43.5001 Wrongful death action against estate.

Cite as [A.S.C.A. § 43.5001]

(a) When the death of a person is caused by wrongful act, neglect, or default, such as would have entitled the party injured to maintain an action or recover damages in respect thereof, if death had not ensued, the corporation which, or the person who would have been liable if death had not ensued, or the administrator or executor of the estate of such person as such administrator or executor, shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death was caused under circumstances which in law make it murder in the first or second degree or manslaughter. When the action is against such administrator or executor the damages recovered shall be a valid claim against the estate of such deceased person. When death is caused by wrongful act, neglect or default in another state, territory or foreign country, for which a right to maintain an action and recover damages in respect thereof is given by a statute at such other state, territory or foreign country, such right of action may be enforced in the Territory of American Samoa. Every such action so brought shall be commenced within the time prescribed for the commencement of such actions by the statute of such other state, territory or foreign country.

(b) An action for wrongful death must be brought on behalf of the surviving spouse, parents, children or other next of kin, if any, of the decedent as the court may direct, except that the deceased’s legal representatives may recover, on behalf of the estate, the reasonable expenses of the deceased’s last illness and burial

(c) The trial court may give damages as it considers fair and just compensation, with reference to the pecuniary injury and loss of love and affection, including:

(1) loss of society, companionship, comfort, consortium, or protection;

(2) loss of marital care, attention, advice, or counsel;

(3) loss of filial care or attention; and

(4) loss of parental care, training, guidance, or education, suffered as a result of the death of the person by the surviving spouse, children, father, mother, or by a person wholly or partly dependent upon the deceased person. The court shall allocate the damages to the persons entitled in its verdict or judgment, and damages recovered under this section, except for reasonable expenses of last illness and burial, do not constitute a part of the estate of the deceased.

(d) Except as otherwise provided, every such action shall be commenced within 2 years after the death of the wronged descendent. The personal representative of the wronged decedent, if he was appointed in the Territory of American Samoa, with the consent of the court making such appointment, may, at any time before or after the commencement of the suit, settle with the defendant the amount to be paid.

History: 1967, PL 10-3; 1970, PL 11-109; 1972, PL 12-53 § 1; and 1981, PL 17-26 § 1.

Case Notes:

Estate of deceased injured part is not a statutory beneficiary. Lamisi v. Continental Ins. Co., ASR (1978).

Wrongful death; applicable statute of limitations. Tauanuu v. Hartford Fire Ins. Co.. ASR (1976).

Applicable to deaths on waters between the islands of American Samoa. Tasligo v. Steffany, ASR (1976).

“Personal representative” may be selected using criteria set forth in guardianship statute. Tailigo v. Steffany, ASR (1976).

“Pecuniary injury” defined as losses for which a monetary amount can be readily attached; excludes as damages loss of consortium and damages suffered by deceased. Tailigo v. Steffany, ASR (1976).

At least for purposes of the wrongful death statute, the court has consistently applied the common law rule to determine who was next of kin. A.S.C.A. § 43.5001 et seq. Utu v. American Samoa Government, 20 A.S.R.2d 53 (1992).

Wrongful death action seeks recovery for damages suffered by others when a person dies; survival action seeks recovery on behalf of the estate of whatever the deceased could have recovered had the accident not been fatal. A.S.C.A. §§ 43.5001, 43.5002. Fa'avae v. American Samoa Power Authority, 5 A.S.R.2d 53 (1987).

The personal representative in a wrongful-death action shall be the named plaintiff, but the action shall be brought on behalf of the surviving spouse, parents, children or other next of kin, as the court may direct. A.S.C.A. § 43.5001(b). Saufo`i v. American Samoa Government, 16 A.S.R.2d 71 (1990).

Where Court noticed after trial in wrongful death action that plaintiffs had never petitioned the Court for designation as "next of kin" as required by wrongful death statute, and where plaintiffs were not the only near relatives of the decedent, the court would withhold entry of judgment pending receipt of the required petition. A.S.C.A. § 43.5001. Saufo`i v. American Samoa Government (Mem.), 14 A.S.R.2d 51 (1990).

Practice under wrongful death statute has been to include brothers and sisters along with parents as plaintiffs in actions where the decedent has left no surviving spouse or descendants. A.S.C.A. § 43.5001. Saufo`i v. American Samoa Government (Mem.), 14 A.S.R.2d 51 (1990).

Court could not approve proposed final accounting and order of distribution of decedent's estate where the sole asset listed in the accounting was an amount received in settlement of a wrongful death claim, and the administrator of the estate had not requested judicial approval of the settlement as required by statute; in the absence of judicial approval of the settlement, it affirmatively appeared on the record that the estate had no assets. A.S.C.A. § 43.5001. In re Estate of Ah Mai (Mem.), 14 A.S.R.2d 55 (1990).

An application for designation as the proper parties in a wrongful death action has been the practice in the High Court, and such designation also appears to be statutorily required, at least in the absence of a prior designation of a personal representative (administrator or executor) of an estate. A.S.C.A. § 43.5001(b). Saufo`i v. American Samoa Government, 16 A.S.R.2d 71 (1990).

When plaintiffs' pleadings asked for damages for the death of their child in terms of "emotional distress," the trial division properly treated the suit as an action for wrongful death. A.S.C.A. §§ 43.5001 et seq. Saufo'i v. American Samoa Gov't, 19 A.S.R.2d 54 (1991).

Under territorial wrongful death statute, damages for loss of society, companionship, comfort, protection, and related damages, as well as any pecuniary loss suffered on account of the decedent's death, are recoverable not by decedent's estate but by the surviving spouse, parents, children, or other next of kin, if any, as the court may direct. A.S.C.A. § 43.5001(b). In re Estate of Ah Mai (Mem.), 14 A.S.R.2d 32 (1990).

"Next of kin" in wrongful death statute does not designate only those persons who are first in line to inherit the decedent's real or personal property; whether or not a person's brothers and sisters are as closely related to him as his parents for inheritance purposes, they have frequently been allowed to recover along with parents in wrongful death actions. A.S.C.A. § 43.5001(b). In re Estate of Ah Mai (Mem.), 14 A.S.R.2d 32 (1990).

Parents, as personal representatives of their child's estate, were entitled to recover for the child's pain and suffering and for medical and funeral expenses. A.S.C.A. §§ 43.5001, 43.5002. Galo v. American Samoa Government, 10 A.S.R. 2d 94 (1989).

Under the wrongful death statute, siblings with requisite injury may recover along with their parents. A.S.C.A. §§ 43.5001 et seq. Utu v. American Samoa Government, 20 A.S.R.2d 53 (1992).

Under territorial statutes governing wrongful death and the survival of actions, decedent's estate is entitled to recover only the reasonable expenses of the decedent's last illness and burial and compensation for injuries suffered by the decedent prior to his death. A.S.C.A. §§ 43.5001(b), 43.5002. In re Estate of Ah Mai (Mem.), 14 A.S.R.2d 32 (1990).