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SJC-13282 SJC-13346
GRACE FABIANO, personal representative,1 vs. PHILIP MORRIS USA INC. & others.2
MARY FULLER, personal representative,3 vs. R.J. REYNOLDS TOBACCO COMPANY & another.4
Suffolk. Barnstable. March 6, 2023. - July 6, 2023.
Present: Budd, C.J., Gaziano, Lowy, Cypher, Kafker, Wendlandt, & Georges, JJ.
Wrongful Death. Negligence, Wrongful death. Limitations, Statute of.
Civil action commenced in the Superior Court Department on July 14, 2017.
A motion to dismiss was heard by Brian A. Davis, J.
The Supreme Judicial Court granted an application for direct appellate review.
1 Of the estate of Ralph Fabiano.
2 Shaw's Supermarkets, Inc.; and Garber Bros., Inc.
3 Of the estate of John Fuller.
4 Cumberland Farms, Inc. 2
Civil action commenced in the Superior Court Department on March 21, 2016.
A motion for partial judgment on the pleadings was heard by Thomas J. Perrino, J.
The Supreme Judicial Court granted an application for direct appellate review.
Shea T. Moxon, of Florida, for Grace Fabiano. Andrew Rainer for Mary Fuller. Scott A. Chesin (Elliott M. Davis also present) for Philip Morris USA Inc. & another. Victoria Cuneo Powell, of Georgia (Jason T. Burnette, of Georgia, also present) for R.J. Reynolds Tobacco Company & another. The following submitted briefs for amici curiae: Kevin W. Buono for Massachusetts Defense Lawyers Association. Samuel Goldblatt & Kurt M. Mullen for Product Liability Advisory Council. Peter J. Ainsworth, Thomas R. Murphy, Kevin J. Powers, Elizabeth N. Mulvey, & J. Michael Conley for Massachusetts Academy of Trial Attorneys.
LOWY, J. In GGNSC Admin. Servs., LLC v. Schrader, 484
Mass. 181, 191 (2020) (GGNSC), we held that wrongful death
actions brought under G. L. c. 229, § 2, are derivative of a
decedent's own cause of action for personal injury, and unless
the decedent "could have brought an action for the injuries that
caused [his or her] death," a wrongful death action cannot be
maintained by the personal representative of the decedent's
estate for the benefit of the decedent's statutory
beneficiaries. The question in these paired cases is whether
this principle yields where the decedent could not have brought 3
claims for the injuries that caused his or her death, had the
decedent survived, by reason of the expiration of the statute of
limitations applicable to those claims.
Grace Fabiano, as personal representative of the estate of
Ralph Fabiano, and Mary Fuller, as personal representative of
the estate of John Fuller5 (collectively, plaintiffs), commenced
these separate actions for wrongful death under G. L. c. 229,
§ 2, alleging breach of warranty, negligence, and conspiracy.
It is undisputed that, if Ralph or John (collectively,
decedents) had survived, they could not have brought direct
claims at the time of their deaths due to the expiration of the
three-year statute of limitations. The plaintiffs argue,
however, that, because G. L. c. 229, § 2, has its own three-year
statute of limitations for commencement of a wrongful death
action that begins to run on the date of death, the statute of
limitations applicable to personal injury claims, which begins
to run on the date of injury, does not apply to wrongful death
actions.
In light of the derivative character of wrongful death
claims, for a representative of the decedent's estate to have a
right to bring a wrongful death action, the decedent must have
5 Because the plaintiffs share their surnames with the decedents whose estates they represent, we refer to each by their first name. 4
had the continued right to bring a cause of action for the
injuries that caused his or her death. Where a decedent has
such a right at the time of death, a cause of action for
wrongful death vests in the personal representative of the
decedent's estate, and the three-year statute of limitations for
the wrongful death action begins to run from the date of death.
Where a decedent could not maintain a personal injury action at
the time of death, the representative of the decedent's estate
has no right to bring an action for wrongful death for the
benefit of the beneficiaries. Thus, the three-year statute of
limitations for wrongful death actions is not implicated.
In these cases, because the decedents had no right to bring
a cause of action for the injuries that caused their deaths at
the time that they died as a result of the running of the
statute of limitations on the decedents' underlying tort and
breach of warranty claims, the plaintiffs, as personal
representatives of the decedents' estates, had no right to bring
wrongful death actions based on those injuries.6 We affirm the
judgments dismissing those claims.
6 We acknowledge the amicus briefs submitted by the Massachusetts Defense Lawyers Association, the Massachusetts Academy of Trial Attorneys, and Product Liability Advisory Council, Inc., in the Fabiano case. 5
Background. 1. Fabiano case.7 Ralph began smoking
cigarettes at the age of fifteen when he received free samples
of cigarettes, including "L&M" brand cigarettes manufactured by
Philip Morris USA Inc. Ralph became addicted to smoking and
continued to buy and smoke L&M cigarettes for the next fifty
years. Ralph regularly purchased L&M cigarettes from Shaw's
Supermarkets, Inc. In 2004, Ralph was diagnosed with emphysema,
a form of chronic obstructive pulmonary disease (COPD), caused
by long-term cigarette smoking. He died of COPD on July 22,
2014. Just under three years later, on July 14, 2017, Grace, as
personal representative of Ralph's estate, brought this wrongful
death suit against Philip Morris USA Inc. and Shaw's
Supermarkets, Inc. (collectively, Fabiano defendants).8 Grace's
amended complaint asserted wrongful death claims based on breach
of warranty, negligence, and conspiracy. See G. L. c. 229, § 2.
2. Fuller case. John began smoking "Camel" brand
cigarettes manufactured by R.J. Reynolds Tobacco Company at the
age of seventeen and continued to do so for over forty years.
7 Michael Cuddy was named special representative of the estate of Ralph Fabiano in the original complaint. Grace was subsequently appointed as personal representative; she filed an amended complaint substituting herself for Cuddy. Cuddy is no longer an active party in the case.
8 Garber Bros, Inc., was also originally named as a defendant. The company filed for bankruptcy shortly before the case was brought, and all actions against it were stayed. 6
John frequently purchased Camel cigarettes from Cumberland
Farms, Inc. In 2012, John was diagnosed with lung cancer caused
by long-term cigarette smoking. On March 21, 2016, Mary and
John brought a suit against R.J. Reynolds Tobacco Company and
Cumberland Farms, Inc.9 (collectively, Fuller defendants),
alleging liability under G. L. c. 93A. John subsequently died
from lung cancer on November 13, 2016. On September 11, 2017,
Mary, as personal representative of John's estate, amended the
complaint, adding wrongful death claims based on breach of
warranty, negligence, and conspiracy.10
3. Motions disposing of wrongful death claims. In the
respective cases, the Fabiano defendants moved to dismiss the
amended complaint and the Fuller defendants moved for partial
judgment on the pleadings with respect to the wrongful death
claims. In each motion, the defendants relied on our decision
in GGNSC, 484 Mass. at 191, to argue that the wrongful death
claims were barred because the statute of limitations had lapsed
on the decedent's underlying claims at the time of the
decedent's death. See G. L. c. 106, § 2-318 (three-year statute
9 Garber Bros, Inc., was also named as a defendant in the Fuller case. The parties, however, stipulated to dismiss the claim against the company after it declared bankruptcy. See note 8, supra.
10Mary also individually asserted a claim of loss of consortium against all defendants, the dismissal of which she does not challenge on appeal. 7
of limitations for breach of warranty actions); G. L. c. 260,
§ 2A (three-year statute of limitations for tort actions).
The motions were allowed by different judges in the
Superior Court. Both judges ruled that, because wrongful death
recovery is derivative of a decedent's own cause of action, the
wrongful death claims were precluded because each decedent could
not have brought claims based on the injuries that caused his
death had he survived. Grace and Mary both appealed.11 We
allowed their applications for direct appellate review.
Discussion. 1. Right to wrongful death recovery. The
right to recover for wrongful death finds its origin in the
common law. See Gaudette v. Webb, 362 Mass. 60, 71 (1972).
Despite the common-law nature of wrongful death actions, we have
interpreted the wrongful death statute as establishing certain
requirements applicable to such actions, including
"(a) requiring that damages recoverable for wrongful death be based upon the degree of the defendant's culpability; (b) prescribing the range of the damages recoverable against each defendant; (c) requiring that any action for wrongful death be brought by a personal representative on behalf of the designated categories of beneficiaries; and (d) requiring that the action be commenced within the specified period of time, as a limitation upon the remedy and not upon the right."
11 Following the allowance of the Fuller defendants' motion for judgment on the pleadings, trial commenced on Mary's G. L. c. 93A claim. After trial, the judge concluded that the c. 93A claim was time barred. Mary does not challenge that portion of the judgment on appeal. 8
Id. In determining the parameters of recovery for wrongful
death, we begin first with the language of the statute, and "if
the language does not resolve the question, [we look] to the
common law for guidance." GGNSC, 484 Mass. at 186-187.
2. Derivative nature of wrongful death claims. In GGNSC,
we were called to determine whether G. L. c. 229, § 2, provided
rights to a decedent's statutory beneficiaries derivative of or
independent from the decedent's own cause of action for the
injuries that caused the decedent's death. GGNSC, 484 Mass. at
184. We concluded that wrongful death claims are derivative
based on the language of the wrongful death statute, augmented
by our interpretation of common-law wrongful death actions in
the Commonwealth over time and persuasive authority from other
jurisdictions. Id. at 184, 187-191.
In relevant part, G. L. c. 229, § 2 -- as it currently
stands -- provides for wrongful death liability where
"[a] person who (1) by his negligence causes the death of a person, or (2) by willful, wanton or reckless act causes the death of a person under such circumstances that the deceased could have recovered damages for personal injuries if his death had not resulted, . . . or (5) is responsible for a breach of warranty arising under [art. 2 of G. L. c. 106] which results in injury to a person that causes death."
In 1958, the Legislature amended a previous iteration of the
statute by adding the language that, in part, undergirded our
conclusion in GGNSC that wrongful death claims are derivative. 9
GGNSC, 484 Mass. at 187-188. Specifically, the "Legislature
amended G. L. c. 229, § 2, to permit compensation only 'under
such circumstances that the deceased could have recovered
damages for personal injuries if his death had not resulted.'"
Id., quoting St. 1958, c. 238, § 1.
In GGNSC, we noted that the "under such circumstances"
clause in the statute demonstrated the Legislature's intent to
"expressly tether[] a wrongful death claim to tortious conduct
that caused the decedent's personal injury."12 GGNSC, 484 Mass.
12At oral argument, counsel for the Fuller defendants argued for the first time that the Legislature did not intend to make wrongful death claims derivative when it included the "under such circumstances" clause in the 1958 version of the wrongful death statute, but rather included the clause to capture the categories of circumstances giving rise to wrongful death enumerated in various sections of the 1949 version of the statute. St. 1949, c. 427, § 2. The "under such circumstances" clause, however, was not necessary to fulfill this purpose. Indeed, the "under such circumstances" language (or a nearly identical iteration thereof) predated the 1958 version of the statute. See St. 1883, c. 243. We interpreted that language -- prior to the 1958 amendment -- as creating a right of recovery derivative of the rights of the deceased. See Dacey v. Old Colony R.R., 153 Mass. 112, 117 (1891) ("The purpose of the statute is to permit the administrator to maintain an action for the death when the intestate could have maintained an action if he had recovered, and not otherwise. When his action would have been defeated by the defence of common employment if he had sued, the action of his administrator will be barred in the same way in a suit brought on account of his death. This seems the only reasonable interpretation of the statute"). We presume that the Legislature was aware of our interpretation of this language when it included nearly identical language in the 1958 version of the wrongful death statute. See Commonwealth v. Colturi, 448 Mass. 809, 812 (2007). Thus, we see no reason to revisit the interpretation we afforded the "under such circumstances" clause in GGNSC, 484 Mass. at 187-188. 10
at 188. And we concluded specifically that the clause applied
to wrongful death actions caused by willful, wanton, or reckless
conduct, and by negligence. Id. But only wrongful death
actions based on negligence were at issue in that case. Id.
Accordingly, we acknowledged that the statute permits wrongful
death recovery based on breach of warranty, but we did not
address explicitly that the "under such circumstances" clause
does not also follow the clause permitting wrongful death
recovery based on breach of warranty. See id. at 188 n.14.
The plaintiffs contend that, as a result, in GGNSC, 484
Mass. at 191, we left open the question whether wrongful death
actions based on breach of warranty are derivative. We did not.
Our conclusion that wrongful death recovery as a whole is
derivative did not rely exclusively on the "under such
circumstances" clause. Id. at 188-191. Rather, by looking at
the language and structure of the wrongful death statute, we
discerned the Legislature's intent that any claim brought under
it "remain tied to the decedent's action." See id. at 187-188
(considering "plain language of the section at issue by
analyzing the statute as a whole").13 In particular, this intent
13In analyzing whether wrongful death actions under G. L. c. 229, § 2, based on negligence were derivative, we also considered that "the elements of our wrongful death action based on negligence mirror those of an ordinary negligence claim." GGNSC, 484 Mass. at 188. Notably, the same is true of actions for wrongful death and claims for personal injury based on 11
is demonstrated, in part, by the Legislature affording the
decedent's executor or administrator the exclusive right to
initiate a wrongful death suit under G. L. c. 229, § 2.
Although § 1 of the wrongful death statute identifies the
permissible beneficiaries of a wrongful death suit, the statute
does not permit those beneficiaries to bring suit, demonstrating
that an action for wrongful death belongs to the estate and that
the decedent's beneficiaries do not have a separate assertable
legal right in the decedent's life under the statute. See
GGNSC, supra; G. L. c. 229, § 1. This is true of all claims
brought under the wrongful death statue, including those based
on breach of warranty.
In determining that wrongful death claims are derivative,
we also drew support from "'trend[s] in [our] law against
allowing' claims under G. L. c. 229, § 2, to be independent of
the decedent's own cause of action." GGNSC, 484 Mass. at 190,
and cases cited. Further, we joined the majority of States,
which "conclude that where an action for the injuries causing
the decedent's death 'could not have been brought by the
deceased, had he survived, . . . no right of action [for
wrongful death] . . . can vest in the deceased's administrator
or representative for the benefit of the beneficiaries.'" Id.,
breach of warranty. See Haglund v. Philip Morris Inc., 446 Mass. 741, 743-745 (2006). 12
quoting 12 Am. Jur. Trials, Wrongful Death Actions § 16, at 344-
345 (1966).
3. Statute of limitations in wrongful death statute. With
wrongful death liability being derivative, the parties now
disagree over the time at which a wrongful death action may be
brought. The dispute here arises primarily from the statute of
limitations set forth in G. L. c. 229, § 2, for commencement of
a wrongful death action. The plaintiffs also rely on prior
amendments to the wrongful death statute to support their
position.
a. Language of statute. Section 2 of G. L. c. 229
provides: "An action to recover damages under this section
shall be commenced within three years from the date of death
. . . ."14 The plaintiffs contend that this language
unambiguously demonstrates the Legislature's intent to permit a
decedent's representative to bring a wrongful death action
within three years of the decedent's death, regardless of the
date of injury or whether the decedent's claim was time barred
at the time of death. Their arguments misconstrue the reason
that their claims are barred.
14The wrongful death statute also contains a discovery rule permitting an action to be commenced "within three years from the date when the deceased's executor or administrator knew, or in the exercise of reasonable diligence, should have known of the factual basis for a cause of action," G. L. c. 229, § 2, which is not at issue or applicable in these cases. 13
"A statute of limitations is a limitation on liability that
defines the time period within which a cause of action may be
brought. A statute of limitations does not create a cause of
action that does not otherwise exist." Sullivan v. Rich, 71
Mass. App. Ct. 16, 20 (2007). Although the statute of
limitations in G. L. c. 229, § 2, sets the time period in which
a wrongful death action may be brought, it does not confer an
independent right to bring one. See Gaudette, 362 Mass. at 71.
The right to bring a wrongful death action, being derivative, is
"dependent on the continuance of a right in the decedent to
maintain an action for his injury up to the time of his death"
(citation omitted). GGNSC, 484 Mass. at 185, 190-191.
Where a decedent had no right on the date of his or her
death to bring suit for the injury that caused his or her death,
no cause of action for wrongful death based on the death-causing
injury ever vests in the decedent's representative for the
benefit of the beneficiaries. GGNSC, 484 Mass. at 190-191.
Because a cause of action for wrongful death never comes into
existence for the decedent's representative, it never accrues,
and the three-year statute of limitations designated by the
Legislature for wrongful death actions is never triggered. See
McGuinness v. Cotter, 412 Mass. 617, 621 (1992), quoting Klein
v. Catalano, 386 Mass. 701, 702 (1982) ("A statute of
limitations is a procedural measure which 'normally governs the 14
time within which legal proceedings must be commenced after the
cause of action accrues'"); Doe No. 4 v. Levine, 77 Mass. App.
Ct. 117, 119 (2010), quoting Black's Law Dictionary 23 (9th ed.
2009) ("'Accrue' means '[t]o come into existence as an
enforceable claim or right'"). Thus, it is not the statute of
limitations for wrongful death that bars the plaintiffs' claims,
but the absence of any claim vested in them because the
decedents were unable to bring claims for their injuries at the
time of their deaths.
b. Statutory amendments. Previous amendments to G. L.
c. 229, § 2, are inapposite and do not support the plaintiffs'
position. Prior to 1981, the wrongful death statute, in
addition to providing a time period in which a cause of action
must be commenced, also provided that "[n]o recovery shall be
had . . . for a death which does not occur within two years
after the injury which caused the death." G. L. c. 229, § 2, as
amended through St. 1979, c. 164, § 1. In 1981, the Legislature
amended the statute by striking out the latter sentence limiting
recovery. St. 1981, c. 493, § 1. While the plaintiffs contend
that by doing so the Legislature clearly intended the statute of
limitations for wrongful death claims to be unaffected by the
date of the decedent's injury, the 1981 amendment did not
address the statute of limitations for wrongful death. Nor did 15
it have any impact on the derivative nature of the cause of
action.
The amendment that the plaintiffs rely on left undisturbed
the three-year limitations period for commencement of an action
for wrongful death. See G. L. c. 229, § 2, as amended through
St. 1981, c. 493, § 1. The sentence that the amendment deleted
operated as a bar to recovery for wrongful death, regardless of
when a cause of action accrued or whether a complaint was filed
within the limitations period. In that regard, the deleted
provision resembled a statute of repose. See Bridgwood v. A.J.
Wood Constr., Inc., 480 Mass. 349, 352 (2018) ("A statute of
repose eliminates a cause of action at a specified time,
regardless of whether an injury has occurred or a cause of
action has accrued as of that date").
The plaintiffs conflate these differing concepts. Each of
these three particulars -- whether there is a cause of action
that has accrued, whether the limitations period has run (or
begun to run), and whether any statutory restrictions bar
recovery -- is separate and distinct from the others. The
following example illustrates the distinction. Suppose a
decedent was injured two and one-half years before dying from
that injury. The applicable statute of limitations for her
personal injury claim would not have run at the time of her
death (six months remained on the claim), and so long as her 16
claim was otherwise viable, a cause of action for wrongful death
would then vest in her representative upon her death. The
wrongful death action having fallen to the representative, the
statute of limitations would accordingly begin to run for that
action on the date of death and would run for three years.
However, prior to 1981, no recovery would be permitted for such
an action under G. L. c. 229, § 2, as amended through St. 1979,
c. 164, § 1, because the decedent died more than two years after
the injury that caused her death.
By contrast, in these cases, because the decedents both
died over three years after the injuries that caused their
deaths, by virtue of the running of the underlying statute of
limitations, they had no right to bring personal injury claims
for those injuries at the time that they died. Thus, no right
of wrongful death ever fell to their representatives. While,
given the timing of their deaths, the pre-1981 restriction on
recovery would have also precluded their representatives'
wrongful death actions, the elimination of the pre-1981
restriction -– which functioned as a statute of repose -- in no
way created a right in the decedents' representatives to bring a
wrongful death action that did not otherwise exist. The statute
of limitations for wrongful death was therefore never implicated
in these cases. 17
The plaintiffs contend that our conclusion creates a rule
that a decedent's death must occur within three years of the
injury that caused it, and that this conclusion cannot be
reconciled with the 1981 amendment eliminating any bar to
recovery tied to the date of injury. But the particular reason
why a decedent's personal injury claim is precluded at the time
of death –- here, the expiration of the statute of limitations
on the decedents' personal injury claims -- is not our focus
when determining whether a wrongful death action exists.
Rather, because a wrongful death claim is derivative, the same
outcome would result regardless of the reason that the
decedent's own claims were barred, whether it be because of an
arbitration agreement, a release from liability, or, as is the
circumstance in these cases, the statute of limitations.
4. Other jurisdictions. Of the jurisdictions where
wrongful death liability is derivative, the vast majority that
have weighed in on this issue agree that, if the decedent's
underlying personal injury claim is barred by the statute of
limitations at the time of death, no right of wrongful death is
created in the representative of the decedent's estate for the
benefit of the beneficiaries. See, e.g., Curtis v. Quality
Floors, Inc., 653 So. 2d 963, 964 (Ala. 1995) ("if a decedent's
cause of action is time-barred at his or her death, then the
decedent's personal representative cannot bring a wrongful death 18
action"); Drake v. St. Francis Hosp., 560 A.2d 1059, 1062-1063
(Del. 1989) ("[wrongful death statute] imposes a condition
precedent to the accrual of a wrongful death cause of action
. . . , i.e., the decedent's ability to have maintained an
action and recovered damages, if death had not ensued. [Where]
the decedent's medical malpractice action was time barred
. . . , no cause of action for wrongful death ever 'accrued' in
his survivors"); Mason v. Gerin Corp., 231 Kan. 718, 725 (1982)
("where the injured party could not have brought an action for
his personal injuries because the statute of limitations had run
against his claim prior to his death, a wrongful death action
cannot be maintained"); Estate of Stokes v. Pee Dee Family
Physicians, L.L.P., 389 S.C. 343, 349 (2010) ("a claim under
[the wrongful death statute] lies in the decedent's estate only
when the decedent possessed the right of recovery at his death.
. . . [T]he wrongful death statute of limitations does not serve
to revive a previously barred claim"); Russell v. Ingersoll-Rand
Co., 841 S.W.2d 343, 348-349 (Tex. 1992) ("if a decedent may not
maintain suit because of some defense -- release, res judicata,
limitations, etc. -- which may be properly interposed by
defendants, there is no wrongful death action to accrue. The
action is not barred by limitations before it accrues; it never
accrues because the decedent could not maintain an action at his
death"); Edwards v. Fogarty, 962 P.2d 879, 883 (Wyo. 1998) 19
("Where the statute of limitations has run on the underlying
cause of action and the injured party does not have a viable
claim at the time of his death, a wrongful death action by his
survivors is also barred").15
The jurisdictions that permit wrongful death recovery
despite the expiration of the statute of limitations on the
decedent's underlying personal injury claims "tend to interpret
their wrongful death statute . . . as creating a new and
independent cause of action," see Mummert v. Alizadeh, 435 Md.
207, 224-225 (2013), and cases cited, or at least have been
unclear about the derivative nature of wrongful death liability.
For example, Colorado, to which the plaintiffs point for
support, has treated wrongful death actions as derivative in
some sense, see Stamp v. Vail Corp., 172 P.3d 437, 447 (2017),
but also has described such actions as "separate and distinct
from a cause of action the deceased could have maintained had he
survived," Allen v. Pacheco, 71 P.3d 375, 379 (Colo. 2003),
cert. denied, 540 U.S. 1212 (2004) (arbitration agreement
15See also Estate of Hull v. Union Pac. R.R., 355 Ark. 547, 553 (2004); Toombs v. Alamo Rent-A-Car, Inc., 833 So. 2d 109, 115-117 (Fla. 2002); Wyness v. Armstrong World Indus., 131 Ill. 2d 403, 408 (1989); Ogden v. Berry, 572 A.2d 1082, 1083-1084 (Me. 1990); Dunn v. Pacific Employers Ins. Co., 332 N.C. 129, 132-134 (1992); Deggs v. Asbestos Corp. Ltd., 186 Wash. 2d 716, 732 (2016). 20
covered wrongful death action because of language in agreement,
rather than derivative nature of action).
Under Colorado's reasoning, so long as a decedent, at some
point, had the right to maintain a cause of action for the
decedent's personal injuries, the condition precedent to having
a wrongful death action is satisfied, even if the decedent could
not have maintained such an action as of the date of death. See
Rowell v. Clifford, 976 P.2d 363, 364-365 (Colo. App. 1998)
(recognizing interpretation of wrongful death statute differs
from other jurisdictions). West Virginia, which has similarly
been unclear about whether it considers wrongful death liability
to be derivative, follows the same approach. See Stonerise
Healthcare, LLC vs. Oates, W. Va. Sup. Ct. App., No. 19-0215
(June 16, 2020) (Workman, J., dissenting) (lack of clarity in
West Virginia whether wrongful death recovery is derivative).
But see Davis v. Foley, 193 W. Va. 595, 600 (1995) ("a wrongful
death action [is] a derivative claim"); Hoover's Adm'x v.
Chesapeake & O. Ry., 46 W. Va. 268, 270 (1899) ("if the
character of injury is such that the injured party could have at
any time maintained a suit in relation thereto, his
administrator could sue after his death," even where statute of
limitations for decedent's claims expired before death).16
16To the extent that the parties on both sides rely on cases from Mississippi and Connecticut to support their 21
In GGNSC, 484 Mass. 190-191, we were unequivocal that, in
Massachusetts, we follow the majority rule that wrongful death
liability is derivative. Accordingly, we follow the majority
approach precluding recovery for wrongful death where the
statute of limitations on the decedent's underlying claims ran
before the decedent's death.17
positions, their reliance is misplaced. Both jurisdictions treat wrongful death actions differently from how we do. In Mississippi, for instance, where a wrongful death action is based on personal injury to the decedent, as opposed to injuries that the decedent's death caused to others, such as a loss of consortium claim, the wrongful death action must be brought within the statute of limitations associated with the underlying personal injury claim. Caves v. Yarbrough, 991 So. 2d 142, 148- 150 (Miss. 2008). In Connecticut, similarly, where the basis of a wrongful death action is a statutory action that did not exist at common law, the wrongful death action is subject to the statute of limitations associated with the underlying statutory action, rather than the statute of limitations set out in the wrongful death statute. Harvey v. Department of Correction, 337 Conn. 291, 298-300 (2020).
By contrast, as we have stated, our conclusion is not that wrongful death actions must be brought within the time permitted by the statute of limitations for the underlying claim. Rather, we conclude merely that the statute of limitations for the underlying claim must not have expired at the time of the decedent's death. In other words, the claim must be viable at the time of the decedent's death for a wrongful death cause of action to exist. If such an action exists, the statute of limitations for wrongful death actions -- not the statute of limitations for the underlying claim -- governs when a wrongful death action may be brought.
17While the plaintiffs argue that our conclusion produces fundamental unfairness by forcing those suffering from life- threating illnesses to make the untenable choice of filing suit while they are suffering from the illness or forfeiting their heirs' right to recovery in the event that the statute of limitations runs before their death, our decision in no way 22
Conclusion. We affirm the judgments in both cases
dismissing the plaintiffs' wrongful death claims.18
So ordered.
changes what has long been true of persons suffering from serious injuries. Once those injuries are knowable, plaintiffs must assert their rights within a specified period of time or lose their ability to recover for their injuries. See Klein, 386 Mass. at 702. Because the right to recover for wrongful death is derivative of a decedent's right to recover for his or her injuries, if the decedent, during his or her life, loses or otherwise forfeits the ability to recover, no right to recover exists in his or her beneficiaries.
18The requests for costs by both Grace and Philip Morris USA Inc. are denied.