H & H settled a challenging wrongful death case recently and overcame some unique factual and legal issues to maximize recovery for the client.
The case involved a couple who had been living together for over 50 years in an unmarried domestic partnership. The two partners had reciprocal estate plans and the surviving partner was the sole beneficiary and personal representative of the decedent’s estate. The decedent had no children and was survived by three elderly siblings who were somewhat disconnected. The decedent was a senior citizen who recently completed treatment for colon cancer. Hamilton & Hamilton represented both the Estate and the Partner individually.
FACTS
After enjoying a dinner out, shortly after 9:00 p.m. the decedent and partner parked at the curb of a two lane thoroughfare. Decedent exited the vehicle and crossed the street to enter a market to grab a few items. After going to the market, Decedent walked back towards her car. Tragically, Decedent was never able to make it back to her car. After crossing two traffic lanes plus two bike lanes, within inches of reaching her driver’s side door, Decedent was suddenly and without warning struck and gravely injured by the operator of a motor vehicle, who plaintiff contends, was travelling in the bike lane. During this tragic accident, Decedent’s partner was sitting in the front passenger’s seat of Decedent’s vehicle and witnessed the horrific and violent impact. As a result of the impact, Decedent underwent extensive medical treatment for blunt force trauma to the head, torso, & extremities, and survived for over 12 hours, sadly succumbing to the injuries in the late morning hours the following day.
CHALLENGES OVERCOME
The beneficiaries as set out in Mass. Gen. L. c. 229, § 1 are the spouse and children of a married decedent, or the next of kin of an unmarried decedent. The statutory beneficiaries set out in Mass. Gen. L. c. 229, § 1 are exclusive, and no other persons may share in the recovery under Section 2 of the statute. Because the decedent and domestic partner were not married, the Partner was not a “statutory beneficiary” under the Wrongful Death statute. Mass. Gen .L. c. 229, § 1 et seq. This posed a challenge in making a prima facie case under the statute while trying to find an equitable solution to recover damages on behalf of the person most dear to the decedent. Counsel for the plaintiff made the claim viable by locating the surviving siblings of the decedent and establishing that they were “next of kin” under the statute. Once over this threshold, Plaintiff’s counsel strongly argued that there was a substantial value to the conscious pain and suffering component under G.L. c. 229 § 6 as the decedent lived for 12 hours after the accident. The wrongful death statute provides that amounts recovered under Section 6 are payable into the estate and treated as an estate asset. Once the proceeds became an asset of the estate, they were properly payable to the partner as the sole beneficiary of the estate. Plaintiff’s counsel also successfully navigated the claims of the surviving next-of-kin, whose relationship with the surviving partner was somewhat strained. Plaintiff’s counsel recovered a portion of the wrongful death proceeds in trust on behalf of the next of kin and distributed undisclosed amounts to them.
Last, Plaintiff’s counsel also successfully argued a “bystander claim” for negligent infliction of emotional distress on behalf of the surviving partner who witnessed the entire accident and its aftermath. As a proximate result of witnessing the accident, the surviving partner suffered from symptoms of post-traumatic stress including depression, sleeplessness and anxiety. This portion of the case was resolved for an undisclosed amount.
Hamilton & Hamilton, P.C. 
