Wrongful death cases at their very heart are seemingly simple: a person is killed as the result of the negligence of another, and the person who caused the death is responsible to pay damages. But as many know, these cases are really far from basic and issues abound with respect to who is entitled to bring a wrongful death claim; to whom damages are paid; just what damages are available; and how bystander negligent infliction of emotional distress claims are addressed. Here’s a good primer.
Who can bring the wrongful death claim?
Under 18-C M.R.S. § 2-807(2) “wrongful death actions must be brought in the name of the personal representative or the special administrator of a deceased person…” The personal representative will either be the person named in the decedent’s will or, if there is no will, pursuant to the Probate Code’s provisions as they relate to priority among persons seeking appointment. 18-C M.R.S. § 3-203(1). The order is as follows:
It is important to recognize, that only the personal representative can bring the claim. While it may well be that the proceeds of a wrongful death action will go to someone other than the personal representative, only the personal representative can bring the claim in the first place. Accordingly, if you are the attorney seeking to bring a wrongful death claim, you have to represent the personal representative in order to do so; it is insufficient to simply be representing someone who will be receiving some or even all of the proceeds of such an action.
For claims accruing before October 25, 2023, a claim must be commenced within 2 years after the decedent’s death if arising out of personal injury. When medical malpractice causes the death of another person, the 3-year statute of limitation applies instead of the 2-year statute of limitations. For claims accruing after October 25, 2023, a claim must be commenced within 3 years. If the decedent’s death is caused by a homicide, the action may be commenced within 6 years of the date the personal representative or special administrator of the decedent discovers that there is a just cause of action against the person who caused the homicide. 18-C M.R.S. § 2-807(2).
Claims made for conscious pain and suffering of the decedent are not subject to the 2-year statute of limitations, as these are separate claims under 18-C M.R.S. § 2-807(3). Conceivably, the 2-year statute of limitations for a wrongful death claim could have passed and the personal representative of the estate could still bring a claim for conscious pain and suffering of the decedent, payable to the estate and distributed according to the will or the intestacy provisions of the Probate Code. As will be noted below, damages for conscious pain and suffering are also not subject to the limitations for the damages recoverable for wrongful death actions. This is because of the separation between wrongful death statute claims for the beneficiaries for whom the wrongful death action is brought, as opposed to monies that will go to the estate and distributed as dictated by the will or pursuant to the intestacy statute.
Wrongful death actions are specifically brought by the personal representative and the proceeds are distributed “directly to the decedent’s heirs without becoming part of the probate estate.” 18-C M.R.S. 2-807(2). The monies are for the “exclusive benefit of the deceased’s heirs to be distributed to the individuals and in the proportions provided under the intestacy law of this State in section 2-811 to 2-113.” Id. Accordingly, when you are trying to determine who is entitled to monies from a wrongful death claim, you must look directly to the intestacy statutes, which provide the order the priority, albeit with some complexity:
The short version is this:
Note that regardless of who may be named in the will, or who might have even been the very closest to the decedent, it is the intestacy statute heirs and the heirs alone that are entitled to the recovery from a wrongful death action. One can conceive of a situation where the spouse of a decedent may not have been close to the decedent at all, and the decedent was really far closer to the decedent’s siblings, but that will not make a difference when it comes to the recovery. It must always be paid to the decedent’s heirs under the intestacy statute first, foremost, and only. While it may well be that the recovery is different because of the lack of a close relationship between the heir and decedent, that is simply a measure of damages to be assessed by a judge or a jury. The benefit is “for the exclusive benefit of the deceased’s heirs to be distributed to the individuals and in the proportions as provided under the intestacy laws of the State” and no other fashion. The reasoning here is that the heirs would have suffered the loss of consortium with the loved one, and that is what forms most of the wrongful death action damages.
When it comes to medical bills and reasonable funeral expenses, those damages are presumed to be part of the wrongful death claim payable to the decedent’s heirs and not the estate, unless “the jury specifically makes an award payable to the estate for reasonable expenses of medical, surgical and hospital care and treatment and for reasonable funeral expenses or, in the case of a settlement, the settlement documents specifically provide for such an allocation to the estate for same.” 18-C M.R.S. § 2-807(2). In practical terms, wrongful death actions that include medical bills, funeral bills and burial costs are usually wrapped all into one recovery for the “exclusive benefit of the deceased’s heirs” and it is uncommon to have them listed as separate allocations for medical, funeral, and burial expenses.
For claims accruing before October 25, 2023 (but after September 19, 2019), the cap for the “loss of comfort, society and companionship of the deceased, including any damages for emotional distress arising from the same facts as those constituting the underlying claim” may not exceed $750,000. For claims accruing after October 25, 2023 but before December 31, 2023, the cap for these same damages is capped at $1,000,000. For claims accruing after December 31, 2023, the cap is $1,000,000 plus adjustments based on the Consumer Price Index. 18-C M.R.S. sec. 1-108(2).
For punitive damages, claims accruing before October 25, 2023 there is cap of $250,000; claims accruing thereafter have a cap of $500,000.
There is no cap on pecuniary damages, nor for conscious pain and suffering.
A Loss of comfort, society, and companionship
Wrongful death damages are for the for the “loss of comfort, society and companionship of the deceased.” 18-C M.R.S. § 2-807(2). “Losses traditionally recoverable in loss of consortium claims are ‘fellowship of husband and wife, and the right of each to the company, society, cooperation, affection, and aid of the other in every conjugal relation . . . [and losses] encompassing not only material services but such intangibles as society, guidance, companionship, and sexual relations.’" Feighery v. York Hospital, 38 F.Supp. 2d 142, 150 (D.Me. 1999). citing Black's Law Dictionary 309 (9th ed.1990).
Conscious pain and suffering claims require that there be “a factual determination that the decedent experienced a period of conscious pain and suffering prior to death." Beale v. Chisholm, (Me. 1993). An award of damages for conscious pain and suffering is for the benefit of the beneficiaries. 18-C M.R.S. § 2-807(3).
Note that there must be an actual “conscious” period of pain and suffering in order to bring a separate claim here. This is because damages cannot be awarded when the only proof is speculative. Wood v. Bell, , ¶21, 902 A.2d 843, 851; Carter v. Williams, , ; Michaud v. Steckino, (Me. 1978) In some cases there may be challenges as to whether the decedent was conscious for a period of time before they passed away. Obviously in cases where the decedent is severely injured and is conscious and alive for a period of time after an accident, there is less of an issue because there can be an easy determination that the decedent was aware, prior to their death, of their pain and suffering. But if there is no “conscious” then any “suffering” becomes essentially irrelevant.
In order to bring a claim for conscious pain and suffering, this must be specifically alleged in a separate count of the complaint. 18-C M.R.S. 2-807(3).
C. Pecuniary losses
Pecuniary losses have generated a significant amount of litigation over the years. These losses are specifically payable to the beneficiaries and are unlimited. Typically, one would need the services of an economist to detail just how much economic loss there was as a result of the decedent’s death.
One note of importance is the statutory amendment in 2009 to delete the original language that required that pecuniary damages recovery would be “to the persons’ for whose benefit the action is brought.” Under the pre-2009 statute, the defendant could argue “the persons’ for whose benefit the action is brought” suffered less financial damages under circumstances where there was no real financial impact as a result of the death. One example would be the adult child of the decedent who would not necessarily have received a financial benefit in life as they were already adults at the time of the parent’s death, as opposed to a minor child or a spouse who would be in a different financial position. The 2009 amendment was important as the pecuniary loss under the statute is for the full amount of the pecuniary damages, regardless of the who might benefit from it. The amendment suggested that thus the beneficiaries should receive the full measure of the pecuniary damages from a loss of life-long earning capacity, not just what financial impact it might have had on the beneficiaries themselves.
But the Law Court ruled otherwise in Estate of Smith v. Mercy Hospital/Eastern Maine Health, 2025 ME 55, ruling that there would be no recovery of the full future lost earning capacity of a deceased child. This “loss to estate not beneficiary” approach and analysis is consistent with the statute and Estate of Smith cleared up any ambiguity.
Pecuniary losses are reduced by the personal consumption of the deceased. What this means is that simply computing out a person’s future lost earnings by multiplying expected earnings times life expectancy will not be enough for an appropriate measure of damages; rather, there has to be a reduction, because the net to the estate would have been less because of the spending by the deceased throughout his/her life. Fitzpatrick v. Cohen, 777 F.Supp. 2d 193, 195 (D.Me. 2011). Again, an economist will be needed to make the appropriate reduction for the decedent’s personal consumption so there can be an accurate amount presented as to pecuniary damages.
D. Relational losses
When it comes to “relational” losses suffered by a minor child who loses a parent, a 1999 decision from the United States District Court, District of Maine addressed these issues as to whether they were covered by the cap on wrongful death damages, as opposed to pecuniary losses for which there is no cap: “Relational losses include the pecuniary value of [a decedent’s] services, instruction, advise, counsel, parental training, care and guidance, assistance and protection, as well as [the decedent’s] attention to the physical, moral, and educational welfare of his children.” Feighery, 38 F.Supp. 2d at 150. The Maine Supreme Judicial Court has not yet addressed the issue of whether it would recognize these separate damages as not being subject to the cap on wrongful death damages, or even constitute a separate type of damages, but in a recent decision from then Superior Court Justice Stanfill in the Androscoggin County Superior Court, the Court ruled that those damages are not pecuniary losses and are subject to this statutory cap. Coughlin, Personal Representative of the Estate of Crockett vs. Peterkin, M.D., et al, Order on Summary Judgment, at 12.
What happens when a bystander family member witnesses the negligent action and death of the decedent? If the bystander is a beneficiary of the estate, then that emotional distress claim is subsumed by the wrongful death statute as these are “damages for emotional distress arising from the same acts as those constituting the underlying claim.” 18-C M.R.S. § 2-807(2). But if the bystander is a close family member and not a beneficiary, then they are allowed to bring their own claim outside the wrongful death statute. For example, the sister of a decedent who is not entitled to damages as a beneficiary because the decedent was married, can still bring a bystander negligent infliction of emotional distress claim. She would not be a beneficiary, and yet she was a bystander who suffered the negligent infliction of emotional distress from seeing the death of her sibling.
Note that while the sister of the decedent would qualify as a “close relation” of the decedent as required by Culbert v. Sampsons Supermarkets, 444 A.2d 423 (Me. 1982), the question of just how expansive the definition of “closely related” is has been the subject of many decisions. In Coughlin then Superior Court Justice Stanfill determined that the decedent’s ”live-in intimate partner and the father of their child . . . could be considered ‘closely related to the victim.’” Coughlin, Order at 7, citing 19-A M.R.S. sec. 4002(4)(individuals living as spouses and parents of the same child are family or household members for purposes of domestic violence statutes). Additionally, the contemporaneous perception of the event was determined to be close enough where the bystander was within 100 feet of the accident, heard the accident take place as well as the victim’s screams, and the bystander arrived within seconds to see what happened. Coward v. Gagne & Sons, 2020 ME 112.
Additionally, when the negligence of an individual causes the death to an unborn fetus, the wrongful death statute does not apply because the unborn fetus is not a “person” under the act. Milton v. Cary Medical Center, 538 A.2d 252, 256 (Me. 1988). Because the wrongful death statute only applies to a death involving a “person” the mother may assert her own claim for negligent infliction of emotional distress from the death of her unborn fetus, and not be restricted by the wrongful death statute.
Walter McKee
July 2025