Product Liability Update: May 2020

Published date11 June 2020
AuthorMr David Geiger and Peter Ellis
Subject MatterConsumer Protection, Litigation, Mediation & Arbitration, Insolvency/Bankruptcy/Re-structuring, Insolvency/Bankruptcy, Product Liability & Safety, Arbitration & Dispute Resolution, Personal Injury, Professional Negligence
Law FirmFoley Hoag LLP

MASSACHUSETTS

Massachusetts Supreme Judicial Court Holds In Sequential Opinions That Wrongful Death Claims Are Derivative Of Decedent's Own Claims And Therefore Subject To Arbitration Covenant And Liability Release Agreed To By Decedent

In GGNSC Administrative Services, LLC v. Schrader, 484 Mass. 181 (2020), a decedent's daughter and executor brought a wrongful death claim in Massachusetts Superior Court alleging that a nursing home's negligence caused her mother's death. The nursing home sued the daughter in the United States District Court for the District of Massachusetts to compel arbitration of the death claim based on an agreement signed by the daughter on her mother's behalf upon nursing home admission to arbitrate any claims against the facility. The nursing home argued that because the daughter's death claim was derivative of any claims the mother could have brought herself, it was subject to the arbitration agreement.

The federal court then certified two questions to the Massachusetts Supreme Judicial Court ("SJC"): (1) "Is the wrongful death claim of [decedent's] statutory heirs derivative or independent of [decedent's] own cause of action?"; and (2) "If the answer to the first question does not resolve the issue presented to the federal court, is [the daughter's] wrongful death claim nonetheless subject to [decedent's] Agreement that her 'next of kin, guardian, executor, administrator, legal representative, or heir' would arbitrate claims against [the nursing home]?"

Simultaneously, in Doherty v. Diving Unlimited International, Inc., 484 Mass. 193 (2020), the SJC faced the same question, albeit in a different factual context. There, representatives of a decedent's estate brought a wrongful death action in Massachusetts Superior Court against a SCUBA dive leader, alleging his negligence caused decedent's death. After defendant obtained summary judgment on the ground that decedent had signed a release and covenant not to sue for injuries or death arising from the dive before participating in it, the estate representatives appealed to the Massachusetts Appeals Court. The SJC then granted direct appellate review on its own motion.

To decide both cases, the SJC looked to the language of the Massachusetts wrongful death statute, Mass. Gen. L. ch. 229, ' 2, which allows a decedent's executor or administrator to recover against defendants who negligently, willfully, wantonly or recklessly cause decedent's death only "under such circumstances that the deceased could have recovered damages for personal injuries if his death had not resulted." The daughter in Schrader argued the common law basis for wrongful death claims meant the court could recognize an independent right to recovery. Although for many years Massachusetts, like most jurisdictions, had not recognized a common law right to bring a wrongful death claim, in 1972 the SJC followed the United States Supreme Court's ruling in Moragna v. States Mareine Lines, Inc., 298 U.S. 375 (1970), and acknowledged a common law origin for such claims. In Schrader, however, the SJC held the common law would only provide guidance if the statutory language did not resolve the question.

Here, before a 1958 amendment adding the statute's "under such circumstances" clause, Massachusetts courts had interpreted death claims as independent from the decedent's. Although after the amendment no court had directly addressed the issue, the combination of the statute's current language and the legislative intent apparent from the 1958 amendment clearly indicated that Massachusetts wrongful death claims are now considered derivative of decedents' claims. Accordingly, the decedents' arbitration agreement and liability release bound plaintiffs in the respective cases.

Massachusetts Superior Court Holds Renewal Statute, Permitting Suit Beyond Normal Limitations Period If Commenced Within One Year Of Dismissal Of Prior Timely Action For Matter Of Form, Applies Even To Claims Not Included in Original Action So Long As Based On Same Events

In Harding v. Plante, No. 1877CV00010 (Sup. Ct., Essex Cty., Feb. 11, 2020), a mother brought claims on behalf of herself and her daughter in the United States District Court for the District of Massachusetts against the daughter's father, his wife and various state agencies and employees relating to allegations of abuse by the father and the government's allegedly inadequate investigation into those allegations. After dismissing the federal law claims against the state actors, the federal court declined jurisdiction over the remaining state law claims against the father and his wife and dismissed the action. Six months later, the mother brought a new suit against the father and his wife in...

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