Section Review

Who takes what?

Distribution of damages under the Massachusetts wrongful death statute This article appeared in the July 1999 issue of theSection Review.
© 1999 Massachusetts Bar Association
Margaret A. O'Reilly, a member of the Massachusetts Bar Association Civil Litigationand Health Law sections, is in private practice in Belmont. She has beenlitigating plaintiff's personal injury claims for more than 20 years.O'Reilly concentrates on medical claims, with emphasis on malpractice,managed care and ethics issues. Distribution of damages under the Massachusetts wrongfuldeath statute (G.L. c. 229, §§ 1,2) raises some interestingallocation issues, particularly in cases where the potential beneficiaries holdadverse or hostile interests. Review of the available case law suggests thatthe correct approach in assessing distribution questions is to engage in atwo-step process to determine (1) who are the beneficiaries, and (2) how shoulddamages be allocated. Separate consideration must be given to the question ofwho is making these determinations.

The language of Section 2 is clear that the identity ofthe beneficiaries is determined with reference to Section 1, which sets out the"persons entitled to receive the damages recovered" as follows:

  • (1) ifthe deceased shall have been survived by a wife or husband and no children orissue surviving, then to the use of such surviving spouse
  • (2) ifthe deceased shall have been survived by a wife or husband and by one child orby the issue of one deceased child, then one-half to the use of such survivingspouse and one-half to the use of such child or his issue by right ofrepresentation
  • (3) ifthe deceased shall have been survived by a wife or husband and by more than onechild surviving either in person or by issue, then one-third to the use of suchsurviving spouse and two-thirds to the use of such surviving children or theirissue by right of representation
  • (4) ifthere is no surviving wife or husband, then to the use of the next of kin
The Massachusetts Supreme Judicial Court has confirmedthat Section 1 must be followed in determining the identity of thebeneficiaries in a wrongful death claim. Bratcher v. Galusha, 417 Mass. 28(1994). (Although the parents of the decedent have sustained a loss under theterms of Section 2, they are not entitled to recover for wrongful death damageswhen the decedent has left a surviving spouse.) However, the provisions ofSection 1 only establish a presumption that those persons listed may recover.Guy v. Johnson, 15 Mass. App. 757 (1983). Once a claimant qualifies as apresumptive taker under Section 1, the analysis must then turn to Section 2 todetermine whether the claimant has sustained a compensable loss and, if so, thevalue of that loss. Guy v. Johnson, 15 Mass. App. at 761. The proportionatedistribution language of section 1 does not control distribution of benefits inan action brought under section 2, although it may establish a presumptiveallocation which can be rebutted by evidence of the actual loss sustained.
The language of section 2 sets out the elements of damagesfor which recovery is allowed:
  • (1) thefair monetary value of the decedent to the persons entitled to receive thedamages recovered, as provided in section one, including but not limited tocompensation for the loss of the reasonably expected net income, services,protection, care, assistance, society, companionship, comfort, guidance,counsel and advice of the decedent to the person entitled to the damagesrecovered
  • (2) thereasonable funeral and burial expenses of the decedent
In Guy v. Johnson, the court made clear that section 1 andsection 2 must be read together, so that the compensatory purpose of section 2would determine whether an actual loss had been sustained by each presumptivebeneficiary identified under section 1. In Guy, the presumptive takers undersection 1 were the mother and father of the deceased. However, the fatherabandoned the mother and child shortly after the child's birth, and hadonly sporadic contact with his son in the ensuing nine years. The lower courtfound that "the child was without value to the father in the statutorysense." Guy v. Johnson, 15 Mass. App. at 759. The Appeals Court upheldthat decision, stating that, after referring to section 1 to identify thepresumptive takers, "the purpose of section 2 should then take hold todeprive of recovery that one, the father, who is shown to have been dissociatedfrom the decedent—who cannot justly claim that the decedent had anymonetary value for him." Guy v. Johnson, 15 Mass. App. at 761.
The Appeals Court's approach to this problem wasapproved by the SJC a few years later, in Burt v. Meyer, 400 Mass 185 (1987).In that case, a Superior Court jury had responded to special questions byawarding compensatory damages separately and in different amounts to the widowand to the decedent's four children by a previous marriage. When thewidow, as executrix, filed her account with the Probate Court, distributing thedamages in accordance with the jury verdict, the children objected. Thechildren argued that the compensatory damages must be distributed according tothe formula set forth in section 1: one-third to the surviving spouse andtwo-thirds to the surviving children. Citing the appellate court decision ofGuy v. Johnson, the Probate Court declined to disturb the jury'sallocations. On review, the SJC stated that the probate judge "appliedcorrectly the principle enunciated in Guy v. Johnson, supra, 15 Mass. App. at761, namely that section 1 determines only the ‘presumptive takers'of compensatory damages." Burt v. Meyer, 400 Mass. at 191. In a footnote,the court notes that the prior language of Section 2 (as passed by theLegislature in 1949 and in 1965) had contained language requiring damages to be"distributed as provided in section one" (emphasis added by thecourt in Burt), but that this language was dropped when the statute wasrewritten in 1973 and does not appear in the current language of section 2.Burt v. Meyer, 400 Mass. at 191, fn. 9. In the following footnote, the courtnotes that "it seems illogical at best to suppose that the Legislatureintends that a jury should determine damages based on the pecuniary losssustained by the widow and children, but then disregard that analysis andallocate the damage award on the basis of statutorily defined shares. Wedecline to adopt such a rule. See Guy v. Johnson, supra, 15 Mass. App. at761." Burt v. Meyer, 400 Mass. at 191, fn.10 (emphasis added).
In the more recent case of Harding v. DeAngelis, 39 Mass.App. Ct. 455 (1995), the court reiterates the appropriateness of this two-stepanalysis: "The wrongful death statute defines the class of presumptivetakers, G.L. c.229, § 1, and measures the recovery by ‘the fairmonetary value of the decedent to the persons entitled to receive the damagesrecovered.' G.L. c. 229, § 2. Guy v. Johnson, 15 Mass. App. Ct. 757,762 (1983). . . . By that definition the mother and the father would each beentitled to recovery—presumptively, at least, because the amountrecovered would not necessarily be divided equally but rather, under Guy v.Johnson, supra, in proportion to the value of the decedent to eachrespectively." Harding v. DeAngelis, 39 Mass. App. Ct. at 457.
Although the identity of the "presumptivetakers" is defined in Section 1, the question of whether and to whatextent each "presumptive taker" has sustained a loss remains amatter for the fact finder to evaluate, based on evidentiary proof of theelements set out in Section 2. Under the statutory language of Section 2, then,evidence must be produced that each presumptive taker has sustained a loss beforethat claimant may be allowed to receive compensation for that loss.
However, there is only one plaintiff in a wrongful deathaction — the administrator of the estate — and the courts seem tosuggest that a single damage award should be made. The Appeals Court has heldthat recovery in a wrongful death case is limited to the single limits on adefendant's insurance policy. Doyon v. Travelers Indemnity Co. ofAmerica, 22 Mass. App. Ct. 336 (1986), further appellate review denied. In thatcase the appellate court noted that "the claims of a wife and a child aresimply separate ingredients of a single amount. . . . The amount can swell orshrink from case to case, depending on the total number of beneficiariesidentified in the relevant formula and the damages sustained by each, but whenall is said and done, the person responsible for the death is liable undersection 2 for only a single, indivisible amount." 22 Mass. App. Ct. at339. Similarly, the $100,000 limitation on recovery under the MassachusettsTort Claim Act has been held to apply to the total recovery by theadministrator, and not separately to each beneficiary's damages. Hallettv. Town of Wrentham, 398 Mass. 550 (1986).
These cases seem to suggest that, although a jury musthear evidence that some loss has been sustained by each beneficiary claimingunder the wrongful death act, the actual allocation of damages amongbeneficiaries is not the proper province of the jury. Rather the jury is toconsider the entire loss and make a single compensatory award based on thevalue of the decedent. The task of allocation would then be left to theadministrator. Following this procedure would keep the attention of the juryfocused on the decedent, and considerations of the decedent's life andrelationships, rather than the distracting and potentially divisive analysis ofwhich survivor loved the decedent more.
As a practical matter, the administrator will most oftenutilize the formula set out in section 1 in allocating a damage award amongbeneficiaries. Because it tracks the laws of intestacy, and therefore providesan accepted framework for allocating a damage award, there is a presumptionthat this is the appropriate formula to use. However, individual allocation ofdamages under section 2 may be useful or even necessary where the potentialbeneficiaries are unrelated to each other, have sustained significantlydistinguishable losses, or have a hostile relationship with each other. Forexample, if the decedent is survived by a widow and by one or more adult childrenfrom a prior marriage, these potential beneficiaries may have little or norelationship with each other, or, in some cases, may have a hostilerelationship. If the marriage to the surviving spouse was of short duration,the children may have sustained a more significant loss.
On the other hand, the adult children may have had littlecontact with the decedent in recent years while the surviving spouse providedcare and support during a long illness. If the decedent provided significantmonetary support to one or more of the survivors, or to some more than others,this is a statutory element which must also be taken into account. If thedecedent provided particular care and support to a disabled child, then thatchild may have sustained a more significant loss. These are facts which mightovercome the presumption of allocating damages according to the intestateformula set out in Section 1 of the wrongful death statute.
In order for a jury to assess damages on the basis of eachperson's relationship with the decedent, it may be necessary to submitthe issue of damages on special questions, permitting the jury to make afinding on damages separately with respect to each "presumptivetaker." That procedure was followed in the Superior Court trial in thecase of Burt v. Meyer, supra, and the subsequent hearings in the probate andappellate courts give tacit approval to that approach.
In one wrongful death case which resolved prior to trial,the presumptive takers were the widow, two minor children of the widow and thedecedent and six adult children of the decedent from a prior marriage. Two ofthe adult children had maintained a relationship with their father after hismarriage to the widow; the other four adult children had not spoken to him inmore than 10 years. The value of the decedent in statutory terms to the widowand her minor children was significantly different and greater than the valueto the adult children, particularly those who were estranged from their father.Under these or similar circumstances, submission of the damage claims could bedone by special questions in order to take into account the disparate impact ofthis death on the survivors. Since the beneficiaries in this example havepotentially adverse claims, it may also present a conflict for the sameattorney to represent the administrator and all of the beneficiaries.
In order to properly address these issues, an evaluationof the presumptive takers and the respective losses which each has sustainedmust be made in the very early stages of assessing the viability of a wrongfuldeath claim. A determination must be made as to whether damages can be properlydistributed under section 1, or whether the particular facts require anindividual allocation of damages under Section 2. Careful consideration mustalso be given to any real or potential conflicts of interest if separatedamages appear to be warranted, so that a decision can be made at the outsetwhether plaintiff's counsel can represent not only the administrator ofthe estate but also the beneficiaries as a group.
Examination of these issues early in the assessment of awrongful death claim will inform much of the work that must be done as the casemoves along, and may well help avoid difficult problems later in the process.
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