A new Maine statute that increases the cap on wrongful death claims sounds like the sort of thing that only attorneys, actuaries and insurance companies have much reason to notice.

But the revised wording increases the cap on noneconomic damages that grieving survivors can collect from $500,000 to $750,000, a move that some say is too little and others worry may increase insurance rates.

The law says juries can decide how much to award, up to the maximum, “for the loss of comfort, society and companionship of the deceased, including any damages for emotional distress from the same.”

In that dry language, tragedy lingers.

Henry Hartford Submitted photo

A month shy of his first birthday in 2014, Henry James Hartford, inadequately supervised, inhaled a tiny pebble in the yard at a day care facility, a stone so small  it seemed scarcely believable that it could block his ability to breathe. But it did.

After going too long without oxygen, Henry died at the hospital two days later, leaving what his parents described as “a forever dark and empty hole” in their lives.

Having lost Henry because of “negligence and inadequate” care at an overcrowded day care, his father, Graham Hartford of Freeport, urged legislators last spring to raise the $500,000 cap on damages in wrongful death cases that’s meant to compensate survivors for the loss, a figure he said “only added insult to injury.”

He said he wanted to “help other families who carry the weight of the tragic loss of a loved one and make their road a little lighter to tread.”

Sherry Kinney of Easton shared his sentiment in a story she told legislators.

Her son, 30-year-old Steven Kinney, needed an endoscopy in 2013, normally a routine medical procedure that poses little risk.

Steven Kinney Submitted photo

Kinney worried, though, that it might prove dangerous for Steven, whose bones were fused together in a way that made it difficult for him to move his jaw and neck, a condition so severe that when she adopted him at age 2, she was told he would likely never be able to eat or drink on his own.

Kinney said she managed to teach him how to suck on a bottle early on and later how to eat.

She said she fretted at the idea of doing the endoscopy in the doctor’s office because something could go wrong. The doctor, Kinney said, insisted it would be fine.

Steven died in the doctor’s office when he couldn’t breathe.

When his mother sued, she learned Maine allowed a maximum of $500,000 in compensation for the loss of her son. She said she couldn’t collect anything additional for his lost future earnings because his income was so low, it only covered his day-to-day living expenses.

“It made no sense to me that the maximum value of Steven’s life was already set at $500,000,” Kinney said, without a jury hearing anything “about Steven, what he had accomplished in his life and what he meant to his family.”

Kinney said she testified because she wanted the law to treat disabled Mainers fairly, in death as well as life.

State Rep. Matt Moonen speaks at the State House last spring. Staff photo by Joe Phelan

When Rep. Matt Moonen, a Portland Democrat and the House majority leader, sought to address the issue, he proposed doubling the maximum non-economic injury award in the state to $1 million and dropping a $250,000 cap on punitive damages, potentially opening the door to much larger payments.

His bill set off alarm bells in some quarters.

Charlie Soltan, counsel to the Maine Osteopathic Association, told the Judiciary Committee the state has had “a relatively stable professional liability insurance market” for the first time in a long while.

Soltan said Moonen’s proposal would significantly increase potential awards by juries in some cases, perhaps to levels “prompted by sympathy rather than based on reasonable facts.”

“Such a dramatic expansion of the wrongful death statute,” he said, would send the message “that Maine is abandoning its stable, yet very reasonable, system for addressing harm created in the event of a wrongful death.”

“And more importantly, this expansion not only impacts every Maine medical professional, but every driver, homeowner, renter, snowmobiler, hunter, business owner, nonprofit, independent contractor, builder, trucker and every profession and trade,” Soltan said.

Vivian Mikhail, representing State Farm Insurance, told legislators that when “a statutory damages cap is increased or eliminated, there is potential for increased claims payments” – and that usually leads to higher consumer premiums for everyone.

“It does not take a significant number of claims in excess of the current limits to have a substantive impact on premiums,” Mikhail said.

Lawyers had a different take.

Taylor Asen, a trial lawyer with the Lewiston firm of Berman & Simmons, said Friday there’s no reason to have a cap at all.

“Maine juries are very fair,” he said, and “don’t give away crazy verdicts.”

Asen said the problem with the cap is that it sometimes makes it impossible to bring lawsuits that involve expert witnesses – as medical cases always do – because there isn’t enough money involved to make it worth the expense and time needed to push for justice.

If the system is meant “to make people whole,” he said, then there’s no reason to impose a cap that limits juries from delivering fair judgments in any sort of case, including wrongful death actions.

Asen said the testimony from families shortchanged by the existing law helped convince the entire Judiciary Committee to go along with a cap increase.

To achieve unanimity, the committee compromised, maintaining the limit on punitive damages and raising the noneconomic cap by 50 percent rather than doubling it as Moonen sought. The Legislature and Gov. Janet Mills endorsed it.

The new law took effect this fall.

It won’t have any impact on older cases, including the judgments for Kinney and Hartford, but it does make larger payments possible in future ones.

Dick Albert, an independent insurance agent at Champoux Insurance in Lewiston, said it will take a few years for the change to have an impact on rates for both homeowners and commercial customers, but they will likely rise.

Asen said he doubts it will have any impact on rates, given that the extra cash is “a drop in the bucket” for insurance companies that have done well in Maine.

Whoever is right, Albert suggested that people and businesses may want to consider whether they should purchase an umbrella policy that would provide extra protection, not just for the increase in possible wrongful death cases, but in other scenarios.


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