Benjamin Franklin famously said, “In this world nothing can be said to be certain, except death and taxes.” Less certain is whether a legal claim survives the death of a party. In Massachusetts, the Legislature enacted a survival statute “to abrogate the common law rule that tort actions were personal and, thus, did not survive the death of either the injured party or the wrongdoer.” The now long-established statute provides for the survival of contract actions, which previously survived at common law, and “actions of tort for assault, battery, imprisonment or other damage to the person.” Courts now approach the survival of causes of action by considering whether the substance of the claim being brought is analogous to a claim of contract that would survive under common law or a tort that fits within the framework of the survival statute.

Defining the Damages with the Supreme Judicial Court

In analyzing whether a claim survives, the Supreme Judicial Court has observed that the phrase “other damage to the person” was intended by the Legislature to be flexible, and “clearly leaves room to accommodate other torts which the court might deem to involve damage to the person.” The court continued that “the statute is sufficiently dynamic to allow for a change in judicial conceptions of what types of harm constitute legally redressable ‘damage to the person.’ ” In accordance with the survival statute and its interpretation, claims for employment discrimination, physical injury, intentional infliction of emotional distress and similar claims survive, while claims for fraud which do not result in damage to real or personal property, defamation claims and the like are deemed to abate upon the death of a party.

However, whether a claim under G. L. c. 93A, the Massachusetts consumer protection statute that created new substantive rights, survives the death of party continues to present unique challenges for courts. Recent cases hold that the multiple damages provided for under the statute may not be sought when the defendant has died, given that the goals served by such damages (i.e., punishment and deterrence) can no longer be achieved. On the other hand, a c. 93A action does survive the death of the plaintiff in both cases of contractual harm and personal injury. In one case, the Supreme Judicial Court held that a c. 93A claim for multiple damages based on a restaurant’s building code violations, survived the plaintiff’s death, even though the jury had found that the defendant was not negligent. More recently, a Superior Court judge determined that a c. 93A claim against an insurer for unfair and deceptive settlement practices survives the death of the plaintiff who had obtained a judgment against the insured on her claim for personal injuries. In that case, the trial court judge noted that the multiple damages provisions of c. 93A are part of a legislative scheme designed to serve a broad public interest in the eradication of unfair and deceptive practices in trade or commerce which would continue to be served even after the plaintiff’s death.

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If you or a loved one were injured because of someone’s negligence, contact Attorney Allison now for a free consultation by calling 978-740-9433 or filling out our free consultation form. We look forward to talking to you about your claim.

G.L. c. 93A, the Massachusetts Consumer Protection Statute: https://malegislature.gov/Laws/GeneralLaws/PartI/TitleXV/Chapter93A