dissenting.
It is well to recall occasionally that “the figure of justice is conventionally portrayed as carrying a pair of scales, not a cornucopia.” Fleming, The Lost Years: A problem in the Computation and Distribution of Damages, 50 Calif.L.Rev. 598, 603 (1972) (quoting Innes v. Visser, [1936] So.Afr.L.R. 44, 45 (W.L.D.)).
The question presented by this case is whether a decedent’s recovery during her lifetime for injuries that led to her death will bar an action for wrongful death under the Wrongful Death Act, N.J.S.A. 2A:31-1 to -6. I would answer this question in the affirmative, following over eighty years of precedent dictating that the wrongful death action is derived from the personal injuries action during life. This conclusion is supported by the *125language of the statute, as well as by established precedent and purposeful public policy.
I
The pertinent section of the Wrongful Death Act reads as follows:
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.]
A literal reading of the statute yields the built-in prerequisite of being able to maintain a suit at the time of death. Once the decedent has recovered for her injuries, she could not have maintained another suit at the time of her death, and a wrongful death action is therefore precluded. Although fundamentally aimed at compensating survivors of the decedent, see Tenore v. Nu Car Carriers, Inc., 67 N.J. 466 (1975), the statute is decedent-centered. It is applicable only when (1) a wrong has been inflicted upon a decedent, (2) the decedent was injured and (3) the decedent could have brought an action to redress the wrong.
Two well-established principles of statutory construction are useful in analyzing the Wrongful Death Act. First, the statute is in derogation of the common law, Cooper v. Shore Electric Co., 63 N.J.L. 558, 564 (E. & A.1899), and as such must be strictly construed. Dacunzo v. Edgye, 19 N.J. 443, 451 (1955). This principle of statutory construction was recognized by this court when dealing with the same statute in Turon v. J & L Construction Co., 8 N.J. 543 (1952). In Turon, supra, the Court noted that because the statute was remedial in nature, it should be “liberally construed and applied to effectuate its beneficent object.” Id. at 558. But, the court continued, inasmuch as the statute is in derogation of the common law, the class for whom *126the remedy is provided may not be expanded beyond its terms. Id.1
The second principle of statutory construction helpful here is that construction of a statute by the courts, supported by long acquiescence on the part of the legislature or continued use of the same language or failure to amend the statute, is evidence that such construction is in accordance with the legislative intent. Lemke v. Bailey, 41 N.J. 295, 301 (1963). The general rule, followed in New Jersey, is that the Wrongful Death Act gives an action only if the decedent had one. Knabe v. Hudson Bus Transportation Co., 111 N.J.L. 333, 335 (E. & A.1933); Coulter v. New Jersey Pulverizing Co., 11 N.J.Misc. 5, 6-7, 163 A. 661, 661 (Sup.Ct.1932). Therefore, under this second maxim of statutory construction, the derivative characterization imposed by the judiciary onto the Wrongful Death Act must be deemed to be in accordance with legislative intent.
II
A review of the history of the Wrongful Death Act yields the same statutory interpretation. See generally Malone, The Genesis of Wrongful Death, 17 Stan.L.Rev. 1043 (1965). There could be no action under the common law for wrongful death. Baker v. Bolton, 170 Eng.Rep. 1033 (1808). The common law rule was actio personalis moritur cum persona, a personal right of action dies with the person. Related to this maxim is the felony-merger rule: if a person were to die as the result of a felony, a civil action would not lie because the defendant had committed an offense against the crown and the authority of the Sovereign preempted the case. Smith v. Sykes, 89 Eng.Rep. 160 (1677). *127Punishment for the commission of a felony at common law was death and the forfeiture of all property to the crown. Thus, after a crime had been punished nothing remained of the felon or his property on which to base an action.
In response to this seemingly harsh common law rule, Parliament in 1846 enacted Lord Campbell’s Act, 9 & 10 Viet e. 93, which permitted a right of action for wrongful death on behalf of a spouse, parent or child of the decedent. Ante at 104. The New Jersey Wrongful Death Act was modeled after Lord Campbell’s Act and the two statutes are virtually identical.2
Wrongful death statutes have been adopted in every state except Connecticut. S.M. Speiser, Recovery for Wrongful Death, Appendix A (2d ed. 1975).3 The majority rule interpreting such statutes is that a prior recovery by a decedent in a personal injury action will bar recovery in a wrongful death action predicated on the same injuries. 22 Am.Jur.2d Death *128§§ 90, 91 (1965); Annot, 39 A.L.R. 579 (1925); F. Harper & F. James, The Law of Torts § 24.6 (1956); W. Prosser, Law of Torts § 127 at 910-14 (4th ed. 1971); Restatement (Second) Judgments § 92.1 (Tent.Draft No. 3, April 15, 1976); S. M. Speiser, supra, at § 5.20. The Reporter’s Note to the Restatement (Second) Judgments § 92.1, supra, concludes that the “clear weight of authority is that a prior judgment for or against the decedent precludes a wrongful death action by his beneficiaries.”
The law in New Jersey has always been that the wrongful death action is derivative. Where the decedent was barred from bringing an action for damages at the time of his death, his executor and heirs would be barred from bringing a wrongful death action. See Libera v. Whittaker, Clark & Daniels, Inc., 20 N.J.Super. 292, 294-95 (Law Div. 1952) (general release executed by decedent bars subsequent wrongful death suit). It is true that the wrongful death action is separate and distinct from a personal injury action, see Soden v. Trenton & Mercer Cty. Traction Corp., 101 N.J.L. 393, 398 (E. & A.1925); but despite the difference between the two actions, the wrongful death act “gives an action only if the decedent had one.” Coulter v. New Jersey Pulverizing Co., supra, 11 N.J.Misc. at 6-7; Knabe v. Hudson Bus Transp. Co., supra, 111 N.J.L. at 335 (no right of action under Wrongful Death Act where decedent was barred by statute of limitations); Tharp v. Shannon, 95 N.J.Super. 298, 304 (Law Div.1967) (survival statute and wrongful death act are derivative in nature and suits thereunder are dependent upon decedent’s right to recover had she lived). Contra, Silverman v. Lathrop, 168 N.J.Super. 333 (App.Div.1979) (decided by same Appellate Division panel as decided this case).4
*129New Jersey case law pointing to a contrary interpretation is not dispositive here. Heretofore this Court had neither followed nor even endorsed those out-of-state cases that have reached a contrary result. See Lawlor v. Cloverleaf Memorial Park, Inc., 56 N.J. 326, 344-45 (1970). Similarly, in Brown v. General Aniline & Film Corp., 127 N.J.Super. 93 (App.Div.), aff’d o. b., 65 N.J. 555 (1974), a decedent compromised his personal injury claim in clear violation of the Worker’s Compensation Law, NJ.S.A. 34:15-22. The court held that this settlement did not bar a dependency petition by the decedent’s wife and children, noting that the “dependency claims must rise or fall on their own merits, and nothing that the decedent does, or attempts to do during his lifetime, can deprive dependents of their statutory benefits.” Brown, supra, 127 N.J.Super. at 96. The fact that the Brown controversy arose under the Workers’ Compensation statute distinguishes it and Brown can hardly be deemed controlling here.
The United States Supreme Court’s recent venture onto the sea of wrongful death is similarly distinguishable. In Moragne v. States Marine Lines, Inc., 398 U.S. 375, 90 S.Ct. 1772, 26 L.Ed.2d 339 (1970), the Court created a cause of action for wrongful death under general maritime law, overruling The Steamer Harrisburg v. Rickards, 119 U.S. 199, 7 S.Ct. 140, 30 L.Ed. 358 (1886) (no action for wrongful death under general maritime law). The Court expounded on Moragne in Sea-Land Services Inc. v. Gaudet, 414 U.S. 573, 94 S.Ct. 806, 39 L.Ed.2d 9 (1974), allowing the widow of a longshoreman to bring a wrongful death action under general maritime law where the longshoreman had recovered in a personal injury suit before his death. In both Moragne and Gaudet the injuries were sustained in territorial waters where the Death on the High Seas Act, the sailor’s counterpart to New Jersey’s Wrongful Death Act, did not apply. Further, the Maritime Wrongful Death remedy *130would be an admiralty action ordinarily tried to the court and not to a jury. 414 U.S. at 589 n. 24, 94 S.Ct. at 817 n.24, 39 L.Ed.2d at 23 & n. 24.
The Court’s expansive view of wrongful death recovery in Gaudet was narrowed severely four years later. In Mobil Oil Corp. v. Higginbotham, 436 U.S. 618, 98 S.Ct. 2010, 56 L.Ed.2d 581, reh. den., 439 U.S. 884, 99 S.Ct. 232, 58 L.Ed.2d 200 (1978), the Court emphasized that application of Gaudet was limited to coastal waters where the Death on the High Seas Act was inapplicable. But see American Export Lines Inc. v. Alvez, 446 U.S. 274, 100 S.Ct. 1673, 64 L.Ed.2d 284 (1980) (general maritime law applies in both territorial waters and on high seas).
Ill
There are strong and persuasive public policy reasons militating against permitting recovery both before death in a personal injuries action and after death in a wrongful death action. Potential problems — beyond satisfactory judicial resolution — involve lack of repose, double recovery, discouragement of settlement, the interests of unborn heirs and res judicata.
The insurmountable threat to policies of repose was addressed in Coulter v. New Jersey Pulverizing Co., supra, which held that inasmuch as the decedent was barred by the statute of limitations, his next-of-kin could not bring a wrongful death action. 11 N.J.Misc. at 6-7.
If this were not so, if decedent lingered for twenty years and made no move, his representative could then assert a right of action to recover for an injury forgotten by everyone but the injured, who had slept on his rights for twenty years. Such could not have been the legislative intention.
“The statute cannot be construed to give the widow a greater right than the husband would have if living. The plaintiff’s husband extinguished his right of action by failing to assert it within the two-year period fixed by the statute. A right of action can be extinguished as effectively by the statute of limitations as in any other way.” Howard v. Bell Telephone Co., 306 Pa. 518, 160 A. 613, 615. See, also, Kelliher v. New York Central and Hudson River Railroad Co., 212 N.Y. 207, 105 N.E. 824, and the very recent case of Flynn v. New York, New Haven and Hartford Railroad Co., 283 U.S. 53 [51 S.Ct. 357, 75 L.Ed. 837] [11 N.J.Misc. at 7, 163 A. 661.]
*131Double recovery of damages presents a staggering problem in New Jersey, where it is well-settled that damages may be recovered for a tortious injury’s “prospective consequences,” including future medical care and treatment as well as anticipated pain and suffering. Coll v. Sherry, 29 N.J. 166, 174 (1959). A further recovery problem arises where the spouse of the injured party joins as a party to the personal injuries action and then brings a wrongful death action. Those jurisdictions allowing recovery in a personal injury action and an action for wrongful death have placed statutory limitations on exactly what may be recovered in each action. See Prosser, supra, at 912. To some extent this will avoid a double recovery problem. However, rewriting the Wrongful Death Act is for the legislature, not the courts. The double recovery problem is compounded when viewed in the context of the familial relationship envisioned in the Wrongful Death Act. For example, could a seriously injured person be enjoined from wasting his assets or disinheriting members of his family? See Sea-Land Services v. Gaudet, supra, 414 U.S. at 608 n. 21, 94 S.Ct. at 826 n.21, 39 L.Ed.2d at 31 n. 21 (Powell, J., dissenting).
These problems are simply too complex to be resolved by placing bandaids over the gaps in the law. In its solicitude the majority has created a new, super cause of action — one that cannot be extinguished by a settlement with the injured party during his lifetime, cannot be extinguished by satisfying a judgment awarded to the injured party during his lifetime, and cannot be defeated by the failure of the injured party to have brought suit within the statutory period during his lifetime. According to the majority, such a cause of action is an almost invincible right that springs into existence at that decisive moment when death comes to an injured party.
Because I would leave to the legislature the business of amending the Wrongful Death Act to provide for this novel cause of action, I would reverse.
*132For modification and affirmance — Chief Justice WILENTZ and Justices SULLIVAN, PASHMAN, SCHREIBER, HANDLER and POLLOCK — 6.
For reversal — Justice CLIFFORD — 1.
The majority’s assertion that this principle of statutory construction is inapplicable here because the Legislature has clearly and plainly expressed its intent in the statutory enactment, ante at 109, is nothing other than plain old-fashioned hyperbole. The very reason that this case is before us is that there is some doubt as to the meaning of the statute, a doubt reflected in the judicial opinions and voluminous literature on the subject elsewhere.
It is not clear why the New Jersey legislature omitted the portion of Lord Campbell’s Act providing that “not more than one action shall lie for and in respect of the same subject matter of the complaint.” However, it is worth noting that Maryland is the only state in the United States that has included the above-quoted provision in its Wrongful Death Statute. Md.Code Ann. art. 67 § 4(a).
Twenty-one states have statutes virtually identical to New Jersey’s and to Lord Campbell’s Act. See Speiser, supra, at Appendix A. Twenty-seven other states have similar statutes. Id. Colorado, Idaho, Illinois, Kansas, Massachusetts, New Hampshire and North Carolina have placed dollar limits on the amount of money which may be recovered in a wrongful death action. Id. Louisiana provides that the decedent’s recovery for the injuries before death will not bar a subsequent action for wrongful death. La.Civ.Code Ann. art. 2315. Eight jurisdictions specifically provide that no recovery will be allowed under the wrongful death statute if the decedent recovered for his or her injuries prior to death. See Del.Code tit. 6, § 3704(b); D.C.Code § 16-2701; Md.Ann.Code art. 67 § 4(a); Or.Rev.Stat. § 30.020(3) (wrongful death recovery reduced by amount decedent recovered in prior suit); 12 Pa.Cons.Stat.Ann. § 1601; S.C.Code § 10-1956; Va.Code § 8-635; W.Va. Code § 5474. In addition, most statutes specify the type of damages recoverable. Therefore, given the different varieties of statutory limitations on the wrongful death recovery, cases from other jurisdictions may not be transplanted casually.
The derivative characterization of New Jersey’s Wrongful Death Act has been recognized and followed by the federal courts. Goodman v. Mead Johnson & Co., 534 F.2d 566, 570 & n. 7 (3rd Cir.) cert. den., 429 U.S. 1038, 97 S.Ct. 732, 50 L.Ed.2d 748 (1976); Roberts v. Union Carbide Corp., 415 F.2d *129474 (3rd Cir. 1969); Holzsager v. Warburton, 452 F.Supp. 1267, 1271 (D.N.J. 1978).