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Brown v. Pine Bluff Nursing Home12/2/2004
42), or by the running of the applicable statute of limitation during the injured person's lifetime. Hicks v. Missouri Pac. R.R., 181 F. Supp. 648 (W.D. Ark. 1960), app. dism. 285 F.2d 427 (1960).
Matthews, 245 Ark. at 250. This court relied on Matthews in Simmons. This court in Estate of Hull then necessarily followed the existing precedent. When properly presented to this court, we should reject the above quoted statement in Matthews and correct the law.
A wrongful death action allows a spouse and next of kin to recover damages they personally suffered as a consequence of a tortious injury causing the death of a family member. The injury at issue in a wrongful death action is the injury suffered by the spouse and next of kin, not the injuries suffered by the decedent. A survival action compensates the estate for injuries to the decedent. Thus, while a wrongful death action is obviously dependent upon, or even arguably derivative of a tortious injury suffered by the decedent, it is not derivative of a pending lawsuit or a viable cause of action for injuries suffered by the decedent. In Matthews, this court mistakenly stated that an action for personal injuries prosecuted by the injured person to a final judgment during his or her lifetime extinguishes any right to bring a wrongful death action. As Ark. Code Ann. ยง16-62-102 clearly indicates, an action for wrongful death is dependent upon a wrongful act causing the death of the decedent. The conclusion that a wrongful death action is derivative of a pending lawsuit or viable cause of action for injuries suffered by the decedent is simply a misstatement of the law and an error. Regrettably, this court has no choice but to affirm this case; however, we should revisit the law on wrongful death at the first opportunity.
Corbin, J., joins.
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