Robert B. Beim v. Trevor R. Hulfish (071025)

SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized).

Robert B. Beim v. Trevor R. Hulfish (A-33/34-12) (071025)

Argued September 24, 2013 -- Decided January 28, 2014

PATTERSON, J., writing for a unanimous Court.

In this appeal, the Court considers whether a change in the federal estate tax law after an alleged wrongful
death can give rise to a viable claim for damages under the Wrongful Death Act (the Act), N.J.S.A. 2A:31-1 to -6.

In 2008, at the age of ninety seven, John Kellogg died following a motor vehicle accident allegedly caused
by defendants’ negligence. Kellogg’s estate paid federal estate taxes pursuant to the tax laws applicable to the
estates of decedents who died in 2008. Plaintiffs -- Kellogg’s daughters, the executors of his estate and the trustee
of a marital trust -- filed a wrongful death action seeking economic damages based on their claim that Kellogg’s
estate would have paid substantially less in federal estate taxes had Kellogg survived until 2009. The trial court
dismissed plaintiffs’ claims, holding that estate taxes did not constitute recoverable damages under the Act. It
reasoned that the potential federal tax liability of the Kellogg estate, had Kellogg lived for an additional period after
the accident, was too speculative to calculate, since tax rates for the estates of decedents who died in 2011 and
beyond were yet to be determined by Congress. Plaintiffs moved for reconsideration after Congress enacted estate
tax laws applicable to the estates of decedents who died in 2011 or 2012. The trial court denied reconsideration,
finding that Congress’s passage of the tax laws did not resolve its concern about speculation and that estate taxes
are, in any event, not recoverable under the Act.

The Appellate Division reversed. Beim v. Hulfish, 427 N.J. Super. 560 (App. Div. 2012). The panel
concluded that the estate tax losses alleged by plaintiffs would not compel the factfinder to engage in speculation. It
held that by the time the trial court ruled on the motion for reconsideration, the estate tax laws for 2011 and 2012
had been established, and a jury guided by expert testimony would have been in a position to calculate damages.
The panel accordingly reinstated plaintiffs’ claims for estate tax losses as the measure of damages asserted as an
element of their wrongful death claim. The Court granted certification. 212 N.J. 462 (2012).

HELD: The Wrongful Death Act does not authorize claims for damages based on estate taxes paid by a decedent’s
estate because such claims do not fit within the statutory cause of action defined by N.J.S.A. 2A:31-1 and the
alleged damages do not constitute “pecuniary” losses as required by N.J.S.A. 2A:31-5.

1. Plaintiffs assert that pursuant to 2001 and 2010 amendments to the Internal Revenue Code, the tax burden on
Kellogg’s estate would have been significantly less had he died in any of the four years that followed 2008. The
Court therefore considers whether a distinction in estate tax liability can give rise to a viable claim for damages
under the Act. When interpreting statutory language, the goal is to divine and effectuate the Legislature’s intent.
The Court begins with the language of the statute, giving the terms used therein their ordinary and accepted
meaning, and reads them in the context of the overall scheme so as to give sense to the legislation as a whole. In
addition, the Court broadly construes the Act in accordance with its salutary purpose to eliminate the inequity of
denying all right of recovery for the death of a family member. (pp. 10-16)

2. Two of the Act’s six subsections, N.J.S.A. 2A:31-1 and N.J.S.A. 2A:31-5, are central to the Court’s analysis.
N.J.S.A. 2A:31-1 defines the statutory cause of action as one that “would, if death had not ensued, have entitled the
person injured to maintain an action for damages resulting from the injury.” This Court has construed N.J.S.A.
2A:31-1 to permit a beneficiary to maintain a claim under the Act only if a claim could have been brought by the
decedent had he lived. Graf v. Taggert, 43 N.J. 303 (1964); Aronberg v. Tolbert, 207 N.J. 587 (2011). N.J.S.A.
2A:31-5 permits the recovery of “pecuniary injuries resulting from [the decedent’s] death.” Under that provision, if
the decedent’s survivors prove the defendant’s liability for wrongful death, they may be compensated for the
economic contributions of which they have been deprived by virtue of the death. The inquiry centers not on the

1
needs of the heirs, but on what the decedent would have provided to those heirs during an extended lifetime. Such
losses are compensable because they stand as a substitute for money that would have been provided during the
lifetime of the decedent, had he or she survived. (pp. 16-21)

3. In Green v. Bittner, 85 N.J. 1 (1980), the Court expanded the category of pecuniary damages to include not only
the loss of future financial contributions but also the lost value of services such as companionship and care and the
loss of advice, guidance and counsel. The Court, however, limited damages for companionship and advice “strictly
to their pecuniary element,” with the value of the services determined in accordance with “what the marketplace
would pay a stranger with similar qualifications for performing such services,” with no value attached to the
“emotional pleasure that a parent gets when it is his or her child doing the caretaking rather than a stranger.” Id. at
12. Thus, in assessing both financial and non-financial losses incurred because of a wrongful death, the focus is on
the value of what the decedent would have contributed to his or her survivors during a continued lifetime. This
Court has never deemed a loss that fails to meet that definition to be a “pecuniary” injury under N.J.S.A. 2A:31-5.
(pp. 21-23)

4. While pecuniary losses under N.J.S.A. 2A:31-5 cannot be premised on speculation, an exact calculation of the
plaintiff’s damages may not be feasible in every case. “Where a wrong has been committed, and it is certain that
damages have resulted, mere uncertainty as to the amount will not preclude recovery — courts will fashion a remedy
even though the proof on damages is inexact.” Kozlowski v. Kozlowski, 80 N.J. 378 (1979). In determining
whether the decedent would have contributed to the survivors and, if so, the value of his or her lost contributions, the
jury should consider the various probabilities which, in the course of the years, might determine the pecuniary
advantages which would accrue to the next of kin if the death had not occurred. Accordingly, the Act frames the
determination of damages for pecuniary injuries in a wrongful death case. The survivors’ cause of action is limited
to claims that could have been asserted by the decedent had he or she survived. N.J.S.A. 2A:31-1. When
calculating damages for “pecuniary injuries,” the factfinder values as precisely as possible the financial support and
non-economic services that the decedent would have contributed for the benefit of his or her survivors, had he or she
lived. N.J.S.A. 2A:31-5. (pp. 23-25)

5. Plaintiffs’ theory of damages is starkly different from the categories of losses held to constitute pecuniary injuries
under the Act. Federal estate taxes bear no nexus to the financial support or the services that a decedent would have
provided to his or her heirs had he or she survived. Kellogg’s extended life is significant to plaintiffs’ claims only
insofar as it would have forestalled his estate’s obligation to pay taxes until Congress had generated a more
hospitable tax environment. In short, plaintiffs’ damages theory is premised not on the contributions that Kellogg’s
heirs would have enjoyed during his continued lifetime, but on the tax benefits that they would have achieved as a
result of his deferred death. Recognition of such damages would contravene the Legislature’s clear intent when it
prescribed a cause of action for wrongful death and would not advance the Legislature’s objective to leave a
decedent’s heirs in no worse position economically than if their relative had lived. Accordingly, plaintiffs have not
set forth a claim that is cognizable under N.J.S.A. 2A:31-1, and their alleged damages do not give rise to a
“pecuniary” loss within the meaning of N.J.S.A. 2A:31-5. (pp. 25-29)

The judgment of the Appellate Division is REVERSED, and the judgment of the trial court dismissing
plaintiffs’ claims is REINSTATED.

CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA and ALBIN; and JUDGE CUFF
(temporarily assigned) join in JUSTICE PATTERSON’s opinion. JUDGE RODRÍGUEZ (temporarily
assigned) did not participate.

2
 SUPREME COURT OF NEW JERSEY
A-33/34 September Term 2012
071025

ROBERT B. BEIM and FRANKLYN
Z. ARONSON, AS CO-EXECUTORS
OF THE ESTATE OF JOHN G.
KELLOGG AND BARBARA KELLOGG,
FRANKLYN Z. ARONSON AS
TRUSTEE OF THE ANNE D.
KELLOGG MARITAL TRUST AND
JUDITH MEDINA AND PRUDENCE
KRAUSE,

Plaintiffs-Respondents,

v.

TREVOR R. HULFISH AND TERESA
CUPPLES,

Defendants-Appellants,

and

RUSSELL MARKS, JR., AND
PATRICIA H. MARKS,

Defendants,

and

CHUBB INSURANCE COMPANY OF
NEW JERSEY,

Defendant/Intervenor-
Appellant.

Argued September 24, 2013 – Decided January 28, 2014

On certification to the Superior Court,
Appellate Division, whose opinion is
reported at 427 N.J. Super. 560 (2012).

Richard J. Mirra argued the cause for
appellants Trevor R. Hulfish and Teresa

1
 Cupples (Hoagland, Longo, Moran, Dunst &
Doukas, attorneys).

John M. Bashwiner argued the cause for
appellant Chubb Insurance Company of New
Jersey (Bashwiner and Deer, attorneys; Mr.
Bashwiner and Joseph A. Deer, on the
briefs).

Jerrold Kamensky argued the cause for
respondents (Kamensky Cohen & Riechelson,
attorneys; Mr. Kamensky and Kristin J.
Teufel, on the brief).

JUSTICE PATTERSON delivered the opinion of the Court.

Under the Wrongful Death Act (the Act), N.J.S.A. 2A:31-1 to

-6, the heirs of a person who has died by virtue of “a wrongful

act, neglect or default” may assert a claim for their “pecuniary

injuries.” N.J.S.A. 2A:31-1, -5. The Court considers, for the

first time, whether the Act authorizes claims for damages in the

form of estate taxes paid by the decedent’s estate.

John Kellogg, ninety-seven years of age, died in 2008

following a motor vehicle accident allegedly caused by the

negligence of two of the defendants. His death occurred on the

eve of significant changes in federal tax law. Plaintiffs --

Kellogg’s daughters, the executors of his estate and the trustee

of a marital trust -- allege that had Kellogg survived until

2009, his estate would have paid substantially less in taxes

than it did under the tax laws governing in 2008. They further

assert that if Kellogg died in any of the three years that

followed, his estate would have paid no federal tax at all.

2
Plaintiffs contend that defendants should be held liable for the

estate tax paid by Kellogg’s estate under the federal tax laws

that governed in 2008.

The trial court rejected this claim and granted defendants’

motion to dismiss and motion for summary judgment. An Appellate

Division panel reversed the trial court’s determination and

reinstated plaintiffs’ claim, holding that the estate taxes

constitute pecuniary injuries under the Act.

We reverse. We hold that the Act does not authorize

plaintiffs’ estate tax damages claim. The Legislature defined

the statutory cause of action as one that “would, if death had

not ensued, have entitled the person injured to maintain an

action for damages resulting from the injury.” N.J.S.A. 2A:31-

1. Although several categories of economic and non-economic

losses sustained by a decedent’s heirs may constitute “pecuniary

injuries resulting from [the decedent’s] death” under N.J.S.A.

2A:31-5, plaintiffs’ proposed estate tax claim would expand the

Act beyond its intended parameters. Damages premised upon the

distinctions between the estate tax laws that governed in

succeeding years are unrelated to any contributions that

decedent would have made to his heirs had he remained alive.

Such damages do not advance the Legislature’s objective to leave

a decedent’s heirs “in no worse position economically than if

[their] relative had lived.” Aronberg v. Tolbert, 207 N.J. 587,

3
603 (2011). Accordingly, the trial court properly dismissed

plaintiffs’ claims.

I.

Kellogg and his first wife, Anne D. Kellogg, were the

parents of two daughters, plaintiffs Judith Medina and Prudence

Krause. At the time of Anne D. Kellogg’s death, the Anne D.

Kellogg Marital Trust (Marital Trust) was formed. Under the

terms of the trust documents, the Marital Trust would provide

income to Kellogg during his lifetime. Following his death, the

Marital Trust would be divided into two sub-trusts, one for each

daughter. Each sub-trust would provide lifetime income for the

daughter, and upon the death of the daughter the principal of

her sub-trust would be paid to her children. Plaintiff Franklyn

Z. Aronson is trustee of the Marital Trust, and he and plaintiff

Robert B. Beim are co-executors of Kellogg’s estate.

On January 25, 2008, Kellogg and his second wife, Barbara

Kellogg, were passengers in a vehicle owned by Patricia Marks

and driven by Russell Marks. The Marks’ vehicle collided with a

car owned by defendant Teresa Cupples and driven by defendant

Trevor Hulfish. Kellogg sustained serious injuries. He was

hospitalized for a week, and then discharged to a rehabilitation

center. On February 6, 2008, Kellogg was readmitted to the

hospital, where he died the following day.

4
 On September 23, 2008, plaintiffs Beim and Aronson, as co-

executors of Kellogg’s estate, filed a federal “Estate (and

Generation-Skipping Transfer) Tax Return” on the estate’s

behalf. Under the tax laws applicable to the estates of

decedents who died in 2008, the Kellogg estate paid

$1,196,083.57 in federal estate taxes.

Plaintiffs filed this action in the Law Division in

November 2009.1 In an amended complaint, plaintiffs asserted

claims for negligence, survivorship and per quod damages against

defendants. In one count of the amended complaint, the Kellogg

estate’s executors asserted a wrongful death claim, seeking

damages under the Act. In another, the Marital Trust’s trustee

sought damages based upon “economic losses in the nature of

Federal and State Estate Taxes and other related tax

consequences that would not have been suffered but for

[Kellogg’s] death.”2 In other claims, Kellogg’s daughters

alleged economic losses resulting from the diminution in the

value of the Marital Trust, allegedly due to defendants’

1
Barbara Kellogg was initially named as a plaintiff, but her
claims were withdrawn by stipulation for reasons not relevant to
the proceedings. Patricia and Russell Marks were named as
defendants, but the parties stipulated to the dismissal of all
claims against them, and they are not parties to this appeal.
2
Although the amended complaint alleged a loss based on New
Jersey estate taxes, the record does not indicate whether the
Kellogg estate paid state estate taxes, and no party has
addressed the impact of state estate tax laws. New Jersey
estate tax rates did not change between 2008 and 2012. See
N.J.A.C. 18:26-3A.3.
5
negligence. Chubb Insurance Company of New Jersey (Chubb),

which had provided underinsured motorist coverage to Kellogg,

moved to intervene in the action, and the trial court granted

its motion.

Defendants Hulfish and Cupples, joined by the other

defendants, moved under Rule 4:6-2 to dismiss the claims

asserting economic losses allegedly suffered by the Marital

Trust, or, in the alternative, for summary judgment pursuant to

Rule 4:46-2. Plaintiffs stipulated that the Marital Trust’s

estate tax-based claims should be dismissed. They contended,

however, that estate taxes were an element of damages available

to Kellogg’s heirs under their wrongful death claim. At trial,

plaintiffs took the position that had Kellogg not sustained

injuries in the 2008 accident, he would have lived until 2009 or

2010, but that he would not have lived until 2011. They argued

that they should be permitted to present expert evidence that

the estate would have paid significantly less in taxes had

Kellogg survived until 2009 than it did following his death in

2008.

On December 8, 2010, the trial court granted defendants’

motion to dismiss. The court held that estate taxes did not

constitute recoverable damages under the Act. It reasoned that

the potential federal tax liability of the Kellogg estate, had

Kellogg lived for an additional period after the accident, was

6
too speculative to calculate, since tax rates for the estates of

decedents who died in 2011 and beyond were yet to be determined

by Congress.3

Shortly after the trial court’s decision, and in the wake

of Congress’s extension of the estate tax exemption for estates

up to $5,000,000 in value through the end of 2012, plaintiffs

moved for reconsideration. They argued that with the estate tax

laws governing 2011 and 2012 estates now settled, a jury could

accurately calculate estate tax losses, assuming that Kellogg

would have died in one of those years. The trial court was

unpersuaded that its concern about speculation had been resolved

by Congress’s passage of tax laws governing estates of decedents

who died in 2011 or 2012. It reasoned that the 2011 and 2012

tax laws had yet to be determined when Kellogg died, and that

estate taxes are, in any event, not recoverable under the Act.

The court denied reconsideration of its order dismissing the

three counts in which the Marital Trust asserted claims.

Because no loss other than the payment of estate taxes had been

alleged, the court granted summary judgment dismissing

plaintiffs’ remaining claims.

3
The trial court did not reach defendants’ standing challenge to
plaintiffs’ wrongful death claim. Defendants alleged that
because Kellogg’s daughters were not dependent upon him for
support, they could not recover under the Act.
7
 Plaintiffs appealed, and the Appellate Division reversed.

Beim v. Hulfish, 427 N.J. Super. 560, 564 (App. Div. 2012).

Noting that the estate tax damages question was a novel issue

under New Jersey law, and distinguishing decisions by courts in

other jurisdictions rejecting similar claims, the panel

concluded that the estate tax losses alleged by plaintiffs would

not compel the factfinder to engage in speculation. Id. at 563,

568-75. It held that by the time the trial court ruled on the

motion for reconsideration, the estate tax laws for 2011 and

2012 had been established, and a jury guided by expert testimony

would have been in a position to calculate damages. Id. at 573-

74. The panel accordingly reinstated plaintiffs’ claims for

estate tax losses as the measure of damages asserted as an

element of their wrongful death claim. Id. at 563-64. It did

not reach defendants’ challenge to plaintiffs’ standing to

assert their claims. Id. at 576 n.11.

We granted certification. 212 N.J. 462 (2012).

II.

Defendants Hulfish and Cupples argue that estate taxes

cannot be recovered in a wrongful death action. They note that

the Act permits an action only when the person injured would

have been entitled to maintain an action for damages resulting

from the injury “if death had not ensued.” N.J.S.A. 2A:31-1.

Defendants assert that this language constrains the Court from

8
awarding estate tax damages, which would not be available to the

survivor of an accident such as Kellogg’s.

Defendants contest plaintiffs’ construction of the term

“pecuniary injuries” in N.J.S.A. 2A:31-5 to include any loss

sustained by the decedent’s estate. Relying upon authority from

other jurisdictions, defendants argue that even if estate tax

damages were contemplated by N.J.S.A. 2A:31-1 and -5, they would

nonetheless be contrary to New Jersey law because prospective

tax liabilities are inherently speculative. Finally, defendants

challenge plaintiffs’ standing to assert their claims on the

ground that Kellogg’s daughters were not dependent upon him for

financial support at the time of his death.

Defendant-Intervenor Chubb argues that plaintiffs’ claims

are barred by N.J.S.A. 2A:31-1’s limiting language, and by case

law defining a pecuniary injury as the loss of a reasonable

expectation of a pecuniary advantage that the heirs would have

achieved had the decedent survived. Chubb disputes the

Appellate Division panel’s conclusion that estate tax damages

are not unduly speculative. It invokes the example of a

decedent who dies prematurely, decades short of his or her life

expectancy, and contends that the expected tax liability of such

a decedent’s estate, had he or she lived a normal lifespan,

would be impossible to ascertain. Chubb challenges plaintiffs’

reliance on life expectancy tables to determine when Kellogg

9
would likely have died had he not sustained injuries in the 2008

motor vehicle accident.

Plaintiffs counter that the Act is remedial and must be

construed liberally to achieve its legislative purpose. They

argue that N.J.S.A. 2A:31-1 is irrelevant to the analysis,

because it defines only the basis for a wrongful death action

under the Act and does not address damages. Instead, plaintiffs

urge the Court to rely entirely upon N.J.S.A. 2A:31-5. In

plaintiffs’ view, that provision reflects the Legislature’s

intent to expansively define the damages available under the

Act, and authorizes claims for any loss that diminishes the

value of the survivors’ inheritance. To plaintiffs, adverse tax

consequences are losses directly attributable to the decedent’s

death, and are therefore recoverable damages under the Act.

Plaintiffs dispute defendants’ contention that the damages

at issue are speculative. Citing Kellogg’s advanced age and the

restrictive provisions of the Marital Trust, they argue that the

value of the survivors’ inheritance and the impact of federal

estate tax law were readily determinable in this case with the

assistance of expert testimony.

III.

The contention at the heart of this case is that successive

amendments to federal estate tax law gave rise to a significant

distinction between the estate tax burden that was imposed on

10
Kellogg’s estate following his death in 2008 and the estate tax

burden that would have been imposed on his estate had he died in

a subsequent year. Several amendments to federal estate tax law

that took effect shortly after Kellogg’s death are thus germane

to our analysis.

The Internal Revenue Code (Code) imposes “[a] tax . . . on

the transfer of the taxable estate of every decedent who is a

citizen or resident of the United States.” 26 U.S.C.A. § 2001

(a).4 The taxable estate is added to any taxable gifts, as

defined in 26 U.S.C.A. § 2001(b)(2), to determine the estate’s

tax base. The tax base is then multiplied by the applicable tax

rate, which varies in accordance with the value of the estate.

26 U.S.C.A. § 2001(c). That calculation generates the tentative

tax, from which any credits authorized by law are deducted to

determine the amount owed as estate tax. 26 U.S.C.A. §§ 2010-

15. The tax credit that is directly pertinent to this case is

the Unified Credit Against Estate Tax (Unified Credit), which

equals the amount of the tentative tax, so long as the tentative

tax does not exceed the applicable exclusion amount. 26

U.S.C.A. § 2010(c)(1). Thus, if the tentative tax calculated

for an estate does not exceed the exclusion amount that applies

4
The taxable estate is calculated by determining the gross
estate, as prescribed by 26 U.S.C.A. § 2031, and “deducting from
the value of the gross estate the deductions provided for” in 26
U.S.C.A. §§ 2051-58. 26 U.S.C.A. § 2051.
11
to the estate, which is prescribed in the relevant provision of

the Code, the estate owes no federal taxes. 26 U.S.C.A. §

2010(c)(1).

The first amendment to the Code that affects this case was

part of the Economic Growth and Tax Relief Reconciliation Act of

2001, Pub. L. No. 107-16, 115 Stat. 38 (2001) (2001 Amendments).

Although the estate tax rate schedule set forth in 26 U.S.C. §

2001(c) was unaltered between 2008 and 2009, the maximum Unified

Credit, which was $780,000 for estates of decedents who died in

2008, rose to $1,455,800 for estates of decedents who died in

2009. In addition, pursuant to the 2001 Amendments, the

exclusion amount rose from $2,000,000 in 2008 to $3,500,000 in

2009. Economic Growth and Tax Relief Reconciliation Act of

2001, sec. 521(a). In short, the 2001 Amendments afforded

significant tax relief to the estates of some decedents who died

in 2009 that was unavailable to Kellogg’s estate following his

death in 2008.

For the estates of decedents who died in 2010, the 2001

Amendments afforded even greater tax relief. Those Amendments

effected a one-year repeal of the federal estate tax for the

estates of all 2010 decedents. Economic Growth and Tax Relief

Reconciliation Act, sec. 501(a). When Kellogg died in February

2008, the estate tax repeal provision was scheduled to expire on

December 31, 2010, limiting its impact to the estates of

12
decedents who died in that year. Economic Growth and Tax Relief

Reconciliation Act of 2001, sec. 901(a)(2). Had the 2001

Amendments expired as scheduled on that date, the tax relief

afforded by those Amendments would have been unavailable to the

estates of 2011 and 2012 decedents, and those estates would have

been taxed in accordance with the provisions of the Code that

had existed before 2001. Economic Growth and Tax Relief

Reconciliation Act of 2001, sec. 901(b).

The federal tax burden on estates of decedents who died in

2011, however, substantially changed during the period between

the trial court’s grant of defendants’ original motion to

dismiss and the court’s denial of plaintiffs’ motion for

reconsideration. On December 17, 2010, Congress passed the Tax

Relief, Unemployment Insurance Reauthorization, and Job Creation

Act of 2010, Pub. L. No. 111-312, 124 Stat. 3296 (2010

Amendments). The 2010 Amendments extended the 2001 Amendments

to estates for an additional two years, applying them to the

estates of decedents who died between December 31, 2010 and

December 31, 2012. Tax Relief, Unemployment Insurance

Reauthorization, and Job Creation Act of 2010, sec. 101(a)(1).

The 2010 Amendments also changed the tax rates applicable to

estates of decedents who died after December 31, 2009, and

raised the exclusion amount to $5,000,000 for those estates.

13
Tax Relief, Unemployment Insurance Reauthorization, and Job

Creation Act of 2010, sec. 302(a)(1).

Plaintiffs assert that these developments in federal tax

law would have substantially benefited Kellogg’s estate had he

died in any of the four years that followed 2008. According to

plaintiffs’ calculations, if Kellogg had died in 2009 rather

than 2008, his estate would have paid only $521,084 in federal

taxes, less than half of what it paid under the laws in effect

in 2008.5 Plaintiffs further contend that by virtue of the

temporary repeal of the federal estate tax for the estates of

decedents who died in 2010, and the tax relief afforded by the

2010 amendments for the estates of decedents who died in 2011

and 2012, Kellogg’s estate would have paid no tax at all had he

died in any of those years.

IV.

In light of these changes to federal estate tax law, we

consider whether the distinction between the liability imposed

upon estates of decedents who died in 2008, and the liability

imposed upon the estates of decedents who died thereafter, gives

rise to a viable claim for damages under the Act.

5
Because defendants’ motion to dismiss was filed before the case
reached the expert discovery stage, plaintiffs’ calculation of
the taxes that Kellogg’s estate would have owed had he died in
2009 is unsupported by expert opinion, and defendants have not
had the opportunity to contest that calculation.
14
 Because the trial court’s dismissal of plaintiffs’ damages

claim was premised upon statutory interpretation rather than the

resolution of a factual dispute, we review its determination de

novo. Zabilowitz v. Kelsey, 200 N.J. 507, 512 (2009); Twp. of

Holmdel v. N.J. Highway Auth., 190 N.J. 74, 86 (2007). Our

analysis is governed by the familiar rules of statutory

construction. “When interpreting statutory language, the goal

is to divine and effectuate the Legislature’s intent.” State v.

Shelley, 205 N.J. 320, 323 (2011). To determine the

Legislature’s intent, we begin with the “language of the

statute, giving the terms used therein their ordinary and

accepted meaning.” Ibid. It is not the Court’s function to

“‘rewrite a plainly-written enactment of the Legislature []or

presume that the Legislature intended something other than that

expressed by way of the plain language.’” DiProspero v. Penn,

183 N.J. 477, 492 (2005) (alteration in original) (quoting

O’Connell v. State, 171 N.J. 484, 488 (2002)). Significantly

for this case, which concerns two provisions of the Act,

“[r]elated parts of an overall scheme can . . . provide relevant

context.” N.J. Dep’t of Children and Families v. A.L., 213 N.J.

1, 20 (2013) (citing Murray v. Plainfield Rescue Squad, 210 N.J.

581, 592 (2012); In re Petition for Referendum on City of

Trenton Ordinance 09-02, 201 N.J. 349, 359 (2010)). The Court

must “ascribe to the statutory words their ordinary meaning and

15
significance . . . and read them in context with related

provisions so as to give sense to the legislation as a whole.”

DiProspero, supra, 183 N.J. at 492 (internal citations omitted).

We broadly construe the Act in accordance with its “salutary

purpose to eliminate the inequity of denying all right of

recovery for the death of a family member.” Alfone v. Sarno, 87

N.J. 99, 109 (1981).

The Act created by statute a remedy that did not exist at

common law. Johnson v. Dobrosky, 187 N.J. 594, 605 (2006)

(citing Negron v. Llarena, 156 N.J. 296, 308 (1998)); Alfone,

supra, 87 N.J. at 107.6 In 1846, Parliament ended the

prohibition on wrongful death actions in English law with the

passage of Lord Campbell’s Act, “An Act for Compensating the

Families of Persons killed by Accidents,” 9 & 10 Vict., c. 93.

Two years later, the New Jersey Legislature enacted its first

wrongful death statute, substantially modeled after Lord

Campbell’s Act. P.L. 1848, p. 151 (March 3, 1848).

Two of the Act’s six subsections are central to our

analysis. The first is N.J.S.A. 2A:31-1, which defines the

statutory cause of action:

6
Prior to legislative regulation of wrongful death actions, “the
theory that death extinguished a personal right of action barred
any claim for wrongful death.” Alfone, supra, 87 N.J. at 104
(citing 1 S. Speiser, Recovery for Wrongful Death, §§ 1:1 to 1:9
at 2-30 (2d ed. 1975)).
16
 When the death of a person is caused by a
wrongful act, neglect or default, such as
would, if death had not ensued, have
entitled the person injured to maintain an
action for damages resulting from the
injury, the person who would have been
liable in damages for the injury if death
had not ensued shall be liable in an action
for damages, notwithstanding the death of
the person injured and although the death
was caused under circumstances amounting in
law to a crime.

[N.J.S.A. 2A:31-1.]

In previous cases, this Court has construed the language of

N.J.S.A. 2A:31-1. In Graf v. Taggert, the Court deemed that

N.J.S.A. 2A:31-1 “intended to preclude recovery where the

injured person could not have recovered because the defendant

did not commit a wrongful act or the deceased’s own conduct

would have barred his right to recover.” 43 N.J. 303, 305-06

(1964) (citing Knabe v. Hudson Bus Transp. Co., 111 N.J.L. 333

(E. & A. 1933); Batton v. Pub. Serv. Corp. of N.J., 75 N.J.L.

857 (E. & A. 1908)). “In short,” the Court noted, “if the

deceased could not have recovered, his beneficiaries may not

recover.” Id. at 306.

In Aronberg, supra, the Court held that the mother of an

uninsured driver killed in a motor vehicle collision could not

assert an action under the Act, given that any personal injury

claim asserted by her son, had he survived, would have been

17
barred by N.J.S.A. 39:6A-4.5(a). 207 N.J. at 598-602, 605.7

Citing the intent of the Act’s drafters “to bring parity both to

claims by a victim who lives and to claims by his survivors if

he dies,” the Court held:

The statutory language does not suggest that
a claim that a victim cannot bring in life
can only spring forth in the event of his
death. Indeed, N.J.S.A. 2A:31-1 gives the
right of an heir ‘to maintain an action for
damages’ only if a claim could have been
brought by the decedent had he lived. In
this case, Aronberg, as an uninsured driver,
could not have brought a claim against the
alleged tortfeasor as a consequence of the
statutory bar. See N.J.S.A. 39:6A-4.5(a).
His heirs do not have any greater right than
Aronberg possessed himself.

[Id. at 603.]8

The Court’s decisions in Graf and Aronberg reaffirm the

Legislature’s intent, expressed in N.J.S.A. 2A:31-1, to bar a

claim for wrongful death that could not have been asserted by a

7
N.J.S.A. 39:6A-4.5(a), a provision of New Jersey’s Automobile
Insurance Cost Reduction Act, bars an uninsured driver from
claiming “recovery of economic or noneconomic loss sustained as
a result of an accident while operating an uninsured
automobile.” In Aronberg, supra, the decedent had failed to pay
automobile insurance premiums and his policy was cancelled prior
to his fatal accident. 207 N.J. at 592.
8
In Aronberg, supra, the Court distinguished the case before it,
in which the decedent never had the cause of action sought to be
asserted by his mother, from Miller v. Estate of Sperling, 166
N.J. 370 (2001). 207 N.J. at 603-05. In Miller, the decedent
had a viable malpractice claim during her lifetime, but declined
to pursue it prior to the expiration of the statute of
limitations that governed that claim; her heirs were not barred
from asserting that claim after her death. Aronberg, supra, 207
N.J. at 604-05 (citing Miller, supra, 166 N.J. at 382-83).
18
surviving plaintiff on his or her own behalf. See Graf, supra,

43 N.J. at 305-06; Aronberg, supra, 207 N.J. at 605. That

expression of legislative intent guides our analysis.

The second section of the Act that is relevant to this case

is N.J.S.A. 2A:31-5, which provides:

In every action brought under the provisions
of this chapter the jury may give such
damages as they shall deem fair and just
with reference to the pecuniary injuries
resulting from such death, together with the
hospital, medical and funeral expenses
incurred for the deceased, to the persons
entitled to any intestate personal property
of the decedent in accordance with the
provisions of N.J.S.A. 2A:31-4.

[N.J.S.A. 2A:31-5.]

Although the limitation to “pecuniary” injuries was not a

feature of Lord Campbell’s Act, “English case law interpreting

it quickly imposed the ‘pecuniary’ limitation, allowing purely

monetary awards but forbidding those for loss of society or

bereavement.” Johnson, supra, 187 N.J. at 606 (citing Stuart M.

Speiser and Stuart S. Malawar, An American Tragedy: Damages for

Mental Anguish of Bereaved Relatives in Wrongful Death Actions,

51 Tul. L. Rev. 1, 5-8 (1976)). From its inception, New

Jersey’s Wrongful Death Act incorporated the “pecuniary”

limitation upon damages, without defining that term in the

statute itself. P.L. 1848, p. 151 (March 3, 1848).

19
 From the Legislature’s use of the term “pecuniary

injuries,” two principles can be discerned. First, if the

decedent’s survivors prove the defendant’s liability for

wrongful death, they may be compensated for the economic

contributions of which they have been deprived by virtue of the

death. As the Court, citing federal authority, held in Smith v.

Whitaker:

An award of damages in a wrongful death
action is not a matter of punishment for an
errant defendant or of providing for
decedent’s next of kin to a greater extent
than decedent himself would have been able,
but is rather a replacement for that which
decedent would likely have provided and no
more. The amount of recovery is based upon
the contributions, reduced to monetary
terms, which the decedent might reasonably
have been expected to make to his or her
survivors.

[160 N.J. 221, 231-32 (1999) (internal
quotation marks omitted) (citing Alexander
v. Whitman, 114 F.3d 1392, 1398 (3d Cir.
1997)).]

As the Court has noted, “[t]he measure of damages is the

‘deprivation of a reasonable expectation of a pecuniary

advantage which would have resulted by a continuance of the life

of the deceased.’” Curtis v. Finneran, 83 N.J. 563, 569 (1980)

(quoting Carter v. W. Jersey & Seashore R.R. Co., 76 N.J.L. 602,

603 (E. & A. 1908)). Thus, the inquiry centers not on the needs

of the heirs, but on what the decedent would have provided to

those heirs during an extended lifetime.

20
 “The most common class of pecuniary injury under the Act is

the loss of . . . financial contributions.” Johnson, supra, 187

N.J. at 607. Calculation of economic losses in a wrongful death

case “involves two basic determinations: is it probable that

decedent would have contributed to the survivors and, if so, to

what extent would contributions have been made?” Ibid. Thus,

such losses are compensable because they stand as a substitute

for money that would have been provided during the lifetime of

the decedent, had he or she survived. See, e.g., Green v.

Bittner, 85 N.J. 1, 4 (1980) (noting availability of damages for

“anticipated direct financial contributions by the child after

he or she becomes a wage earner”); Curtis, supra, 83 N.J. at

567-68 (permitting damages for future financial loss suffered by

children because of their father’s death); Tenore v. Nu Car

Carriers, Inc., 67 N.J. 466, 470, 481 (1975) (allowing expert

testimony on inflationary trends to show “future wage losses of

the deceased”).

Even when wrongful death damages are premised upon non-

monetary losses, they are measured by the monetary value of the

contributions that the decedent would have made to his survivors

during his or her life had that life not been cut short. In

Green, the Court “expanded the category of pecuniary damages to

include not only the loss of future financial contributions but

also the lost ‘value’ of services such as companionship and care

21
. . . and the loss of advice, guidance and counsel.” Johnson,

supra, 187 N.J. at 609 (citing Green, supra, 85 N.J. at 4). The

Court limited damages for companionship and advice “strictly to

their pecuniary element,” with the value of the services

determined in accordance with “what the marketplace would pay a

stranger with similar qualifications for performing such

services,” with no value attached to the “emotional pleasure

that a parent gets when it is his or her child doing the

caretaking rather than a stranger.” Green, supra, 85 N.J. at 12

(footnote omitted). Because the question of damages turns on

the services that the decedent would have provided had he or she

been afforded the chance to live a longer life, the “mental,

moral and physical characteristics of the decedent” relating to

his or her relationship with the survivors “and the concomitant

‘probability’ of lost advice, guidance, and counsel” are

relevant factors. Johnson, supra, 187 N.J. at 610—11.

Thus, in assessing both financial and non-financial losses

incurred because of a wrongful death, the focus is on the value

of what the decedent would have contributed to his or her

survivors during a continued lifetime.9 In its jurisprudence

9
In a 1967 amendment to the Act, the Legislature added language
authorizing three categories of damages that do not represent
the decedent’s lost contributions or his or her survivors:
“hospital, medical and funeral expenses incurred for the
deceased” in a wrongful death case. Assemb., No. 369, L. 1967,
c. 307, §1 (amending N.J.S.A. 2A:31-5). The Assembly Statement
22
interpreting the Act, this Court has never deemed a loss that

fails to meet that definition to be a “pecuniary” injury under

N.J.S.A. 2A:31-5.

A second principle guiding our courts in assessing

pecuniary losses in a wrongful death action under N.J.S.A.

2A:31-5 is that “[t]he Act ‘permits recovery only of a

survivor’s calculable economic loss.’” Aronberg, supra, 207

N.J. at 593 (quoting Smith, supra 160 N.J. at 232). “‘The law

abhors damages’” that are based on “‘mere speculation.’”

Caldwell v. Haynes, 136 N.J. 422, 442 (1994) (quoting Lewis v.

Read, 80 N.J. Super. 148, 174 (App. Div. 1963)). Nevertheless,

our decisions recognize that a factfinder’s determination of

damages premised upon a decedent’s lost contributions cannot

always be conducted with precision. “Where a wrong has been

committed, and it is certain that damages have resulted, mere

uncertainty as to the amount will not preclude recovery — courts

will fashion a remedy even though the proof on damages is

inexact.” Kozlowski v. Kozlowski, 80 N.J. 378, 388 (1979).

specifically notes that the amendment was intended “to allow as
a recoverable item of damage the hospital and medical expenses
of the one wrongfully killed, together with funeral expenses
heretofore not provided for under law.” Statement Accompanying
Assemb., No. 369, L. 1967, c. 307. Thus, the Legislature
evidently considered “hospital, medical and funeral expenses” to
be distinct from the “pecuniary injuries resulting from such
death” that had previously been available to wrongful death
plaintiffs under N.J.S.A. 2A:31-5.
23
 In determining whether the decedent would have contributed

to the survivors and, if so, the value of his or her lost

contributions, “‘the jury should . . . consider the various

probabilities which, in the course of the years, might determine

the pecuniary advantages which would accrue to the next of kin

if the tragic event which gave rise to the action had not

occurred.’” Johnson, supra, 187 N.J. at 607 (alteration in

original) (quoting McStay v. Przychocki, 10 N.J. Super. 455, 462

(App. Div. 1950), aff’d 7 N.J. 456 (1951)). Thus, while

pecuniary losses under N.J.S.A. 2A:31-5 cannot be premised on

speculation, an exact calculation of the plaintiff’s damages may

not be feasible in every case.10 As the Court has recognized, in

calculating a pecuniary loss, “[a] jury’s common knowledge and

experience is always available to help it assess whether an

aggregate sum or ‘bottom-line’ figure presented by counsel or an

expert represents fair and just compensation.” DeHanes, supra,

158 N.J. at 102.

Accordingly, the Act frames the determination of damages

for pecuniary injuries in a wrongful death case. The survivors’

10
The trial court’s evidentiary determinations on pecuniary
losses in wrongful death cases are, of course, governed by the
applicable Rules of Evidence, including N.J.R.E. 702 and 703,
which address the admissibility of expert testimony. See
Dehanes v. Rothman, 158 N.J. 90, 100 (1999) (finding that in
wrongful death case, “there is nothing so intrinsically unique
about economic losses that the subject should cause [the Court]
to refrain from following the regular rules regarding the
introduction of expert testimony”).
24
cause of action is limited to claims that could have been

asserted by the decedent had he or she survived. N.J.S.A.

2A:31-1. When calculating damages for “pecuniary injuries,” the

factfinder values as precisely as possible the financial support

and non-economic services that the decedent would have

contributed for the benefit of his or her survivors, had he or

she lived. N.J.S.A. 2A:31-5.

V.

In that setting, we consider whether an increase in the

applicable federal estate taxes between the date of the alleged

wrongful death and subsequent years give rise to a compensable

“pecuniary injur[y]” within the meaning of N.J.S.A. 2A:31-5,

construed in light of the limiting provisions of N.J.S.A. 2A:31-

1.

Plaintiffs’ proposed estate tax damages are starkly

different from the categories of losses held to constitute

pecuniary injuries under the Act. Economic losses, measured in

accordance with educational, occupational, demographic and other

relevant factors, derive from the decedent’s expected

contributions during his or her continued lifetime, whether that

lifetime would have been be measured in months, years or

decades. See, e.g., Johnson, supra, 187 N.J. at 607; Smith,

supra, 160 N.J. at 231; Curtis, supra, 83 N.J. at 570; Dubil v.

Labate, 52 N.J. 255, 259 (1968); McStay v. Przychocki, 7 N.J.

25
456, 460 (1951). Non-economic wrongful death damages are

premised on such services as companionship, care, advice,

guidance and counsel that the decedent would have provided to

his or her survivors, had he or she continued to live. See,

e.g., Johnson, supra, 187 N.J. at 609; Green, supra, 85 N.J. at

4; Aronberg, supra, 207 N.J. at 593.

Federal estate taxes are inherently different from the

damages recognized to be “pecuniary injuries” under N.J.S.A.

2A:31-5. They bear no nexus to the financial support or the

services that a decedent would have provided to his or her heirs

had he or she survived. Plaintiffs’ theory of damages is

unrelated to any contributions that Kellogg would have made to

his survivors had he lived for additional weeks, months or

years. Instead, Kellogg’s extended life is significant to

plaintiffs’ claims only insofar as it would have forestalled his

estate’s obligation to pay taxes until Congress had generated a

more hospitable tax environment. In short, plaintiffs’ damages

theory is premised not on the contributions that Kellogg’s heirs

would have enjoyed during his continued lifetime, but on the tax

benefits that they would have achieved as a result of his

deferred death. Recognition of such damages would contravene

26
the Legislature’s clear intent when it prescribed a cause of

action for wrongful death.11

The estate tax damages sought by plaintiffs sharply differ

from the income taxes that were held relevant in Tenore, on

which plaintiffs rely. In Tenore, supra, the Court reversed the

trial court’s order excluding the defendant’s proffered evidence

of the income tax that would have been imposed on the decedent

had he lived. 67 N.J. at 484-85. Rejecting the contentions

that “an individual’s future income tax liability is too

speculative or conjectural,” and that they are “too complicated

for jury consideration,” id. at 485, the Court stated:

[W]e hold that under our wrongful death act,
defendants must have an opportunity to
cross-examine plaintiffs’ witnesses to
elicit testimony concerning deceased’s

11
Several courts in other jurisdictions have rejected similar
claims. See Hiatt v. United States, 910 F.2d 737, 744-45 (11th
Cir. 1990) (applying Florida law to reject plaintiff’s claim
that had decedent “lived out his expected lifespan, his estate
would have owed no estate taxes at the time of his death because
of changes enacted in the tax laws since then”); Farrar v.
Brooklyn Union Gas Co., 533 N.E.2d 1055, 1055 (N.Y. 1988)
(declining to recognize plaintiff’s claim that had his wife
lived until 1987 instead of dying in 1982, her estate “would
have realized the full benefit of the Federal estate tax credit
and no Federal estate tax would have been due and paid”);
Elliott v. Willis, 442 N.E.2d 163, 169 (Ill. 1982) (rejecting
plaintiffs’ claim that “prematurely paid” state and federal
inheritance taxes assessed following death of their decedent
constituted compensable pecuniary losses under Illinois law);
Lindsay v. Allstate Ins. Co., 561 So.2d 427, 427 (Fla. Dist. Ct.
App. 1990) (rejecting wrongful death damages claim based upon
“the increased amount paid to the United States government for
estate taxes as a result of decedent’s premature death,” due to
estate’s failure to achieve maximum unified credit).
27
 income tax liability, or to develop the
matter by extrinsic evidence, to the end
that the jury be enabled to make an informed
estimate, based upon the deceased’s
projected net income after taxes, of the
survivor’s pecuniary loss. Consequently,
plaintiff’s recovery must be calculated on
the basis of the deceased’s net income after
taxes giving due regard to the evidence
adduced on the deceased’s income tax
liability.

[Id. at 494-95 (footnote omitted).]

Accordingly, to the extent that it is authorized by the

applicable rules of evidence, the admission of income tax

liability estimates in a wrongful death action is consonant with

the language and purpose of N.J.S.A. 2A:31-1 and -5. Evidence

regarding potential income taxes permits the factfinder to more

accurately evaluate the decedent’s lost financial contributions.

Estate taxes, in contrast, are irrelevant to decedent’s lost

contributions during his or her lifetime. Recognition of such

damages would not further the Legislature’s goal to ensure that

a decedent’s heirs are “in no worse position economically” than

if he or she had survived. Aronberg, supra, 207 N.J. at 603.

Accordingly, we hold that plaintiffs have not set forth a

claim that is cognizable under N.J.S.A. 2A:31-1, and that their

alleged damages do not give rise to a “pecuniary” loss within

the meaning of N.J.S.A. 2A:31-5. In short, plaintiffs’ proposed

damages are not authorized by N.J.S.A. 2A:31-1 and -5, we do not

reach the question of whether a court should apply the law in

28
effect at the time of the decedent’s death or the governing law

at the time of the decision when it determines whether a claim

for damages is unduly speculative. We do not decide the issue

of plaintiffs’ standing, which was raised by defendants but not

reached by the Appellate Division.

VI.

The determination of the Appellate Division is reversed,

and the judgment of the trial court dismissing plaintiffs’

claims is reinstated.

CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA and ALBIN; and
JUDGE CUFF (temporarily assigned) join in JUSTICE PATTERSON’s
opinion. JUDGE RODRÍGUEZ (temporarily assigned) did not
participate.

29
 SUPREME COURT OF NEW JERSEY

NO. A-33/34 SEPTEMBER TERM 2012

ON CERTIFICATION TO Appellate Division, Superior Court

ROBERT B. BEIM and FRANKLYN
Z. ARONSON, AS CO-EXECUTORS
OF THE ESTATE OF JOHN G.
KELLOGG AND BARBARA KELLOGG,
FRANKLYN Z. ARONSON AS
TRUSTEE OF THE ANNE D.
KELLOGG MARITAL TRUST AND
JUDITH MEDINA AND PRUDENCE
KRAUSE,

Plaintiffs-Respondents,

v.

TREVOR R. HULFISH AND TERESA
CUPPLES,

Defendants-Appellants.

DECIDED January 28, 2014
Chief Justice Rabner PRESIDING
OPINION BY Justice Patterson
CONCURRING/DISSENTING OPINIONS BY
DISSENTING OPINION BY

REVERSE AND
CHECKLIST
REINSTATE
CHIEF JUSTICE RABNER X
JUSTICE LaVECCHIA X
JUSTICE ALBIN X
JUSTICE PATTERSON X
JUDGE RODRÍGUEZ (t/a) ----------------------- --------------------
JUDGE CUFF (t/a) X
TOTALS 5

1