Oregon’s wrongful death statute, ORS 30.020(1), provides that the decedent’s personal representative may bring an action for wrongful death “if the decedent might have maintained an action, had the decedent lived, against the wrongdoer for an injury done by the same act or omission.” The question in this case is the meaning of that provision — specifically, whether a personal representative can bring a wrongful death action when the decedent already recovered damages for personal injury based on the same act or omission that is the basis for the wrongful death claim. The trial court concluded that, if decedent already recovered damages for the same act or omission, the statute precludes a wrongful death action, because decedent could not have maintained the action had he lived. We agree and affirm.
The relevant facts are not in dispute. Morris Nagl worked as a floor installer from 1953 to 1991. During that time, he was exposed to asbestos-containing building materials, including joint compound, filler, and leveling and patching products. In 2001, Nagl was diagnosed with an asbestos-related disease. In 2003, he was diagnosed with mesothelioma.
In 2004, Nagl and his wife, Donna, brought a personal injury action against a number of companies engaged in the manufacture, distribution, and sale of asbestos-containing materials. Defendant Dowman Products, Inc., (Dowman) was among those companies named as a defendant. The complaint alleged claims of negligence, product liability, and loss of consortium, based on Nagl’s exposure to asbestos-containing products that Dowman manufactured, delivered, or sold. The Nagls settled with other defendants and then obtained a verdict against Dowman for a total of $659,720.87, consisting of $274,720.87 in economic damages to Nagl, $350,000 in noneconomic damages to Nagl, and $35,000 in loss of consortium damages to his wife.
Approximately five months after the judgment was entered in the personal injury action, Nagl died.
In 2005, plaintiff, the personal representative of Nagl’s estate and Nagl’s three surviving children, initiated
this wrongful death action against, among others, Dowman. The complaint alleges claims of negligence and product liability, based on Nagl’s exposure to asbestos-containing products that Dowman manufactured, delivered, or sold. The prayer of $2.7 million includes medical expenses to Nagl that were not covered by the personal injury judgment, burial expenses, and
Dowman moved for summary judgment on the ground that the wrongful death action was not permitted by statute. According to Dowman, the statute permits a wrongful death action only “if the decedent might have maintained an action, had the decedent lived, against the wrongdoer for an injury done by the same act or omission.” In this case, Dowman argued, Nagl could not have brought the action, had he lived. Because Nagl already had brought a successful action for damages against the same wrongdoer (Dowman) for injury done by the same act or omission (injury produced by exposure to asbestos-containing products), Nagl would have been precluded from bringing a second claim for the same wrongdoing, as a matter of law. Because Nagl could not have brought the action, under the plain terms of the statute, neither can plaintiff.
Plaintiff responded that it makes no sense to read the statute to condition a personal representative’s right to initiate a wrongful death action on the decedent’s ability to bring the claim, had the decedent lived. According to plaintiff, a wrongful death action is entirely independent of any claims that the decedent himself could have brought.
The trial court agreed with Dowman that the wrongful death statute itself precluded plaintiff from bringing this action and entered judgment accordingly.
On appeal, plaintiff assigns error to the trial court’s decision to grant Dowman’s motion for summary judgment. In support of the assignment, plaintiff reprises its argument that Nagl’s successful prosecution of his personal injury claim against defendant does not preclude Nagl’s estate from pursuing its own claim, even if both claims arise out of the same acts or omissions. Plaintiff asserts that the portion of the statute on which the trial court relied — permitting a wrongful death action only “if the decedent might have maintained an action, had the decedent lived” — is no bar in this case. In plaintiffs view, Nagl “not only ‘might have’ maintained such an action while alive but he did so and won.” (Emphasis in original.)
Dowman responds that plaintiff is ignoring the wording of the statute, which requires that the decedent have been able to have brought the action “had the decedent lived.” That wording, Dowman contends, makes clear that the determinative issue is whether decedent could have brought the action at the time of death. In this case, Nagl could not have done so, having already recovered on his personal injury claim against defendant for the same wrongdoing.
Plaintiff rejoins that we should read the statute to require only that the decedent have been able to have brought the claim at any time, and not at the time of death. Any other reading of the statute, plaintiff complains, “produces an absurd result” that “defies the statutory language, policy, and history.”
In Oregon, an action for wrongful death is regarded as exclusively statutory in nature.
Storm v. McClung,
As such, our decision rests on familiar principles that apply to the interpretation of statutes. We attempt to discern the intentions of the legislature that enacted the statute into law by reference to the statute’s text and, if necessary, its history and other aids to construction.
PGE v. Bureau of Labor and Industries,
Oregon’s wrongful death statute provides, in part:
“When the death of a person is caused by the wrongful act or omission of another, the personal representative of the decedent * * * may maintain an action against the wrongdoer, if the decedent might have maintained an action, had the decedent lived, against the wrongdoer for an injury done by the same act or omission.”
ORS 30.020(1). The statute has been amended on a number of occasions over the years, but the portion relevant to this case has remained essentially unchanged since its original enactment as part of the Deady Code of 1862.
See Storm,
The statute also imposes a limitation on the personal representative’s authority to bring an action. That limitation is that the decedent must have been able to bring an action for the same wrongful conduct, “had the decedent lived.” ORS 30.020(1). It is the meaning of that provision that is in dispute in this case.
The phrasing of the statute suggests that the relevant time for determining whether a decedent might have brought such an action is at the time of death. The statute provides that the determinative issue is whether decedent might have brought the action, “had the decedent lived,” in other words, had the decedent not died. Grammarians refer to that phrasing as “past hypothetical conditional,” which is understood to suggest what might have happened, but did not actually happen — in this case, that decedent might have survived, but did not survive. See generally Randolph Quirk, Stanley Greenbaum, Geoffrey Leech, and Jan Svartvik, A Comprehensive Grammar of the English Language 1010-12 (1985). The key event, in other words, is the time of death.
The same conclusion seems to follow from the derivative nature of wrongful death claims. If, as the Supreme Court has explained, the claim is derivative of the decedent’s rights and the estate steps “in the decedent’s shoes,”
Storm,
Consistent with the foregoing, in two decisions from early in the previous century, the Supreme Court has construed ORS 30.020(1)
Second, in
Piukkula v. Pillsbury Flouring
Co.,
The Supreme Court agreed with Pillsbury. The court explained that the wrongful death provisions of the ELA were “akin” to the state’s wrongful death statute. The court then commented, after surveying a variety of wrongful death cases that,
“[b]y the great weight of authority * * * where the statute in effect gives a remedy to recover damages where the death of a person is caused by the negligent or wrongful act of another, such remedy depends upon the existence in the decedent, at the time of death, of a right of action to recover damages for such injury[.]”
Id.
at 314 (quoting Annotation,
Release by, or Judgment in Favor of, Person Injured as Barring Action for his Death,
Turning to the argument of the decedent’s estate that the statute created an independent claim, the court agreed, but only in part. Referring explicitly to both the wrongful death statute and the ELA, the court stated that “our legislation * * * does not merely revive the cause of action, if any, possessed by the deceased, but * * * creates a new right of action.” Id. at 318. At the same time, the court cautioned, although the legislation creates a new right of action, “the new right is dependent upon the possession by the deceased of a cause of action at the time of his death.” Id.
We are aware of no more recent decisions of the court suggesting that either
Kosciolek
or
Piukkula
no longer remain good law. To the contrary, in at least one subsequent case, the Supreme Court expressly reaffirmed its
We note also that the Supreme Court’s reading of the Oregon wrongful death statute in those two cases is consistent with what is widely regarded as the traditional and dominant view of the issue.
See, e.g., Kessinger v. Grefco,
Inc., 251 Ill App 3d 980, 987,
As the reporter of the Restatement (Second) of Judgments § 46, Reporter’s Note (1982), comments, “The clear weight of authority is that a prior judgment for or against the decedent precludes a wrongful death action by his beneficiaries.” See also Stuart M. Speiser & James E. Rooks, Jr., 3 Recovery for Wrongful Death § 15:20, 15-82 (4th ed 2005) (noting traditional rule that “if the injured party recovers damages for his fatal injuries during his lifetime, the cause of action is thereby satisfied”); Dan Dobbs, The Law of Torts 820 (2000) (citing rule of “most courts” that “either a settlement by the victim or a judgment for or against him will preclude the wrongful death action where death resulted from the original injury”); Fowler V. Harper, Fleming James, Jr., and Oscar S. Gray, 4 The Law of Torts § 24-26, 471-72 (2nd ed 1986) (“If the deceased recovered a judgment for injuries or settled and released a claim for injuries, before death, most courts hold this a bar to any action under either a survival or wrongful death statute.”). The consistent rationale of those authorities is the derivative nature of the wrongful death claim. As one leading commentator explains,
“The argument for this position is summed up by describing the wrongful death suit as derivative of the deceased’s own rights. If the deceased had no right to sue at her death, or would have had none had she survived, then survivors have no wrongful death claim.”
Dobbs, The Law of Torts at 820.
Plaintiff notes that courts in several states and the United States Supreme Court have reached a contrary conclusion and that we should follow those decisions as “better reasoned.” Plaintiff is correct that there has developed a minority view on the question whether a decedent’s prior settlement or judgment precludes a later wrongful death action arising out of the same wrongdoing. The United States Supreme Court, for example, concluded in
Sea-Land Services, Inc. v. Gaudet,
The consistent rationale for those cases, however, is that wrongful death statutes create a completely independent action that is not merely derivative of the rights of the decedent.
See
Dobbs,
The Law of Torts
at 820 (discussing cases). As we have noted, in Oregon, the Supreme Court has long regarded wrongful death claims to be derivative of the decedent’s rights.
Storm,
We conclude that Nagl’s successful prosecution of a personal injury claim for exposure to asbestos-containing products bars plaintiff from bringing another claim on behalf of Nagl’s estate and children on the basis of the same exposure because plaintiffs cannot satisfy the requirement of the wrongful death statute that, Nagl, had he not died, might have brought the claim. The trial court therefore did not err in granting Dowman’s motion for summary judgment.
Affirmed.
Notes
A number of nineteenth-century American courts declared that no right of action for wrongful death existed at common law.
See, e.g., Putman v. Southern Pacific Co.,
We are aware of the fact that the current preference is to refer to the statute as the “Employer Liability Law.”
See Woodbury v. CH2M Hill,
Inc.,
Plaintiff argues that, notwithstanding
Hansen’s
express reaffirmation of
Piukkula, Hansen
actually supports its contention that a decedent’s prior judgment does not bar a subsequent wrongful death action. Plaintiff misreads the decision, however. In
Hansen,
the decedent died as a result of an auto accident, and his estate brought a successful wrongful death action for damages permitted under the statute.
After that,
the decedent’s surviving spouse brought an action for unpaid medical expenses. The question in
Hansen
was whether the spouse could recover those expenses. The court held that, because the estate could not recover the medical expenses in the wrongful death action, that action was not a bar to her subsequent action to recover them.