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No. 30740 - Naomi McDavid, on her own behalf and as the personal representative of Oney McDavid, deceased v. United States of America

Maynard, Justice, dissenting:

        The majority opinion is result-driven and without a scintilla of legal support. In order to reach its desired result, the majority cavalierly disregards plain statutory language, ignores recent declarations of this Court, and tosses aside the Court's traditional rules of statutory construction.

        The majority's newfangled construction of the wrongful death act relies entirely on the words “but may not be limited to” found in W.Va. Code § 55-7-6(c)(1) (1992).   (See footnote 1)  According to the majority, these words give a jury in a wrongful death case “almost unfettered discretion” in awarding damages, including damages for the pain and suffering of the decedent between the time of injury and death. The problem with the majority's novel interpretation of W.Va. Code § 55-7-6(c) is that it is directly at odds with W.Va. Code § 55- 7-8 (1989) and this Court's previous findings.

                “It is an accepted rule of statutory construction that where a particular section of a statute relates specifically to a particular matter, that section prevails over another section referring to such matter only incidentally.” Cropp v. State Workmen's Compensation Comm'r, 160 W.Va. 621, 626, 236 S.E.2d 480, 484 (1977) (citation omitted). The availability of damages for the decedent's pain and suffering where the decedent failed to file a personal injury action prior to death is specifically addressed in W.Va. Code § 55-7-8 which provides:
                         
                Where an action is brought by a person injured for damage caused by the wrongful act, neglect or default of any person or corporation, and the person injured dies as a result thereof, the action shall not abate by reason of his or her death but, his or her death being suggested, it may be revived in the name of his or her personal representative, and the complaint shall be amended so as to conform to an action under sections five and six [§§ 55-7-5 and 55-7-6] of this article, and the case proceeded with as if the action had been brought under said sections. Additionally a separate and distinct cause of action may be brought, and if brought, shall be joined in the same proceeding for damages incurred between the time of injury and death where not otherwise provided for in said sections five and six. In either case there shall be but one recovery for each element of damages: Provided, That nothing in this section shall be construed in derogation of the provisions of section twelve [§ 55-7- 12] of this article. (Emphasis added).


        In order to fully understand W.Va. Code § 55-7-8, one must be mindful that “at common law all actions for personal injuries, being personal actions, died with the person . . . [who] received . . . the injury and no such action could be maintained . . . by . . . his personal representative.” City of Wheeling ex rel. Carter v. American Cas. Co., 131 W.Va. 584, 586, 48 S.E.2d 404, 406 (1948) (citations omitted). The purpose of W.Va. Code § 55-7- 8 was to alter this common law rule by declaring that,

            
when an action is brought by a person injured for damage caused by the wrongful act of any person and pending the action the person injured died as a result of the wrongful act, the action should not abate by reason of his death but might be revived in the name of his personal representative.

City of Wheeling, 131 W.Va. at 587-88, 48 S.E.2d at 407. The revived action, however, had to conform to a wrongful death action. See Conrad v. Wertz, 278 F.Supp. 428, 431 (N.D.W.Va. 1968) (“It is also important to recognize that under [W.Va. Code § 55-7-8] further proceedings must conform to an action for wrongful death and the recovery is limited to the amount provided for by the wrongful death provisions.” (Footnote omitted)); Estate of Helmick by Fox v. Martin, 188 W.Va. 559, 562, 425 S.E.2d 235, 238 (1992) (“the 1959 version of West Virginia Code § 55-7-8 essentially treated the revival of the decedent's personal injury action solely as a wrongful death action.”).
        
        In 1989, the Legislature amended W.Va. Code § 55-7-8 to include the italicized language set forth above. Again, this language provides that “[a]dditionally a separate and distinct cause of action may be brought, and if brought, shall be joined in the same proceeding for damages incurred between the time of injury and death where not otherwise provided for in said sections five and six.” As noted by the majority, this Court considered the effect of this new language in Estate of Helmick, supra, where we explained that “[t]he 1989 amendment to West Virginia Code § 55-7-8 specifically provides that a recovery shall be had for damages such as pain and suffering which are not otherwise provided for under the wrongful death act.” 188 W.Va. at 563, 425 S.E.2d at 239 (citation omitted and emphasis added).
        
        Thus, W.Va. Code § 55-7-8, as amended in 1989, provides that where a decedent instituted a personal injury action prior to death, his or her beneficiaries may recover damages for the decedent's pain and suffering incurred between the time of injury and the time of death. When applied to the instant facts, because the decedent did not institute a personal injury action prior to his death, his beneficiaries are not authorized to recover such pain and suffering damages.
        
         Remarkably, the majority makes absolutely no effort to explain the provisions of W.Va. Code § 55-7-8, but rather ignores the statute almost completely. In fact, the effect of the majority opinion is to render W.Va. Code § 55-7-8 completely meaningless. There is now actually a statute on our books, amended by the Legislature as recently as 1989, which serves absolutely no purpose. Said another way, according to the majority, the general and ambiguous words “but may not be limited to” in W.Va. Code § 55-7-6(c)(1) negate an entire statute the provisions of which are crystal clear.

        The majority's disregard of our traditional rules of statutory construction is equally alarming. For example, this Court has held that it will not presume that the Legislature, in the enactment of a statute, intended to overturn established principles, unless it makes such an intention clear. State ex rel. Reeves v. Ross, 62 W.Va. 7, 57 S.E. 284 (1907). The majority, however, presumes that by inserting the vague words “but may not be limited to” in W.Va. Code § 55-7-6(c)(1), that the Legislature intended, with a single stroke of the pen, to remove all historical limitations on damages in wrongful death cases.

        Finally, the majority opinion is in direct conflict with recent declarations of this Court. In Estate of Helmick, this Court read the same “but may not be limited to” language in W.Va. Code § 55-7-6(c)(1), and nevertheless could not have made it more plain that damages for a decedent's pain and suffering are not available under the wrongful death act. We explained in Estate of Helmick that,

            the 1959 version of West Virginia Code § 55-7-8 essentially treated the revival of the decedent's personal injury action solely as a wrongful death action. Thus, there was no specific recovery for the decedent's pain and suffering. The lack of the availability of any recovery for the decedent's pain and suffering was made clear in Walker v. Walker, 177 W.Va. 35, 350 S.E.2d 547 (1986), superceded [sic] by statute on other grounds as stated in Arnold v. Turek, 185 W.Va. 400, 407 S.E.2d 706 (1991) where this Court, interpreting what damages were recoverable under the wrongful death statute, stated that “[o]ur statute, patterned after an English statute known as Lord Campbell's Act, allows an action for wrongful death based upon the loss sustained by the beneficiaries of the recovery, rather than on the injury suffered by the deceased or his estate.” 177 W.Va. at 38, 350 S.E.2d at 549.

188 W.Va. at 562, 425 S.E.2d at 238. The Court further said that “[i]t is clear upon examining [W.Va. Code §§ 55-7-5 and 55-7-6] that one of the types of damages which is not included in the statute as what the 'jury shall include' in its verdict is pain and suffering.” Estate of Helmick, 188 W.Va. at 563, 425 S.E.2d at 239 (emphasis added) (citing W.Va. Code § 55-7-6). Thus, this Court recognized, as recently as 1992, that the words “but may not be limited to” do not include damages for pain and suffering. Incredibly, the majority, considering the exact same statutory language, now reaches the opposite conclusion.
        
        In sum, it is obvious that the Legislature simply has not provided for damages for the decedent's pain and suffering where the decedent failed to file a personal injury action prior to his or her death. However, because the majority does not like this result, it has usurped the Legislature's function and rewritten a statute to comport with its own subjective notions of fairness. I refuse to be a part of such bald-faced judicial legislation. Accordingly, I dissent.


Footnote: 1
    According to W.Va. Code § 55-7-6(c)(1), in part, “[t]he verdict of the jury shall include, but may not be limited to, damages for the following[.]”