189.
13 Notwithstanding the above, it is still our practice to include in Settlement Agreements form language releasing our client from any future liability relating to the death of the injured plaintiff, including any wrongful death claims. We just don’t pay “extra” to do so!

Neal M. Brown is a founding partner at Waranch & Brown, LLC and Christina N. Billiet is an associate at Waranch & Brown, LLC

Maryland Defense Counsel, Inc.
1218 Broadway Rd.
Lutherville, MD 21093
Phone 410-560-3895
Fax 443-705-0217