On June 21, 2023, an amended version of LD 934, “An Act to Amend the Laws Governing Damages Awarded for Wrongful Death,” passed the Maine House and the Senate, and headed to the Governor’s desk. On July 6, the Governor allowed the bill to become law.

As amended by the Judiciary Committee, LD 934 makes three changes to the Wrongful Death Act. They are discussed below in ascending order of importance.

1. Punitive Damages

First, LD 934 would raise the cap on punitive damages for wrongful death claims from $250,000 to $500,000. This change is notable because, while the cap on loss of consortium damages has been raised as recently as 2019, there was resistance, in the past, to amending the punitive damages cap.

For two reasons, however, this proposed change is not of much import, at least compared to the other changes included in LD 934. First, in Maine, punitive damages are rarely available. Gross negligence or recklessness are insufficient, in Maine, to permit punitive damages. See Tuttle v. Raymond, 494 A.2d 1353, 1361 (Me. 1985). Rather, punitive damages are available only where a plaintiff can demonstrate by “clear and convincing evidence” that the defendant acted with “malice, either express or implied.” Id. at 1362. Given that high bar, punitive damages claims in Maine are rare.

Second, as we discussed in a previous article, wrongful death claims are almost always brought in conjunction with common law survival claims, and there is no reason to believe that the punitive damages cap in the Wrongful Death Act prevents a plaintiff from separately seeking punitive damages for the Estate’s common law survival claim. While punitive damages brought under the Wrongful Death Act are capped by statute, common law punitive damages are not capped.

2. Statute of Limitations

LD 934 also changes the statute of limitations for wrongful death claims from two years to three. From the perspective of plaintiff’s lawyers, this is a welcome change, particularly given that setting up an estate (which is a prerequisite to commencing a wrongful death claim) can be a lengthy process. As we have discussed elsewhere, even in the absence of this change, the statute of limitations for wrongful death claims relating to medical malpractice is governed not by the Wrongful Death Act, but by the Maine Health Security Act, which provides for a three-year statute of limitations in most circumstances. See Butler v. Killoran, 1998 ME 147, 714 A.2d 129. Of course, most wrongful death actions filed in Maine do not concern medical malpractice.

3. Loss of Consortium

As originally drafted, LD 934 proposed a doubling of the cap “for the loss of comfort, society and companionship of the deceased” from $750,000 to $1,500,000. In the Judiciary Committee, the bill was amended to lower the proposed increase in the loss of consortium cap from $1,500,000 to $1,000,000. In exchange, however, the Judiciary Committee added the following language to the bill:

For a wrongful death action brought with respect to a person who died after 2023, the dollar amount stated in section 2‑807, subsection 2 for loss of comfort, society and companionship must be adjusted if the Consumer Price Index for the calendar year immediately preceding 31the year of death exceeds or is less than the [Consumer Price Index for 2023].

The wrongful death cap has never previously been tied to the Consumer Price Index. The Legislature took this step, presumably, in the hopes that it would save itself from needing to raise the cap again in the near future. Indeed, one of the arguments made by supporters of increasing the cap was that, due to inflation, the $750,000 permitted under the current law is worth significantly less than it was when the cap was last raised in 2019.