Jones v. Flood

RODOWSKY, Judge. We issued the writ of certiorari in this case to decide whether the personal representative of a decedent, whose death was tortiously caused, may recover damages in a survival action measured by lost earnings for the period after death to the end of the statistical life expectancy that would have been predicted for the decedent if the tort had not occurred. ¹²² In answering this question in the negative, we reject the petitioner’s contention that an affirmative answer is required by Monias v. Ended, 330 Md. 274 , 623 A.2d 656 (1993). The petitioner is Shirley Jones, as personal representative of the estate of Evelyn V. Manning (Manning). Manning was killed in a motor vehicle accident on Route 202 in Prince George’s County that occurred on December 29, 1994.

A vehicle operated by the respondent, Brian T. Flood, and owned by the respondent, Prince George’s County, struck Manning, crushed her against her disabled vehicle, and killed her. Manning’s immediate survivors are her four children, all of whom are over twenty-one and none of whom was dependent on her. A divorcee, Manning was unmarried at the time of her death. After the present action was instituted in the Circuit Court for Prince George’s County, the parties agreed that the petitioner would voluntarily dismiss a claim for punitive damages; they stipulated that Manning suffered no conscious pain after the accident, and the respondents admitted liability.' There remained for disposition the petitioner’s claims for future lost earnings and for funeral expenses.

The circuit court granted a motion for partial summary judgment in favor of the respondents on the lost earnings claim, and, as a result of a waiver of jury trial, the judgment for funeral expenses was entered by the court. The petitioner appealed to the Court of Special Appeals, which affirmed. Jones v. Flood, 118 Md.App. 217 , 702 A.2d 440 (1997). We issued the writ of certiorari on the petition of the personal representative.

The action before us may be maintained because Maryland Code (1974, 1995 Repl.Vol.), § 6-401(a) of the Courts and Judicial Proceedings Article (CJ), provides, in relevant part, that “a cause of action at law, whether real, personal, or mixed, survives the death of either party.” This “survival” statute changes the common law rule under which causes of action possessed by a person abated upon the death of that ¹²³ person. Further, under Maryland Code (1974, 1991 Repl.Vol.), § 7-401(x) of the Estates and Trusts Article (ET), a personal representative may with certain exceptions not here relevant “prosecute ... claims ... including the commencement of a personal action which the decedent might have commenced or prosecuted.... ” The petitioner rests her argument for post-death lost earnings exclusively on Monias , a medical malpractice action that involved a plaintiff, Ms. Endal, who was living at the time judgment was entered in her favor. In August 1986 the defendant had negligently failed to detect a malignant tumor. Had the tumor been detected “Ms. Endal would have had an 85-90% probability of survival and a normal life expectancy.” Id. at 277 , 623 A.2d at 657 .

When the tumor was actually detected, Ms. Endal “had only a 20% chance of survival beyond November, 1992.” Id. The jury in Monias , in answer to special interrogatories, awarded $33,000 for loss of income in the future “to date of premature death” and awarded $250,000 for loss of income or earnings for the period after the predicted premature death to the predicted time of death had the tumor been discovered in August 1986. Id. at 278 , 623 A.2d at 658 . Whether these future lost earnings were recoverable as damages at all was a question which had remained open in this Court since Rhone v. Fisher, 224 Md. 223, 231-32 , 167 A.2d 773, 779 (1961).

In Monias , we held “in accord with the majority of other jurisdictions, that the proper measure of lost earnings damages in a personal injury action for a plaintiff whose life expectancy is reduced by the defendant’s negligence is the plaintiffs loss of earnings based on the plaintiffs life expectancy had the tortious conduct not occurred, rather than loss of earnings based on the plaintiffs post-tort shortened life expectancy.” Monias, 330 Md. at 281 , 623 A.2d at 659 . The petitioner submits that, in a survival action, the personal representative may recover those damages which the decedent could have recovered had the decedent survived. For example, in Smith v. Gray Concrete Pipe Co., 267 Md. ¹²⁴ 149, 297 A.2d 721 (1972), overruled, on other grounds by Owens-Illinois, Inc. v. Zenobia, 325 Md. 420 , 601 A.2d 633 (1992), involving the claim of a decedent who was killed in an automobile accident with the defendant tortfeasors, we held “that a personal representative may recover exemplary damages in those cases where they might have been awarded to the decedent, whose estate he administers, had the former survived.” Id. at 160, 297 A.2d. at 727 . Here, the petitioner submits that, had Manning survived the accident, she would have been entitled, under Monias , to lost earnings for the period by which her life expectancy was shortened, and, because her life expectancy was shortened to none at all, the personal representative is entitled to lost earnings damages for the entire pre-accident life expectancy of Manning.

The petitioner further submits that the instant action, as in Monias , is a personal injury action and that the Monias rule applies to all personal injury actions, whether maintained by the injured person, or by that person’s personal representative under the survival statute. The short answer to these contentions is that a survival action seeking damages for personal injuries to the decedent is not a personal injury action within the meaning of Monias . In Monias we began our discussion “by noting that we are dealing with loss of earnings recoverable in a personal injury action. We are not concerned with loss of earnings in a survival action.2 ” Monias, 330 Md. at 279 , 623 A.2d at 658 .

In footnote 2 we specifically stated that “[a] decedent’s lost future earnings are not recoverable in a survival action in Maryland.” Id. at 279 n. 2, 623 A.2d at 658 n. 2. Thus, although the petitioner here repeatedly asserts that Manning’s claim is a personal injury claim, for purposes of applying the rule in Monias there are at least three classes of actions that may be based on tortious personal injuries, i.e., a “personal injury action,” a survival action, and a wrongful death action under CJ § 3-904, the Maryland Lord Campbell’s Act. Phrased another way, a claim for lost earnings in a survival action embraces only the period from onset of the loss to death. ¹²⁵ Accordingly, the petitioner is, in effect, asking us to use Momas as a springboard for expanding beyond death lost earnings damages recoverable in a survival action. We decline so to hold because it would effect a substantial upheaval in well-established Maryland law, contrary to the stare decisis principle, because aspects of the requested change impact long-standing policy decisions by the General Assembly involving economic damages for the post-death period, and because the requested change would involve a high risk of duplicating the damages in a companion wrongful death case.

Although the General Assembly provided, as early as Chapter 80 of the Acts of 1785, for the survival of certain actions instituted in the lifetime of the decedent, see Stewart v. United Elec. Light & Power Co., 104 Md. 332, 334 , 65 A. 49, 50 (1906), early survival statutes did not include actions based on injuries to the person. The earliest legislation in Maryland authorizing any damages where the death of a person was caused by a wrongful act was the enactment of Lord Campbell’s Act by Chapter 299 of the Acts of 1852. By the adoption of the Code of 1888 the survival statute was expanded to authorize personal representatives “to commence and prosecute any personal action whatever.... ” Stewart, 104 Md. at 337 , 65 A. at 51 .

Stewart addressed the interrelationship between Lord Campbell’s Act and the expanded survival statute. Writing for the Court, Chief Judge McSherry explained in Stewart that the later statute was intended to cover that which was not covered by the earlier enactment; the two enactments are not really alternatives of each other. Id. at 339 , 65 A. at 52 . After noting that the wrongful death action is brought “for the use of certain equitable plaintiffs who are kindred of the deceased,” id., while the survival action is brought by the personal representative, Chief Judge McSherry addressed the differences in damages between the two actions, saying: “Under [Lord Campbell’s Act] the damages recoverable are such as the equitable plaintiffs have sustained by the death of the party injured; under [the survival statute] the damages recoverable are only such as the deceased sustained in ¹²⁶ his lifetime and consequently exclude those which result to other persons from his death.” Id. at 339-40 , 65 A. at 52 (emphasis of “only” added).

Further, in demonstrating that the damages recoverable under the two statutes are “entirely different,” the Court stated that if Lord Campbell’s Act were “merely a survival statute, the recovery is limited to such damages as might have been recovered by the deceased himself, had he survived the injury and brought the action.” Id. at 342-43 , 65 A. at 53 . In the wrongful death action, the damages are “measured by the standard of the pecuniary value of the life of the person to the party entitled to the damages,” while “under the survival statute, the damages are limited to compensation for the pain and suffering endured by the deceased, his loss of time and his expenses between the time of his injury and his death.” Id. at 343, 65 A. at 53 (emphasis added). Maryland courts have consistently applied the survival statute in accordance with the Stewart construction, namely, that it applies to pre-death harms. See Monias, 330 Md. at 279 & n. 2, 623 A.2d at 658 & n. 2; United States v. Streidel, 329 Md. 533 , 544 n. 9, 620 A.2d 905 , 909 n. 9 (1993); Fennell v. Southern Maryland Hosp.

Center, Inc., 320 Md.