2021 New Mexico Statutes
Chapter 41 - Torts
Article 2 - Wrongful Death; Actions for Damages
Section 41-2-3 - Personal representative to bring action; damages; distribution of proceeds.

Universal Citation: NM Stat § 41-2-3 (2021)

Every action mentioned in Section 41-2-1 NMSA 1978 shall be brought by and in the name of the personal representative of the deceased person, and the jury in every such action may give such damages, compensatory and exemplary, as they deem fair and just, taking into consideration the pecuniary injury resulting from the death to the surviving party entitled to the judgment, or any interest in the judgment, recovered in such action and also having regard to the mitigating or aggravating circumstances attending the wrongful act, neglect or default. The proceeds of any judgment obtained in any such action shall not be liable for any debt of the deceased; provided the decedent has left a spouse, child, father, mother, brother, sister or child or children of the deceased child, as defined in the New Mexico Probate Code [Chapter 45 NMSA 1978], but shall be distributed as follows:

A. if there is a surviving spouse and no child, then to the spouse;

B. if there is a surviving spouse and a child or grandchild, then one-half to the surviving spouse and the remaining one-half to the children and grandchildren, the grandchildren taking by right of representation;

C. if there is no husband or wife, but a child or grandchild, then to such child and grandchild by right of representation;

D. if the deceased is a minor, childless and unmarried, then to the father and mother who shall have an equal interest in the judgment, or if either of them is dead, then to the survivor;

E. if there is no father, mother, husband, wife, child or grandchild, then to a surviving brother or sister if there are any; and

F. if there is no kindred as named in Subsections A through E of this section, then the proceeds of the judgment shall be disposed of in the manner authorized by law for the disposition of the personal property of deceased persons.

History: Laws 1882, ch. 61, § 3; C.L. 1884, § 2310; Laws 1891, ch. 49, § 2; C.L. 1897, § 3215; Code 1915, § 1823; C.S. 1929, § 36-104; Laws 1939, ch. 105, § 1; 1941 Comp., § 24-103; 1953 Comp., § 22-20-3; Laws 2001, ch. 130, § 1.

ANNOTATIONS

Cross references. — For definitions under the Uniform Probate Code, see 45-1-201 NMSA 1978.

The 2001 amendment, effective June 15, 2001, added the section heading; updated the internal reference at the beginning of the subsection; added Subsection designations A to F; substituted "spouse" for "husband or wife" throughout the section; inserted "as defined in the New Mexico Probate Code" following "deceased child," in the preliminary language; rewrote Subsection B, which read "if there be a surviving husband or wife and child or children or grandchildren, then equally to each"; and made stylistic changes throughout the section.

I. GENERAL CONSIDERATION.

September 11th Victim Compensation Fund of 2001. — The economic loss award for the decedent from the September 11th Victim Compensation Fund of 2001 should be distributed in the same manner as proceeds from an award in a wrongful death action. Marchand v. Marchand, 2007-NMCA-138, 142 N.M. 795, 171 P.3d 309, aff'd in part, rev'd on other grounds, 2008-NMSC-065, 145 N.M. 378, 199 P.3d 281, cert. denied, 129 S. Ct. 2386, 173 L. Ed 2d 1294 (2009).

The amount of collateral benefits assigned to each beneficiary of a September 11th Victim Compensation Fund of 2001 award should be applied against each beneficiary's share of the award for economic loss, thereby offsetting each beneficiary's share in proportion to the collateral benefits each beneficiary has received. Marchand v. Marchand, 2008-NMSC-065, 145 N.M. 378, 199 P.3d 281, rev'g, in part 2007-NMCA-138, 142 N.M.795, 171 P.3d 309, cert. denied, 129 S. Ct. 2386, 173 L. Ed. 2d 1294 (2009).

Where the total award from the September 11th Victim Compensation Fund of 2001 for economic loss was $1,397,970; the spouse of the victim received $1,012,321 in collateral benefits, and the victim was survived by one child, the spouse's one-half share of the award for economic loss should be reduced by the amount of the collateral benefits that the spouse received, which eliminated any award for economic loss to the spouse. Marchand v. Marchand, 2008-NMSC-065, 145 N.M. 378, 199 P.3d 281, rev'g, in part 2007-NMCA-138, 142 N.M. 795, 171 P.3d 309, cert. denied, 129 S. Ct. 2386, 173 L. Ed. 2d 1294 (2009).

Decedent's arbitration agreement is binding on estate and heirs. — Because a wrongful death action is derivative of the decedent's right to sue, a valid arbitration agreement signed by the decedent binds the decedent's estate and statutory heirs in a subsequent wrongful death action. Peck v. Laurel Healthcare Providers, L.L.C., 2014-NMCA-001, cert. denied, 2013-NMCERT-012.

Where the decedent's attorney-in-fact signed an admission agreement on behalf of the decedent when the decedent was admitted to defendant's nursing home; the agreement contained an arbitration agreement that bound the decedent and the decedent's representatives, successors, family, heirs and personal representatives to arbitrate disputes related to the agreement and the provision of services under the agreement; the decedent died five months after being admitted to the nursing home; plaintiff, who was the personal representative of the decedent's wrongful death estate, filed a wrongful death action against defendant alleging that the decedent died as a result of defendant's poor care of the decedent; and defendant sought to compel arbitration of the decedent's claims, plaintiff was bound by the agreement to arbitrate the decedent's claims because the decedent was bound by the agreement to arbitrate the decedent's claims against defendant. Peck v. Laurel Healthcare Providers, L.L.C., 2014-NMCA-001, cert. denied, 2013-NMCERT-012.

Purpose of act. — The legislative purpose of this act (41-2-1 through 41-2-4 NMSA 1978) was not merely to provide compensation, but also to make negligence causing death costly to the wrongdoer. Stang v. Hertz Corp., 1969-NMCA-118, 81 N.M. 69, 463 P.2d 45, aff'd, 1970-NMSC-048, 81 N.M. 348, 467 P.2d 14.

The authority to recover damages for wrongful death granted by statute has for its purpose more than compensation. It is designed as well to promote the safety of life and limb by making it costly for the wrongdoer. Tauch v. Ferguson-Steere Motor Co., 1957-NMSC-039, 62 N.M. 429, 312 P.2d 83.

Choice of law to be that of state where tort occurred. — Where the tort and death occurred in a state which was not the domicile of the decedent or of any of the potential beneficiaries of the wrongful death claim, in the absence of compelling reasons to apply the law of another state, the law governing the apportionment of proceeds was that of the state where the tort and death occurred. In re. Estate of Gilmore, 1997-NMCA-103, 124 N.M. 119, 946 P.2d 1130.

Effect of limitation provisions. — This act creates a cause of action which did not exist at common law and the limitation provisions thereof are not only a limitation on the remedy, but also on the right to institute such an action. Perry v. Staver, 1970-NMCA-096, 81 N.M. 766, 473 P.2d 380.

Effect on common-law remedies. — The Wrongful Death Act does not apply to common-law remedies that existed prior to the act and which were not repealed; therefore, the statute of limitations applicable to the wrongful death action is not applicable to the husband's common-law right of action for loss of consortium. Kilkenny v. Kenney, 1961-NMSC-019, 68 N.M. 266, 361 P.2d 149.

No intent to change common-law rule on master's liability. — The legislature did not intend to change the common-law rule exempting a master from liability to a servant for the negligence of a fellow servant. Lutz v. Atlantic & Pac. Ry., 1892-NMSC-017, 6 N.M. 496, 30 P. 912, 16 L.R.A. 819 (1892).

Effect on death by common carriers. — This section refers to death caused by the wrongful act of persons and corporations other than common carriers, as embraced in 41-2-4 NMSA 1978. Romero v. Atchison, T & S.F. Ry., 1903-NMSC-008, 11 N.M. 679, 72 P. 37; Mallory v. Pioneer S.W. Stages, Inc., 54 F.2d 559 (10th Cir. 1931).

Recovery. — This section permits recovery by someone other than a statutory beneficiary, and recovery may be had even though there is no pecuniary injury to a statutory beneficiary. Damages are recoverable by proof of the worth of the life of the decedent, even though there is no kin to receive the award. Stang v. Hertz Corp., 1970-NMSC-048, 81 N.M. 348, 467 P.2d 14.

Section permits recovery by someone other than statutory beneficiary. Recovery of substantial damages may be had even though there is no pecuniary injury to a statutory beneficiary; recovery is authorized for pain and suffering and for medical and related care between injury and death the same as could be recovered by an injured party who did not die. Stang v. Hertz Corp., 1970-NMSC-048, 81 N.M. 348, 467 P.2d 14.

Section repealed to extent it prevents hospitals from asserting lien against wrongful death proceeds. — The Wrongful Death Act was enacted in 1882; the Hospital Lien Act [Chapter 48, Article 8 NMSA 1978] was enacted in 1961. The relevant provisions of the two acts have not been amended. Therefore, in view of the inconsistency between this section and 48-8-1, Subsection A NMSA 1978, the relevant provision of this section of the Wrongful Death Act is implicitly repealed to the extent it would prevent a hospital from asserting a lien against the proceeds of a wrongful death action. Moreover, the Hospital Lien Act specifically allows satisfaction of the decedent's hospital debt out of proceeds of an action brought by the decedent's personal representative, and this specific provision qualifies the general prohibition in the Wrongful Death Act against using proceeds from a wrongful death action to satisfy the debts of the deceased. Hall v. Regents of Univ. of N.M., 1987-NMSC-069, 106 N.M. 167, 740 P.2d 1151.

Applicable section for loss of consortium. — Section 37-1-8 NMSA 1978 is the applicable section for an action brought by husband for loss of consortium, and this cause of action should be filed within three years from the date of the injury. Kilkenny v. Kenney, 1961-NMSC-019, 68 N.M. 266, 361 P.2d 149.

Nonviable fetus not a "person." — A fetus that was nonviable, incapable of sustaining life outside the mother's womb, at the time of injury in a motor vehicle accident was not a "person" under Wrongful Death Act [41-2-1 to 41-2-4 NMSA 1978]. Miller v. Kirk, 1995-NMSC-067, 120 N.M. 654, 905 P.2d 194.

Relationship of suit to estate. — Wrongful death suit under this act has no relation to the estate, it being incidental that a "personal representative" is named to bring suit and it is not because this would fall within his duties as such, but because someone must be named and our legislature has fixed upon him as the one to sue. Henkel v. Hood, 1945-NMSC-006, 49 N.M. 45, 156 P.2d 790.

Recovery in negligence case. — Where child's parents were killed simultaneously when automobile in which mother was passenger and which was driven by the father collided against defendant's truck, plaintiff in action brought against the truck owner and truck driver for death of the mother for benefit of the minor son, was entitled to recover if negligence of defendant truck driver was proximate cause of accident and death or if negligence of the father and the truck driver combined to cause the accident, but not if negligence of the father as driver of the automobile was sole cause of accident and death. Trefzer v. Stiles, 1952-NMSC-044, 56 N.M. 296, 243 P.2d 605.

Effect of contributory negligence. — Where the personal representative brings the action for the benefit of the statutory beneficiaries, not of the estate, and the statutory beneficiaries are entitled to the recovery, not as distributees of the estate, the contributory negligence of one of several beneficiaries defeats the right of recovery to the extent of that beneficiary's share in the judgment. Baca v. Baca, 1963-NMSC-043, 71 N.M. 468, 379 P.2d 765.

Contributory negligence not imputed. — In an action for wrongful death of child for benefit of the parents, contributory negligence of the child's mother, if any, would not be imputed as a matter of law to the father and prevent recovery by him. Baca v. Baca, 1963-NMSC-043, 71 N.M. 468, 379 P.2d 765.

Wrongful death action is transitory and may be filed in any county in the state where both of the parties are nonresidents. State ex rel. Appelby v. Dist. Court of Fifth Judicial Dist., 1942-NMSC-046, 46 N.M. 376, 129 P.2d 338.

When assertion of estoppel barred. — Upon the expiration of the three-year limitation period provided in 41-2-2 NMSA 1978, the right to maintain the suit for the alleged wrongful death of decedent terminated, or was thereafter barred. Estoppel cannot be successfully asserted to lengthen the existence of such a statutorily created right of recovery. Perry v. Staver, 1970-NMCA-096, 81 N.M. 766, 473 P.2d 380.

Choice of law. — Wrongful death actions in New Mexico are governed by the doctrine of lex loci delicti, which states that the law of the place of wrong determines whether a person has sustained a legal injury. First Nat'l Bank v. Benson, 1976-NMCA-072, 89 N.M. 481, 553 P.2d 1288, cert. denied, 90 N.M. 7, 558 P.2d 619.

Presumption of due care. — Because the only eyewitness testimony of the collision was supplied by a passing truck driver who saw the car in which decedent was a passenger strike the rear end of defendants' truck-trailer, decedent would be presumed to have used due care for individual safety. Trefzer v. Stiles, 1952-NMSC-044, 56 N.M. 296, 243 P.2d 605, criticized Hartford Fire Ins. Co. v. Horne, 1959-NMSC-026, 65 N.M. 440, 338 P.2d 1067.

Effect on truck operated as common carrier. — Action against an owner-driver operating truck as common carrier may be brought by the personal representative inasmuch as 41-2-4 NMSA 1978 prescribing who may sue and recover in suits for death caused by railroad, stage coach or public conveyance does not apply. White v. Montoya, 1942-NMSC-031, 46 N.M. 241, 126 P.2d 471.

Effect on Indians. — The wrongful death statute applies to Indians on reservations, and the probate court may appoint an administrator for a deceased Indian to enforce an Indian's right of action under this statute. Trujillo v. Prince, 1938-NMSC-024, 42 N.M. 337, 78 P.2d 145.

II. PERSONAL REPRESENTATIVE.

Representative as trustee. — The personal representative who makes a recovery serves as a trustee, a "statutory trustee," for discoverable and identifiable beneficiaries in the line of named kinship or descent. The personal representative is also a trustee for the state and for estate creditors where none of the named kin are left, or the line of descent runs out. Stang v. Hertz Corp., 1970-NMSC-048, 81 N.M. 348, 467 P.2d 14.

The personal representative serves as a statutory trustee for discoverable and identifiable beneficiaries in the line of named kinship or descent. Baca v. Baca, 1963-NMSC-043, 71 N.M. 468, 379 P.2d 765.

Wrongful death action brought by a personal representative against a governmental entity is a single claim. — A personal representative, whether consisting of one or more individuals, is the "person" for purposes of Paragraph 3 of Subsection A of 41-4-19 NMSA 1978 of the Tort Claims Act because under the Wrongful Death Act, 41-2-1 NMSA 1978 et seq., the personal representative of the deceased person replaces the deceased person and has the sole right to pursue the action on behalf of the statutory beneficiaries. A wrongful death action brought by a personal representative on behalf of multiple statutory beneficiaries is a single claim under Paragraph 3 of Subsection A of 41-4-19 NMSA 1978, rather than multiple claims under Paragraph 4 of Subsection A of 41-4-19 NMSA 1978. Estate of Lajeuenesse v. UNM Bd. of Regents, 2013-NMCA-004, 292 P.3d 485, cert. quashed, 2013-NMCERT-001.

Where the personal representative of the decedent sued defendants for the wrongful death of the decedent based on the negligent medical care provided by defendants; no claims were made by any person other than the personal representative; and the jury awarded plaintiff damages of $750,000, the district court properly applied the monetary limitation of Paragraph 3 of Subsection A of 41-4-19 NMSA 1978, rather than multiple claims limitation under Paragraph 4 of Subsection A of 41-4-19 NMSA 1978, to reduce the verdict to $400,000 because the wrongful death action was a single claim, not multiple claims. Estate of Lajeuenesse v. UNM Bd. of Regents, 2013-NMCA-004, 292 P.3d 485, cert. quashed, 2013-NMCERT-001.

Sharing damages with personal representative barred. — While the wrongful death action is brought by the personal representative, the personal representative does not share in any damages recovered. Lujan v. Gonzales, 1972-NMCA-098, 84 N.M. 229, 501 P.2d 673, cert. denied, 84 N.M. 219, 501 P.2d 663.

Who may sue. — An action may be brought only by the personal representative or representatives of the deceased. Kilkenny v. Kenney, 1961-NMSC-019, 68 N.M. 266, 361 P.2d 149; Mackey v. Burke, 1984-NMCA-028, 102 N.M. 294, 694 P.2d 1359, cert. quashed, 102 N.M. 293, 694 P.2d 1358 (1985).

District court abused its discretion in reinstating claims settled by personal representative. — Where personal representative of decedent's estate (probate PR) filed a 2012 lawsuit against medical practice and decedent's doctor claiming negligence, medical malpractice, and wrongful death, and where in 2013, the probate PR entered into a settlement agreement with decedent's doctor, resulting in a district court order dismissing all claims against the doctor with prejudice, and where, in 2015, upon plaintiff's motion, the district court entered an order reinstating the claims against the doctor, claiming that the probate PR, by failing to be appointed as the personal representative for purposes of the Wrongful Death Act, lacked authority to file and settle the claims against the doctor, the district court abused its discretion in granting plaintiff's motion to set aside the settlement and reinstate claims against the doctor under Rule 1-060(B)(6) NMRA, because the law in effect at the time did not require that a court-appointed probate PR obtain a separate court appointment as a personal representative for wrongful death purposes, and the district court based its reinstatement of the claims on an erroneous interpretation of the law. Oakey v. Tyson, 2017-NMCA-078, cert. granted.

III. BENEFICIARIES.

Proof of natural-parent status is not necessarily sufficient for recovery under the wrongful death statute; a personal representative in a wrongful death action may present evidence of abandonment and non-support, and even seek to terminate parental rights, particularly in light of the fact that the only remaining one is a right to recover money. Perry v. Williams, 2003-NMCA-084, 133 N.M. 844, 70 P.3d 1283, cert. denied, 134 N.M. 123, 73 P.3d 826.

The legislature intended to incorporate the common law principal that the rights of parents and children are interlocked, and that a parent may lose his or her right to benefit from a child if that parent abandons the child, into the Wrongful Death Act [41-2-1 to 41-2-4 NMSA 1978] when it was passed. Perry v. Williams, 2003-NMCA-084, 133 N.M. 844, 70 P.3d 1283, cert. denied, 134 N.M. 123, 73 P.3d 826.

Attorney's duty to statutory beneficiaries. — The Rules of Professional Conduct are relevant in determining the scope of the duty owed by an attorney to the personal representative of a wrongful death estate and how a breach of that duty may have harmed the statutory beneficiaries. Statutory beneficiaries are intended beneficiaries of the agreement between the attorney and the personal representative and the statutory beneficiaries may sue the attorney when the attorney's breach of the duty to the personal representative to exercise reasonable skill and care during the attorney's representation harms the statutory beneficiaries. Spencer v. Barber, 2013-NMSC-010, 299 P.3d 388, rev'g 2011-NMCA-090, 150 N.M. 519, 263 P.3d 296.

Attorneys' duty of disclosure to statutory beneficiaries. — When the interests of the personal representative and a statutory beneficiary are adverse, the attorney for the personal representative may negotiate a settlement between the personal representative and the statutory beneficiary after the attorney discloses to the statutory beneficiary that (1) the beneficiary is a beneficiary in a wrongful death lawsuit and the identities of the parties to the lawsuit, (2) the amount of any settlement or verdict reached, or any settlement offers under consideration, (3) the percentage of the settlement or verdict to which the beneficiary is entitled under the statute, (4) the basic position of the adverse party, and (5) the fact that the attorney represents the adverse party against the beneficiary and is not looking out for the beneficiary's interests. Spencer v. Barber, 2013-NMSC-010, 299 P.3d 388, rev'g 2011-NMCA-090, 150 N.M. 519, 263 P.3d 296.

Attorney's duty to resolve conflicts according to professional standards. — Where the attorney represented the client as the personal representative of the wrongful death estates of the client's child and grandchild who had been killed in a collision between the client's car and a truck; the client claimed that the non-client, who was a statutory beneficiary and the parent of the client's child, had abandoned the child and was not entitled to any of the wrongful death proceeds; the attorney knew that the client had been drinking alcohol before the collision and that the collision occurred when the client stopped the client's car in a traffic lane of an interstate highway at night with the car lights off; the attorney negotiated a settlement agreement with the non-client that substantially reduced the non-client's entitlement to the wrongful death proceeds; the attorney told the non-client that the attorney did not represent the non-client, the attorney represented only the client, and the attorney was not providing services to the non-client; there was a dispute as to whether the attorney informed the non-client that the client challenged the non-client's right to receive any of the wrongful death proceeds; the attorney did not tell the non-client the size of the anticipated settlement, that the attorney represented the client against the non-client, or that the non-client was entitled to fifty percent of the wrongful death proceeds; and the non-client sued the attorney for malpractice, fraud, collusion and misrepresentation, summary judgment for the attorney was not appropriate because there were genuine issues of material fact regarding whether the attorney had a conflict of interest in representing the personal representative who was potentially liable for the decedents' deaths and whether the attorney handled the conflict of interest between the client and non-client with due care and skill without harming the statutory beneficiary and because the non-client's independent tort claims were not barred by the adversarial exception. Spencer v. Barber, 2013-NMSC-010, 299 P.3d 388, rev'g 2011-NMCA-090, 150 N.M. 519, 263 P.3d 296.

Attorney owes duty to statutory beneficiaries. — An attorney handling a wrongful death case owes to the statutory beneficiaries of that action a duty of reasonable care to protect their interests in receiving any proceeds obtained. Leyba v. Whitley, 1995-NMSC-066, 120 N.M. 768, 907 P.2d 172.

Who may sue. — This section does not give an alleged natural father the unconditional right to intervene in an action for the wrongful death of his daughter. Dominguez v. Rogers, 1983-NMCA-135, 100 N.M. 605, 673 P.2d 1338, cert. denied, sub. nom. Sosa v. Dominguez, 100 N.M. 689, 675 P.2d 421.

The act furnishes the basis for recovery, by the statutory beneficiaries, of the decedent's damages; but it provides no basis for recovery by the decedent's parents, or anyone else, of their own damages flowing from the loss of the decedent's life. Solon ex rel. Ponce v. WEK Drilling Co., Inc., 1992-NMSC-023, 113 N.M. 566, 829 P.2d 645.

Per accident coverage limitation. — The several statutory beneficiaries in a wrongful death action are entitled to recover. Pursuant to underinsured motorist insurance policies, the per-person rather than the per-accident limits of coverage for underinsured motorist benefits applies. Lewis v. Dairyland Ins. Co., 1992-NMSC-031, 113 N.M. 686, 831 P.2d 985.

Use of "personal representative" not same as in Probate Code. — "Personal representative" for the purpose of a wrongful death action is not synonymous with the parameters of the Probate Code, 45-1-101 NMSA 1978 et seq. Mackey v. Burke, 1984-NMCA-028, 102 N.M. 294, 694 P.2d 1359, cert. quashed, 102 N.M. 293, 694 P.2d 1358 (1985).

Administrator and personal representative distinguished. — While the administrator may be the personal representative, there may be a personal representative who is not the administrator. Stang v. Hertz Corp., 1969-NMCA-118, 81 N.M. 69, 463 P.2d 45, aff'd, 1970-NMSC-048, 81 N.M. 348, 467 P.2d 14.

Complaint amendable to include proper plaintiff. — The personal representative of the deceased should have been given a reasonable opportunity to amend to include himself as the plaintiff in a wrongful death complaint in which the deceased had been named as the plaintiff, since all of the earlier pleadings named the personal representative as the plaintiff. Jones v. 3M Co., 107 F.R.D. 202 (D.N.M. 1984).

Amendment of action not brought in name of personal representative. — An action for malpractice and wrongful death brought under the Tort Claims Act by the natural parents of a deceased child within the limitation period was not barred because the parents failed to secure court appointment as personal representatives within the two-year limitation period of 41-4-15 NMSA 1978, due to the operation of Rules 15(c) (relation back of amendments) and 17(a) (real party in interest), N.M.R.C.P., (now see Paragraph C of Rule 1-015, NMRA and Paragraph A of Rule 1-017) NMRA. Chavez v. Regents of Univ. of N.M., 1985-NMSC-114, 103 N.M. 606, 711 P.2d 883.

Mexican administrator may be personal representative. — Plaintiff administrator, a Mexican national and an alien in the United States, had the right to serve as administrator of son's estate in the prosecution of wrongful death action, since the term "personal representative" in this section is used simply to designate the person who may prosecute the action. Torres v. Sierra, 1976-NMCA-064, 89 N.M. 441, 553 P.2d 721, cert. denied, 90 N.M. 8, 558 P.2d 620.

Administrator may file suit for damages for wrongful death under this section. Romero v. Atchison, T. & S.F. Ry., 1903-NMSC-008, 11 N.M. 679, 72 P. 37.

Whether adult children emotionally support decedent-parent is immaterial to the distribution benefits. — In a dispute over the distribution of proceeds of an action brought under the Wrongful Death Act, where appellants claimed that the decedent's children had abandoned their father prior to his death and therefore should be denied some or all of the proceeds of the Wrongful Death Act claim, summary judgment in favor of decedent's children was proper because there is no New Mexico statutory authority indicating a public policy requiring adult children to support their parents, either financially or emotionally, and there is no statutory authority indicating that the legislature intended to alter the distribution scheme in the Wrongful Death Act based on adult children's abandonment of their decedent parent. Bodley v. Goldman, 2016-NMCA-054.

Ownership of right of recovery. — Recovery under this statute belongs to the relative for whose benefit the suit is brought, and the right of recovery extends to those distributees named in the statute, or to those entitled under the laws of descent and distribution, in the same manner and to the same extent as is given to the wife and children of the decedent. Varney v. Taylor, 1968-NMSC-189, 79 N.M. 652, 448 P.2d 164.

Distribution between parent and adult children. — A child shares equally with a widow in the wrongful death proceeds. The fact that two children are adults and not dependent on decedent does not bar them from a distributive share of the proceeds from the settlement of the wrongful death claim. Brock v. Harkins, 1969-NMCA-062, 80 N.M. 596, 458 P.2d 848, cert. denied, 80 N.M. 607, 458 P.2d 859.

Evidence identifying beneficiaries not error. — It is not error to admit evidence identifying the decedent's wife and children as beneficiaries under the New Mexico Wrongful Death Act. Harris v. Illinois-California Express, Inc., 687 F.2d 1361 (10th Cir. 1982).

"Child" not qualified term. — This section does not qualify the word "child" by the words "minor" or "dependent." Brock v. Harkins, 1969-NMCA-062, 80 N.M. 596, 458 P.2d 848, cert. denied, 80 N.M. 607, 458 P.2d 859.

Adoption prerequisite for wrongful death recovery by child. — Child who had not been legally adopted by decedent, and could not establish a basis for equitable adoption, could not recover in a wrongful death action based on the accident that killed decedent. Otero v. City of Albuquerque, 1998-NMCA-137, 125 N.M. 770, 965 P.2d 354.

Death of survivor of child. — In an action for a child's wrongful death in which the child, along with her mother, was severely burned by the explosion of a natural gas pipeline and died within hours of the explosion, the right of the mother, who survived the child's death but died thereafter from her own injuries, to share in the proceeds of the action became absolutely vested upon the child's death; upon the mother's death, her interest in the proceeds passed to her estate. In re Estate of Sumler, 2003-NMCA-030, 133 N.M. 319, 62 P.3d 776.

Construction of "survivor" that delays ascertainment of the identities of beneficiaries until a judgment is recovered is incompatible with this section. In re Estate of Sumler, 2003-NMCA-030, 133 N.M. 319, 62 P.3d 776.

IV. DAMAGES.

Proceeds not part of estate. — The amount recovered under the wrongful death statute never becomes a part of the community or of the decedent's estate. Trefzer v. Stiles, 1952-NMSC-004, 56 N.M. 296, 243 P.2d 605.

The recovery under this act is not a part of decedent's estate. Stang v. Hertz Corp., 1969-NMCA-118, 81 N.M. 69, 463 P.2d 45, aff'd, 1970-NMSC-048, 81 N.M. 348, 467 P.2d 14.

Proceeds not community property. — The right of action given the husband or wife to have an action brought for the wrongful death of a child is not a community right, and the proceeds from any recovery are not community property. Baca v. Baca, 1963-NMSC-043, 71 N.M. 468, 379 P.2d 765.

Instructions as to damages. — Damages under the Wrongful Death Act [41-2-1 to 41-2-4 NMSA 1978] are not merely compensatory of pecuniary loss to the survivors, and there is no error in the lower court's instructions on the measure of damages putting an emphasis upon the pecuniary value of the life taken to the survivors and in permitting the jury to consider the possible contributions to survivors and the expenditures which must be incurred during a lifetime, as well as the probable income of the deceased. Barnes v. Smith, 305 F.2d 226 (10th Cir. 1962).

Proof of pecuniary loss not required. — Even in absence of proof of pecuniary loss, damages may be awarded. Barnes v. Smith, 305 F.2d 226 (10th Cir. 1962).

Pecuniary injury not necessary for recovery. — Widow's pecuniary injury inured to the benefit of the nondependent children and the fact that the children did not suffer pecuniary injury does not bar them from a distributive share of the proceeds. Brock v. Harkins, 1969-NMCA-062, 80 N.M. 596, 458 P.2d 848, cert. denied, 80 N.M. 607, 458 P.2d 859.

Recoverable damages implied. — Proof of wrongful death of necessity implies recoverable damages so that, even in the absence of pecuniary injury, question of damages in wrongful death action was properly submitted to jury. Baca v. Baca, 1970-NMCA-090, 81 N.M. 734, 472 P.2d 997.

Loss of guidance and counseling by a minor child is a pecuniary injury. Romero v. Byers, 1994-NMSC-031, 117 N.M. 422, 872 P.2d 840.

Worth of life. — Damages for wrongful death are recoverable by proof of the worth of the life of the decedent and the measure of those damages is the worth of life of decedent to the estate. Lujan v. Gonzales, 1972-NMCA-098, 84 N.M. 229, 501 P.2d 673, cert. denied, 84 N.M. 219, 501 P.2d 663.

Jury question. — Determination of present worth of life of deceased is for the jury, based upon proof as to age, earning capacity, health, habits and probable duration of life. Duncan v. Madrid, 1940-NMSC-027, 44 N.M. 249, 101 P.2d 382; Cerrillos Coal R.R. Co. v. Deserant, 1897-NMSC-005, 9 N.M. 49, 49 P. 807; Hogsett v. Hanna, 1936-NMSC-063, 41 N.M. 22, 63 P.2d 540; Mares v. N.M. Pub. Serv. Co., 1938-NMSC-032, 42 N.M. 473, 82 P.2d 257.

Life valued as present worth. — Worth of life of deceased to estate is not all that the individual would earn in a lifetime, but the present worth, taking into consideration the earning power. Mares v. N.M. Pub. Serv. Co., 1938-NMSC-032, 42 N.M. 473, 82 P.2d 257.

Earning power to be considered. — An award based entirely upon aggregate future benefits would amount to more than compensation unless the earning power of money was taken into account. Varney v. Taylor, 1966-NMSC-080, 77 N.M. 28, 419 P.2d 234.

The value of a husband's household services was an evidentiary item admissible in establishing the present worth of the husband's life. Corlett v. Smith, 1988-NMCA-067, 107 N.M. 707, 763 P.2d 1172, cert. denied, 107 N.M. 610, 762 P.2d 867.

Use of net income. — Net income is the more realistic basis for arriving at the equivalent to compensation for the deprivation of the reasonable expectation of pecuniary benefits that would have resulted from the continued life of deceased in a wrongful death action. Varney v. Taylor, 1966-NMSC-080, 77 N.M. 28, 419 P.2d 234.

Deduction of personal living expenses. — Decedent's anticipated personal living expenses should be deducted from the amount otherwise determined as reasonable compensation for the deprivation of expected pecuniary benefits that would have resulted from the decedent's continued life. The term "personal living expenses" has never been exactly defined, and because of the nature of the problem, no mathematical formula can ever be applied. Each case must depend upon its own facts and circumstances, but personal expenses would not ordinarily include recreational expenses. Varney v. Taylor, 1968-NMSC-189, 79 N.M. 652, 448 P.2d 164.

Pain and medical expenses recoverable. — Recovery for decedent's pain and suffering and medical and related care from injury until death may be had by the personal representative, even though there is no statutory beneficiary. Stang v. Hertz Corp., 1970-NMSC-048, 81 N.M. 348, 467 P.2d 14.

Recovery of damages prior to death. — This section and 41-2-1 NMSA 1978 warrant the allowance, to the personal representative, of the decedent's damages prior to death, provided they are not the same as those for which the husband, individually, has a right of recovery. Kilkenny v. Kenney, 1961-NMSC-019, 68 N.M. 266, 361 P.2d 149; Stang v. Hertz Corp., 1970-NMSC-048, 81 N.M. 348, 467 P.2d 14.

Estimating earnings between injury and death. — The net estimated earnings of decedent during the period from the date of death to the date of the judgment should be increased by the same discount rate applied to decrease the net income after judgment. Varney v. Taylor, 1968-NMSC-189, 79 N.M. 652, 448 P.2d 164.

Funeral and burial expenses. — The funeral and burial expenses incurred by decedent's personal representatives are pecuniary injuries which are recoverable. Williams v. Town of Silver City, 1972-NMCA-132, 84 N.M. 279, 502 P.2d 304, cert. denied, 84 N.M. 271, 502 P.2d 296.

Effect of taxes and retirement. — Federal and state income taxes and social security taxes are often substantial deductions from gross earnings and certainly are not a part of the decedent's income which the family could expect as direct pecuniary benefits nor should the other sources of employment which have compulsory retirement as after which, in the usual instance, the expected income from other than invested capital may reasonably be expected to be materially reduced. Varney v. Taylor, 1966-NMSC-080, 77 N.M. 28, 419 P.2d 234.

Consideration of mitigating or aggravating circumstances. — In a wrongful death action in which the state was a defendant, an instruction allowing the jury to consider mitigating or aggravating circumstances in setting compensatory damages did not violate the prohibition on punitive damages contained in 41-4-19B (now 41-4-19D) NMSA 1978. Folz v. State, 1990-NMSC-075, 110 N.M. 457, 797 P.2d 246.

Punitive damages are not available from the estate of the wrongdoer, since the reason for their imposition can no longer be effective. Barnes v. Smith, 305 F.2d 226 (10th Cir. 1962).

Expert testimony allowed on non-pecuniary value. — Because the value of life itself is compensable under the Wrongful Death Act the jury must determine fair and just compensation for the reasonable expected nonpecuniary rewards the deceased would have reaped from life as demonstrated by his or her health and habits. Admissibility of evidence directed at establishing this value is governed by the rules of evidence of the applicable trial court. However, plaintiffs may introduce expert testimony by an economist for establishing the value of life itself. Romero v. Byers, 1994-NMSC-031, 117 N.M. 422, 872 P.2d 840.

Several beneficiaries. — If pecuniary injury is a requisite for recovery of damages for wrongful death, it is sufficient if one member of the same class of statutory beneficiaries suffers pecuniary injury. In such a case, the damages inure to every member of the same class. Brock v. Harkins, 1969-NMCA-062, 80 N.M. 596, 458 P.2d 848, cert. denied, 80 N.M. 607, 458 P.2d 859.

Admission of expenses held nonprejudicial. — Admission of evidence concerning ambulance, medical and burial expenses held nonprejudicial where there was no award in favor of either party plaintiff based on these expenses. Hodgkins v. Christopher, 1954-NMSC-089, 58 N.M. 637, 274 P.2d 153.

Testimony about injuries resulting in death. — In spite of timely admission that death resulted from injuries received by accident in question, it was not an abuse of judicial discretion to permit the administrator of the estate of the decedent to introduce medical testimony as to injuries which resulted in the death. Hodgkins v. Christopher, 1954-NMSC-089, 58 N.M. 637, 274 P.2d 153.

Law reviews. — For note, "Torts - Wrongful Death - A Viable Fetus Is a 'Person' Under the New Mexico Wrongful Death Statute: Salazar v. St. Vincent Hospital," see 12 N.M.L. Rev. 843 (1982).

For note, "New Mexico Adopts Hedonic Damage in the Context of Wrongful Death Actions: Sears v. Nissan (Romero v. Byers)," see 25 N.M.L. Rev. 385 (1995).

For note, "Trends in New Mexico Law: 1994-95: Tort Law (Legal Malpractice) — Attorneys May Owe a Duty to Statutory Beneficiaries Regardless of Privity: Leyba v. Whitley", see 26 N.M. L. Rev. 643 (1996).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 22A Am. Jur. 2d Death §§ 89 et seq., 141 et seq., 215 et seq. 398 et seq.

Apportionment among beneficiaries of amount awarded by jury or received in settlement on account of wrongful death, as affected by death of distributee after judgment, 14 A.L.R. 538, 112 A.L.R. 30, 171 A.L.R. 204.

Disqualification of beneficiary of preferred class, effect of, upon right to sue in behalf of beneficiary of deferred class, 59 A.L.R. 747.

Judgment in favor of defendant in action by personal representative for damages to estate by injury resulting in death as bar to action in behalf of statutory beneficiaries, 64 A.L.R. 446.

Right of foreign domiciliary, or of ancillary, personal representative to maintain an action for death, under statute of forum which provides that action shall be brought by personal representative, 65 A.L.R. 563, 52 A.L.R. 2d 1048.

Delay in procuring appointment of personal representative of deceased or of person causing death in event of latter's death, as extending period for bringing an action for death, 70 A.L.R. 472.

Wife of defendant, right to maintain death action where recovery will be for sole benefit of, 96 A.L.R. 479.

Beneficiary's right to bring action under death statute where executor or administrator, who by statute is the proper party to bring it, fails to do so, 101 A.L.R. 840.

Construction and application of provisions of death statute that makes the question whether action shall be brought by personal representative or by beneficiary dependent upon existence or nonexistence of cause of action in estate, 105 A.L.R. 834.

Right of action for death where decedent left no next of kin or person within class of beneficiaries named in the statute creating the right of action, 117 A.L.R. 953.

Relationship of parent and child between tortfeasor and person by whom or for whose benefit death action is brought as affecting right to maintain action under death statute, 119 A.L.R. 1394.

Kind of verdict or judgment where administrator or executor, whose decedent was negligently killed, brings an action which combines a cause of action for benefit of estate and another for statutory beneficiaries, 124 A.L.R. 621.

Validity of release of prospective right to wrongful death action, 92 A.L.R.3d 1232.

Liability for civilian skydiver's or parachutist's injury or death, 95 A.L.R.3d 1280.

Effect of death of beneficiary upon right of action under death statute, 13 A.L.R.4th 1060.

Effect of settlement with and acceptance of release from one wrongful death beneficiary upon liability of tortfeasor to other beneficiaries or decedent's personal representative, 21 A.L.R.4th 275.

Assignability of proceeds of claim for personal injury or death, 33 A.L.R.4th 82.

Action for loss of consortium based on nonmarital cohabitation, 40 A.L.R.4th 553.

Excessiveness or adequacy of damages resulting in death of homemaker, 47 A.L.R.4th 100.

Excessiveness or adequacy of damages awarded for personal injuries resulting in death of persons engaged in trades and manual occupations, 47 A.L.R.4th 134.

Excessiveness and adequacy of damages for personal injuries resulting in death of minor, 49 A.L.R.4th 1076.

Excessiveness or adequacy of damages awarded for personal injuries resulting in death of persons engaged in professional, white-collar, and nonmanual occupations, 50 A.L.R.4th 787.

Validity of verdict awarding medical expenses to personal injury plaintiff, but failing to award damages for pain and suffering. 55 A.L.R.4th 186.

Recovery of damages for loss of consortium resulting from death of child - modern status, 77 A.L.R.4th 411.

Who, other than parent, may recover for loss of consortium on death of minor child, 84 A.L.R.5th 687.

Validity of state statutory cap on punitive damages, 103 A.L.R.5th 379.

25 C.J.S. Death §§ 32 to 37(2), 57 to 58(2), 95 to 129.

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