Alfone v. Sarno

• Decision Date: 20 July 1981
• Parties: , 26 A.L.R.4th 1237 Alfonse ALFONE, General Administrator and Administrator Ad Prosequendum of the Estate of Concetta Alfone, Deceased, Plaintiff-Respondent, v. Anthony SARNO, M. D., Defendant-Appellant.
• Court: New Jersey Supreme Court

Page 99

87 N.J. 99

432 A.2d 857, 26 A.L.R.4th 1237

Alfonse ALFONE, General Administrator and Administrator Ad Prosequendum of the Estate of Concetta Alfone Deceased, Plaintiff-Respondent, v. Anthony SARNO, M. D., Defendant-Appellant.

Supreme Court of New Jersey.

Argued Jan. 21, 1980.

Reargued Nov. 17, 1980.

Decided July 20, 1981.

Thomas F. Campion, Newark, for defendant-appellant (Shanley & Fisher, attorneys; Thomas F. Campion, Richard E. Brennan and Sharon T. Jacobson, Newark, on briefs).

John M. Blume, Newark, for plaintiff-respondent (Blume & Weiseman, Newark, attorneys).

Henry G. Morgan, Livingston, submitted a brief on behalf of amici curiae General Accident Group, The Home Insurance Company, Ohio Casualty Insurance Company, Maryland Casualty Insurance Company and Zurich Insurance Company (Morgan, Melhuish, Monaghan & Spielvogel, Livingston, attys.; Kathleen F. Moran, Newark, on brief).

William B. McGuire, Newark, submitted a brief on behalf of amicus curiae Medical Inter-Insurance Exchange (Lum, Biunno & Tompkins, attorneys; Robert W. McAndrew and William J. Prout, Jr., Newark, on briefs).

Hugh P. Francis, Morristown, submitted a brief on behalf of amici curiae American Insurance Association and Alliance of American Insurers (Francis & Berry, Morristown, attorneys; J. Raymond Berry, Newark, of counsel).

The opinion of the Court was delivered by

PASHMAN, J.

This case required us to consider the scope of the statutory action for wrongful death, N.J.S.A. 2A:31-1 to -6. At issue is whether a judgment for damages in a personal injury suit brought by the decedent during her lifetime precludes a later action for wrongful death on behalf of her heirs or dependents. We hold that a death action may be brought if the recovery is tailored to avoid duplicating elements of damages which comprised or could have comprised the earlier judgment.

I Facts

The underlying facts are not in dispute. Plaintiff is the general administrator and administrator ad prosequendum of the estate of his deceased daughter, Concetta Alfone. In his suit he alleges that his daughter's death in 1974 was the result of the negligence of defendant Anthony Sarno, M.D., in performing a subtotal thyroidectomy in 1965. This alleged malpractice was the subject of a prior action commenced by Concetta in 1968. ¹ At a jury trial she obtained a general verdict in the amount of $100,000 that was upheld on appeal after her death. See Alfone v. Sarno, 139 N.J.Super. 518, 354 A.2d 654 (App.Div.), certif. den., 71 N.J. 498, 366 A.2d 654 (1976). Following our denial of certification, plaintiff executed a warrant in satisfaction of the judgment that was filed in October 1976. He had commenced the present wrongful death action about six months before. ² In it he sought damages for funeral expenses and pecuniary injuries to decedent's mother, father and teenaged daughter. See N.J.S.A. 2A:31-1, -4, -5.

At the conclusion of the earlier trial for decedent's personal injuries, the court instructed the jury that any award of damages should consist of the following:

(1) "fair and reasonable compensation for any temporary or permanent injury resulting in disability to or impairment of (decedent's) faculties, her health, or her ability to participate in activities";

(2) "fair and reasonable compensation for her pain, suffering, discomfort and distress, past, present and future";

(3) "medical and hospital expenditures incurred in the past";

(4) "an allowance for reasonably anticipated medical services and medications."

The Appellate Division found that the damages presently sought would not duplicate any portion of the recovery in the personal injury action, see 168 N.J.Super. 315, 332, 403 A.2d 9 (App.Div.1979), and defendant has not challenged that finding.

Defendant moved for summary judgment in the present action, contending that the judgment in the former personal injury action barred a wrongful death claim arising from the same allegations of negligence. The trial court agreed and granted judgment for defendant on May 30, 1978. The Appellate Division reversed. 168 N.J.Super. 315, 403 A.2d 9 (1979). In large measure the court based its decision on dictum in this Court's opinion in Lawlor v. Cloverleaf Memorial Park, Inc., 56 N.J. 326, 343-45, 266 A.2d 569 (1970). There we had questioned prior cases characterizing a wrongful death action as wholly derivative from the decedent's claims for personal injuries. Id..; see, e. g., Knabe v. Hudson Bus Transportation Co., 111 N.J.L. 333, 168 A. 418 (E. & A.1933).

We granted defendant's petition for certification. 81 N.J. 332, 407 A.2d 1206 (1979).

II Independent Aspects of the Wrongful Death Action

Whether the present wrongful death suit may be maintained depends on the relationship between that statutory action and a claim for the decedent's personal injuries. We therefore initially direct our inquiry to New Jersey's Wrongful Death Act, N.J.S.A. 2A:31-1 to -6.

At early common law, the theory that death extinguished a personal right of action barred any claim for wrongful death. See, e. g., 1 S. Speiser, Recovery for Wrongful Death, §§ 1:1 to 1:9 at 2-30 (2d ed.1975). Early precedents in this State have held that no action lies for the death of another except as provided by statute. See, e. g., Myers v. Holborn, 58 N.J.L. 193, 33 A. 389 (E. & A.1895). ³ The model for this State's original wrongful death statute, L. 1848, p. 151, was an 1846 act of the British Parliament entitled "An Act for compensating the Families of Persons killed by Accidents" and universally known as Lord Campbell's Act, 9 & 10 Vict., c. 93. As enacted in 1846, section one of Lord Campbell's Act provided in relevant part:

(W)hensoever the Death of a Person shall be caused by wrongful Act, Neglect, or Default, and the Act, Neglect, or Default is such as would (if Death had not ensued) have entitled the Party injured to maintain an Action and recover Damages in respect thereof, then and in every such Case the Person who would have been liable if Death had not ensued shall be liable to an Action for Damages, notwithstanding the Death of the Person injured * * *. (emphasis added)

While our wrongful death statute has been amended at various times since its original passage in 1848, see, e. g., L. 1960, c. 194; L. 1948, c. 429, the current enactment, N.J.S.A. 2A:31-1 to -6, maintains many of the features of Lord Campbell's Act. This similarity becomes clear by a comparison of Lord Campbell's Act with the following pertinent language of N.J.S.A. 2A:31-1:

When the death of a person is caused by a wrongful act, neglect or default, such as would, if death had not ensued, have entitled the person injured to maintain an action for damages resulting from the injury, the person who would have been liable in damages for the injury if death had not ensued shall be liable in an action for damages, notwithstanding the death of the person injured * * *. (emphasis added)

Essentially the issue before us is one of statutory interpretation: whether the emphasized language above means that a death action is wholly derivative from whatever right of action the decedent possessed when he died. In other words, the question is whether the statutory death action depends completely upon the decedent's right to sue for his own injuries at the time of his death. If such dependence exists, a judgment in a personal injury action by the decedent would extinguish both the decedent's right to bring a second suit and any subsequent statutory action for wrongful death.

A

Although no New Jersey decision has addressed the precise issue of preclusion we consider today, prior to our decision in Lawlor v. Cloverleaf Memorial Park, supra, our courts accepted the notion that the death action is wholly derivative. In Knabe v. Hudson Bus Transportation Co., supra, the Court of Errors and Appeals followed this view in deciding that the decedent's failure to bring a timely personal injury action while alive barred a subsequent suit for his wrongful death. 111 N.J.L. at 335, 168 A. 418; see also Biglioli v. Durotest Corp., 44 N.J.Super. 93, 105, 129 A.2d 727 (App.Div.1957), aff'd on other grounds, 26 N.J. 33, 138 A.2d 529 (1958); Redick v. Rohm & Hass Co., 97 N.J.Super. 58, 60-61, 234 A.2d 252 (Law Div.1967); Coulter v. New Jersey Pulverizing Co., 11 N.J.Misc. 5, 163 A. 661 (Sup.Ct.1932). Similarly in Libera v. Whittaker, Clark & Daniels, Inc., 20 N.J.Super. 292, 89 A.2d 734 (Law Div.1952), the court held that a pre-death settlement and release of a personal injury claim would bar a subsequent action for wrongful death on the same negligent acts. Id. at 295, 89 A.2d 734; see also McKeering v. Pennsylvania R.R. Co., 65 N.J.L. 57, 46 A. 715 (Sup.Ct.1900). These cases prompted the Third Circuit to hold that New Jersey law barred a wrongful death action where the decedent had obtained a judgment for his injuries during his lifetime. Roberts v. Union Carbide Corp., 415 F.2d 474 (3d Cir. 1969). ⁴ The holdings in these cases were in harmony with the majority of courts construing cognate wrongful death statutes. See S. Speiser, supra, §§ 5:14, 5:20 at 613, 631; 2 F. Harper & F. James, The Law of Torts, § 24.6 at 1291-92 (1956) and id. at 133 (Supp.1968); Annot., 39 A.L.R. 579 (1925). Nevertheless in Lawlor v. Cloverleaf Memorial Park, supra, this Court questioned the soundness of these holdings. 56 N.J. at 344-45, 266 A.2d 569.

In Lawlor we held that where a survival action arose after a suit had been commenced by the decedent while alive, an additional claim for wrongful death against existing third-party defendants would relate back to the time decedent commenced the original personal injury action. The Court therefore reversed the Appellate Division's ruling that the new claim was barred by the statute of limitations. 56 N.J. at 345, 266 A.2d 569. Because of this holding, it was unnecessary for the Court to decide whether a wrongful death claim would be barred where a...