Maynard, Justice, dissenting:
The majority opinion is result-driven and without a scintilla of legal support.
In order to reach its desired result, the majority cavalierly disregards plain statutory language,
ignores recent declarations of this Court, and tosses aside the Court's traditional rules of
statutory construction.
The majority's newfangled construction of the wrongful death act relies
entirely on the words “but may not be limited to” found in W.Va. Code § 55-7-6(c)(1)
(1992).
(See footnote 1)
According to the majority, these words give a jury in a wrongful death case “almost
unfettered discretion” in awarding damages, including damages for the pain and suffering
of the decedent between the time of injury and death. The problem with the majority's novel
interpretation of W.Va. Code § 55-7-6(c) is that it is directly at odds with W.Va. Code § 55-
7-8 (1989) and this Court's previous findings.
“It is an accepted rule of statutory construction that where a particular section
of a statute relates specifically to a particular matter, that section prevails over another
section referring to such matter only incidentally.” Cropp v. State Workmen's Compensation
Comm'r, 160 W.Va. 621, 626, 236 S.E.2d 480, 484 (1977) (citation omitted). The
availability of damages for the decedent's pain and suffering where the decedent failed to file
a personal injury action prior to death is specifically addressed in W.Va. Code § 55-7-8
which provides:
Where an action is brought by a person injured for
damage caused by the wrongful act, neglect or default of
any person or corporation, and the person injured dies as
a result thereof, the action shall not abate by reason of his
or her death but, his or her death being suggested, it may
be revived in the name of his or her personal
representative, and the complaint shall be amended so as
to conform to an action under sections five and six [§§
55-7-5 and 55-7-6] of this article, and the case proceeded
with as if the action had been brought under said
sections. Additionally a separate and distinct cause of
action may be brought, and if brought, shall be joined in
the same proceeding for damages incurred between the
time of injury and death where not otherwise provided
for in said sections five and six. In either case there shall
be but one recovery for each element of damages:
Provided, That nothing in this section shall be construed
in derogation of the provisions of section twelve [§ 55-7-
12] of this article. (Emphasis added).
In order to fully understand W.Va. Code § 55-7-8, one must be mindful that
“at common law all actions for personal injuries, being personal actions, died with the person
. . . [who] received . . . the injury and no such action could be maintained . . . by . . . his
personal representative.” City of Wheeling ex rel. Carter v. American Cas. Co., 131 W.Va.
584, 586, 48 S.E.2d 404, 406 (1948) (citations omitted). The purpose of W.Va. Code § 55-7-
8 was to alter this common law rule by declaring that,
when an action is brought by a person injured for damage
caused by the wrongful act of any person and pending the
action the person injured died as a result of the wrongful
act, the action should not abate by reason of his death but
might be revived in the name of his personal
representative.
City of Wheeling, 131 W.Va. at 587-88, 48 S.E.2d at 407. The revived action, however, had
to conform to a wrongful death action. See Conrad v. Wertz, 278 F.Supp. 428, 431
(N.D.W.Va. 1968) (“It is also important to recognize that under [W.Va. Code § 55-7-8]
further proceedings must conform to an action for wrongful death and the recovery is limited
to the amount provided for by the wrongful death provisions.” (Footnote omitted)); Estate
of Helmick by Fox v. Martin, 188 W.Va. 559, 562, 425 S.E.2d 235, 238 (1992) (“the 1959
version of West Virginia Code § 55-7-8 essentially treated the revival of the decedent's
personal injury action solely as a wrongful death action.”).
In 1989, the Legislature amended W.Va. Code § 55-7-8 to include the italicized
language set forth above. Again, this language provides that “[a]dditionally a separate and
distinct cause of action may be brought, and if brought, shall be joined in the same
proceeding for damages incurred between the time of injury and death where not otherwise
provided for in said sections five and six.” As noted by the majority, this Court considered
the effect of this new language in Estate of Helmick, supra, where we explained that “[t]he
1989 amendment to West Virginia Code § 55-7-8 specifically provides that a recovery shall
be had for damages such as pain and suffering which are not otherwise provided for under
the wrongful death act.” 188 W.Va. at 563, 425 S.E.2d at 239 (citation omitted and emphasis
added).
Thus, W.Va. Code § 55-7-8, as amended in 1989, provides that where a
decedent instituted a personal injury action prior to death, his or her beneficiaries may
recover damages for the decedent's pain and suffering incurred between the time of injury
and the time of death. When applied to the instant facts, because the decedent did not
institute a personal injury action prior to his death, his beneficiaries are not authorized to
recover such pain and suffering damages.
Remarkably, the majority makes absolutely no effort to explain the provisions
of W.Va. Code § 55-7-8, but rather ignores the statute almost completely. In fact, the effect
of the majority opinion is to render W.Va. Code § 55-7-8 completely meaningless. There is
now actually a statute on our books, amended by the Legislature as recently as 1989, which
serves absolutely no purpose. Said another way, according to the majority, the general and
ambiguous words “but may not be limited to” in W.Va. Code § 55-7-6(c)(1) negate an entire
statute the provisions of which are crystal clear.
The majority's disregard of our traditional rules of statutory construction is
equally alarming. For example, this Court has held that it will not presume that the
Legislature, in the enactment of a statute, intended to overturn established principles, unless
it makes such an intention clear. State ex rel. Reeves v. Ross, 62 W.Va. 7, 57 S.E. 284
(1907). The majority, however, presumes that by inserting the vague words “but may not be
limited to” in W.Va. Code § 55-7-6(c)(1), that the Legislature intended, with a single stroke
of the pen, to remove all historical limitations on damages in wrongful death cases.
Finally, the majority opinion
is in direct conflict with recent declarations of this Court. In Estate
of Helmick, this Court read the same “but may not be limited to” language
in W.Va. Code § 55-7-6(c)(1), and nevertheless could not have made it
more plain that damages for a decedent's pain and suffering are not available
under the wrongful death act. We explained in Estate of Helmick that,
the 1959
version of West Virginia Code § 55-7-8 essentially treated the revival of
the decedent's personal injury action solely as a wrongful death action. Thus,
there was no specific recovery for the decedent's pain and suffering. The
lack of the availability of any recovery for the decedent's pain and suffering
was made clear in Walker v. Walker, 177 W.Va. 35, 350 S.E.2d 547 (1986), superceded [sic] by statute on other grounds as
stated in Arnold v. Turek,
185 W.Va. 400, 407 S.E.2d
706 (1991) where this Court, interpreting what damages
were recoverable under the wrongful death statute, stated
that “[o]ur statute, patterned after an English statute
known as Lord Campbell's Act, allows an action for
wrongful death based upon the loss sustained by the
beneficiaries of the recovery, rather than on the injury
suffered by the deceased or his estate.” 177 W.Va. at 38,
350 S.E.2d at 549.
188 W.Va. at 562, 425 S.E.2d at 238. The Court further said that “[i]t is clear upon
examining [W.Va. Code §§ 55-7-5 and 55-7-6] that one of the types of damages which is not
included in the statute as what the 'jury shall include' in its verdict is pain and suffering.”
Estate of Helmick, 188 W.Va. at 563, 425 S.E.2d at 239 (emphasis added) (citing W.Va.
Code § 55-7-6). Thus, this Court recognized, as recently as 1992, that the words “but may
not be limited to” do not include damages for pain and suffering. Incredibly, the majority,
considering the exact same statutory language, now reaches the opposite conclusion.
In sum, it is obvious that the Legislature simply has not provided for damages
for the decedent's pain and suffering where the decedent failed to file a personal injury action
prior to his or her death. However, because the majority does not like this result, it has
usurped the Legislature's function and rewritten a statute to comport with its own subjective
notions of fairness. I refuse to be a part of such bald-faced judicial legislation. Accordingly,
I dissent.