*1 MICHAEL BROCKIE, Personal
Representative of the Estate of ARIC C. BROCKIE, Deceased, Appellant,
Plaintiff and v.
OMO CONSTRUCTION, INC.,
Respondent.
Defendant and
No. 93-631.
Submitted on Briefs June
1994.
Rehearing
Denied Jan.
1995.
Decided December
1994.
St.Rep.
For Kurt M. & Blewett, Great Falls. J. Respondent: Milodragovich For Michael Margaret L. Sanner, Milodragovich, & Dye, Dale Missoula.
JUSTICE HUNT the Opinion delivered of the Court. Brockie, Michael as Appellant personal representative of the es- Brockie, appeals tate of Aric from an order of the First Judicial Court, County, denying District Lewis Clark appellant’s request for a new on the question for the survivorship action.
Following filing appeal, of his appellant subsequent filed notice authority pursuant to this Court’s recent decision in Newville & Montana, Department Gannet v. State Family Services 237], [267 Mont. asking apply us to Newville retroac- tively to death award. We discuss application Newville opinion. decision in this
Reversed and remanded. state the issues follows: Was jury’s special finding zero
to the estate of Aric Brockie the evidence? *3 Did District by
2. Court err denying appellant’s for motion a partial on the survivorship new trial issue damages sustained by Aric Brockie’s estate? was killed
Aric Brockie in an automobile 26, accident on November 1989, 94, on Interstate east of Billings. passenger Aric was a in a vehicle icy bridge that skidded an deck and collided with large, portable sign Construction, construction owned defendant Omo Inc. Construction, Brockie v. Omo was Inc. first tried in September 1991, and resulted in a verdict of negligence” “no in favor defendant trial, appellant Omo. Prior to settled with and released the driver. grounds This court reversed and remanded on the of misconduct Construction, jury foreman. Brockie v. Omo Inc. Mont. 255 61. 495, 844 P.2d remand, jury a special finding
On returned verdict per- Omo 35 negligent proximately injuries cent for causing Aric’s and death. The jury percent found that driver was negligent 65 for injuries proximately causing Aric’s and death. The parents $170,000 in death damages. Aric’s That amount adjusted percent negligence was to reflect the 35 attributable to Omo. awarded Aric’s estate zero dollars in survivorship damages. 522
Appellant partial pursuant filed a motion for a new to Rule limited 59, M.R.Civ.R, survivorship to issue of sustained denying appel- Aric’s estate. The District Court issued an order appeals the order. Appellant lant’s motion. court’s
ISSUE
survivorship
zero
to the
jury’s
finding
Was
Aric
Brockie
evidence?
estate
duty
survivorship
faded
its
award
Appellant argues
estate, despite
stipulations
the fact that the evidence and
expenses
earning
and medical
and a loss of future
established funeral
of Aric’s work life
capacity
expectancy.
for the remainder
it
agree
We have held that
is not the function of
Court to
Schulke Gemar
264 Mont.
disagree
or
with a
verdict.
v.
(1993), 259
184,
Corporation
appellant’s motion claim accident, his estate to a entitling survived 27-1-501, MCA, carries forward the claims which pursuant § statute, Montana’s injured party had before death. 27-1-501, part: MCA, provides pertinent (1) action, defense does not abate action, An cause of or because disability any or the transfer interest party the death of a or in favor therein, the cause of action or defense arose but whenever disability his or transfer of interest party death or prior of such representatives his therein, may be maintained survives interest. successors in ... or
(2) and 27-1-513 must be brought under this section Actions *4 may be action, any damages element of legal and combined in one only recovered once. personal repre recovery decedent’s
The statute allows death; injury from the time of earnings lost of decedent’s sentative expec- earnings during his life his reasonable present value tancy; expenses; compensation his medical and funeral reasonable suffering; special damages. his and and other Swanson pain v. (1982), 509, Corp. International 197 Mont. Champion P.2d consistently 1169. We have held that the estate’s right recovery survivorship in a action is identical to that of the decedent’s why scope he “No reason exists of the action had lived. should of his death.” Beeler v. Butte & Copper diminish because London 465, 478-79, 528, 532; Co. 41 Mont. 110 P. Development see Swanson, 1169; Hurley 646 P.2d at v. Star also Co. Transfer 176, 184, 376 504, 508; Autio v. Miller 150, 169, parties stipulated
The that Aric’s estate incurred funeral and totaling $2,601.10. parties The expenses stipulated medical also death, years Aric at the time of his was 19.45 old and that he had a years. work life of 40.75 expectancy Appellant presented evidence year death, $3,239.08 Aric before his earned at an Eastern College computer Montana lab. Appellant’s expert testified that Aric expected $1,113,929 would have been to earn between life, during depending type his on the and amount of work his education. Putnam, personal representative college
In
of a
student killed
accident
brought
in an automobile
action under
93-§
2824, RCM,
27-1-501,
MCA. The
predecessor
plaintiff in
expert testimony
Putnam offered
as to the
potential
decedent’s
loss
earnings;
expectancy;
testimony
future
the decedent’s life
concerning
employment history, education,
per-
the decedent’s
money
sonal abilities. No evidence was submitted as to the amount of
employment.
the decedent earned at her
The
returned a verdict
$449.95,
property destroyed
amount ofthe decedent’s personal
nothing
in the
for the decedent’s loss of
accident.
The district court set aside the verdict and
earning capacity.
future
limited
to the issue of
and held that there
ordered a new
a verdict that the decedent had
support
was insufficient evidence
capacity.
affirmed and stated that the verdict
earning
no future
We
evidence which established
impossible, given the uncontradicted
was
death.
held that “there was no
at the time of
earning capacity
an
awarding
no
justifying
evidence
substantial
Putnam,
party’s evidence over verdict in the impossible case is as as was the verdict in Putnam. There is justify jury’s the no substantial evidence failure to award survivor- ship damages. 41, 709 Wright
In Rudeck v. P.2d Mr. Rudeck ‘lap negligently died after a mat” was left in his stomach during surgery. malpractice wrongful His wife filed two medical claims for death, capacity personal representative and in her of her husband’s estate, awarding for his survival claims. returned a verdict death wrongful Mrs. Rudeck on her claim and zero on the granted estate’s survival claim. The district court Mrs. Rudeck’s appealed. motion for a new trial. The defendant the verdict in awarding damages We affirmed and held that claim, claim, damages death but no on the survival on contrary to the mandates “totally was inconsistent law.” Rudeck, at 624. by death was caused negligence
If Mr. Rudeck’s defendant culminated injury then the earlier to Mr. Rudeck which Wright, negligence. the same If his death must have been caused personal injury living caused the to the Mr. negligence same ... death, and that same caused his later negligence Rudeck compelled damages personal would be to award for Mr. Rudeck’s (which injury sought were in the survival claim on his behalf estate) awarding as well as personal representative of his death claim. Because the did not do on so, against its verdict is inconsistent and is law.
Rudeck,
Aric Brockie’s death was caused in injuries living to the Aric Brockie were caused gence. The respondent acts of that resulted Aric Brockie’s negligent same jury, therefore, compelled to award death. injuries. conclude, as we did in personal for Aric’s
Rudeck,
failed to award
for Aric’s
that because
by respondent’s negligence,
caused
its verdict
personal
injuries
mandates of the law.”
to the
“totally inconsistent
Rudeck,
We hold that contrary to the evidence. estate of Aric Brockie was damages
525 2 ISSUE a by denying appellant’s Court err motion for Did the District survivorship damages the issue of sustained new on partial estate? Aric Brockie’s may granted grounds insufficient evidence
Anew trial be 25-11-102(6), MCA. Our standard of the verdict. Section justify ruling for a trial is the district on a motion new whether review of its Estate v. Miller Spicher discretion. court abused 183, 184; Mont. Gass v. Hilson 931, 933. 61, M.R.Civ.P., the trial court 459, 461, 784 P.2d Under Rule grant whether refusal motion a new trial must determine *6 justice. inconsistent with substantial appear would justify 1, In we held that there was insufficient evidence to Issue survivorship damages. By Issue jury’s answering the verdict as to 1 affirmative, must answer Issue 2 in the affirm- necessarily in the we 25-11-102(6), MCA, to our in Putnam pursuant decisions ative § and Rudeck. by denying appellant’s
We hold the District Court erred motion for the of the sustained Aric a new trial on issue to District Brockie’s estate. This matter is remanded Court a of new trial on issue subsequent authority pursuant notice to
Appellant’s of our apply retroactively asks to Newville to decision in Newville us case, In that we concluded that allocation death award. liability non-parties violates substantive percentage due MCA, portion 27-1-703(4), held process. § that relevant is unconstitutional, a is it unconstitutional. When statute declared is 299, (1979), 185 ab initio. State v. Coleman Mont. void 1000, 1013. applied that retroac
Respondent
argues
Newville should not be
tively.
regarding “change
that the
rule
Respondent
general
concedes
law
is in
at
apply
that
this Court must
that
effect
of law” is
(1985),
County
it
decision. Lee v. Flathead
217 Mont.
time
renders its
changed
that
Respondent asserts
law should
taken
under the
after
place
respondent
law
maintains
protected
rights
have
to indemnity
would
its
and contribution from
as a
naming
third-party
the driver
him
defendant.
Alternatively, respondent argues that in
where
cases
new
has
law
applied retroactively,
this Court
allowed the prejudiced
has
new trial and
party
opportunity
to amend the pleadings. Haines
v. MPC
Pipeline
Both relied on law when presenting their trial. The rule general change cases at is that a of law between the at trial time of applied appeal law and the req[uires apply Court to Haines, Lee, 830 changed 1230; law. P.2d 704 1060; P.2d West- 850; Mont, 703 P.2d Wilsonv. State Highway Commission 140 253, 370 P.2d 486. rule, exception general An is that the new law will not be necessary applied prevent injustice. Haines, when it is manifest at 1238. has injustice This Court defined manifest an impairs right. of a new application West-Mont, law vested 852. “A is not a while it judgment right subject P.2d at vested is Haines, or appeal pending.” while an 830 P.2d at review appeal, this case respondent right Because is still has no vested 27-1-703(4), application in the MCA. pre-Newville percent found and the respondent negligent, injuries percent negligent, causing driver 65 Aric’s death. appellant damages, death adjusted court that amount to reflect the allocation of negligence. remand, the Court
On District will reinstate full amount theof *7 pursuant death award to our in That decision Newville. by will be offset dollar-for-dollar the pretrial amount settlement with the driver. jury finding the verdict survivorship damages
We reverse zero for a new trial remand limited issue of HARRISON, JUSTICES TRIEWEILER and NELSON concur. WEBER as JUSTICE dissents follows: majority issue opinion The states one as follows: the the finding survivorship damages 1. Was verdict zero to of Aric to estate Brockie the evidence? only addresses ofthe part aspects
That statement the issue which be considered on this issue. I that the defendant’s suggest should complete: of issue is statement more refusing its in to court abused discretion district
1. Whether survivorship damages issue of where grant a new on sole damages. as death jury necessary in considering issue, keep this it is mind In verdict form by special prepared questions answered plaintiff: QUESTION NO. 6: any percentages making negligence, reductions
Without sustained Michael Susan what are the total Brockie? the heirs of Aric Brockie as ANSWER: 170,000
$ six, question in answer to number you If have assessed you If not assessed you question must answer number seven. have six, question you proceed number must damages in answer question number seven. answer
QUESTION NO. 7: any percentages negligence, reduction for making
Without Aric damages sustained the estate of Brockie what are the total the result his death? ANSWER: $-0- possible it appears quite wording special
From have included in the survivorship damages that could Following judge. That of the trial question six. view answer plaintiff’s analysis of District Court in which denied is the survivorship damages only: request for new trial on the issue of REQUEST A TRIAL ON PLAINTIFF’S FOR NEW ORDER 20,1993. matter returned its verdict October The verdict, that the total suffered In that found Brockie as the heirs of Aric Brockie were Michael and Susan that Defendant Omo was 35 $170,000. further found $59,500 for translates into an award of percent negligent, which have moved for a new attorneys for the Brockies the Brockies. damages alone. The Brockies the issue of trial on the accident but that Aric survived dispute there is no argue agrees this was The Court had a action. undisputed. ...
Defendant contends that totally could disregard the expert testimony they if wanted to. This is consistent with the supreme holding Pollei, court in Putnam v. 406, 457 153 Mont. (1969). special ...Neither that verdict nor in the closing form arguments attorneys did any guidance to the jury Plaintiff’s offer as to how the were to damages split be between up parents Aric’s as the heirs in a death action and damages to be awarded personal representative It estate. would not have been difficult at all for a questionnaire such to have been drafted offered, and but none was. they
The Brockies insist
that
not
have
had a fair trial. This
they
Court feels that
have
a
All
received fair trial.
of the evidence
they
that
wanted introduced was introduced. The special verdict
they
form that
offered was used
the Court. The
jury did
could well
compensate
award
have been to
Aric’s
expenses, along
medical
with his earning capacity and
funeral
parents.
to his
This we
Primarily
will never know.
we will
way
not know this because of the
the verdict form was crafted. For
complain
counsel to now
about
that was
Plaintiff’s
form
receptive
does not
a
audience with this
crafted
Plaintiff
find
Further,
Court.
is not a
this
case was Putnam where damages
awarded,
Flaherty
were
nor was it
case such as
$445
v. Butte
(1910)
Railway,
Electric
Therefore, request Plaintiff’s for a new trial on the question of for the hereby (Emphasis action is denied. supplied.) issue, addressing majority opinion emphasizes
In survivorship damages uncontradicted evidence which establishes awarded, have including which should funeral and medical $2,601.10 expenses earnings the amount testified to plaintiff’s expert $1,113,929. major- in an amount of ity opinion justify then concludes there is no substantial evidence to failure to such award con- specific not address the matters analysis does foregoing An example in its denial of new trial. Court by the District sidered Putnam, *9 to v. Pollei majority opinion the the reference the the statement is made that in which as was the verdict impossible case is as present in the jury’s verdict analysis correctly made the fails to address the This in Putnam. Putnam, the damages out that pointed where District Court $449.25, present case, deunages in the only whereas were awarded 170,000 and that amount could have in the amount $ were damages. included manner, majority relies on Rudeck v. opinion
In a similar
majority opinion
I conclude Court, and I dissent on Issue I. the District new I, argument appeared out that which point I do On Issue possible was the contradic- plaintiff me in behalf of the strongest Instruction No. 24 stated as instructions. the various tion between follows: compensation include reasonable burial should
Your award any for the deceased and reasonable and funeral services expenses in connection with the death. which were incurred charges medical clearly tell the fails to that this instruction argues Defendant expenses funeral should be relating to medical and amount that the allocated to the estate on a survivorship claim. That argument does not consider the strongest argument under Instruction No. 34 which stated:
Your award should include reasonable compensation to Aric Brockie’s estate for:
The amount of lost earnings between the time of death and trial; the time of value of Aric Brockie’s reasonable earnings after the date of trial during the remainder of his life expectancy; and reasonable compensation for decedent’s loss of established course of life. (Emphasis supplied.)
While it is true that the special verdict form did not sufficiently advise as to how to divide the damages, and while there was no explanation plaintiff made in the course of argument, final above instruction certainly raises a significant result, issue. As a I believe it would have been proper majority for the opinion to conclude that there was sufficient confusion here to require a new trial and *10 then to order a new trial on all aspects of the case. This would include a new trial on the issue of the of damages. It would also allow consideration of the Newville case which is hereafter mentioned. by
Issue II is stated majority opinion as: Did the District Court err denying appellant’s motion for a partial new trial on the issue of survivorship damages sustained by Aric Brockie’s estate?
The proposed defendant’s issue is stated as follows:
Whether a award allocating $170,000 in wrongful death heirs, to the decedent’s but dollars in survivorship $0 estate, to the decedent’s is reversible as to the law when the plaintiff-appellant failed to provide any guidance or instructions to the concerning allocation of damages, and the jury followed all actually given instructions to it. majority
The opinion concluded that its answer on required issue one a reversal of the District authority Court. The for this decision Putnam in key which the distinction from this case was award to Putnam of insignificant damages in the amount of $449.25. from Rudeck, distinction Rudeck is that the entire case trial including awarded, remanded for new compared present plaintiff to the case where the is allowed to retain his share the issue of go to trial on is allowed $170,000, but of the damages. I, I from the conclu- under Issue dissent reasons set forth For the motion for denying plaintiff’s erred in District Court that the sion the issue of new trial on partial Application Newville apply asks us to plaintiff out that majority opinion points Family [267 Services Department v. Montana Newville of death award 793, retroactively 237], Mont. portions of quote pertinent $170,000. important I think of Newville: liability to percentages that the allocation conclude We of process plaintiffs. due as to the violates substantive
non-parties 27-1-703(4), MCA followingportion that the Wehold process: due violates substantive claimant, liability by persons from released persons
... claimant, any other liability to the immune from the claimant... against a defense who have persons is capable that the remainder ofthe statute further conclude intent. As a legislative in accordance with the executed being unconstitutionality, eliminated we have holding result of our negli- which allowed an allocation of the statute portion supplied.) non-parties (Emphasis ... gence analysis, key 237], P.2d 793. For this Newville, [267 could no allocation of determined there be aspect is that Newville non-parties. negligence well, and the District Court as case, parties all ofthe
In the an allocation of 27-1-703, MCA did allow concluded that § result, pre- form driver. As a negligence to a given by the defendant and accepted pared plaintiff jury finding in a Court, jury, and used resulted District *11 Omo negligent 65 and the defendant percent driver was non-party of the understanding At that negligent. point, percent was 35 in total the District Court was that and of parties which was percent negligence the 65 be reduced damages would interpretation ofthe driver. As a result attributable and the disregarded understanding is majority opinion, in the mani- face, On its this demonstrates $170,000 reinstated in full. injustice to the defendant. fest majority
While the opinion does not explain the basis for all of its decision, I assume that it is relying on State ex rel. Deere and Co. v. District Court which concluded that the 1985 27-1-703, version of MCA, § excluded a party against whom recovery was not allowed —and having concluded that recovery against was not allowed a settling defendant, held that there was no right of contribution as to such settling defendant. After Deere was issued, 27-1-703, MCA, was amended substantially in 1987. This 1987 amendment included the statement that for the determination percentage of the of liability attributable to each party whose action injury, contributed to the the trier of fact should consider negli- gence of a number stated persons, and specifically included persons liability released from by the persons claimant and immune from liability to the claimant. The amended statute required the trier of fact to apportion the percentage negligence to all persons. such I emphasize the distinction between allowing an negli- allocation of gence persons released liability, from allowing contribution persons from such liability. released from While this view of the yet statute has not considered this Court —the contention could be made under the 1987 statute that there can be an allocation to a negligence third-party defendant who has been released from liability even though there could right be no of contribution from that third-party defendant who has already settled with plaintiff. As example, present an in the case, if the driver of the vehicle who had plaintiff settled with the had been named as a third-party defendant, and if verdict had been the same present case then the result could precisely have been the same as in being case —that an award of for all of the of the plaintiff, but with the only defendant Omo responsible for 35 percent of the same under the revised statute.
I injustice conclude there is a manifest in the application of Newville to the defendant in the manner which has been accom- plished majority in the opinion. I conclude that Newville is not authority application for the majority made in the opinion because it did not decide whether a party settling with the claimant still could be named as third-party defendant negligence to whom could be allocated.
I majority dissent from the opinion. joins
CHIEF JUSTICE TURNAGE in the foregoing dissent. JUSTICE joins GRAY in the foregoing dissent.