Appeals Court Rules that Non-Economic Damage Caps Apply Separately to Wrongful Death and Survival Actions

Published on Dec 10, 2012 at 1:12 pm in General Blogs.

The cap on non-economic damages in non-medical malpractice cases applies separately to jury awards in survival and in wrongful death actions, the Court of Special Appeals has held.

Caps on non-economic damages in medical malpractice cases have been a point of controversy as Republicans have wanted to rollback jury awards by capping damages, while many attorneys have argued – and some courts have held — that the caps strip the jury of much of their function. Non-economic damages commonly refer to pain and suffering, but they also include losses such as emotional distress and loss of enjoyment of life.

The principal issue in Wayne H. Goss, et al. v. The Estate of Bertha Jennings, et al. was whether the cap on non-economic damages cap imposed by Maryland law applies separately or collectively to damages awarded in two separate types of legal action — wrongful death and survival — that often stem from the same occurrence.

In the non-medical malpractice case, the Court of Special Appeals held that the damage cap applies to each action. Wayne Goss, the man driving a truck that struck and killed a man, argued that one damage cap should be applied to both claims against him by the dead man’s estate and his survivors.

The court’s ruling stemmed from a $1.37 million judgment entered in a wrongful death and survival action stemming from the 2007 death of an inmate in the custody of the Maryland Division of Corrections (DOC). Rodney Jennings died from injuries suffered after being hit by a truck while working on a litter pickup detail near a Maryland highway. Jennings was struck and killed by a dump truck owned by W.H. Goss Trucking, LLC and operated by Wayne H. Goss.

Jennings’ estate, the estate of his mother and three beneficiaries filed a lawsuit in Prince George’s Circuit Court for Prince George’s County claiming wrongful death and survival against Goss. They later added the Department of Corrections and the State Highway Administration (SHA) to the lawsuit.

In Maryland, two separate actions can arise from death caused by the negligence of another: a survival action and a wrongful death action. In a wrongful death action, certain persons can recover for injury caused to them as a result of the death of the victim. In a survival action, the personal representative can file a lawsuit to recover for the pain and suffering of the deceased between the time of injury and death.

The jury returned a verdict against Goss and the state for $2,025,000, which represented $350,000 in non-economic damages in the survival action and $1,675,000 in non-economic damages in the wrongful death action.

In post-trial motions, Goss and SHA and DOC asked the court to reduce the damage award to $1.37 million, which it did. Goss argued during those motions that, under Maryland law, when there are two or more beneficiaries in a death claim, the cap is set at 150% of $680,000 or $1,020,000. He also urged the court to reduce the entire damage award to that amount, essentially eliminating the $350,000 award in the survival action, along with more than $650,000 for the wrongful death. The trial judge’s rulings left the $350,000 survival action judgment intact and reduced the wrongful death awards to 150% of $680,000 or $1,020,000.

The Court of Special Appeals affirmed the trial court.

Goss contended on appeal that the court’s decision to apply separate statutory caps to the survival and the wrongful death actions was not authorized by state law. His claim, the appeals court observed, hinged on the notion that, while the survival action and wrongful death claims are two separate causes of action, they resulted in one loss that should be subject to one cap.

In coming to its decision, the appellate court explained that the General Assembly passed compromise legislation in 1994 in response to a court case with which it did not agree. Rather than redefining an action for personal injury to include a wrongful death action, the legislature distinguished between the two causes of action in “all key sections” of the damages cap statute. Nothing in the definition changed the nature of the damages recoverable in a survival action or altered the specific statutory provisions, the court said. Although overruling the court’s holding that the cap could not apply to a wrongful death action, the General Assembly left undisturbed the Court of Appeals’ conclusion that a survival action was one for personal injury.

In this instance, the appeals court noted that a key battleground was the impact of the legislature’s addition of language 1) that the limitation established in this subsection shall apply in a personal injury action to each direct victim of tortious conduct and all persons who claim injury by or through that victim; and 2) in a wrongful death action in which there are two or more claimants or beneficiaries, an award for non-economic damages may not exceed 150 percent of the limitation established in another subsection, regardless of the number of claimants or beneficiaries who share in the award.

Goss argued that this language requires the aggregation of the damages in a survival and wrongful death actions. “Such a contention does violence to the text of the statute,” the Court of Special Appeals declared. “Because the 1994 legislation did not erase the distinction between the two causes of action to reach Goss’ proffered solution, we would have to somehow merge both paragraphs of [the statute], contrary to the intention of the Legislature and applicable case law,” the court continued.

As a result, the $350,000 personal injury/survival action award here remained intact because it did not exceed the cap. Under state law, the combined wrongful death awards of $1,675,000 were properly reduced to 150% of the applicable cap, the appeals court said. Thus, the trial court did not make a mistake in establishing the total damage award at $1.37 million, the Court of Special Appeals ruled.

Wayne H. Goss, et al. v. The Estate of Bertha Jennings, et al. was released on Aug. 31, 2012.

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