The opinion of the court was delivered by: JAMES ROBERTSON, District Judge
Steve E. Monroe was killed on April 6, 2000, in an accident involving
an asphalt distributing machine. The machine was manufactured by E. D.
Etnyre & Company. This survival action*fn1, brought by Monroe's
personal representative, seeks to recover money damages from Etnyre on a
products liability theory, Before the Court is Etnyre's motion for
summary judgment, or for partial summary judgment. The motion presents
two discrete arguments. First, it asserts that Monroe's personal
representative is not the real party in interest, because her acceptance
of worker's compensation payments from her decedent's employer operated
as an assignment to the employer of all her rights to recover damages
against Etnyre. Second, the motion
asserts that plaintiff is unable as a matter of law to prove
economic damages associated with lost wages, lost health benefits and
lost household services, and that she may recover only for funeral
expenses and for pain and suffering. The first part of Etnyre's motion is
denied. The second part must also be denied as a
formal matter, but it does appear that plaintiff will not be able to
recover economic damages. The reasons for these rulings are set forth
1. Real party in interest.
D.C. Code § 32-1535 provides generally that a person entitled to
compensation on account of a death for which compensation is payable by a
person other than decedent's employer "need not elect whether to receive
such compensation or to recover damages against such third person." D.C.
Code § 32-1535(a). Two situations or events, however, will operate
as an assignment to the employer of all rights to compensation. One is
"[a]cceptance of such compensation under an award in a compensation order
filed with the Mayor," unless the person entitled to compensation
commences an action against the third person within six months after such
an award. Id. § 32-1535(b). The other is "[a] payment
made pursuant to §§ 32-1509 and 32-1540(d)(1)." Id. §
At the time of his death, Monroe was employed by Ft. Myer Construction
Corporation. It is undisputed that Ft. Myer
has made and is continuing to make monthly compensation payments to
Monroe's personal representative. There is no formal written agreement,
and Ft. Myer characterizes these payments as "voluntary." No
"compensation order" has been filed with the Mayor, and accordingly the
six month statute of limitations established by § 32-1535(b) has no
application here. Instead, Etnyre asserts (and the plaintiff denies) that
the payments Ft. Myer has made and is making are "payment[s] made
§§ 32-1509 and 32-1540(d)(1)," id., thereby effectuating
an assignment to Ft. Myer of the plaintiff's rights to recover from
A § 32-1540(d)(1) payment is a payment by decedent's employer of
$5,000 into a "special fund" made "where the Mayor determines that there
is no person entitled under this chapter to compensation for such death."
Id. § 32-1540(d)(1). Here, the Mayor has made no such
determination, and Ft. Myer has made no such payment. Etnyre argues,
nonetheless, that a payment made pursuant to either §
32-1509 or § 32-1540(d)(1) operates to assign all rights of
the legal representative, and asserts that the payments Ft. Myer has been
making are § 32-1509 payments.
Etnyre's argument contains two serious flaws. The first is one of
statutory construction. The essence of Etnyre's argument is that the
statutory word "and" really means "or", because payments cannot be made
under both § 32-1509 and § 32-1540(d)(1).
I cannot accept that construction and in particular note that such a
reading would completely destroy a central thrust of the 1980 amendments
to the D.C. Worker's Compensation Act: the undoing of the old rule that
required persons in plaintiff's position to choose between worker's
compensation benefits and recovery against third party tortfeasors.
Etnyre's assertion is that § 32-1509 cannot coexist with §
32-1540 because, under the former, "only enumerated persons are entitled
to death benefits," and, under the latter, payment is contingent on the
Mayor's determination that "there is no one entitled to benefit[s]."
Def.'s Reply, at 8. A payment of at least part of the death benefit,
however "[r]easonable funeral expenses not exceeding $5000"
is payable under § 32-1509 whether or not there are any
surviving relatives. Id. § 32-1509(1).
The second flaw in Etnyre's argument is that, at least on the existing
record, the monthly checks Ft. Myer has been sending to Monroe's personal
representative do not appear to be
§ 32-1509 payments. The procedure by which a worker's compensation
payment is made, established at D.C. Code § 32-1520, is elaborate.
First, "[s]ubject to the provisions of § 32-1514, a claim for
compensation may be filed with the Mayor in accordance with regulations
prescribed by the Mayor . . . at any time after death, and the Mayor
shall have full power and
authority to hear and determine all questions in respect of any
claim." Id. § 32-1520(a). Within ten days of the filing of
a claim, the Mayor shall notify the employer or any other person
determined to be an interested party that a claim has been filed.
See id. § 32-1520(b). The Mayor shall then
make or cause to be made investigations of claims
as he considers necessary,. . . [and u]pon
application of any interested party the Mayor
shall order a hearing within 90 days. . . .
Within 20 days after a hearing is held, the Mayor
shall by order reject the claim or make an award
in respect of the claim based on substantial
evidence before him. The Mayor shall, by order,
reject the claim or make an award in respect of
the claim based upon substantial evidence before
him, if no hearing is ordered within 20 days after
notice is given as provided in subsection (b) of
Id. § 32-1520(c). Finally, "[t]he order rejecting the
claim or making the award (referred to in this chapter as a compensation
order) shall be filed with the Mayor, and a copy thereof shall be sent by
registered or certified mail to the claimant and to the employer at the
last known address of each." Id. § 32-1520(e).
It is undisputed that Ft. Myer's payments to the plaintiff were not
made pursuant to any of these procedures, and that no award has been
filed with the Mayor. Moreover, § 32-1514, referenced in the
statute, appears to contemplate that a worker's compensation claim may be
made subsequent to other compensation payments by the employer: "Except
as otherwise provided . . ., the right to compensation for disability or
death under this chapter shall be barred unless a claim therefor is
filed within 1 year after the injury or death. If payment of
compensation has been made without an award on account of such
injury or death, a claim may be filed within 1 year after the date of the
last payment." Id. § 32-1514(a) (emphasis added).
Ft. Myer has asserted a lien for its payments against Monroe's personal
representative, but the lien does not give Ft. Myer control of
plaintiff's tort claim against Etnyre. As Etnyre itself points out, the
general statutory purpose for the assignment provision is to place that
control "in the hands of the party most likely to be willing and able to
prosecute such an action," Def.'s Reply, at 4 (citing Dunbar ...