The Arizona Supreme Court was asked to consider whether a jury may decline to award damages in a wrongful death case. Walsh v. Advanced Cardiac Specialist, Chartered, (2012). It can.
Facts: A doctor replaced the plaintiff’s heart-valve. The valve became infected, and the Plaintiff died. Plaintiff’s family filed a wrongful death complaint for failing to “diagnose and threat the infection.” At trial the jury awarded $1,000,000 to the mom and nothing to the children. The children sought a new trial based on the precedent sent forth in White v. Greater Arizona Bicycling Ass’n, 216 Ariz. 163 P.3d 1083 (App. 2007 and Sedillo v. City of Flagstaff, 153 Ariz. 478, 737 P.2d 1377 (App. 1987).
The court held the White and Sedillo courts erred in concluding that, “in a wrongful death case, “a jury may not properly disregard the testimony of a witness, even as an interesting one, without some reason to do so that is apparent from the record.”
In Arizona, the cause of action for a wrongful death action is statutory. The statute explains that,
“The jury shall give such damages as it deems fair and just with reference to the injury resulting from the death to the surviving parties who may be entitled to recover, and also having regard to the mitigating and aggravating circumstances attending the wrongful act, neglect or default.” A.R.S. 12-613
Based on that statue, the Court distinguished wrongful death statutory claims from common law negligence claims. With a negligence claim, the plaintiff must prove damages to make its prima facie case. With wrongful death claims, the court noted that “damages are statutorily limited to the injuries resulting from the death.” Thus, the court found that “the jury is not statutorily require to award any compensation.”
Application to Insurers: In every lawsuit, plaintiffs will seek damages. This case while not as sexy as some other cases, provides critical guidance to insurers that may find themselves insuring against negligence and wrongful death. Based on that case, claims agents and managers should look at what the insured is being sued for – negligence or wrongful death. If the insured is being sued for wrongful death, then it must The difference between the two may determine whether the insurer has a duty to indemnify and pay the claim, or not.