An amicus brief authored by MMM&K’s Jennifer Creedon and submitted on behalf of the Massachusetts Defense Lawyers Association (“MassDLA”) was favorably cited in a pair of cases decided by the Supreme Judicial Court on Thursday, February 27, 2020.

The two cases, GGNSC Administrative Services, LLC, et al. v. Schrader and Doherty v. Diving Unlimited International, Inc., et al., involved the question of whether a claim brought under Massachusetts’s wrongful death statute belonged to a decedent or their heirs.

Based on the SJC’s solicitation of amicus briefs to help answer this question, MassDLA filed a brief authored by MMM&K’s Jennifer Creedon, which argued that a wrongful death claim in Massachusetts is solely the claim of the decedent and the decedent can limit or extinguish the claim in his or her lifetime. Relying in part on this brief, the Court concluded that wrongful death claims are derivative and “an extension of the decedent’s personal injury claim.” As reported by Massachusetts Lawyers Weekly on March 5, 2020, “[b]y deciding that [the claims] are derivative, the SJC determined that contracts entered into by a decedent or on his behalf are binding” on the decedent’s heirs in a wrongful death claim.

In the wake of these important decisions, the Massachusetts’ legislature may yet have a role to play, according to Massachusetts Lawyers Weekly. Jennifer Creedon argued in MassDLA’s brief that legislators are better equipped to “interpret policy-based nuance where specific industries and practices can be granted exceptions.” With the possibility that the SJC’s ruling may leave a decedent’s heirs without a remedy in wrongful death actions, the legislature could step in to reduce such an impact with a “nuanced approach” to address policy concerns relating to historically favored arbitration clauses and general releases of liability.

Prior to the decisions in Schrader and Doherty, the issue of whether wrongful death claims in Massachusetts were derivative or independent was unsettled. An independent claim for wrongful death means the heirs can maintain their own separate claim and it is not extinguished by anything the decedent does in his or her lifetime. A derivative claim is solely the claim of the decedent and heirs are bound by the decedent’s actions, such as signing a release or arbitration clause. The SJC was effectively deciding whether agreements made by a decedent would be invalidated and allow the decedent’s heirs to bring their own separate suit. The SJC supported the historical tradition of allowing decedents to bind their heirs via actions made during their lifetimes through its decision on wrongful death claims in Schrader and Doherty.