Available Recoverable Damages In Wrongful Death Actions - Boston, MA

By: Scott M. Zanolli

In wrongful death cases, estates of the deceased are entitled to specific statutory damages.  Under Massachusetts law, these damages are governed by G.L. c. 229, §2.  A claim for wrongful death is enforced by the personal representative of the decedent’s estate for the benefit of the statutory beneficiaries.  Under G.L. c. 229, §1, the beneficiaries of the decedent’s estate entitled to recovery are the surviving spouse, children of the deceased, and, if neither of those apply, the next of kin.

These individuals may recover the fair monetary value for: (i) the loss of reasonably expected net income, (ii) “consortium-like damages,” i.e., loss of protection, care, assistance, society, companionship, comfort, guidance, counsel, and advice, (iii) conscious pain and suffering, and (iv) reasonable funeral expenses.  Punitive damages of no less than Five Thousand Dollars ($5,000) may be awarded when the decedent’s death was caused by malicious, willful, wanton or reckless conduct, or by gross negligence.

Determination of the amount of lost income damages is largely dependent on probabilities, and many factors will be taken into account by a court or jury, Lane v. Meserve, 20 Mass. App. Ct. 659, 667 (Mass. App. Ct. 1985), including the life expectancy of both the decedent and the beneficiaries, and the future prospects of the decedent.  The award is generally equal to the amount of net income that the decedent would reasonably have been expected to contribute to the beneficiaries.

The estate of the deceased is entitled to recover funeral expenses.  The portion of the statute relating to funeral expenses does not refer to beneficiaries because funeral expenses become debts of the decedent's estate. Burt v. Meyer, 400 Mass. 185, 186 (1987).

Massachusetts does not recognize a separate cause of action for loss of consortium for family members in wrongful death cases.  However, the administrator of the estate of the deceased may bring suit for recovery for loss of consortium under the wrongful death statute, Litif v. United States, 682 F. Supp. 2d 60 (D. Mass. 2010), and the statute contemplates recovery for both spousal companionship and loss of consortium for the child of a deceased parent. Doyon v. Travelers Indem. Co., 22 Mass. App. Ct. 336 (1986).

General Laws c. 229, § 6 permits recovery for the decedent's conscious pain and suffering between the time of the injury and the time of the death.  Recovery is made on behalf of the estate and is divided among the surviving beneficiaries under the terms of the decedent's will, or the law of intestate succession if there is no will.  The term "conscious" is not meant to be interpreted “with the refinements one expects to find in a study of the elusive subject of consciousness,” but rather, the conscious suffering shown by proof beyond mere conjecture. Or v. Edwards, 62 Mass App 475 (2004).  A potential subset of conscious pain and suffering is recovery for fear of impending or imminent death.  This is an unsettled area of law in Massachusetts, but has been recognized in other jurisdictions under certain circumstances, most notably in aviation accidents.

Punitive damages are available under the wrongful death statute in circumstances where death was caused by the malicious, willful, wanton or reckless conduct, or by the gross negligence of the defendant.  This category of damages is designed to punish the defendant, not to make the plaintiff whole. Burt v. Meyer, 400 Mass. 185 (1987).  Under this portion of the statute, the negligence of the deceased is not to be taken into account. Lane v. Meserve, 20 Mass. App. Ct. 659 (1985).

Damages in wrongful death cases are extremely complex to evaluate and estimate.  This is due in part to the fact that consortium type damages are wholly subjective, and thus their quantification can vary widely from juror to juror.  Also, determinations related to conscious pain and suffering are muddled in instances where the decedent died instantly, but suffered from an obvious fear of impending death.  Pierce & Mandell has considerable experience handling complex insurance defense, as well as wrongful death litigation, and can assist anyone involved in this type of case.

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