When Wrongful Death, Survival, and Sovereign Immunity Acts Collide (PA)
When a claim arises from the death of an individual, wrongful death and survival actions provide complementary damages. The wrongful death action compensates for losses sustained by living individuals as a result of the decedent’s death. A survival action allows for compensation as if the decedent had survived. Wrongful death damages include compensation for the amounts the decedent’s earnings would have contributed to his spouse, parents or child who are entitled to bring suit. A survival action allows the estate to recover the decedent’s loss of earnings during his life-span less the decedent’s personal expenses. In addition to these pecuniary losses, survival actions allow for pain and suffering, while wrongful death damages include loss of consortium such as loss of counseling and household services. These claims become more complex when the claim is against a public entity. Pennsylvania has legislation, the Sovereign Immunity Act, that defines when a public body may be sued. Although the sovereign may be sued for wrongful death and survival benefits, the type of recovery that is allowed is limited. In particular, the statute bars a parent or child of a decedent from recovering damages in a wrongful death action for the loss of the decedent’s future services and financial support. In Ewing v. Commonwealth of Pennsylvania Department of Transportation, the decedent was killed after an automobile accident in which another vehicle lost control on an icy road and collided with decedent’s automobile. The decedent’s estate brought wrongful death and survival actions against the Department of Transportation, alleging that the death was caused by the Department’s negligence in allowing water to accumulate and freeze on the road. The Court noted that the Sovereign Immunity Act applied to the wrongful death and survival actions against the Department of Transportation. Specifically, the Court stated that the damages sought must be authorized by both the Wrongful Death Act and by Section 8528(c) of the Sovereign Immunity Act. The same holds true for damages sought based upon the Survival Act. Significantly, the Sovereign Immunity Act more narrowly defines recoverable damages, in particular loss of consortium damages are not allowed. In analyzing whether the loss of services and support could be recovered from the sovereign , the Court looked to the Pennsylvania Supreme Court’s decision in Department of Public Welfare v. Schultz for guidance. In Schultz, the Pennsylvania Supreme Court held that loss of consortium damages could not be recovered by a parent or child of the decedent. The issue presented in Ewing, however, was whether the loss of a decedent’s services and financial contributions can be recovered as another “type of damages recoverable” under Section 8528(c) of the Sovereign Immunity Act. The analysis turned on the definition of “past and future earnings and earning capacity” as authorized by Section 8528(c) of the Sovereign Immunity Act. In agreeing with the Department of Transportation, the Court held that the services and financial support a decedent provided a child or parent did not constitute as “earnings” or “earning capacity” of the recipient. More appropriately, that loss would be characterized as a “loss of support,” which was not listed as one of the types of damages recoverable from a commonwealth agency. The Court emphasized that the Legislature could have listed “loss of support” as one of the types of damages recoverable from a commonwealth agency, but intentionally omitted such a recovery. Therefore, the Sovereign Immunity Act bars a parent or child of a decedent from recovering damages in a wrongful death action for the loss of the decedent’s future services and financial support. Thanks to Zhanna Dubinsky for this contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com.
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