Applying Maryland’s Cap on Non-Economic Damages in Survival and Wrongful Death Actions

Last month, the Court of Special Appeals rejected a tortfeasor’s argument that damages awarded in a survival action and in a wrongful death action should be aggregated before Maryland’s non-economic damages cap is applied.

In 1986, the Maryland Legislature enacted § 11-108 of the Courts and Judicial Proceedings Article, which imposes a cap on non-economic damages (pain and suffering) in personal injury cases.  Subsequently, in United States v. Streidel, the Maryland Court of Appeals held that this cap applied to damages in a survival action (brought by the personal representative of an estate to recover for the pain and suffering of the decedent after the injury but before death), but that it did not apply to damages in a wrongful death action (brought by specified persons to recover for injury to themselves as a result of the victim’s death).

In 1994, the Legislature amended the statute to impose a separate cap on non-economic damages in wrongful death cases.  Since then, whenever there are two or more beneficiaries in a wrongful death action, the non-economic damages cap is 150% of the cap in personal injury cases.

In Goss v. The Estate of Bertha Jennings, Jennings’ estate and beneficiaries brought a wrongful death/survival action after Jennings was struck and killed by a truck operated by Goss.  At the conclusion of the trial, a jury awarded $350,000 to the Estate in the survival action (less than the applicable damages cap of $680,000), and $1,675,000 to the beneficiaries in the wrongful death action (more than the applicable damages cap of $1,020,000).  In accordance with § 11-108, the Court reduced the wrongful death award to the wrongful death cap of $1,020,000 but left the $350,000 survival award intact, because it did not exceed the personal injury cap.  The result was a final judgment of $1,370,000.

On appeal, Goss argued that the two awards should have been aggregated, and then reduced to $1,020,000.  Although admitting that the survival action and wrongful death action were two separate causes of action, he contended that “they result in one loss that should be subject to one cap.”  Rejecting this argument and affirming the trial court’s post-judgment rulings, the Court pointed out that the 1994 amendments to the statute did nothing to “change[] the nature of the damages recoverable in a survival action,” and “did not erase the distinction between [survival and wrongful death] causes of action.”  In a footnote, the Court quoted from Jones v. Flood, one of its own opinions from 1977.  On the differences between survival and wrongful death actions, the Jones court eloquently explained, “one begins where the other ends, and a recovery upon both in the same action is not a double recovery for a single wrong but a single recovery for a double wrong.”