McDavid v. United States

MCDAVID, her behalf own Naomi representative

and as the deceased, McDavid, Plaintiff,

Oney America, Defendant.

UNITED STATES

No. 30740. Appeals

Supreme Court Virginia. 11, 2003.

Submitted Feb. July

Decided

Concurring Opinion of Justice July

Maynard Calwell, Esq., Carriger,

Stuart David H. Esq., Calwell, Law Stuart Office Charles- ton, Attorneys Virginia, West for the Plain- tiff. Warner,

Kasey Attorney, United States Horn, Stephen M. Kinney, Sandra Henson Attorneys, Assistant United States Charles- ton, Ray II, L. Hampton, Special Assistant Attorney, Huntington, United States Virginia, Attorneys for Defendant. STARCHER, Chief Justice: upon ques- This case before the Court tion certified from the United States District Court for the Southern District of West Vir- ginia. By order entered December presented following the district court cer- question: tified Whether a decedent’s beneficiaries for a recover decedent’s suffering, incurred between the time of death, injury and time of where the injuries result in death but the decedent did not institute action for injury prior to his or her death? Virgi- careful After consideration West statutes, nia’s death and survival (the “wrongful 55-7-5 to -8a act”), authorities, pertinent we question in answer the certified affirma- tive. We hold that death ac- tion, a decedent’s beneficiaries to, stances, its limited including, but not pain and for a husband, treatment, and failure to treat” her injury and the between time endured caused her negligent and that this treatment time where the resulted plaintiff al- death. The further husband’s did institute death but the decedent negli- the leged, that defendant’s inter injury to personal prior his or her action for alia^ pain, gence caused the decedent life, enjoyment of dis- loss of emotional tress. I. subsequently filed a motion The defendant Background Facts & plaintiffs to dismiss the claim McDavid, own Naomi on her plaintiff, The argued that be- suffering. The defendant representative of personal

behalf and the personal a did not file cause the decedent (“the husband, Oney McDavid death, her deceased injury prior his cause of to decedent”), that in October contends injury damages with personal died action for x-ray an Veter- received the plaintiff prevented the decedent from him is now Hunt- Medical Center in damages by ans Administration pur-suing those the terms (“VA x-ray ington hospital”). Virginia wrongful The revealed act. The death right lung. certify Ac- opacity plaintiff court to an asked the district plaintiff, question was told whether she cording to the the decedent act for the dece- worry opacity and under the to no further about pain and endured between dent’s at that time. tests were ordered alleged negli- of defendant’s the time January to his the decedent went gence and the decedent’s death. family cough. a At complaining of doctor By an order dated December time, opacity x-ray that that revealed prejudice the court without district denied subsequently It tripled size. was plain- to motion dismiss the United States’ be cancerous. decedent discovered injury personal tiffs claim the lung July died of cancer on 2000. damages, that claim was an and found plaintiff filed an August On certify appropriate to this Court. issue defendant, against the United order, inspecting district court’s we After America, pursuant Federal of States question re- should be determined Act, seq., et Tort 28 U.S.C. Claims now discuss reasons for our viewed.2 We that plaintiff alleged court.1 The the district question. answer to the certified defendant, acting through employees, its hospital, physicians at the VA “failed II. care, skill learn- degree exercise Standard Review reasonable, ing required expected or facility employs plenary physieian[s] medical This Court stan prudent and/or eireum- dard review when we answer certified acting in the same or similar against if the court the United States ... As claims are the United plaintiff's tire States, her action falls under Federal Tort of an answer be determinative issue grants courts Claims Act -which to federal district certifying pending and if cause in the court jurisdiction over claims that are "for money controlling decision, con- there is no appellate injury ... or personal or statute of this state. stitutional provision negligent or act or omis- caused by certified We find that our answer question while Government sion of any employee an issue in the case is determinative plaintiff’s acting office within the of his scope employ- We find there district court. further tlie circumstances where the United ment, under controlling no as to whether precedent be liable to the States, if a would private person, wrongful death act a decedent’s benefi- permits law the claimant in accordance with the place for a decedent's ciaries to recover 28 U.S.C. where the act or omission occurred.” suffering where did not the decedent 1346(b). to his institute a action prior certification is a her death. Consequently, prop- According ~W.Va.Code, [1996]: 51-1A-3 to determine this issue. er means Virgi- of West court supreme appeals law certified to it nia answer a question questions. Light order recover for losses incurred Ins. during Allstate period decedent’s estate the time be- (1998), “[a] we held that de novo standard is tween the default applied addressing legal Court the defendant and the decedent’s death. The question presented issues certified argues defendant that if the does Also, appellate district court.” federal not file a action for those question requires the certified before us us prior then the cause of action to construe the act. We dies the decedent. clearly “[w]here held the issue ... plaintiff argues defendant is question of involving interpretation law or urging a and harsh absurd construction statute, apply of a we de novo standard wrongful plaintiff the death act. The asserts 1, Syllabus Chrystal Point review.” R.M. v. logical that the outcome of the defendant’s A.L., 138, Charlie 194 W.Va. 459 S.E.2d 415 argument plaintiffs’ lawyers is that will rush (1995). injured

to file lawsuits a client whenever die, and there is a client will and chance the III. that those will lawsuits be filed before the Discussion plaintiffs’ lawyers properly have a chance to parties The in the instant case dispute investigate and determine whether the law- can, whether decedent’s beneficiaries in a any suits have merit. plaintiff suggests action, wrongful death decedent’s failure to file a lawsuit pain suffering by caused dying before bom of the dece- —whether wrongful act, neglect the or default of the litigation, inability disdain or an dent’s defendant, and endured the between time dying reach the courthouse before —should act, wrongful neglect the or default and the ability not affect the beneficiaries’ to recover time of where the decedent did the full the decedent could a personal injury initiate action to recover recovered, had he or she survived damages prior those time of In act, wrongful defendant’s or default.3 Martin, by Estate Helmick Fox v. 188 559, (1992), W.Va. 425 S.E.2d 235 we conclud- construing wrongful death ed that under act death a dece- act, scheme, with statutory “[t]he as dent’s beneficiaries could recover primary statutory rule of construction is to pain a decedent’s if the give ascertain effect to the intention initiated 8, Legislature.” Syllabus Point Vest v. prior to his or death. We her left unan- (1953). Cobb, 660, 138 W.Va. 76 885 S.E.2d question parties swered the in raised addition, is a cardinal rule of con “[i]t case, stating “[w]e need resolve governing interpretation struction remaining question at this time the of wheth- purpose statutes that for which a statute er is recoverable where has been enacted be resorted the action is not filed until after the dece- ascertaining legislative courts intent.” 10, dent’s death.” W.Va. 563 n. 188 at 425 Syllabus Point State ex rel. Bibb v. Cham S.E.2d at 239 n. 10. bers, (1953). 77 W.Va. S.E.2d 297 argues The defendant “A applied statute should be so read interpretation spirit, death and our it purposes those make accord Helmick, requires objects general system laws initi- decedent to of law of part; ate a action before death which it is to form a intended briefly plaintiff Ry. 3. The St. mentions defen- 129 Neb. 262 N.W. 537 Bluffs (1935), interpretation open dant's act death "courts of this state must be at all might implicate equal protection remedy constitutional times to afford a .. . without reference provisions. wholly suggests subsequent Our research that such a unaffected death Therefore, might party wronged. construction also raise concerns under an action Constitution, administrator, open Const., provision courts of our W.Va. commenced after Ill, intestate, art. As the court stated the death of the Syllabus Wilfong Point 3 of v. Omaha & Council inflicted such deceased maintainable.’’ mind, now we With these standards legislators who drafted presumed that existing un- that are available familial’ with all passed it were examine matter, acts, law, subject wheth- applicable to the der other states’ common, constitutional, statutory our own act. er completely to harmonize statute intended the aid effectuation

with the same and A. thereof, if its design general purpose Syllabus are consistent therewith.” terms Wrongful Generally Acts Snyder, v. State discussing great majority of our cases (1908). S.E. recited, act have or been a remedial wrongful death act is right “no upon, statement that decided statutory stated Accordingly, as we scheme. by wrongful act existed for death Soulsby, Point 6 of Bradshaw Butcher, Baldwin law[.]” common (2001), “Be S.E.2d W.Va. act alleviates cause the Sartin, also, Farley v. See law, to be common it is harshness of the (1995); Sparacio, Adams v. its given a construction to achieve liberal (1973); 678, City 647 156 W.Va. 196 S.E.2d accord, Farley v. purposes.” In beneficent Wheeling ex v. Cos. rel. Carter American 522, Sartin, 195 W.Va. 466 S.E.2d 584, 404(1948); Co., 48 S.E.2d 131 W.Va. (1995) (“[0]ur firmly ... prior decisions 531 Co., 78 & Swope Keystone v. Coal Coke 55-7-5, is a re established (1916). 517, 89 284 W.Va. S.E. liberally con and should be medial statute oft-recited is genesis of this statement 286, strued.”); Smith, W.Va. Martin v. 190 agreed in dicta generally to be contained (‘West (1993) 292, 318, Virgi 438 324 S.E.2d Bolton, Campb. v. 1 1808 case of Baker remedial, and is nia’s death statute (1808), 493, Eng.Reprint. 1033 where 170 Legisla liberally construed effect is court, “in a civil court indicated Biotcher, intent.”); 155 Baldwin v. ture’s being com could not be death of human (1971); 431, City 184 S.E.2d 428 W.Va. ah, Speiser, 1 injury.” et plained of as an S. Wheeling v. American Casual ex rel. Carter Injury, Recovery Wrongful Death and 590, 404, Co., 584, 408 ty 131 W.Va. 1992). (3d. Ed., English § 1.1 at 1-4 (1948) (“The statute, remedial, should basis judge’s became the “off-hand remarks construed.”); liberally Wilder v. Charles common law rule American 322, for the so-called Co., 319, 197 S.E. ton Transit recovery (“The no (1938) that there could be is 814, policy 816 of the statute in the of statute. This became absence v. punitive.”); Richards remedial and not rote, incantation magical recited Works, intoned 49 56 Riverside Iron W.Va. examination, by hun (1904) (“The any without critical is remedi 438 statute S.E. courts of decisions the various al, dreds liberally for and should be construed length and throughout in breadth carrying legislative purpose of out the tent.”). Id.4 United States.” clear, clear that our courts oft- We have since made now that this 4. To be we do not believe law, change English power law repeated necessarily common the common retain the statement Syllabus Morningstar Point holding immutable. v. Sims, (1871), v. W.Va. 1 we stated that Powell Mfg. Black and Decker England in this law in force "[t]he common VIII, "Article Section 13 harmony only with its State far as it is in so the West Constitution institutions, principles applicable to and its Code, 2-1-1, operate as a were not intended to society.” country condition of state law evolution of common bar to Court’s reflected, succinctly "[t]he As Justice Holmes power including principles, to alter or its historic omnipresence brooding common is not a law also, Aud- law.” See James amend the common sovereign sky articulate of some but the voice ley McLaughlin, Law "The Idea of the Common quasisovereign South- that can be identified.” History: Virginia Jurisprudential Morn in West Jensen, 244 U.S. ern Co. Pacific Revisited," W.Va. ingstar & Decker Black J., (1917) (Holmes, L.Ed. 1086 S.Ct. dissenting). L.Rev. Act, remedy harsh of Baker v. bell’s To effect based theory. and cases that its foot- “loss-to-survivors” Bolton followed Under these stat- utes, damages steps, English passed generally in 1846 the Parliament are to be assessed in statutory Campbell’s Act” to with “Lord create accordance the loss the decedent’s remedy survivors, many “[a]n for a death. Entitled limiting states compensating persons act families of pecuniary to the the decedent’s accidents,” the statute that: killed stated survivors caused the decedent’s death. Id., § at 3:7 3-24—25. ... whensoever the Death a Person Act, by wrongful Neglect, shall be caused minority wrongful acts mea- Act, Neglect, or Default and Default damages by sure loss (if ensued) is such as would Death Id., § estate. 3:4 at 3-14. These Party injured have entitled the to maintain death acts allow for the estate recover its Damages respect an Action and recover income, losses—such as lost funeral ex- thereof, every and in then such Case the penses, expenses, medical other dam- Person who would have been liable ages injury. related the decedent’s fatal had not Death ensued be liable Id., § 3:57 3-211. Damages[.] action for States enacted death acts aas Act, Campbell’s Lord 9 & 10 Viet. Ch. response to the failure of the common law to quoted Speiser, Recovery Wrong- S. provide remedy death. How- Appendix A Injury, at 1. The ful ever, wife, husband, parent Act allowed the a corresponding there was failure in child the decedent to in a receive provide remedy the common law Damages they jury] may action “such as [the injuries personal person to a who died proportioned think Injury resulting to the bringing complet- either before or before respectively Death to the Parties ing personal injury a action. At common for whom for whose Benefit such Action law, or the action cause action for such brought[.]” shall be Id. injury would abate and forever lost if Wrongful death statutes modeled after injured person died before Campbell’s Lord Act were first in enacted judgment was or commenced before was beginning the United States entered therein. Campbell’s New York. A law similar to Lord Recovery Wrongful Injury, Death and proposed by Virginia Act was § 14:1 responded by enacting at States pass. not did a “survival” statutes allow decedent’s sur- pursue vivors a of action that cause be- B. decedent, longed pursued to a but was not Damages Wrongful under other States’ completed when the decedent died. Most Death Acts and Survival Statutes provide “an action survival statutes generalizations easy Although are injuries ... upon does abate fifty-one draw among wrongful death injured party per- of either the death States], statutes they [in United usually son liable.... Such statutes do not capable being grouped major into two make distinction between actions for fa- those, representing classifications: ma- (where injuries injury upon tal sued jority, that determine on death) based causes and actions for non-fatal loss to the survivors the decedent or (where injured person a dies from cause beneficiaries; statutory and those that cal- injuries.” upon) other than the sued on the based loss to the Id.., § culate at 14:4 estate of decedent. conceptual are substantial There differ- Recovery Wrongful Injury, Death and provided by ences between remedies 3.3 3-9. wrongful death act and a survival statute. majority acts, wrongful par- “Wrongful compensate death acts either ticularly patterned survivors, deceased, Camp- Lord those after or the estate of the C. they sustained. Survival statutes

losses ... permit recovery ... which Virginia Damages the West under had he could have recovered Wrongful Act merely con- lived.... survival statute [T]he injured person’s claim tinues existence act, Virginia wrongful death The West estate, as asset of his while after death W.Va.Code, -8a, plainly pat- 55-7-5 to wrongful death statute creates usual Act, Campbell’s and was after Lord terned of action based the death new cause shortly in 1863 after enacted Id., § 14.1 at 3. itself.” then, Virginia. separated from The statute — hold that the of states now “[wjhenever cause of action as now—allows a representative aof decedent’s estate a person shall be caused the death contemporaneously bring both default, act, act, neglect, death action —to recover for losses (if neglect or default is such as would survivors —and an action decedent’s ensued) in- party have entitled statute, to the survival recover jured dam- to maintain juris- majority of the decedent’s estate. The W.Va.Code, respect 55-7- ages thereof]].]” dictions allow an action to recover losses [1931], decedent’s estate occurred Soulsby, 210 W.Va. at Bradshaw v. lapse injury-causing time between the interpreted 558 S.E.2d at we act, death —and maintain “[t]o to mean that order “pain such elements include beneficiary an action for impairment anguish, mental specific two must show elements: and, expenses, earning capacity, medical died, was person has and that the death course, expenses, funeral since the did caused default.” cause to be incurred!].]” these Stein brought action “shall Ed., § Damages, 3d. 3:56 at 3-172 Personal represen- in the name of the 1997).5 (West Group person]],]” and the tative of such deceased leading wrongful death As a treatise on damages are be distributed to certain “It is a numeri- acts summarizes: the rule (including beneficiaries the decedent’s surviv- majority jurisdictions damages of that cal etc.). children, ing spouse, siblings, W.Va. suffering prior conscious and 55-7-6(a) [1992], Code, to death recovered under both the hybrid type of en- survival statutes of the elements death While larged survival-wrongful death statute.” 3 same, the dam cause of remain the Injury, Recovery Wrongful our death ages available under also, 1 on Per- at 27-31. See Stein 14.8 55-7-6(b) (c)— act—found Ed., § 3- Injury Damages, 3:57 at sonal 3d drastically changed since 1863. (“[I]t vast of 173 rule damages drasti of those has also character jurisdictions damages for decedent’s cally shifting being changed, from based en suffering prior to death conscious tirely bene upon the losses the decedent’s statutes be recovered under survival to now also include consideration ficiaries hybrid enlarged type survival- losses estate. See Couch to the decedent’s statutes.”). wrongful death Co., 51, 55, Ry. 30 Chesapeake & O. (1898) (“As statutes, 147,149 Virginia's to the character West S.E. We now examine full damages, legislature has interpretations of similar stat- amount of light of the control.”). utes other states. 423, Co., "damages sought Murphy the survival statute Oil 56 Ill.2d under Martin physical represents example and mental of a the decedent’s N.E.2d wages nine-day period follow- brought for loss of ing both a death act case clothing severely for the of his loss The decedent was his and survival statute. injury.” gasoline Ill.2d at sta worn at the time of the defendant’s burned in fire at permitted the tion, days court at 584. The Illinois later. The decedent’s N.E.2d recovery and died nine damages. damages, of these sought death beneficiaries distress, father.”); jury

In award for and bereavement of the Rose, 575, 600-01, expressly was limited to Lester v. (1963) (“This pecuniary Court, “with reference S.E.2d in constru- injury resulting statute, from such death to the wife ing that held numerous occasions person.” kin such and next of deceased necessary prove it not pecuniary that was Legislature, c. 1863 Acts other recovery up for a in such cases words, jury awarding dam was limited to $10,000.00, and that could be based [on] ages that reflected the financial sorrow, benefits bereavement”) mental distress and family; provided the decedent Legislature again once amend- family injury” following “pecuniary had no W.Va.Code, 55-7-6, ed and continued to limit decedent, of the there could be no jury verdicts to amounts the deemed “fair recovery, family could not just, exceeding ten thousand dol- any losses incurred lars,” recovery “pecuni- but added a See, e.g., estate. Adm’r v. Kanawha Searle’s ary by” loss sustained the beneficiaries so Ry. & O. 9 S.E. long as total did awarded (1889) (“[Djamages must be assessed $20,000.00. Legisla- exceed 1955 Acts pecuniary resulting with reference to the loss ture, ch. 1. “It is clear the amendment to person injured, from the death of the was not statute intended limit but physical pain neither the deceased rather right to increase the sufferings surviving nor the mental Rose, wrongful death actions.” Lester v. estimate.”). family can be taken into the Again, W.Va. at at 97. Legislature expanded damages juries permitted were to award available under the act in exclusively on were focused losses 1868, leaving “pecuniary injury” out the lan- beneficiaries, not the losses to the decedent’s guage declaring every that “in such ac- estate. jury give tion the shall they Legislature After continued to just, fair exceeding deem five juries just” damages allow to award “fair and Legisla- thousand dollars.” 1868 Acts beneficiaries, began to the decedent’s ture, adjusted e. again 105. The statute was alter the character of the award from to allow to award relating beneficiaries, to the losses “they just, shall deem fair and not exceeding being related to the losses of the estate of interpretated ten thousand dollars.” We strikingly apparent the decedent.6 This is changes these to mean that the the text of the 1961 amendment to the dam- expanded categories re- ages statute. The 1961 amendment to W.Va. “pecuniary coverable losses” of the ben- Code, 55-7-6 continued to allow the just” eficiaries to “fair and just” damages damages award “fair and example, beneficiaries —for losses such as the pecuniary for “financial or of loss” benefi- the See, grief anguish parents. of bereaved up recovery ciaries to a maximum of e.g., Syllabus Kelley v. Ohio River However, $25,000.00. the amendment went Railroad 52 S.E. 520 on to state: (1905) (“In an action in of a behalf father for pecuniary killing by wrongful expenses Items of loss or [a railroad] his son act or re- negligence, jury general by person- the is not confined to com- coverable under law the pensative damages pecuniary inju- representative al of mere the deceased the sorrow, ry, deceased, but the the consider mental the estate the includ- benefit of of participated away 6. This Court also in the shift actions for if the distribu- beneficiary-related damages from to or the estate-relat- tee distributees of decedent will suffer or loss, damages. they ed Code, the While 1955 version of W.Va. sustained such as where medical, jury damages paid to hospital 55-7-6 allowed a award liable for or have beneficiaries, expenses, the of losses the decedent's we funeral the of estate the decedent jury by payment construed the to the to statute allow award is diminished the of same and its diminished, damages the for losses to decedent’s estate. We distribution to them has been evi- stated, Stamper damage in Point of Bannis- dence of elements of such is admissi- ter, (1961): 118 S.E.2d 313 ble such actions. Legislature, 1. also ch. See expense to 1965 Acts the not limited loss ing but Legislature, ch.2. 1967Acts the by damage property of the de- to caused ceased, necessary expense reasonable expansive given an inter- This Court has treatment, surgical by Leg- pretation language incurred medical chosen instance, of deceased shall For we have con- and burial islature hospitalization, to W.Va. 1965 amendments or considered cluded evidence not be admissible Code, beneficiaries 55-7-6 allow decedent’s Nothing jury action. herein in such damages punitive for the to recover of such bar shall contained defendant, stating that fact “[t]he act of the expense prop- in an action of loss or items spelled wrongful death statute never that the purpose. er for such pre- has particular damages out items Legislature, (empha- ch. 1961 Acts past concluding in the from this Court cluded added). appears It from enactment sis damages could that certain elements acknowledged and un- Legislature Huntington, City Bond v. obtained.” medical ex- damages such as derstood expenses, property penses, funeral juries punitive to award allowed We “of damages, were losses the estate defendant, acting recklessly, “if because deceased,” and not losses of the deceased’s maliciously wilfully, can be held liable Legislature re- The therefore beneficiaries. injures punitive person, he he representative quired of the deceased’s equally punitive held liable for ought to damages for pursue these the es- quality estate to kills the same act where separate in an action Id. the individual.” tate action. monetary Legislature removed 1976, freeing jury caps in a recoverable damages as fair “such seem dramatically increased were just.” Legislature, ch. Acts Legislature in 1965. The Furthermore, Legislature completed expressly allow the the statute also altered juries types of losses could merger its of a pursue, part beneficiaries just damages, awarding fair and consider action, damages for to the losses estate juries both could consider damages for in addition to the deceased one, con- and the estate the beneficiaries beneficiaries. The the losses of the award: solidated 55-7-6 allowed amendment include, verdict of the shall just” damages jury to award “fair not be limited to $10,000.00, exceeding but allowed (a) Sorrow, anguish, following: mental exceeding damages, award “such further society, compan- which include solace dollars, as of one hundred thousand sum comfort, kindly guidance, ionship, offices pecuniary loss equal financial or (b) decedent; compensa- and advice of the beneficiaries. sustained” (i) reasonably expected loss tion Furthermore, (ii) services, decedent, income provided and assistance protection, care to the awarded in addition (c) care, decedent; expenses for the foregoing provisions pursuant to here- hospitalization of the dece- treatment of, personal representative of the de- the injury resulting in incident to the dent shall to recover the rea- be entitled ceased (d) death; reasonable funeral ex- expenses funeral of such deceased sonable penses. hospital, person medi- and the reasonable added). expenses as a (emphasis and other incurred result statute has been cal Id. 1976, act, or default of times wrongful neglect since amended several W.Va.Code, provision which is now found or defendants result- above the defendant 7—6(c)(1)[1992].7 in death. ed 55— several W.Va.Code, times 55-7-6 since ^[1992] finally in has been amended 1992, now states, in pertinent part: injury simply The effect of these amendments has the same has because he two juries theories.”). damages legal been allow award for all act, flowing neglect the By damages crafting portion the or default aof defendant. The broadly, Legis death act so enlarged damages has recoverable under principle juries lature established the juries permit almost unfettered discretion in award damages might that the deceased have recov ing damages by for a death caused had he or ered she survived the act, neglect or default another.8 action, brought in addition to the dam jurisdiction “It is well settled in this ages resulting from the Ju jury where the finds the in defendant liable clearly required by W.Va.Code, ries are now action, wrongful death it has absolute discre awarding just 55-7-6 to consider fair and tion, regard proof without of actual dam damages all including but not losses— ages, pecuniary like, loss and the to make limited to —losses to both the decedent’s ben any just[.’]” award it deems ‘fair and Kesner eficiaries and to the decedent’s estate. But Trenton, 997, 1002, 158 W.Va. 216 S.E.2d course, jury isit axiomatic that is only (1975). 880, 884 As Dent stated in Justice allowed to award the decedent’s beneficiaries Co., Chesapeake Ry. Couch & O. W.Va. recovery one for each loss. See (1898): 30 S.E. Point Harless v. First Nat. Bank Fair mont, (1982) legislature, having great confidence S.E.2d 692 (“It generally recognized integrity purity jury system, is there can be only recovery and a full damages intelligence, one reliance on wrong one mor- injury. damages uprightness, justice, al Double clear sense permitted; law permit impartiality does not of their fellow citizens when single injury. double satisfaction for upon, capacity jurors, called A to sit plaintiff may damages lives, judgment upon twice for in solemn liberty, (b) every such action for ization of the decedent incident to the death; jury, (D) jury, resulting or in a case tried without a reasonable funeral court, may expenses. may award such toas it and, (2) jury just, sepa- seem fair and its verdict the shall set forth direct what rately damages, any, proportions the amount if awarded be shall distributed to funeral, by children, hospital, surviving for reasonable spouse medical including expenses and said other brothers, incurred as a result of adopted stepchildren, children and act, sisters, or default of the any parents persons who were defendant death, defendants which resulted in financially dependent upon the decedent at the such amount recovered for time of his or her death would otherwise be expenses expended such shall be so equitably entitled to share in such distribution representative. making provision expenditures, after for those any, (2), specified in subdivision subsection not, course, jury's 8. The verdict is unreview (c) of If this section. there are no surviv- able, court set aside a verdict if it ors, then the shall distributed in appears jury by passion, "that the was actuated or, accordance with the decedent’s will if there prejudice, corruption.” Hawkins v. Nuttall will, is no accordance the laws of Co., burg Coal & Coke W.Va. S.E. chapter descent and distribution as set forth in See, e.g., Roberts v. Stevens forty-two jury only of this If code. renders Inc., Hosp., Clinic general verdict on and does not (excessive verdict). held in As we thereof, provide for the distribution the court Syllabus Point 5 of Turner v. & W.R. Norfolk shall distribute the in accordance (1895): S.E. provisions with the of this subsection. (c)(1) include, jury The verdict of the assessing damages The action of the to, not be limited for person wrong- in case of the death of a (A) Sorrow, following: anguish, mental neglect, ful or default of another society, companion- reviewable, which solace include as no allowed comfort, kindly ship, guidance, offices and ad- within limit fixed can the statute decedent; (B) compensation excessive,

vice of the for deemed question being their determination of this (i) reasonably expected loss of income the absolute and exclusive as to services, decedent, (ii) protection, and damages just, care fair what are unless the decedent; (C) provided by passion, and assistance prejudice, partiality, verdict evinces or care, expenses hospital- for corruption part jury. treatment and on the others, jury provided otherwise for under the clothed the property of act,” has initiated when the decedent power to amount full determine damages prior to an for those death. damages should be action that

and character his 425 S.E.2d at 239. We wrongdoer by who upon a imposed 3 of Helmick that: neigh- held in negligence death of caused the so, plain and doing it was the bor. ... In Virginia au- Code 55-7-8 West away take from the expressed intention to to re- thorizes the decedent’s beneficiaries jury power to courts all control the either damages a for decedent’s cover or dam- to the amount character as suffering the time of in- incurred between thus ages be inflicted. court is jury and of death where the dece- the time instructing that inhibited personal an for instituted action dent they punitive, con- give or withhold should injury prior to action was his death compensatory dam- solatory, pecuniary, pursuant and amended West revived province, in ages. This is their sacred §§ 55-7-6 55-7-5 and Code supreme judges. they which are W.Va.Code, arguments turn to argues

We now defendant that 55- clearly parties. holding 7-8 and our Helmick provides unambiguously that for may pain and be decedent D. if a pursued only instituted Damages Suffering Pain and under for prior to his or personal action her Virginia Wrongful Death Act W.Va.Code, disagree, death. We because essentially parties in the instant case pre- regarding 55-7-8 is silent the situation case, beneficiaries by present whether debate and because the sented act, can, through our into argument ac- defendant’s fails take by juries incurred the dece- can expansive count the act, neglect estate due compensation dent’s as for losses caused award defendant, damages act, default of the neglect or default defendant’s W.Va.Code, W.Va.Code, specifically 55-7-6— not listed 55-7-6. namely injury damages pre- 55-7-6(b) W.VaCode, (c)(1) quoted — suffering of mortem the decedent— 7, supra posits footnote — did not file action when the decedent may it power as to damages prior

those just, fair and states that the ver- seem may dict include—but not be limited argument is based The defendant’s Va, [1989], Code, damages encompassing both losses to the 55-7-8 which was W. enacted to— and losses to the de- a limited form of a decedent’s beneficiaries as Legislature’s estate. The choice Estate Helmick cedent’s survival statute.9 “include[s], Martin, be limit- supra, phrase Vir- we concluded “West jury in wrongful that a specifically provides ed to” indicates ginia Code 55-7-8 death action has broad discretion in loss- shall be had it es it pain and which are not consider such as part: tion, injured his suggested, may thereof, plaint or her Where 55-7-6] shall be amended so under sections five and six her or default of the action shall damage 55-7-8 of this action is person representative, but, caused ^[1989] revived article, injured his or her death brought by wrongful person states, abate and the case in the name of his dies conform to an as [§§ reason of pertinent corpora- a result person com- pro- proceeding for ceeded with derogation either case time under said sections. each element of and distinct cause of action provided nothing [§ 55-7-12] of this article. brought, in this there shall be but one as if the and death said sections section shall shall be provisions damages: Additionally, incurred between the where joined had been of section twelve five be construed Provided, in the recovery for and six. otherwise brought, separate brought same That

603 award, and its suffering deliberations include loss- could from be inferred evidence es to the decedent’s estate between the time suffocation, that child died of and that default and breathing passages were obstructed Any recovery the decedent’s death. for such sand). damages shall not be included example, For Morrissey v. Welsh separately pur- set forth on verdict form (8th Cir.1987), 821 F.2d the dece- W.Va.Code, 55-7-6(c)(2), suant to or other- wall, collapsed dent was buried under a separately forth wise set verdict. conscious, sum, was damages pain able communicate with her for decedent’s and suf- fering rescuers, are damages considered be that would-be and was aware of the fact estate, to the accrue decedent’s and are literally she had been buried alive. The Code, W. therefore recoverable under Va. 55- decedent died before removed from the 7-6(b) (c)(1). stated, and previously As concluded, applying rabble. The court Mis- construing courts their law, souri could decedent’s survivors conjunction (usually death acts with a damages premor- for the decedent’s statute) appear similarly “survival” hold also, pain suffering. Phillips tem and See v. damages pain for a decedent’s conscious (de- (USA) Mfg. Corp., Mazda Motor supra, suffering prior to death be recov- legs cedent’s were “crushed like an accor- Recovery Wrongful ered. 3See Death for truss; dion” pain suffering ton 27-31; § and Injury, 14.8 at Stein proper award because remained decedent Ed., Injury Damages, Personal 3d 3:57 at minutes); conscious under trass for 30 Bol- 3-173.10 Auth., v. Bay Transp. ton Massachusetts for a damages order to award for (1992) Mass.App.Ct. 593 N.E.2d 248 pain most courts hold that (pain suffering proper because there must actual evidence of conscious paramedic accompanied who decedent to the decedent; pain suffering conjec of the hospital testified that she was able re- Recovery Wrong ture will suffice. 3 commands); spond Higgins to verbal Injury, § Death and 14:10 at “In 35-36. ful State, 192 A.D.2d 596 N.Y.S.2d 479 determining proper amount of an award (award pain conscious and suffer- damages, the trial court consider the ing allowed when decedent received electrical pain suffering experienced by a decedent lake; entering shock after decedent con- while conscious between the time of templated death for several minutes because resulting Phillips death.” v. Mazda electrical shock him rendered unable to es- (USA) Mfg. Corp., Mich.App. Motor water, cape the then caused him to come into N.W.2d Further contact with more of elec- intense source more, “[t]he existence of a con tricity); Printup, 254 Kan. Smith pain suffering may scious be inferred (1993) (award lay P.2d 985 allowed when explicitly other evidence that does not testimony person of first on the scene Byrne establish the fact.” v. Schneider’s automobile was Inc., accident showed decedent Metal, Mich.App. Iron & (1991) (decedent-child breathing erratically, respond and seemed to 475 N.W.2d two-syllable body with a was word and pit; crushed under movement boulder sand resulting pain help child’s way). consciousness and and when told onwas text, 10. As we discuss in the our It is clear that under a death statute any just recovery by pecuniary act allows a fair assess which measures loss survivors, loss to the decedent’s beneficia- no be recovered estate, regardless ries and the decedent's of endured dece- However, pecuniary leading prior premortem loss. treatise on dent to his and such generally death actions makes clear even not recoverable pecuni- permit death act limits to the under death which statutes beneficiaries, loss, ary non-pecuniary limits or which measure the earning capacity to the estate, lost mea- loss decedent’s estate earning capacity. then sured destruction of prior Recovery Injury, Wrongful cannot recovered. It states: 14:8 at 32. IV. generally hold in those situa- Courts instantaneous, is or where where death tions Conclusion no con- decedent there is evidence reasons, foregoing we answer the For pain suffering and sciously perceived before question as follows: certified death, pain suffering are no for and may a decedent’s beneficiaries Whether Wrongful Recovery allowed. for pain and for decedent’s 34-35; 1 Injury, § 14:9 at Stein and suffering, incurred between the time Damages, § at 3-174- Injury 3:58 Personal death, injury and the time of where the See, Greenberg, 222 e.g., Lanzet injuries in death but the decedent result (1988) (pain N.J.Super. and 537 A.2d an action for did institute damages properly for dece- suffering denied injury prior or her death. persistent in a who remained chronic dent Yes ANSWER: slightly more than one vegetative state death); Libersky, 40 Md. year Ory v. until Question Answered. Certified (no (1978) A.2d 922 award App. suffering pain because dece- allowed MAYNARD dissents reserves Justice communication move- made no verbal dent dissenting opinion. right to file a only breathing indicating pain, labored ments MAYNARD, Justice, dissenting: blood); swallowing gurgling sounds 2003) (Filed July Slack, 319 Mich. N.W.2d 403 Baker (evidence (1948) failed to show that decedent- majority opinion is result-driven was con- pedestrian by automobile struck legal support. without scintilla order during thirty-minute at time scious result, cava- to reach its desired death, though did make before she interval plain statutory language, lierly disregards struck). outcry the moment was Court, she ignores recent declarations this the Court’s traditional rales of

tosses aside statutory construction. therefore hold that under the We act, W.Va.Code, 55-7-6, a wrongful death majority’s newfangled construction may include for the jury’s verdict entirely on the death act relies suffering pain endured be may “but not be to” found words limited injury the time of the time tween (1992).1 55-7-6(c)(l) § Accord- W.Va.Code in death but where resulted majority, give jury ing to these words an action for decedent did not institute in a death case “almost unfettered injury prior To to his her death. awarding damages, including discretion” suffering, pain and there suffering pain and for the pain of conscious and suf must be evidence time between the decedent fering prior death. Where majority’s problem with the nov- instantaneous, 55-7-6(c) there is no interpretation § where el of W.Va.Code consciously per directly that the decedent it is at odds with W.Va.Code evidence (1989) previous no Court’s ceived findings. allowed.11 determining damages wrong- purposes in a We also note that evidence the decedent's prior pain and to his or her death from pursuant 55-7- ful injuries allegedly received as a result of the the wrongful 6(c)(1) provides [1989] which show act be admissible to also ‘[sjorrow, anguish, mental and so- anguish mental the decedent’s beneficiaries. society, companionship, lace which comfort, include W.Va.Code,55-7-6(c)(l)(A), According the ver- kindly guidance, offices and advice of in a death action shall dict '). [.]” the decedent anguish” include consideration of "mental also, Syllabus the decedent’s beneficiaries. See 55-7-6(c)(l), According to W.Va.Code part, v. Frederick Business Voelker include, part, ”[t]he verdict of the Properties S.E.2d 246 to, damages limited for the follow- ("Evidence not be beneficiary’s relationship of a ing[.]” into evidence with the decedent be admitted

fi05 statutory accepted any person pending “It is an rule of con- act of the action injured person died as a result particular a of a struction where section wrongful the action should not particular abate specifically to a statute relates by might reason of his but matter, be X’e- prevails that section over another personal represen- vived the name of his only referring section to such matter inciden- tative. tally.” Cropp Compen- v. State Workmen’s Comm’r, 621, 626, 587-88, sation 160 City Wheeling, W.Va. 236 131 W.Va. at of (citation 480, (1977) omitted). action, however, S.E.2d at S.E.2d 407. The revived wrongful conform to a availability of for to death action. the dece- Wertz, 428, F.Supp. See Conrad pain suffering dent’s where the decedent (N.D.W.Va.1968)(“It important is also rec- injury personal prior failed to file a action ognize § [W.Va.Code fur- 55-7-8] specifically death is addressed W.Va.Code proceedings ther must conform to an action § provides: 55-7-8 which recovery for death and the limit- is brought by person Where an action is provided wrong- by ed to the amount for injured damage by for caused (Footnote omitted)); provisions.” ful death act, neglect any person of or default Martin, by Estate Helmick Fox v. corporation, injured person and the dies as (1992) W.Va. 425 S.E.2d thereof, a result the action shall not abate (“the Virginia of West version Code but, by his or reason of his or her § essentially 55-7-8 treated revival of suggested, her death be re- personal injury solely action personal vived the name of his or her action.”). as a representative, complaint and the shall be In amended W.Va. an amended so as conform to action § to include the Code 55-7-8 italicized lan- six [§§ under sections five and 55-7-5 and guage Again, language set forth above. this article, pro- 55-7-6] this and the case pi’ovides “[additionally separate with as if ceeded the action had been brought, distinct of action cause brought under said Additionally sections. brought, joined if shall be in the pro- same separate and distinct cause action ceeding for incurred between the brought, brought, shall be of injury and time death where otherwise joined proceeding the same pi’ovided for in said sections five and six.” injury incurred between the time majority, by As noted this Court consid- provided death where not otherwise language ered effect this new in Estate said six. sections either case five Helmick, supra, explained where we recovery there be but one each “[t]he 1989 amendment to West Provided, damages: element That noth- § specifically provides Code 55-7-8 that a ing in this section shall be construed in shall be had for such derogation provisions of section pain which are not otherwise (Em- [§ 55-7-12] twelve of this article. provided under the death act.” added). phasis (citation 188 W.Va. at 425 S.E.2d at added). emphasis omitted and fully In order to understand W.Va.Code 55-7-8, § one must be mindful that “at com- Thus, 55-7-8, § W.Va.Code as amended personal injuries, mon law all actions for 1989, provides that where a decedent insti- actions, being personal person died death, injury prior tuted action injury ... ... [who] received and no his or her beneficiaries action could be maintained ... in- personal representative.” his City injury time Wheel- curred between the ing applied rel. death. When ex Carter American Cos. 131 time instant facts, did not because institute W.Va. 48 S.E.2d (citations omitted). prior action his purpose of W.Va. are not authorized to beneficiaries recov- § Code 55-7-8 was to alter common law suffering damages. er such that, by declaring rule brought by person is majority when Remarkably, the makes absolute- injured damage explain ly provisions caused effort no Act, 55-7-8, Campbell’s ignores known as Lord allows rather the stat- Code fact, death based completely.

ute effect almost by the beneficiaries of the opinion loss sustained render W.Va.Code recovery, than suf- rather on completely meaningless. There books, or his the deceased estate.” actually now a statute our amended fered at at 549. recently as which W.Va. Legislature as absolutely purpose. no another Said serves 562, 425 at 238. The majority, general way, according that is clear Court further said “[i]t “but not be limit- ambiguous words §§ examining and 55-7- [W.Va.Code 55-7-5 55-7-6(c)(l) negate § ed to” W.Va.Code types which is 6] that one of provisions of which are statute the entire ‘jury what not included in the statute as crystal clear. pain in its verdict include’ ” Helmick, suffering. 188 W.Va. Estate majority’s disregard of our traditional added) (cit- (emphasis 425 S.E.2d at 239 statutory is equally construction rules of 55-7-6). Thus, ing § W.Va.Code this Court example, alarming. For this Court has held recently recognized, as as Legislature, presume that will not that the it to” not “but limited do words statute, enactment of intended pain In- suffering. include it principles, unless overturn established credibly, majority, considering the exact rel. intention clear. State ex makes statutory language, now reaches the same Ross, v. 57 S.E. 284 Reeves opposite conclusion. however, presumes majority, inserting vague sum, words “but Legislature it that the is obvious § not be limited to” 'W.Va.Code 55-7- provided damages for the simply has not intended, 6(c)(1), with pain de- where the decedent’s single pen, all stroke remove histori- failed to file cedent damages wrongful However, cal limitations on prior his or her because result, cases. has does not like this it usurped Legislature’s function and re- majority opinion Finally, the direct comport with own written a statute its declarations of this conflict recent subjective notions of fairness. I refuse to be Helmick, Court. Estate Court judicial legislation. part of such bald-faced same to” read the “but not be limited Accordingly, I dissent. 55-7-6(e)(l), language in W.Va.Code made more nevertheless could pain

plain decedent’s wrong-

suffering available under the explained ful act. in Estate We S.E.2d 240 that, Helmick MCCLUNG, Robert Plaintiff 1959 version West Code Below, Appellant, essentially the revival of treated solely v. Thus, death action. there as THE EDUCATION OF THE BOARD OF specific was no NICHOLAS, Defendant COUNTY OF suffering. The of the avail- lack Below, Appellee. any recovery ability of for the decedent’s No. 31032. was made clear Walker, Appeals Walker Supreme Court (1986), superceded stat- Virginia. [sic] grounds on other stated Arnold ute May Submitted Turek, 407 S.E.2d 706 July Decided Court, interpreting what where this recoverable were statute, “[o]ur stated statute, patterned English after an statute

Case Details

Case Name: McDavid v. United States

Court Name: West Virginia Supreme Court

Date Published: Jul 7, 2003

Citation: 584 S.E.2d 226

Docket Number: 30740

Court Abbreviation: W. Va.