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“If there’s any indication that a case is not proceeding because one side is delaying it, that’s what a judge is for,” he said.
The law requiring dismissal of injury cases after a person dies has its origins in English common law and has been effect in Minnesota since at least 1849. Most other states had similar laws until the 19th century, when legislatures began enacting exceptions because the standard was considered too harsh, according to a 1982 Minnesota Supreme Court ruling.
The ruling found part of the Survival Law unconstitutional and struck a provision that applied to lawsuit defendants who are perpetrators of harm. The law has been unchanged since then.
It’s unknown how often cases are dropped due to the Survival Law. When Minneapolis personal injury attorney Jim Carey first took on the case for the Albert Lea victims in 2010, he said he didn’t know about the law.
“This was one of the most tragic things in my career watching those cases get dismissed,” he said. “We’re talking about World War II heroes, schoolteachers, All-American good citizens.”
An analysis of the legislative proposal by the Minnesota Management and Budget Department estimated that if the bill passed, it would result in two more personal injury cases a year.
Smith said it would probably be far more than that. His firm, which specializes in elder abuse, typically turns down dozens of cases a year due to the risk that the clients will die before their claims are resolved in court, he said.
“If there’s a risk the client will die, in our legal system, that often means we can’t afford to take the case,” Smith said.
His firm researched Survival Laws in other states and found that only in Minnesota, Colorado, Idaho and Indiana do injury claims die with the plaintiff. That statistic was presented to the Minnesota Senate last year, which approved a version of the bill 57-4 and sent it to the House.
Kulda of the Insurance Federation acknowledged that the majority of states allow injury lawsuits to continue after the plaintiff’s death but said those states have caps on damages. Minnesota’s bill didn’t include that.
‘We tried, Mom’
The House made changes to the bill that exempted nursing homes from the law and would have increased how much families could seek in wrongful-death suits. The bill was sent back to the Senate, where the changes made by the House were met with surprise by both Republicans and Democrats.
“This is a major change in liability and it’s going to affect your insurance rates,” Sen. James Metzen, DFL-South St. Paul, said before the Senate vote.
An author of the Senate bill, Sen. Ron Latz, DFL-St. Louis Park, said he expects the legislation to be taken up again in the upcoming session.
Even if the bill passes, it would not be retroactive, leaving out families of the Albert Lea victims. Sorenson said that after the lawsuit was dismissed, she visited her mother’s grave to say she was sorry for letting her down.
“I said, ‘We tried, Mom.’ ”
Brandon Stahl • 612-673-4626