FITZPATRICK v. COHEN
Filing
69
ORDER ON AMENDMENT TO WRONGFUL DEATH STATUTE By JUDGE GEORGE Z. SINGAL. (lrc)
UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
DAVID FITZPATRICK, as Personal
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Representative of the ESTATE OF RYAN )
R. FITZPATRICK,
)
)
Plaintiff,
)
)
v.
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)
KENNETH P. COHEN,
)
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Defendant.
)
Docket No. 2:10-CV-54-GZS
ORDER ON AMENDMENT TO WRONGFUL DEATH STATUTE
On April 6, 2011, the Court held a final pre-trial management conference in preparation
for beginning trial on April 11, 2011. At the conference, the parties for the first time brought to
the Court’s attention an outstanding legal issue involving the 2009 amendment to Maine’s
Wrongful Death Act. The Court ordered the parties to submit memoranda discussing the issue
and its potential impact by April 11, 2011.
Having reviewed these memoranda (Docket #s 66 &
67), the Court now enters this Order to clarify the application of Maine’s Wrongful Death Act to
the claim now being tried before the jury. As explained herein, the Court concludes that the
current version of Maine’s Wrongful Death Act, which has been in effect since August 2009,
governs this case.
By way of background, the following dates are important to the Court’s analysis: On
July 2, 2008, Ryan Fitzpatrick sustained serious injuries in a collision with a vehicle driven by
Defendant Kenneth P. Cohen. On December 29, 2009, Ryan Fitzpatrick brought a personal
injury action against Defendant in state court claiming Defendant’s negligence caused his
injuries. 1 (See Compl. (Docket #2-4).) On February 11, 2010, Ryan Fitzpatrick was killed in a
skiing accident at Sunday River in Bethel, Maine. After Ryan passed away, Plaintiff David
Fitzpatrick, appearing in his capacity as personal representative of the estate of his son and
alleging that his son’s death in 2010 was proximately caused by the 2008 accident, asserted a
claim pursuant to Maine’s Wrongful Death Act, 18-A M.R.S.A. § 2-804. David Fitzpatrick first
asserted this wrongful death claim in an Amended Complaint filed on April 29, 2010. (See Am.
Compl. (Docket # 11) ¶¶14-15.)
As the timeline above makes clear, the date of the accident (and alleged wrongful act)
precedes the date of the death by almost a year and a half. In the time period between the 2008
accident and the 2010 death, the Maine Legislature amended Maine’s Wrongful Death Act. This
amendment became effective on August 28, 2009. See An Act to Amend the Laws Concerning
Wrongful Death, H.P. 316, L.D. 428, 124 Legis., 1st Reg. Sess. (Me. 2009). Thus, the first
question before the Court is which version of the wrongful death statute applies?
At the time of the July 2008 accident, the wrongful death statute provided, in pertinent
part, that:
The jury may give such damages as it determines a fair and just compensation
with reference to the pecuniary injuries resulting from the death to the persons for
whose benefit the action is brought … .
18-A M.R.S.A. § 2-804 (b) (former version). The parties agree that this version of Maine’s
Wrongful Death Act limited the recovery of pecuniary injuries to losses actually sustained by
Plaintiff David Fitzpatrick, who is the sole beneficiary of the estate. In amending this statute in
2009, the Legislature deleted the final clause reading “for whose benefit the action is brought.”
See P.L. 2009, c. 180, § 1. Thus, on the day of decedent’s death in early 2010, the statute
1
This lawsuit was then removed to this Court by Defendant on February 8, 2010 (See Notice of Removal (Docket
#1)).
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provided, in pertinent part: “The jury may give such damages as it determines a fair and just
compensation with reference to the pecuniary injuries resulting from the death … .” 18-A
M.R.S.A. § 2-804 (b) (2009). The parties agree this change in the law—i.e., the removal of a
requirement that any provable loss be tied to a particular beneficiary—has the potential effect of
providing for full recovery of the decedent’s lost earnings by the estate. Not surprisingly,
Plaintiff argues that the 2009 amendments to the Wrongful Death Act apply to the pending claim
while Defendant argues that Plaintiff’s claim should be governed by the version of the statute
that was in effect on July 2, 2008 (the date of the collision).
The Court finds that Plaintiff has the better of the argument. The Law Court has long
held that the rights attaching to a death claim are created at the time of death. See Buzynski v.
Knox County, 188 A.2d 270, 271 (Me. 1963) (a wrongful death “action is created on the death of
the decedent”); Dostie v. Lewiston Crushed Stone Co., 8 A.2d 393 (Me. 1939) (a beneficiary’s
“right to compensation for his pecuniary loss vests as of the time of the death of the person
killed, not at the time of bringing suit or of recovery”); Hammond v. Lewiston, A. & W. St. Ry.,
76 A. 672, 673 (Me. 1909) (“But in any event the immediate, absolute, and final vesting of the
right occurs at the time of the decease, not at the time of bringing suit or of recovery.”).2 Indeed,
if Ryan R. Fitzpatrick had not died, Plaintiff David Fitzpatrick would not be involved in the
current action. It follows, therefore, that the wrongful death claims brought here by Plaintiff, as
personal representative, are governed by the law in effect at the time of his son’s death. The
Court notes that this same version of Maine’s Wrongful Death Act was in effect at the time this
lawsuit was initially filed in December 2009. See Rooney v. Sprague Energy Corp., 519 F.
2
This diversity action is governed by Maine substantive law. Gasperini v. Center for Humanities, Inc., 518 U.S.
415, 427 (1996).
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Supp. 2d 131, 134-35 (D. Me. 2007) (finding, in the context of a Maine Human Rights Act
claim, that complaints are generally governed by the law applicable at the time of filing).
The Court also alternatively concludes that the 2009 amendment to the statute did not
substantively alter any rights or liabilities arising out of the 2008 accident. In other words, the
legislative change did not make wrongful an act that was not wrongful previously. See In re
Guardianship of Jeremiah T., 976 A.2d 955, 960 (Me. 2009) (“An amendment may be deemed
substantive if it changes the legal significance or consequences of acts or events that occurred
before the amendment’s effective date.”). Therefore, the Court “appl[ies] ‘the common law
presumption that, absent language to the contrary, legislation affecting procedural or remedial
rights should be applied retroactively.” Id. (quoting Greenvall v. Maine Mut. Fire Ins. Co., 788
A.2d 165, 166 (Me. 2001) (collecting cases)). As the amendment to the wrongful death statute
impacted only Plaintiff’s remedy, even if the Court were to have found the 2008 accident to be
the pertinent date, the Court would still hold that the 2009 version of the statute should be
applied retroactively.3 Thus, the Court concludes that Plaintiff may seek damages, including
damages for pecuniary injuries resulting from Ryan’s death, without proving loss to David
Fitzpatrick. Any jury instructions on wrongful death damages will reflect this conclusion.
Having concluded that Plaintiff’s wrongful death claim is governed by the version of the
statute that became effective in August 2009, the Court confronts another issue that appears to be
an issue of first impression in Maine: Under Maine’s Wrongful Death Act, should the pecuniary
3
In so holding, the Court acknowledges that Greenvall might be read as providing contrary authority. See
Greenvall, 788 A.2d at 166-67. In Greenvall, the Maine Law Court held that a post-death amendment that increased
the damage caps in the wrongful death statute “doubled one’s potential liability for the loss of comfort, society, and
companionship, and thus cannot be said to be purely procedural.” Id. As in Greenvall, it is true that the change in
the law here also creates the potential for an increase in the amount of pecuniary damages (the one category of
uncapped damages under the statute). But, in Greenvall, the disputed amendment was made between the death
(which occurred concurrently with the alleged wrongful act) and the filing of the lawsuit. Here, the dispute centers
around a change in the law that was made after the alleged wrongful act but prior to the death and filing of the
current lawsuit. In the Court’s view, this difference makes Greenvall readily distinguishable.
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loss caused by the death be reduced by the decedent’s projected personal consumption? On this
issue, Plaintiff asserts “a minority position” and argues that the Court should allow the estate to
recover gross earnings without any reduction. (Pl. Mem. (Docket # 67) at 3.) While Defendant
did not explicitly brief the issue, the Court assumes that Defendant disagrees with Plaintiff’s
asserted position. Admittedly, jurisdictions with so-called “loss-to-estate systems” appear to be
split as to whether to require the deduction. See Stuart M. Speiser & James M. Rooks, Recovery
for Wrongful Death § 6:52 et seq. (4th ed. 2010) (comparing net and gross earnings states). In
the Court’s view, awarding gross earnings would have the perverse effect of placing the
decedent’s estate in a better position than if he lived to earn the amount sought. The Court sees
no reason to conclude that the 2009 amendments to the Wrongful Death Act sought to allow for
an award of gross earnings. Therefore, the Court concludes that any pecuniary damages award
on the wrongful death claim should reflect a deduction for the decedent’s personal consumption.
SO ORDERED.
/s/ George Z. Singal
United States District Judge
Dated this 12th day of April, 2011.
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