Wrongful Death and Survival Actions 101

By: Jason Gardner

Like other states, Oregon has statutes governing tort actions brought on behalf of deceased individuals. The more common of these is a wrongful death claim, codified in ORS 30.020 and brought when allegedly tortious conduct results in death of a party. Less common is a survival action, where a claimant passes away after the commencement of a lawsuit or at some point between the allegedly tortious conduct and filing of a lawsuit. ORS 30.075 sets forth the requirements for survival actions.

The key difference between these two actions is well-known to most practitioners in the personal injury field. Wrongful death suits specifically target conduct that results in death of a claimant, while survival claims often deal with conduct entirely unrelated to the claimant's death. An example of a wrongful death claim would be where a claimant immediately dies in a two-car motor vehicle accident due to the fault of the other driver. In contrast, a survival action may exist where an individual suffers injury in the same type of accident, but later dies of an unrelated cause, perhaps a terminal illness. In both cases, the action must be brought or continued by a personal representative of the decedent's estate.

While the above examples show the simple delineation between the two claims, complicating factors can arise. When the cause of death for a claimant is unclear, plaintiffs can elect to bring wrongful death and survival claims in the same lawsuit for the same conduct. A person may die from a terminal disease, but then claim negligent treatment for the same caused or accelerated the death. At these times, a plaintiff may bring both a wrongful death and survival claim and recover damages even if a jury determines the negligent care did not result in death. The negligent conduct simply must have caused some injury while plaintiff was alive. See Sonsteng v. Dominican Sisters of Ont., Inc., 2007 U.S. Dist. LEXIS 101680 (D. Or. June 25, 2007).

For years, a second reason plaintiffs elected to bring both claims in the same lawsuit was arguably more insidious. ORS 30.075 allows for the award of attorney fees to the prevailing party in a survival action; ORS 30.020 does not. If a defendant’s conduct caused the death of plaintiff, but there was a gap of weeks or months between the incident and the death, plaintiffs would claim damages related to the death were recoverable under ORS 30.075, with the goal of “bootstrapping” attorney fees to the wrongful death claim, even where damages under the survivor claim would be significantly lower.

In 1995, the Oregon legislature put an end to this practice by amending ORS 30.075, adding a section that states the attorney fee provision “does not apply to an action for damages arising out of injuries that result in death.”

Recoverable damages between the statutes also differ. In a survival action, the claim is brought by the personal representative solely to recover for damages suffered by the decedent. This includes both economic damages and compensation for pain and suffering. In a wrongful death action, the plaintiff may recover damages incurred by the decedent, in addition to “pecuniary loss and for the loss of the society, companionship and services of the decedent” suffered by the decedent's spouse, children, stepchildren, stepparents, and parents. ORS 30.020(2)(d). The interpretation of “pecuniary loss” has often been expansive, extending beyond a simple measure of financial contribution. For example, the Oregon Supreme Court has held that pecuniary loss includes the “moral training and superintendence of education” a deceased parent would have provided a surviving child. Arrow Transp. Co. v. Northwest Grocery, 258 Or 363, 371 (1971).

Oregon's statutory cap on non-economic damages arguably factors into each type of action differently. ORS 31.710(1) caps recovery of non-economic damages to $500,000 for any action resulting in injury or death; on its face, it would operate to limit recovery in both ORS 30.075 and ORS 30.020. But, the cap has been challenged on constitutional grounds and rendered nearly meaningless by a recent trio of cases in Oregon's appellate courts. Vasquez v. Double Press Mfg., Inc., 288 Or App 503, 77 372 P3d (2017), aff'd on other grounds, 364 Or 609, 633 (2019); Rains v. Stayton Builders Mart, Inc., 289 Or App 672, 410 P3d 336 (2018); Busch v. McInnis Waste Sys., 366 Or 628 (2020).

While none of the above cases addressed claims brought via a survival action, they addressed the types of claims that could be brought in such an action had the plaintiff died. It is a reasonable assumption that the appellate courts would apply the analysis from those cases to survival claims.

So far, this has not been the case for wrongful death actions; in 1995, the cap was found to be constitutional as applied to ORS 30.020 in Greist v. Phillips, 322 Or 281 (1995). While the recent trio of cases may spell future trouble for wrongful death claims, distinguishing factors exist (particularly that wrongful death is a statutory creation not existing at common law)1 that bolster arguments it will survive. Indeed, in the recent Busch matter, the Oregon Supreme Court distinguished Greist on several grounds.

Finally, there are three specific areas of procedure to consider when handling a wrongful death or survival lawsuit:

1. Statute of Limitations

Generally, ORS 30.020(1)(a) requires wrongful death claims be filed within three years after the claimant dies; subsection (2)(a) also allows suit to be filed within the statutes of ultimate repose for ORS 12.110, et seq. The latter period may serve to extend the time for filing beyond three years from death with application of the discovery rule.

ORS 30.075 requires actions to be initiated by the personal representative within three years, if the action was not initiated prior to death; if the claim was initiated prior to death, it would be subject to two-year limitations period in ORS 12.110. The case of Giulietti v. Oncology Assocs. of Oregon, P.C., 178 Or App 260 (2001) provides an example of how this plays out.

In Giulietti, the decedent was receiving chemotherapy for cancer treatment; the administration of the chemotherapy allegedly caused a chemical burn, which required additional treatment and costs. She later died from her underlying condition before filing suit related to the treatment. Her personal representative filed suit two-and-a-half years after treatment and more than one year after her death. In the absence of ORS 30.075, plaintiff's claim would be subject to the two-year statute of limitations in ORS 12.110. The defendant challenged the timeliness of plaintiff's action based upon this statute; defendant also argued 12.190, which requires actions to be commenced by a personal representative within one year of a claimant's death, should apply. The court rejected this challenge and held the 30.075 three-year period applies because ORS 12.010 notes any statute providing a different limitations period outside of ORS chapter 12 will control.

Still, these limitation periods are not absolute and may be trumped by other statutes. One should always be aware of the potential impact of competing time periods which may supersede or take precedence over ORS 30.020 and ORS 30.075. For instance, the two-year period of limitations set forth in the Oregon Tort Claims Act, codified in 30.275(9), trumps the three-year limitations of wrongful death and survival claims. Bell v. Tri-County Metro. Dist., 353 Or 535, 545-546 (2013).

2. Venue

The Oregon Supreme Court has addressed the question of proper venue for wrongful death claims. Howell v. Willamette Urology, 344 Or 124 (2008), ORS 14.080(1) allows an action to be commenced “in the county where the cause of action arose.” If allegedly negligent conduct causing the death occurs in one county but the defendant dies in another, a plaintiff may argue, as they did in Howell, that the action arises in the place of death.

The Court rejected this argument, noting the language of ORS 30.020(1) states any action may be maintained “if the decedent might have maintained the action, had the decedent lived,” arising out of the same circumstances. If the decedent had lived, he would have necessarily brought the action in the county where the tortious conduct had occurred. Id. at 129-130. Therefore, the county where the accident or initial injury occurred is the proper place of venue.

3. Settlement

Keep in mind that settlement of either action will require court approval pursuant to ORS 30.070 with distribution of proceeds (including those obtained through judgment) governed by ORS 30.030. While the machinations of these procedures fall on plaintiff and his or her counsel, it is incumbent upon defense counsel to ensure they are actually followed. Failure to do so may not entirely foreclose future claims against the defendant or insurers.

While this article touches on some relatively common issues, a host of other factors including comparative fault, UM/UIM claims, probate proceedings, the intersection of ORS 742.061 with policy limit demands, the Oregon Tort Claims Act and many others create unique scenarios for wrongful death and survival actions. As with any lawsuit, the key lies in issue spotting and careful review of the applicable authorities.

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1 Arguably survival actions are also statutory creations, not existing in common law and application of the cap should survive for the same reasons as a wrongful death claim. But, the key component of ORS 30.075 would probably be characterized as procedural in nature, particularly in personal injury claims. If a claimant has already initiated a personal injury lawsuit, then passes away, the statute merely offers a procedure (prosecution through a personal representative) through which it may continue. Even so, practitioners should raise similar defenses to those successful in Greist. Nonetheless, a current safe analysis of ORS 30.075 is the cap will not operate to limit non-economic damages in survival actions.

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