Dubaniewicz v. Houman

Dooley, J. ¶ 1 Plaintiff appeals the superior court’s order denying him any damages for the default judgment he obtained in this wrongful death action. We concur with the court’s ruling that plaintiff is not entitled to damages for the decedent’s alleged pain and suffering, but we conclude that the court erred by refusing to compensate plaintiff for funeral and burial expenses and by holding that the loss of companionship of an adult sibling is not compensable under the wrongful death act. Accordingly, we affirm in part, reverse in part, and remand the matter for further consideration in light of this decision. ¶ 2 Plaintiff is the executor of the estate of his brother, who died of a gunshot wound in March 1998. The shooting was treated as a homicide, but no charges have been filed. Believing that his brother was murdered by the two people living in his brother’s home, plaintiff filed a civil suit in January 2000 against them and the owners of the sporting goods store that sold the weapon used to kill his brother. The defendant who purchased the weapon was a convicted felon, and he was incarcerated after pleading guilty to being a felon in possession of a firearm. Eventually, plaintiff settled his claims against the owners of the sporting goods store and obtained a default judgment on liability against his brother’s house guests. The superior court held a hearing on damages in April 2004. ¶ 3 Following the hearing, the court ruled that plaintiff is not entitled to damages for (1) his brother’s pain and suffering because plaintiff failed to present expert medical testimony or other evidence demonstrating that his brother did not die instantaneously; (2) the loss of his brother’s future wages because plaintiff failed to demonstrate that his brother ever financially supported his siblings; (3) the loss of his brother’s society and companionship because loss of companionship of an adult sibling is not compensable under the wrongful death act; (4) burial expenses because they are not recoverable; and (5) certain losses related to the sale of the decedent’s home because they were losses of the estate and not plaintiff as next of kin. ¶ 4 On appeal, plaintiff first argues that the superior court erred by denying damages for his brother’s pain and suffering. Plaintiff contends that the investigating state trooper’s testimony suggesting that the decedent moved from one room to another in his home after being shot and before dying supported his claim for pain-and-suffering damages. We agree with the superior court that the evidence in this case was too speculative to support an award for pain and suffering. 370 ¶ 5 Plaintiff did not present any expert medical testimony regarding the nature of the wound or how long the decedent may have lived after he was shot. The trooper expressed his belief that the decedent had moved himself rather than being moved after he was shot, but that testimony was only his best guess as to what happened. There were no eyewitnesses. No one could say whether the decedent died instantaneously, or, if not, how long he lived after he was shot. Indeed, appellant himself concedes that no one knows what, if any, pain the decedent experienced. Under these circumstances, we find no basis to overturn the superior court’s refusal to award damages for pain and suffering. Cf. Estate of Long v. Broadlawns Med. Ctr., 656 N.W.2d 71, 86 (Iowa 2002) (denying damages for pre-death mental and physical pain because estate failed to meet its burden of showing, by substantial evidence, that decedent was sufficiently conscious in extent and time to suffer pain). ¶ 6 Next, plaintiff argues that the superior court erred by failing to award him damages for the loss of his brother’s companionship. Our wrongful death statute allows the court or jury to “give such damages as are just, with reference to the pecuniary injuries resulting from such death, to the wife and next of kin or husband and next of kin, as the case may be.” 14 V.S.A. § 1492(b). In Mobbs v. Central Vermont Ry., 150 Vt. 311, 315, 553 A.2d 1092, 1095 (1988), we held that because the term “next of kin” in the wrongful death act should carry the same meaning as it does in the laws of descent, brothers and sisters of a decedent can be next of kin entitled to recover damages under the act. ¶ 7 We also recognized in Mobbs that “[t]he term ‘pecuniary injuries’ does not limit recovery to purely economic losses.” 150 Vt. at 316, 553 A.2d at 1095. This holding is consistent with the modern trend toward construing wrongful death statutes to permit recovery of damages originally considered not to be pecuniary in nature. 1 S. Speiser, Recovery For Wrongful Death § 3:49, at 313 (2d ed. 1975). In reviewing the history of our wrongful death statute in Clymer v. Webster, 156 Vt. 614, 627, 596 A.2d 905, 913 (1991), we noted that, from early on, this Court has not construed the term “pecuniary injuries” in its strictest sense, which reflected “nineteenth-century social conditions when children were valued largely for their capacity to contribute to the family income.” ¶ 8 In holding “that the loss of the comfort and companionship of an adult child is a real, direct and personal loss that can be 371 measured in pecuniary terms,” id. at 629, 596 A.2d at 914, we further noted that the modern trend was for courts to expand the scope of pecuniary losses to include loss of companionship, id. at 628, 596 A.2d at 913-14. “[T]he recent trend ... unmistakably in favor of permitting” recovery for loss of companionship is founded on the theory that wrongdoers ought not to be allowed to take away the support, society, comfort and care which one enjoys, and yet escape liability beyond purely economic losses. 1 S. Speiser, supra, § 3:49, at 320-21; see also Mears v. Colvin, 171 Vt. 655, 657, 768 A.2d 1264, 1267 (2000) (mem.) (pecuniary injuries are not limited to economic losses, but may include recovery for loss of child or spouse’s companionship, as well as loss of care, nurture, and protection). ¶ 9 In Mobbs, the plaintiff sought damages for the loss of a sibling’s companionship. But because there was a complete lack of evidence to support such an award, we expressly declined to reach the issue of whether damages for loss of companionship under the wrongful death act are limited to the destruction of a parent-child relationship. 150 Vt. at 314 n.2, 553 A.2d at 1095 n.2. Courts in jurisdictions with similar wrongful-death statutes allowing recovery to next of kin, however, have generally held that brothers and sisters may obtain damages for loss of companionship. See, e.g., In re Estate of Finley, 601 N.E.2d 699, 702 (Ill. 1992) (“We hold that proven loss of a sibling’s society is a pecuniary injury for which siblings may recover under the wrongful death statute.”); Schmall v. Vill. of Addison, 525 N.E.2d 258, 265 (Ill. App. Ct. 1988) (because siblings were decedent’s next of kin, and next of kin’s loss of society is included within scope of wrongful death act, trial court erred in dismissing siblings’ claim for loss of society); Gangemi v. Nat’l Health Labs., Inc., 677 A.2d 1163, 1167 (N.J. Super. Ct. App. Div. 1996) (recovery for loss-of-companionship damages under wrongful death act is not limited to parent-child relationship, but may also include next-of-kin siblings); see also 2 S. Speiser, supra, § 10:18, at 156 (courts construing next-of-kin wrongful death statutes have “unanimously held or recognized that brothers and sisters of the decedent are ‘next of kin’ entitled, as members of the class, to share in damages under whatever conditions attach generally to the beneficial rights of that class”). ¶ 10 In construing a wrongful death statute that, in relevant part, is identical to ours, the Appellate Court of Illinois for the Second District reasoned as follows: 372 Under our society’s concept of the family, we see no sufficient reason to differentiate between the deprivation of companionship, guidance, advice, love and affection suffered by brothers and sisters upon the death of a family member from that suffered by parents or children. As the Sheahan court noted, although claims for loss of companionship made by next of kin collaterally related may present more problems of pleading and proof than such claims advanced by lineal kindred, this is no reason to deny them. Decedent’s siblings, having alleged pecuniary injury from loss of society, must be given the opportunity to prove their losses. Schmall, 525 N.E.2d at 265 (internal citations omitted); see Sheahan v. Ne. Ill. Reg’l Commuter R.R., 496 N.E.2d 1179, 1182 (Ill. App. Ct. 1986) (where statute allows next of kin fair and just compensation with reference to pecuniary injuries, brothers and sisters must be permitted opportunity to present claims for loss of companionship, even though such claims may present more problems of pleadings and proof). ¶ 11 We agree with this analysis. Here, it is undisputed that plaintiff is decedent’s next of kin. As the Illinois Supreme Court stated in construing a nearly identical statute, “[njowhere in the wrongful death statute is there a distinction between the types of damages recoverable based upon who the next of kin is.” Finley, 601 N.E.2d at 702. Because this Court has held that damages for loss of companionship are available under § 1492(b), plaintiff may obtain such damages to the extent that he can prove them by submitting evidence of the physical, emotional, and psychological relationship between himself and the decedent. See Clymer, 156 Vt. at 630, 596 A.2d at 914. At trial, plaintiff presented evidence concerning his relationship with the decedent, and thus the trial court should have considered that evidence and determined what damage award, if any, is appropriate. See id. (listing factors, including living arrangement of parties, harmony of family relations, and commonality of interests and activities for determining damages for loss of companionship). ¶ 12 Defendant contends, however, that Clymer was wrongly decided, and that, in any event, we should not extend damages for 'loss of companionship beyond the destruction of the parent-child relationship. We decline the invitation to reconsider Clymer insofar as defendant presents no basis for overturning the decision, which is 373 consistent with the modern trend and the decisions of the majority of jurisdictions construing similar statutes. ¶ 13 We note that the Legislature amended the wrongful death statute in 1996, five years after Clymer was decided, and yet did not disturb our holding in that case, despite plainly being aware of our interpretation of the statute. Nor has there been any legislative response to the decision in the ten years since then. This at least suggests legislative acquiescence. See 2B N. Singer, Sutherland Stat Const § 49.10, at 76 (5th ed. 1992) (“A number of decisions have held that legislative inaction following a contemporaneous and practical interpretation is evidence that the legislature intends to adopt such an interpretation____Where action upon a statute or practical and contemporaneous interpretation has been called to the legislature’s attention, there is more reason to regard the failure of the legislature to change the interpretation as presumptive evidence of its correctness.”); cf. In re Estate of Woolley, 96 Vt. 60, 64, 117 A. 370, 372 (1922) (“[WJhere a statute that has been construed by the courts has been re-enacted in the same, or substantially the same, terms, the Legislature is presumed to have been familiar with its construction, and to have adopted it as a part of the law, unless it expressly provides for a different construction.”). Given Clymer as established precedent, defendant fails to offer any principled basis to allow loss-of-companionship damages to parents and children, but not brothers and sisters, irrespective of the circumstances. ¶ 14 Without explicitly stating that it would overrule Clymer, the dissent’s position essentially is that this Court is wrong today because Clymer was wrongly decided fifteen years ago. Relying on several nineteenth-century and early twentieth-century cases, particularly Lazelle v. Town of Newfane, 70 Vt. 440, 41 A. 511 (1898), the dissent states that damages for “pecuniary injuries” should be restricted to pure economic loss — even though our more recent case law has held otherwise. The dissent contends that the modern trend of allowing loss-of-companionship damages as pecuniary loss in wrongful death cases extends only to cases involving the death of a child, but then quotes extensively from a twenty-three-year-old Oklahoma case that acknowledges the “trend toward expanding ‘pecuniary loss’ to include loss of love and companionship and toward allowing recovery of these elements by any member of a decedent’s .family unit.” Clark v. Jones, 658 P.2d 1147, 1149 (Okla. 1983) (emphasis added). 374 ¶ 15 The court in Clark declined to allow loss-of-companionship damages to siblings because Oklahoma’s wrongful death statute had established a list detailing what types of damages were recoverable by whom, and the list specifically provided loss-of-companionship damages to certain types of next of kin that did not include siblings. Id. at 1148-49. The dissent would follow the same reasoning here. We decline to do so for two reasons — the Oklahoma statute is distinguishable from ours and this Court has already rejected the reasoning advocated by the dissent. The Oklahoma statute quoted in Clark was plainly meant to be a comprehensive list of the specific types of damages available to particular types of next of kin. In contrast, apart from the 1976 amendment specifically allowing loss-of-companionship damages for the death of a minor child, our statute generally refers to pecuniary injuries without elaboration as to the types of damages allowed. Moreover, following a lengthy analysis, we held in Clymer, 156 Vt. at 626, 596 A.2d at 912, that the 1976 amendment was not intended to restrict the scope of pecuniary injuries for other next of kin. ¶ 16 The dissent concedes that our decision today is consistent with Clymer and this Court’s broadened view of pecuniary injury, but complains that Clymer amended rather than interpreted § 1492(b). According to the dissent, because Clymer is a less compelling precedent, we should not expand its reasoning to extend loss-of-companionship damages to siblings, even though there is no logical basis for drawing the line between types of next of kin. Apparently, the dissent would not overrule Clymer, but would limit its reach because it was wrongly decided. Clymer was decided fifteen years ago by a unanimous Court. Our holding, which has been left undisturbed by the Legislature, was based on an extensive historical and statutory analysis. Neither defendants nor the dissent has offered any rational basis for limiting the holding to adult children, and not siblings. Therefore, we reject such a limitation as imposed by the superior court. ¶ 17 Plaintiff further argues that the superior court erred by refusing to award out-of-pocket expenses, including funeral and burial expensés, incurred as the result of his brother’s death. In support of its ruling, the superior court cited an 1898 case in which this Court refused to award burial expenses for the death of the plaintiff’s child because the common law did not allow the death of a human being as grounds for a damages action. See Trow v. Thomas, 70 Vt. 580, 586-87, 41 A. 652, 654-55 (1898). 375 ¶ 18 In this case, however, plaintiff’s suit was not brought under the common law, but rather under § 1492(b), which allows damages for pecuniary injuries resulting from the death of next of kin, and thus supersedes the common-law notion that recovery for damages ceases upon death. Although defendant may challenge the reasonableness of the expenses, we conclude that plaintiff’s loss for funeral and burial expenses resulting from the death of his brother are compensable as pecuniary injuries under the wrongful death act, regardless of whether plaintiff was legally obligated to pay those expenses. See 1 S. Speiser, supra, § 3:58, at 358 (“[I]n a majority of states ... funeral expenses are recoverable in a wrongful death action when the plaintiff has paid or has rendered himself legally liable to pay them.”); see, e.g., Brown v. Horn, 578 N.Y.S.2d 951, 952 (App. Div. 1992) (where amount of recovery is measured by pecuniary injuries resulting from decedent’s death to persons whose benefit action is brought, damages include funeral expenses); Murray v. Templeton, 576 S.W.2d 138, 139 (Tex. Ct. App. 1978) (funeral expenses may be recovered in wrongful death action “either by the statutory beneficiaries who paid the same or by the estate of the decedent”). ¶ 19 Our conclusion is based on “[t]he reasoning ... that the funeral expenses are a direct result of the wrongful death and, as a matter of justice, should be considered an item of damages suffered by the person liable to pay them.” 1 S. Speiser, supra, § 3:58, at 358-59. In contrast, the other out-of-pocket expenses claimed by plaintiff — certain debts arising from settlement of the estate, such as payment of insurance and property taxes — lack a direct causal connection to the tort and thus are not compensable. Those losses are the direct result of the decedent’s financial situation at the time of his death, and not of the tort. Cf. Quesnel v. Town of Middlebury, 167 Vt. 252, 256, 706 A.2d 436, 438 (1997) (under wrongful death statute, “damages are based on the loss suffered by the spouse and the next of kin”). Accordingly, the matter is remanded for the superior court to assess plaintiff’s reasonable funeral and burial expenses. ¶ 20 Finally, we must address the superior court’s statement at the end of its decision that even if pecuniary damages were found, there would be no basis to assign them to defendants because, due to the default judgment, plaintiff did not introduce evidence demonstrating that defendants committed the act that led to the damages. We cannot accept this reasoning. 376 ¶ 21 In his complaint, plaintiff alleged that one or both of the defendants shot and killed his brother. It is undisputed that one of the defendants purchased the weapon used to kill plaintiff’s brother shortly before his death, and that both defendants were at the decedent’s residence when he died. Defendants avoided plaintiff’s various attempts at deposing them and failed to defend against his suit. Accordingly, a default judgment on liability was entered against them. Thus, if plaintiff can prove pecuniary injuries resulting from the death of his brother, he is entitled to them by virtue of the default judgment. ¶ 22 The 1844 case that the superior court cites to support its view to the contrary does not stand for the proposition that a default judgment cannot support damages for pecuniary injuries in a wrongful death action. Rather, it holds merely that when a default judgment is entered against a defendant, “the defendant only admits something to be due,” but the plaintiff must still prove to the jury the amount of damages. See Webb v. Webb, 16 Vt. 636, 639 (1844). Thus, the default judgment entitles plaintiff to reasonable damages supported by sufficient proof. Affirmed in part, reversed in part, and remanded for the superior court to award plaintiff damages for reasonable funeral and burial expenses and for the loss of his brother’s companionship, if demonstrated by the evidence.