X. SURVIVAL ACTIONS AND WRONGFUL DEATH ACTIONS
In Maryland, a tortiously inflicted death gives rise to two potential causes of action which, despite being built
on the same foundation -- the tortious taking of a life -- provide separate and distinct remedies.
- The Survival Action:
The statutory basis for the survival action in Maryland is found at § 7-401 of the Maryland Estates and Trusts Code
Annotated. This statutory provision permits the personal representative of an estate to bring a cause of action to
recover damages that the decedent could have recovered if he had survived. Smith v. Borello, 370 Md. 227,
804 A.2d 1151 (2002).
- The damages recoverable are limited to an award of funeral expenses (limited to
$10,000 by Maryland law); and pecuniary and non-economic losses sustained between the time of injury and death.
Stewart v. United Electric Light & Power Co., 104 Md. 332, 65 A.49 (1906).
- The damages awarded in a survival action go to the personal representative and
become assets of the decedent's estate. Stewart v. United Electric Light & Power Co., 104 Md. 332,
65 A.49 (1906).
- Noneconomic awards in survival actions are limited by Maryland's statutory cap on
non-economic damages. See Section VIII, D above.
- The Wrongful Death Action:
The statutory basis for a wrongful death cause of action is found at § 3-901 et seq. of the Maryland Courts
& Judicial Proceedings Code Annotated. Unlike the survival action, the wrongful death action seeks to secure a
recovery of damages suffered not by the decedent but by those who have suffered because of his death. Such
persons are characterized by the statute as beneficiaries and are divided into two categories: (1) primary
beneficiaries, i.e., a husband, wife, parent or child of the deceased, and (2) secondary beneficiaries, i.e., where
there are no primary beneficiaries, anyone related by blood or marriage to the deceased and who was "substantially
dependent" upon the deceased. NOTE: Secondary beneficiaries are only entitled to a recovery if there are no primary
beneficiaries. Flores v. King, 13 Md.App. 270, 282 A.2d 521 (1971).
- Damages - Death of spouse, minor child or parent, unmarried children who are not
minors. - The damages awarded under subsection (c) are not limited or restricted by the "pecuniary loss" or
"pecuniary benefit" rule but may include damages for mental anguish, emotional pain and suffering, loss of society,
companionship, comfort, protection, marital care, parental care, filial care, attention, advice, counsel, training,
guidance or education where applicable..." Maryland Courts & Judicial Proceedings Code Annotated § 3-904(d);
Scamardella v. Illiano, 126 Md.App. 76, 727 A.2d 421 (1999).
- Applicability of the damage cap: the Maryland limitation on a recovery
of noneconomic damage awards applies to wrongful death actions. Maryland Courts & Judicial Proceedings
Code Annotated § 11-108(b)(2). See also Anchor Packing Co. v. Grimshaw, 115 Md.App. 134, 692
A.2d 5 (1997). If there are two or more beneficiaries, an award of noneconomic damages "may not exceed
150% of the statutory cap regardless of the number of beneficiaries who share in the award." See
Section VIII, D above.
- By statute there can only be one wrongful death action. Maryland Courts &
Judicial Proceedings Code Annotated § 3-904(f). The action may be brought by any one of the beneficiaries
for the benefit of, i.e., to the use of, all who may recover under the statute. Maryland Rules Q41
and Q44. . Benjamin v. Union Carbide Corp., 162 Md. App. 173, 873 A.2d 463 (2005).
- The amount recovered is "divided among the beneficiaries in shares directed by
the verdict." Maryland Courts & Judicial Proceedings Code Annotated § 3-904(c)(2). A practical effect
of the aforementioned apportionment rules is that a settlement with one beneficiary to the exclusion of the
others may be judicially voided. Walker v. Essex, 318 Md. 516, 569 A.2d 645 (1990).
- Punitive damages are not recoverable under the statute. Cohen v. Rubin,
55 Md.App. 83, 460 A.2d 1046 (1983).