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Estate of Berkemeir v. Hartford Insurance Co. of the Midwest3/20/2003
rvival Statutes in general, we agree with the position urged by the Estate. Our conclusion is supported by the general history surrounding survival statutes, which clearly indicates that " oth at common law and under statute, it is a general rule that a cause of action founded on a contract survives the death of either party and a pending contract action does not abate on the death of a party." 1 C.J.S. Abatement and Revival § 147(a) (1994) (footnotes omitted). Moreover, our conclusion is further supported by the fact that at common law, actions that are only "nominally laid in tort," but actually lay in contract, generally are not subject to abatement. Id. § 147(b) (footnote omitted).
We conclude that the Survival Statute was adopted to abrogate the common law rule of abatement in tort actions that was applied following the death of either the tortfeasor or the injured party. See id. § 130. Because we can discern no other reason for the legislature's adoption of the Survival Statute beyond its desire to mitigate the common law rule of abatement, we conclude that the elimination of the abatement of tort actions was the intended target of the Survival Statute.
Here, while there is no dispute that the origins of Berkemeir's claim against Alexander "arose out of personal injury ," the subject of the present dispute does not actually arise from her physical injuries. Rather, the present dispute arose only after Hartford's duty under the contract was triggered and Hartford then allegedly failed to meet its obligation. Thus, the Estate's claim arose solely from Hartford's alleged breach of the contract and not from Berkemeir's personal injury . Therefore, because the Estate's claim sounds in contract, not tort, it is unaffected by the Survival Statute. But see Beudry v. State Farm Mut. Auto. Ins. Co., 518 N.W.2d 11, 13-14 (Minn. 1994) (concluding, under nearly identical circumstances, that the cause of action was limited by Minnesota's Survival Statute).
Accordingly, we affirm the trial court's order denying Hartford's motion for summary judgment and granting the Estate partial summary judgment. Thus, we remand this case to the trial court to determine the extent of the contractual damages.
CONCLUSION
Hartford's concessions concerning liability and the extent, if not the specific amount, of damages resulting from Berkemeir's accident triggered its duties under the contract. Moreover, the Survival Statute is intended to abrogate the common law rule of abatement in tort actions and has no affect on contract claims. Accordingly, we affirm the trial court's decision to grant the Estate partial summary judgment.
William A. Thorne Jr., Judge
WE CONCUR:
Norman H. Jackson, Presiding Judge
Judith M. Billings, Associate Presiding Judge
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