A viable fetus is not a person under the wrongful death act, declared the Maine Law Court in a controversial decision in 1988. To reach this conclusion, the court employed one traditional and one new rule of statutory interpretation, and one traditional rule of law. The traditional rule of interpretation-that the wrongful death act is to be strictly construed because it is in derogation of the common law-dates from the earliest wrongful death cases heard by the court. The new rule of interpretation-that the death statute must be harmonized with the Maine Uniform Probate Code-derives from the enactment of the Code in 1981 and the placement of the wrongful death statute within it. The traditional rule of law-that recovery for wrongful death is exclusively governed by the terms of the wrongful death statute-is related to the rule of strict construction, but is based specifically on a mid-nineteenth century case that held the common law did not allow recovery for wrongful death. The Law Court has consistently held since then that the common law in Maine does not allow recovery for wrongful death, and, therefore, that the statute provides the sole basis for recovery. This Article argues that all three rules should be discarded. Instead of the three rules above, the Law Court should adopt a rule of "fair construction," one which involves the court in a purposive analysis of the terms and provisions of the act without the presumption against coverage or application in the doubtful case that is at the heart of the rule of strict construction and without the fiction, integral to the rule, that any statutory terms are so "clear and unambiguous" that interpretation is unnecessary.
Dennis M. Doiron,
A Better Interpretation of the Wrongful Death Act,
Me. L. Rev.
Available at: https://digitalcommons.mainelaw.maine.edu/mlr/vol43/iss2/8