MASSACHUSETTS SUPREME JUDICIAL COURT ISSUES NEW DECISION ELIMINATING THE ABILITY OF ESTATE REPRESENTATIVES TO FILE WRONGFUL DEATH ACTIONS WHERE NO PERSONAL INJURY ACTION WAS TIMELY FILED
On Friday, July 7, 2023, the Massachusetts Supreme Judicial Court issued an important decision construing the application of the statute of limitations in wrongful death cases. The decision likely will have the greatest impact in product liability litigation, such as tobacco and asbestos cases, where it is not unusual for estate representatives to file wrongful death complaints even where the decedent failed to timely file a personal injury case during his or her lifetime.
Fabiano v. Philip Morris USA, Inc., ---- Mass.----- (July 7, 2023), involved consolidated appeals of cases brought by the estates of two decedents who had died of complications related to cigarette smoking. One person died of chronic obstructive pulmonary disease, and the other person died of lung cancer. The defendants argued that the wrongful death suits were barred because the decedents failed to bring a personal injury cause of action during their lifetimes before the expiration of the limitations period. Plaintiffs argued that the wrongful death limitations period governed, permitting the personal representative three years from the date of death within which to file a wrongful death cause of action regardless of the decedents’ failure to file timely a personal injury lawsuit. The trial courts granted summary judgment to the defendants in both cases and plaintiffs appealed.
Relying on recent precedent, the Massachusetts Supreme Judicial Court held that a wrongful death claim is derivative of the decedent’s underlying personal injury claim. Any right that the decedent had to prosecute an action at the time of his death vests in the personal representative of the decedent’s estate. Because both decedents had failed to initiate litigation timely, their right to do so had expired, and there was no existing right to vest with the personal representative. The wrongful death statute of limitations does not create a new cause of action. Therefore, the wrongful death claim was barred. Most significantly, the decision will prohibit personal representatives from filing wrongful death actions where the decedent’s underlying claim was barred due to the expiration of the statute of limitations period on the personal injury claim during the decedent’s lifetime.
A separate issue that was not before the court was the application of the discovery rule relating to the statute of limitations, which permits a personal representative to bring a wrongful death claim within three years from the date when the deceased’s executor or administrator knew or, in the exercise of reasonable diligence, should have known, of the factual basis for the cause of action. M.G.L.c. 229 § 2. The decision does not address the situation where the limitations period had not expired at the time of the decedent’s death, so that the cause of action properly vested in the personal representative, but the representative failed to bring the cause of action within three years of the death and a plaintiff relies upon the discovery rule to save the death claim. See, Fabiano, n. 14. Fabiano will preclude a wrongful death action where the limitations period expired on the decedent’s personal injury claim during the decedent’s lifetime, regardless of the state of knowledge of the personal representative or the theory under which the case is brought.
The decision also will affect the ability of the personal representative to rely upon the a tolling provision permitting him or her to file a survival action for conscious pain and suffering “within two years after giving his bond,” if the decedent failed to do so before the expiration of the personal injury limitations period. See, Guadette v. Webb, 362 Mass. 60 (1972)(discussing tolling provisions); M.G.L.c. 260 § 10. That tactic is also likely cut off by the decision in Fabiano.
Fabiano is another decision in a series of recent decisions by the Massachusetts Supreme Judicial Court that offers clarity to the application of the Massachusetts wrongful death statute. The SJC first held unequivocally that the wrongful death claim was derivative of the decedent’s personal injury claim in GGNSC Admin. Servs., LLC v. Schrader, 484 Mass. 181 (2020). In that case, an arbitration clause signed by the decedent before death was held to be enforceable against the personal representative, requiring dismissal of the wrongful death complaint filed in court. Id., at 185; see also, Doherty v. Diving Int’l, Inc., 484 Mass. 193 (2020) (release and waiver signed by decedent before death enforceable against personal representative of the estate.)