One tough issue Maryland wrongful death lawyers must deal with are claims where there are wrongful death beneficiaries whose whereabouts are unknown or, for whatever reason, the potential beneficiary is unwilling to cooperate or participate.
What exactly is a use plaintiff? It is the owner of the beneficial interest for whose benefit a lawsuit is technically being brought. In this context, it means someone who is technically a wrongful death beneficiary
Although there can be many beneficiaries in a fatality claim, Maryland's statute allows for only one lawsuit on behalf of the beneficiaries. Assuming the person who suffered the accidental death had beneficiaries, any damages that are awarded are in proportion to the loss incurred. So if one of the beneficiaries has not, for example, seen their father in 20 years, a jury may give that person little or nothing. But, ultimately, the proceeds are split as the jury sees fit.
The problem is that logic prevails only when all of the beneficiaries are present at trial and the case goes to a jury verdict. Most wrongful death cases settle before trial. So the question becomes how can you proceed and potentially split settlement proceeds with a party that you cannot find or who is unable or unwilling to participate. What do wrongful death lawyers filing a lawsuit do when faced with this situation?
First, all statutory beneficiaries must be named as plaintiffs. If a plaintiff does not join the action, they must still be identified in the wrongful death lawsuit as a "use plaintiff". While the lawsuit may proceed without the participation of a use plaintiff, the lawsuit continues to protect the use plaintiff's interest. The key for wrongful death lawyers is to put any use plaintiff on notice. Unless you file a motion to dismiss the use plaintiff, their interests will continue to be protected.
Maryland Rule 15-1001 (2010) and Maryland Annotated Code, Courts and Judicial Proceedings § 3-904 are worth looking at in particular for this rule as well as the Maryland Court of Appeals opinion in Williams v. Work, 192 Md. App. 438 (2010) (which provides a cautionary tale for plaintiffs' wrongful death lawyers). Note that Maryland Rule 15-1001 requires the attorney bringing the action to mail a copy of the complaint by certified mail to any use plaintiff at the use plaintiff's last known address.
This does not mean that you have to find the use plaintiff. Some people just can't be found and the law allows for this. But you certainly better look for him or her and send notice to the court regarding the success or failure of your efforts.2014 Update
Since this post was written, there have been amendments made to Maryland Rule 15-1001 (Wrongful Death) that largely conform with the holdings in to conform with holdings in Mulit v. UMMS, including the duty of the named plaintiffs to make a good faith and reasonably diligent effort to identify, locate, and name as use plaintiffs any potential beneficiaries.Use Plaintiff Case Law (two major recent cases on use plaintiffs in Maryland)
- Muti v. University of Maryland Medical Systems (long lost relative problem)