Court Clarifies Wrongful Death and Consumer Protection Law

In Klairmont v. Gainsboro Restaurant, Inc., 465 Mass. 165 (2013), the Massachusetts Supreme Judicial Court [SJC] clarified a number of issues about the interrelation of the wrongful death statute, G.L. c. 229, consumer protection claims under G.L. c. 93A and the survival statute, G.L. c. 228, §1.

Recently, defense interests had been arguing that claims arising out of a death were limited to wrongful death claims based on negligence theories. The SJC flatly rejected such an argument by holding that consumer protection claims under G.L. c. 93A can be brought under the survival statute by the Administrators of an Estate and that they are a distinct cause of action from common law wrongful death claims.

In reaching this ruling, the SJC answered an open question under Massachusetts law. Importantly, the SJC noted that damages for such claims under G.L. c. 93A are limited to what the decedent would have been entitled to recover on such a claim had he survived. Such damages would have included personal injuries caused by the unfair and deceptive conduct at issue, including conscious pain and suffering and medical expenses. This holding has the potential to significantly increase the value of cases in which a victim experiences conscious pain and suffering and incurs substantial medical expenses before death, since G.L. c. 93A provides for a doubling, or trebling, of such damages as well as the award of attorney’s fees. The Court also left open the question of whether the parents of a deceased child would have a separate claim in their individual capacities under c. 93A for loss of consortium, although it noted that it have never recognized loss of consortium damages as a distinct category of c. 93A damages. Given that G.L. c. 93A provides for the recovery of “actual damages[,]” there is little doubt that this open question will be addressed in due course.

Klairmont is also important because it held that liability under G.L. c. 93A may arise premised on a building code violation through the provisions of a regulation issued by the Massachusetts Attorney General, 940 C.M.R. § 3.16(3). The Court noted that liability under this theory requires that: (1) the regulation that is claimed to have been violated must be intended to protect consumers; and, (2) the conduct leading to the violation must be unfair or deceptive and must occur in trade or commerce. Determining whether the conduct at issue is unfair or deceptive will continue to require a case-by-case analysis. It should be emphasized, however, that in Klairmont the SJC stated that the building code provisions at issue in the case were, at least in part, intended for the protection of consumers.

Klairmont also reaffirmed the well-established principle that when deciding a case under a G.L. c. 93A, the judge can make different and independent findings on the c. 93A claim that arise out of the same facts that spawn a common law claim. In doing so, the Court rejected claims that allowing such an independent cause of action, with separate and independent findings by the judge, violated the defendant’s right to a jury trial. For the time being, this long-established principle of Massachusetts law continues to protect consumers.

Klairmont was closely watched by the Massachusetts trial bar and various parties filed Amicus briefs. Jeffrey S. Beeler, Esq., of Heinlein Beeler Mingace & Heineman, P.C., was a co-author of an Amicus brief filed the by the Massachusetts Academy of Trial Attorneys [MATA] in connection with the case. If you need assistance dealing with serious injuries, or the death of a loved one, call Heinlein Beeler Mingace & Heineman, P.C. to discuss your options.