## Facts

- Joann Adele Magee and Marion Phillip Rose, Jr. lived together in Sussex County, Delaware, as husband and wife in a common-law marriage.
- Joann had a daughter, Shauna, from a prior relationship, and Joann and Rose had a son together, Marion P. Magee.
- The family lived together in a trailer in Angola, Delaware.
- On August 20, 1976, Rose drove the family in a 1969 Plymouth on a Sussex County road and was involved in a one-car crash.
- Joann sustained fatal head injuries; she appeared lifeless from the time of the crash and was pronounced dead on arrival at the hospital about 25 minutes later. Her death certificate listed the cause of death as aspiration of blood due to skull fractures.
- After Joann’s death, Joann’s parents took custody of Shauna and later adopted her; Rose and his parents cared for Marion Magee.
- Joann’s mother, Frances L. Magee, was appointed administratrix of Joann’s estate and brought suit under Delaware’s wrongful-death and survival statutes against Rose.
- The complaint also asserted a claim for Delaware no-fault benefits under 21 Del. C. § 2118 against Rose’s insurer, Pennsylvania National Mutual Casualty Insurance Company, alleging the estate was an “injured person” entitled to benefits for loss of earnings and substitute services.
- The insurer had paid funeral expenses and medical bills arising from the accident, and the record contained no evidence that Joann experienced conscious pain and suffering between the collision and death.
- The defendants moved for summary judgment on the survival pain-and-suffering claim and on the estate’s claimed no-fault wage and substitute-service benefits.

## Issues

1. Whether the estate could recover survival damages for Joann Magee’s pain and suffering where the record contained no evidence she was conscious for any appreciable period after the crash.
2. Whether the estate of a deceased accident victim qualifies as an “injured person” under 21 Del. C. § 2118 so it can recover no-fault benefits for loss of earnings and substitute services.

## Decision

- The court ruled the estate could not recover survival damages for conscious pain and suffering because the evidence did not show an appreciable interval of post-injury consciousness.
- The court ruled the estate was not an “injured person” under 21 Del. C. § 2118 for purposes of claiming no-fault loss-of-earnings and substitute-service benefits, and entered judgment for the insurer on those claimed benefits.
- The court left the wrongful-death claim to the extent it sought legally recoverable pecuniary losses for the statutory beneficiaries, subject to proof.

## Legal Principles

- In a Delaware survival action, damages for pain and suffering require proof by a preponderance of the evidence that the decedent survived the injury for an appreciable interval in a conscious state and experienced conscious pain and suffering.
- The time between an accident and an official pronouncement of death, standing alone, does not establish consciousness; where the record shows the decedent appeared lifeless from impact until death and no contrary evidence is offered, pain-and-suffering damages are unavailable as a matter of law.
- Delaware’s wrongful-death statute permits recovery of pecuniary losses suffered by statutory beneficiaries as a result of the death; it is distinct from the survival remedy, which addresses damages personal to the decedent before death.
- Delaware’s no-fault statute, 21 Del. C. § 2118, provides first-party benefits to an “injured person” and does not treat a decedent’s estate as an independent “injured person” entitled to post-death recovery of wage-loss or substitute-service benefits absent statutory language granting that right.

## Conclusion

The Superior Court of Delaware held that the estate could not obtain survival damages for Joann Magee’s pain and suffering because there was no evidence she was conscious after the crash, and it further held that the estate was not an “injured person” entitled to Delaware § 2118 no-fault benefits for loss of earnings or substitute services, though wrongful-death recovery for proven pecuniary losses remained available to the proper beneficiaries.


Magee v. Rose, 405 A.2d 143 (1979)