McDavid v. US

Decision Date03 July 2003
Docket NumberNo. 30740.,30740.
Citation213 W.Va. 592,584 S.E.2d 226
PartiesNaomi MCDAVID, on her own behalf and as the personal representative of Oney McDavid, deceased, Plaintiff, v. UNITED STATES of America, Defendant.
CourtWest Virginia Supreme Court
Concurring Opinion of Justice Maynard July 7, 2003.

Stuart Calwell, Esq., David H. Carriger, Esq., Law Office of Stuart Calwell, Charleston, West Virginia, Attorneys for the Plaintiff.

Kasey Warner, United States Attorney, Stephen M. Horn, Sandra Henson Kinney, Assistant United States Attorneys, Charleston, Ray L. Hampton, II, Special Assistant United States Attorney, Huntington, West Virginia, Attorneys for Defendant.

STARCHER, Chief Justice:

This case is before the Court upon a question certified from the United States District Court for the Southern District of West Virginia. By order entered December 17, 2001, the district court presented the following certified question:

Whether a decedent's beneficiaries may recover damages for a decedent's pain and suffering, incurred between the time of injury and the time of death, where the injuries result in death but the decedent did not institute an action for personal injury prior to his or her death?

After careful consideration of West Virginia's wrongful death and survival statutes, W.Va.Code, 55-7-5 to -8a (the "wrongful death act"), and the pertinent authorities, we answer the certified question in the affirmative. We hold that in a wrongful death action, a decedent's beneficiaries may recover damages for a decedent's pain and suffering, endured between the time of injury and the time of death, where the injury resulted in death but the decedent did not institute an action for personal injury prior to his or her death.

I. Facts & Background

The plaintiff, Naomi McDavid, on her own behalf and as the personal representative of her deceased husband, Oney McDavid ("the decedent"), contends that in October 1999, the decedent received an x-ray at the Veterans Administration Medical Center in Huntington ("VA hospital"). The x-ray revealed an opacity on the decedent's right lung. According to the plaintiff, the decedent was told not to worry about the opacity and no further tests were ordered at that time.

In January 2000, the decedent went to his family doctor complaining of a cough. At that time, an x-ray revealed that the opacity had tripled in size. It was subsequently discovered to be cancerous. The decedent died of lung cancer on July 11, 2000.

On August 17, 2001, the plaintiff filed an action against the defendant, the United States of America, pursuant to the Federal Tort Claims Act, 28 U.S.C. § 2671, et seq., in the district court.1 The plaintiff alleged that the defendant, acting through its employees, the physicians at the VA hospital, "failed to exercise that degree of care, skill and learning required or expected of a reasonable, prudent physician[s] and/or medical facility in acting in the same or similar circumstances, including, but not limited to, in its treatment, and failure to treat" her husband, and that this negligent treatment caused her husband's death. The plaintiff further alleged, inter alia, that the defendant's negligence caused the decedent pain, suffering, loss of enjoyment of life, and emotional distress.

The defendant subsequently filed a motion to dismiss the plaintiff's claim for pain and suffering. The defendant argued that because the decedent did not file a personal injury action prior to his death, his cause of action for personal injury damages died with him and the plaintiff is now prevented from pursuing those damages by the terms of the West Virginia wrongful death act. The plaintiff asked the district court to certify the question whether she may recover damages under the wrongful death act for the decedent's pain and suffering endured between the time of the defendant's alleged negligence and the decedent's death.

By an order dated December 17, 2001, the district court denied without prejudice the United States' motion to dismiss the plaintiff's claim for the decedent's personal injury damages, and found that the claim was an appropriate issue to certify to this Court. After inspecting the district court's order, we determined that the question should be reviewed.2 We now discuss the reasons for our answer to the certified question.

II. Standard of Review

This Court employs a plenary standard of review when we answer certified questions. In Syllabus Point 1 of Light v. Allstate Ins. Co., 203 W.Va. 27, 506 S.E.2d 64 (1998), we held that "[a] de novo standard is applied by this Court in addressing the legal issues presented by a certified question from a federal district or appellate court." Also, the certified question before us requires us to construe the wrongful death act. We have held that "[w]here the issue ... is clearly a question of law or involving an interpretation of a statute, we apply a de novo standard of review." Syllabus Point 1, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995).

III. Discussion

The parties in the instant case dispute whether a decedent's beneficiaries can, in a wrongful death action, recover damages for the decedent's pain and suffering caused by the wrongful act, neglect or default of the defendant, and endured between the time of the wrongful act, neglect or default and the time of death, where the decedent did not initiate a personal injury action to recover those damages prior to the time of death. In Estate of Helmick by Fox v. Martin, 188 W.Va. 559, 425 S.E.2d 235 (1992), we concluded that under the wrongful death act a decedent's beneficiaries could recover damages for a decedent's pain and suffering, if the decedent initiated a personal injury action prior to his or her death. We left unanswered the question raised by the parties in this case, stating that "[w]e need not resolve at this time the remaining question of whether pain and suffering is recoverable where the action is not filed until after the decedent's death." 188 W.Va. at 563 n. 10, 425 S.E.2d at 239 n. 10.

The defendant argues that the wrongful death act, and our interpretation of those laws in Helmick, requires a decedent to initiate a personal injury action before death in order to recover for losses incurred by the decedent's estate during the time period between the wrongful act, neglect or default of the defendant and the decedent's death. The defendant argues that if the decedent does not file a personal injury action for those losses prior to death, then the cause of action dies with the decedent.

The plaintiff argues that the defendant is urging a harsh and absurd construction to the wrongful death act. The plaintiff asserts that the logical outcome of the defendant's argument is that plaintiffs' lawyers will rush to file lawsuits whenever a client is injured and there is a chance the client will die, and that those lawsuits will be filed before the plaintiffs' lawyers have a chance to properly investigate and determine whether the lawsuits have any merit. The plaintiff suggests that a decedent's failure to file a lawsuit before dying—whether born of the decedent's disdain for litigation, or an inability to reach the courthouse before dying—should not affect the beneficiaries' ability to recover the full damages that the decedent could have recovered, had he or she survived the defendant's wrongful act, neglect or default.3

In construing the wrongful death act, as with any statutory scheme, "[t]he primary rule of statutory construction is to ascertain and give effect to the intention of the Legislature." Syllabus Point 8, Vest v. Cobb, 138 W.Va. 660, 76 S.E.2d 885 (1953). In addition, "[i]t is a cardinal rule of construction governing the interpretation of statutes that the purpose for which a statute has been enacted may be resorted to by the courts in ascertaining the legislative intent." Syllabus Point 4, State ex rel. Bibb v. Chambers, 138 W.Va. 701, 77 S.E.2d 297 (1953). "A statute should be so read and applied as to make it accord with the spirit, purposes and objects of the general system of law of which it is intended to form a part; it being presumed that the legislators who drafted and passed it were familiar with all existing law, applicable to the subject matter, whether constitutional, statutory or common, and intended the statute to harmonize completely with the same and aid in the effectuation of the general purpose and design thereof, if its terms are consistent therewith." Syllabus Point 5, State v. Snyder, 64 W.Va. 659, 63 S.E. 385 (1908).

The wrongful death act is a remedial statutory scheme. Accordingly, as we stated in Syllabus Point 6 of Bradshaw v. Soulsby, 210 W.Va. 682, 558 S.E.2d 681 (2001), "Because the wrongful death act alleviates the harshness of the common law, it is to be given a liberal construction to achieve its beneficent purposes." In accord, Farley v. Sartin, 195 W.Va. 671, 680, 466 S.E.2d 522, 531 (1995) ("[O]ur prior decisions ... firmly established that W.Va.Code, 55-7-5, is a remedial statute and should be liberally construed."); Martin v. Smith, 190 W.Va. 286, 292, 438 S.E.2d 318, 324 (1993) ("West Virginia's wrongful death statute is remedial, and is liberally construed to effect the Legislature's intent."); Baldwin v. Butcher, 155 W.Va. 431, 184 S.E.2d 428 (1971); City of Wheeling ex rel. Carter v. American Casualty Co., 131 W.Va. 584, 590, 48 S.E.2d 404, 408 (1948) ("The statute, being remedial, should be liberally construed."); Wilder v. Charleston Transit Co., 120 W.Va. 319, 322, 197 S.E. 814, 816 (1938) ("The policy of the statute is remedial and not punitive."); Richards v. Riverside Iron Works, 56 W.Va. 510, 515, 49 S.E. 437, 438 (1904) ("The statute is remedial, and should be construed liberally for the purpose of carrying out the legislative intent.").

With these standards in mind, we now examine the damages that are available under...

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