PAYNE v EIGHTH JUDICIAL DISTRICT COURT
Annotate this Case
Download PDF
DARLENE PAYNE, in~hviciually as and Personal Representative of the Estate of' RAYMOND A. NAIJMER, THE EIGHTH JUDICIAL. DISTRICT COURT. CASCADE COUNTY. THE HONORABLE KENNETH R. NEILI,, Presiding Judge. JIM KNUTSON, and DljTCH KNIJTSOE, Respondents 71 Petitioner Darlenc Payne seeks a writ of supervisory colitrol over the Respondents, the District Court for the Eighth Judicial District in Cascade County, the Honorable Kcnncth Ncill, Jim Knutson, and Dutch Kt~utson. 72 1 in October of 1998, Payne's son, Raymond h'aumer, was ltilled i n a rollover accident 10.2001, Payne. individually and as while driving a tractor near Belt, Montana. On Ja~luary personal representative of the estate of Raqmond Naumcr, filed wrongful death and s~~rvi~orship actiotls against the I)efendants, L.i?ah Knutson, Jini Knutson, and Dutch Knutson. '3 The Defei~dants intended to call Daniel Vuckovich as an expert vlit~~ess trial to at contradict Payne's e\-idence on future earnings. Vuckovich figured to testify illat Naumer's prospective earnings should he reduced on account of economic consumption--tlamount I of projected earnings that Naumer ~vould spend on basic necessities and personal expcnditurcs throughout his lifetime. In .4pril of 2002. Payne filed a motion in limine which sougitt to exclitdc the econornic consumption testimony as it per$ained to the sur\-ivorsltip action. Fcrlluwing oral argument on the matter, the District Court diinicd Paync's motion to exclude the testimony. In so doing Judge Keill stated: To me it's illogical to allow somebody to recover the same thing that ease there would have they would have recovered had they survived, in ~vhich been consumption. And L think that you can cross-examine Mr. Vuckovicli about the discrepancies in how different people might consume their earnings. 74 On October 16.2002, Payne filed an applicat~on a mrnt of supen isory control . ~ith for 1 this Cot11t pursuant to Rule 17, M.R.App.P. Payne contends that the District Court erred as a matter of lam when it denled her motlon. Payne lnststs that this error will force the parties into a ~leedless cycle of trial, appeal: and retrial. 7j5 Supervisory control should issue when adistrict court proceeds under amistake oflaw causing a gross injustice for which an appeal is not an adequate remedy. Sof&cov. Montiznil Eighth J~ldicicilL)ist., 2000 MT 153, 1 14, 300 Mont. 123. 1' 14, 2 P.3d 834, 1 14. Supervisory control is an extraordinary remedy exercised o~ily in extraordinary circun~stances,Sbjeco, (l: 14. As indicated above, the District Court was going to permit the jur-yto conside~.cvidencc economic consumption as it pertained to thc survibal action. For of the reasons discussed bclocv, to proceed in such a fashion would constitute a deviation f h m well established jurisprudence in the litigation of survival and wrongful death actions. inevitably, this mistake of law would alter the cost of anti preparation for trial, afikct settlement negotiations, and call into question the value of any potential verdict resulting in additional timc and e~xpense appellate resolution and subsequent litigation. See Plzr~tzb for :/. fii~~ih.Jciil. I)i.st. C,'ourt(IYj66), 27kMont. 363,370,922 P.2d 101 I , 1016. Thcrci&rc, any remedy available to Payne on direct appeal would prove inadequate resulting i n a gross in.justice. t\s suel-1, wc eoiiclude ihar this is an appropriate casc in which to cxcrcise supervisory control. q6 Did the Ilistrict Court eiT when it denied Paync's motion to exclude the economic consurnption cvidencc from the jury's consideration in cotnputing survival damages'! 77 1 As indicated above, this case implicates two distinct causes of action, survivorship and ~vrongful death. Stiwival actions derive from $ 27-1-501, MCA, which provides in part: (1) An action, cause of action, or defense docs slot abate because of the death or disability of a party or the transfer of any interest therein, but whenever the cause of action or defense arose in favor of such party prior to his death or disability or transfer of interest therein; it suwives and rnay be maintained by his reprcsentatives or successors in interest. The survival action belongs to the decedent's estate and allows recovery for the injury to the deceased &om the action causing death. Thus, the damages recovcrablc in the action arc personal to the decedcnt and the estate's right of recovery is identical to the decedent's had he or she lived. ,SeeS~vnrrsorlv. Cl~izmpio~r Irrtern. COT. (1982), 197 :Mont. 509, 515. 546 P.2d 1 1 66, 1169: Hrrickie I,. O//zoC,"onst., itzc. (1994), 268 Mont. 5 19,523,887 P.2d 157, 169 overruled otz other grouncis bl:Porter v. Gillnrt~euu ON), 275 Mont. 174,OI 1 P.2d 1 143. (1 Only the personal rcprccentatr.ve may sue for the danlages suffered b~ the dcccdcnt in survival actions. Scctiori 27-1-501, MCA. Neither thc widow nor any other licir has a legal right to pursue the action unless appointed personal representative. S i ~ i ~ i ~ ~ ~ s o t t ~ at 107 'vlont. 718 Scetton 27- 1-5 13. VCA, creatcs a separate cause of acrlon, m rongful death, u hreh When injuries to and the death of one person arc caused wrongful act or neglect of another, the personal representative decedent's estate may maintain an action for damages against the causing thc death or, if such person be employed by another person responsible for his conduct, then also against such other person. by the of the person who is In contrast to the sul3ir al actlon, the w rongful death action is personal to the decedent's heirs and independent of an! cause of action abailable to the decedent's estate. T h ~ s right of recovery seeks to compensate the heirs for the harm or damages that they personally suffered as a result of the decedent's death. See S+uun.son, 107 Wont. at 517, 540 P.2d at 1170. 1 '9 Both pat-ties appear in agrecment with thc conceptual notions reiterated above. Elowever, for purposcs of this case, the dispute a r m s uith the next step in the analysis, 1.e.. to what measure of damages are the aggrieved p a r k s entitlcd? Morc specifically, the parties disagree as to uhethcr a jury should be entitled to offset a potential sunival auard on account of economic consumption 1 0 '1 In a survlval action, the decedent's estate may recover damages for lost earnings from the t ~ m e injury to death; the prcsent value of the decedent's reasonable earnings during his of or her ltfe expectancy; medical and ti~neral expenses; paln and suffering; and other special damages. S+vcirz.son. 197 Moiit. at 5 15, 040 P.2d at 1 16% The majority view regarding loss of f~tturecatnirigs IS that the award should not be reduced on account of cconornic consumption. See O\:erllj x Irigi~!ls S/i<nhui!&rtgjIttc. (Cal. Ct. App. 1990). 87 Cal.Rptr.2d 626, 633. Likewise, Siviirisoi~~ prcdcccssors, and its progeny all speak i n tcnns of its entit2iernenrto lost future carnings, not "net" lost earnings as mandatcd by rhc)se n~inority vicw jurisdictioi~s. Further, iio statutc exists in Montana which requires an offset of lost future earnings for economic eonsun~ption.Therefore, as our case law indicates, blontana follows the n~ajority vleu that economlc consurnptlon should not factor tnto a loss of future earnings computation in survival actions. 71 1 As for wrongful death damages, 5 27-1-323, MCA, provides that "damages may be glven as under all the circumstances of the case may be just." Generally, a u r o ~ ~ gdeath l f~~ plaintiff may recox er for loss of consortium; loss of comfort and soc~cty; the reasonable and value of the contributions in money that the decedent would reasonably have provided for the s~tpport, education, training, and care of thc heirs during the life expectancies of the decedent and survivors. Swanson, 197 Mont. at 517.646 P.2d at 1 170. The loss ofsupport claim in wrongful death actions is not measured by the decedent's lost future earnings, per se. Rather, "it is measured in terms of tlte needs of the heirs which the decedent would reasonably have supplied to the heirs had he lived." Swclrzsori, 197 Mont. at 5 18, 646 P.2d at 1 171. As such, since at least 1929, this Court has required a deduction for the "cost of maintenance>" or economic consumption, fi-om wro~igfuldeath damages. See Burrzs v. Eir~inger (1020)784 blont. 397,411,276 P. 437: 443 overruler! on othergrounds by Drily v. Sbvifi & C,'o. (i93 1 j, 00 blont. 52, 300 P. 265, 712 'rhe follo~ving passage provides a good summation of Montana's treatment of lost future earnings and lost support in survival and wrongful death actions: The decedent's earning cs~pacityis not the measure of damages for lost support. Howe\cr; an acceptable \Tay to show how nsuch rooney would hale been available for the support o f a deccdcnt's wife and children i s to show what the dcecdcnt probably would have earned during the remainder of his .. Ilk, and to deduct fronr that amount his personal maintenance cxpensc and ihc amount he would ha\ye spent on other tliings. By contrast, in a personal injury action where lost years damages are recoverable, the measure of damages is not lost support but rather lost earnings during the period the plaintiff \would have lived if not for the injury. Speculating as to how the injured party may have spent those future earnings if not for defendant's tortuous conduct is a very different exercise than permitting a wrongful death plaintiff to proye damages for lost support by accounting for his or her supporter's other expenses. Overl~., Cal Rptr 2d at 633 (citations omrtted) 87 113 Prior to 1987, this distinction had little impact on the presentation of evidence in sur\l\al and w~rongfuldeath actions as Montana law enabled respectr\e pal-tles to file the actions separately. Generally speaking, litigants either did or did not present evidence of eeono~nic consumption depending on the cause of action alleged. However, in 1987, the Leg~slature amended 5 27-1-501, MCA (1 985), to requlre that "jaJcttous brought under t h ~ s section and 27-1 -5 13 must be combined in one legal actlon, and any clement of damages may be recovered on11 once." 14 While the 1987 a~nendment change the procedure one must folio* in br~nglng did the act~ons, a~nendment not change the respect~\esubstanti\e lam the dld In the area. 'Ihat 1s. the S~c~unsoi? of authority still precludes consideratio11 of econon~ie line consumption in survival actions, while l3r~i.n.~ its progeny deem ecorlomic consumption relevant in and \~rorrgiirl deatlr actioris. The change iil procedure esscnlially occurred to statutorily declare a prohibition against dorrble recovery in wrongful death and sutvival actions. Hoct.everl the current state ofthc lav; on the tbvo actions, its discussed above; comports with thc legislative declaration. In survi~al actions, tlte decedent's estate is entitled to recover the full valrri. of the lost fi1tur.e earnings, including that portio~nattributable lo economic consumption. in wrongfill death actions, the dceedent's heirs are not entitled to the economic consumption allocation. Therefore, as to this portion of the award, no duplicative recovery occurs. To the extent any overlap exists with the rctnaindcr of the award, thejudgc orjury will have to carve out any duplication consistent with the statutory bar against double recovery. 711 5 For the foregoing reasons, we accept supervisory control over the District C O L and I~ instruct it to marshal the evidence and admonish the jury in amanner which is consistent with this Order and Opinion. DATED this a .-. We Concur: Justices day of December 2002. . , .icrcticc I V . \Viiii;im 1.c;i:shart rd?sscnting. 1 I ciisscrri. i do not agree that this is :in iipproirriaxe case in wl~ichto excrcisc supervisory contra!. A s ilie court's order recognizes, supervisiirl; cctnu-o! chouiii issue ~ i h c n a district cotw proceeds under a mistake of law citirsii~g gross ii1,justice i'or lvhich an appeal a is not an aclequatc rcmeciy. S((f2c.o v. :\.fotzrcl,rcl Eighth ./i/tlitiiri ilis/rii.:. 2000 MT 153. 300 Mont. 123. 2 P.3d 83-1. The C'o~:rtconcl~zdes this petition presents an "appropriate case that in which to exercise supcr\~isory control." 7/17 Without expressiing an opiniorr on the n~el-its the issue raised. i \vimlil not dcem the of case appropriate for superb-isol-ycoritrol for the reason tiiiit thew i s ail adeqirate rcmcdy by way of appcal. s;lX The cffcct of the Distl-ict Court's ordcr is that the jury xifl he prescntcii lvith testimony ii-on1two economic expci-ts. 'Fhc pctitior-ier's cxperi, Mr. Bordeau. will iestiii, as earnirigs with n o offket ihr consunlption. 'PI-ic respo~?dcilt's expert. Mr. to Yaumcr's li~ttrre Vuckcrvieh, will testify as to future earnirigs loss I-educedby Xa~lrner's zons~~r~iptiorr, Ifthe jury. by way of special verdict interroga~ory. asked to specify the iimcjunt. i!'any, that is damages arc reduccd due to decedent's corisump~ion, ci~ailcnge thc admissibility of' any lo the expert cconotiiic tcstimcjny can be adccluately rcsoivcd on appeal. 713 i n m y sicw, the adequacy o f a rcrnedy oil appeal is still a critcrjori tirai n ~ u s tbe addressed in ciercl-mining w-iicrber-wc ncccpi a pciiiicin fx an cxtraordicar:,- ivrii. i ~xcscirt, rrratrcr-: Payile has itn adeq~iiitc: remedy bji rva) o f appeal. Justice - i'hicf Justice Karla M. Gray concurs in the dissent oEJ~~stice Leaphart. 111 i i ? ~
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
