Present:    All the Justices

JOHN CRANE, INC.

v.   Record No. 101909       OPINION BY JUSTICE DONALD W. LEMONS
                                     September 14, 2012

MARGARET DIANE HARDICK, EXECUTOR OF
THE ESTATE OF ROBERT EUGENE HARDICK,
DECEASED, ET AL.

          FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
                       Aundria D. Foster, Judge

      By order dated May 1, 2012, we granted the appellees'

petition for rehearing, in which they argued that we should

reinstate the jury's $2 million award of damages for Robert

Eugene Hardick's ("Hardick") pre-death pain and suffering, an

award we vacated in accordance with our March 2, 2012 opinion

in this matter.      For the reasons that follow, we now reinstate

that award.      Our prior opinion in this case is modified

accordingly. 1

      This rehearing arises out of the same facts and

proceedings as those recited in our March 2, 2012 opinion in

this matter.      See John Crane, Inc. v. Hardick, 283 Va. 358,

361-66, 722 S.E.2d 610, 611-14 (2012).      Accordingly, it is




      1
       Upon rehearing, we considered whether the first
assignment of error asserted by John Crane, Inc. ("JCI") was
sufficient to challenge the award of damages for Hardick's pain
and suffering. Upon thorough review of the manner in which
this case was tried, we conclude that JCI's first assignment of
error is sufficient under Rule 5:17(c).
unnecessary to repeat a recitation of the rather lengthy facts

and proceedings here.

     It is important to note, however, that Hardick and his

wife, Margaret Diane Hardick, filed suit under general maritime

law against JCI and others seeking $20 million in compensatory

damages and $5 million in punitive damages.   The Hardicks'

complaint alleged that Hardick was exposed to asbestos dust,

fibers, and particles contained in products manufactured by

JCI, and that he contracted mesothelioma as a result of such

exposure.    Hardick died prior to trial, and his action was

revived in the names of Margaret Diane Hardick, in her capacity

as executor of Hardick's estate, and Jennifer W. Vincent, whose

surname was later changed to Stevens, as "Ancillary

Administrator C.T.A." of Hardick's estate (together, "Mrs.

Hardick").   Mrs. Hardick was granted leave to file a second

and, thereafter, a third amended complaint, both of which

included causes of action for the wrongful death of Hardick.

     Mrs. Hardick settled or nonsuited the claims against all

defendants except JCI and proceeded against JCI, the sole

remaining defendant, on the third amended complaint.

Significantly, Mrs. Hardick's third amended complaint included

both the revived personal injury survival claims – which sought

damages for, among other things, Hardick's pre-death pain and

suffering – and Mrs. Hardick's wrongful death claims.

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                             I. Analysis

                     A. Standard of Review

     "It is well-settled that we review questions of law de

novo, including those situations where there is a mixed

question of law and fact."    Napper v. ABM Janitorial Servs.,

No. 111300, 2012 Va. LEXIS 130, at *7 (Va. June 7, 2012)

(quoting Westgate at Williamsburg Condo. Ass'n v. Philip

Richardson Co., 270 Va. 566, 574, 621 S.E.2d 114, 118 (2005))

(internal quotation marks omitted).

              B. General Maritime Survival Action
           for a Decedent Seaman's Pain and Suffering

     In Miles v. Apex Marine Corp., 498 U.S. 19, 33 (1990), the

United States Supreme Court ("Supreme Court") observed that,

"[u]nder traditional maritime law, as under common law, there

is no right of survival; a seaman's personal cause of action

does not survive the seaman's death."      The Supreme Court

further observed, however, that "Congress and the States have

changed the rule in many instances.    The Jones Act, through its

incorporation of [the Federal Employers' Liability Act

("FELA"), 45 U.S.C. §§ 51-59 (1908)], provides that a seaman's

right of action for injuries due to negligence survives to the

seaman's personal representative.     [See 45 U.S.C. § 59; 46

U.S.C. § 30104 (2006)]."     Id. (emphasis added).   The Supreme

Court also observed that "[t]he Jones Act incorporates FELA's


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survival provision, but, as in most States, recovery is limited

to losses suffered during the decedent's lifetime."    Id. at 35.

     Significantly, for the purposes of this case, in deciding

whether an estate can recover particular damages "in a general

maritime action surviving the death of a seaman," the Supreme

Court looked to the Jones Act for guidance even though the

decedent seaman's estate was not seeking recovery for such

damages under the Jones Act.    Id. at 33 (emphasis added).    The

Supreme Court stated:

     Maritime tort law is now dominated by federal
     statute, and we are not free to expand remedies
     at will simply because it might work to the
     benefit of seamen and those dependent upon them.
     Congress has placed limits on recovery in
     survival actions that we cannot exceed. Because
     this case involves the death of a seaman, we must
     look to the Jones Act.

          The Jones Act/FELA survival provision limits
     recovery to losses suffered during the decedent's
     lifetime. See 45 U.S.C. § 59[; 46 U.S.C.
     § 30104]. This was the established rule under
     FELA when Congress passed the Jones Act,
     incorporating FELA, and it is the rule under the
     Jones Act.

Id. at 36 (citations omitted) (emphasis added).    Accordingly,

the Supreme Court held in Miles that, because the Jones Act

survival provision "limits recovery to losses suffered during

the decedent's lifetime," a similar limitation should apply

under general maritime law.    Id.   Similarly, "[b]ecause this




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case involves the death of a seaman," as was the case in Miles,

"we must look to the Jones Act."     Id.

     Accordingly, we hold that, while the recovery of

nonpecuniary damages is not permitted in actions for the

wrongful death of a seaman, "whether under [the Death on the

High Seas Act ("DOHSA"), 46 U.S.C. § 30301 et seq. (2006 &

Supp. III 2010)], the Jones Act, or general maritime law," id.

at 33, such damages may be recovered in a general maritime

survival action, provided they represent damages suffered

during the decedent seaman's lifetime – as the award of damages

for Hardick's pre-death pain and suffering does in this case.

See id. at 33-36.

     JCI argues that the Supreme Court's decision in Dooley v.

Korean Air Lines Co., 524 U.S. 116 (1998), forecloses Mrs.

Hardick's survival action for Hardick's pre-death pain and

suffering, and that DOHSA 2 governs the outcome of this case

because Hardick's mesothelioma was the result of his cumulative

asbestos exposures during his service in the Navy, both in

territorial waters and on the high seas, and that mesothelioma

is an indivisible disease.    We do not agree that DOHSA applies.




     2
       DOHSA   provides a cause of action for "the death of an
individual .   . . caused by wrongful act, neglect, or default
occurring on   the high seas beyond 3 nautical miles from the
shore of the   United States . . . ." 46 U.S.C. § 30302.
                                 5
     In Dooley, the Supreme Court considered whether, in cases

of death on the high seas, a decedent's relatives may recover

damages for the decedent's pre-death pain and suffering through

a survival action under general maritime law.   524 U.S. at 118.

The Supreme Court concluded that DOHSA precluded the plaintiffs

in that case from bringing a survival action for pre-death pain

and suffering under general maritime law, reasoning that

"Congress provided the exclusive recovery [through DOHSA] for

deaths that occur on the high seas."    Id. at 123-24.   The

Supreme Court stated:

     DOHSA expresses Congress' judgment that there
     should be no such cause of action in cases of
     death on the high seas. By authorizing only
     certain surviving relatives to recover damages,
     and by limiting damages to the pecuniary losses
     sustained by those relatives, Congress provided
     the exclusive recovery for deaths that occur on
     the high seas.

Id. at 123.

     Significantly, however, the Supreme Court declared in

Dooley that it was not deciding "whether general maritime law

ever provides a survival action."    Id. at 124 n.2 (emphasis in

original).    Rather, the Supreme Court explicitly recognized

that a survival action is still available, apart from DOHSA,

when the decedent is a seaman.    See id. at 124.   Specifically,

the Supreme Court stated:

     The comprehensive scope of DOHSA is confirmed by
     its survival provision, which limits the recovery

                                 6
     in such cases to the pecuniary losses suffered by
     surviving relatives. The Act thus expresses
     Congress' "considered judgment" on the
     availability and contours of a survival action in
     cases of death on the high seas. For this
     reason, it cannot be contended that DOHSA has no
     bearing on survival actions; rather, Congress has
     simply chosen to adopt a more limited survival
     provision. Indeed, Congress did so in the same
     year that it incorporated into the Jones Act,
     which permits seamen in the course of their
     employment to recover damages for their injuries,
     a survival action similar to the one petitioners
     seek here.

Id. (emphasis added) (citations omitted).   Significantly,

Dooley did not involve the death of a seaman, as Miles did, and

as this case does.   See Dooley, 524 U.S. at 118; Miles, 498

U.S. at 21.

     Accordingly, because the Jones Act, "through its

incorporation of FELA, provides that a seaman's right of action

for injuries due to negligence survives to the seaman's

personal representative," Miles, 498 U.S. at 33, and because

the Jones Act's survival provision limits recovery "to losses

suffered during the decedent's lifetime," id. at 35, we hold

that a decedent seaman's estate may recover damages for the

decedent seaman's pre-death pain and suffering in a general

maritime survival action.   46 U.S.C. § 30104; 45 U.S.C. § 59.

See Miles, 498 U.S. at 33-36.




                                7
                          II. Conclusion

     Similar to the Supreme Court's reasoning in Miles, we hold

that in a general maritime survival action based upon the death

of a seaman, we look to the Jones Act for guidance.    See Miles,

498 U.S. at 33-36.   Because the Jones Act permits recovery for

the losses suffered during a decedent seaman's lifetime in a

survival action, including pre-death pain and suffering,

Hardick's estate may recover for his pre-death pain and

suffering under general maritime law.   46 U.S.C. § 30104; 45

U.S.C. § 59.   See Miles, 498 U.S. at 35-36.   Accordingly, the

disposition recited in our opinion dated March 2, 2012 will be

modified.   We will affirm in part and reverse in part the

judgment of the trial court.   We will vacate the $1.15 million

award for Mrs. Hardick’s loss of society; however, we will

affirm the $2 million award for Hardick’s pain and suffering.

We will remand the case to the trial court for entry of an

order consistent with this opinion.

                                               Affirmed in part,
                                               reversed in part,
                                               and remanded.




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