Olson v. Estate of Rustad, 20120318.

Citation831 N.W.2d 369,2013 ND 83
Decision Date20 May 2013
Docket NumberNo. 20120318.,20120318.
PartiesHolly OLSON, as personal representative of the Estate of Heidi Hanna, deceased, as special conservator of B.H., a minor, and as guardian of B.H., a minor, Plaintiff, Appellant and Cross–Appellee v. ESTATE OF Jeremy RUSTAD, deceased [Ronald Rustad, Personal Representative], Defendant, Appellee and Cross–Appellant.
CourtUnited States State Supreme Court of North Dakota

OPINION TEXT STARTS HERE

Tyler J. Siewert (argued) and David D. Schweigert (appeared), Bismarck, N.D., for plaintiff, appellant and cross-appellee.

Zachary E. Pelham (argued) and Patrick W. Durick (on brief), Bismarck, N.D., for defendant, appellee and cross-appellant.

VANDE WALLE, Chief Justice.

[¶ 1] Holly Olson, as personal representative of the estate of Heidi Hanna and guardian and special conservator of B.H. and B.H., appealed from a summary judgment dismissing her wrongful death and survival actions against the estate of Jeremy Rustad (“estate”) resulting from an airplane crash. The estate cross-appealed from the judgment. We conclude the district court correctly determined as a matter of law that the wrongful death and survival actions are barred by the nonclaim provisions of the Probate Code and that the terms of Rustad's aircraft insurance policy unambiguously limit coverage to $103,000 for this accident. We affirm.

I

[¶ 2] In the early morning hours of April 11, 2008, Jeremy Rustad and Heidi Hanna were killed in a plane crash in rural McLean County. Rustad was piloting his Cessna aircraft and Hanna was a passenger when the plane crashed near Rustad's farmstead in Roseglen about 1:30 a.m. Although there were no eye witnesses to the accident, a person sleeping in Rustad's trailer on the farmstead reported hearing an airplane flying low over the farmstead at about 1:30 a.m. The wreckage was discovered at 10:40 a.m. that morning, the bodies of Rustad and Hanna were located inside the plane, and an investigating law enforcement officer reported they were obviously deceased for some time.” The National Transportation Safety Board reported that the plane struck a 40–foot tall television antenna next to Rustad's trailer, struck some trees, and crashed in a hayfield about 500 feet west of the trailer. Rustad's blood alcohol content was .05 percent.The Board determined the probable causes of the accident were: “The pilot failed to maintain obstacle clearance from the TV antenna during a low altitude maneuver. Contributing factors were the antenna, the night conditions, and pilot impairment due to alcohol.” Autopsy results indicated Rustad's cause of death was [m]ultiple head, neck, chest, abdominal, pelvic and extremity injuries [d]ue to airplane crash” and Hanna's cause of death was [m]ultiple head, chest, abdominal, pelvic and extremity injuries [d]ue to airplane crash.”

[¶ 3] The estate published a notice to creditors of Rustad for three successive weeks beginning May 22, 2008, informing them they had three months to file claims. On September 24, 2008, Olson, as “co-personal representative of the estate of Heidi Hanna, deceased, caretaker of [B.H.], a minor, and temporary guardian of [B.H.], a minor,” filed a claim against the estate asserting the estate was indebted to Hanna's estate and to Hanna's children for “a presently unliquidated amount to be determined by a jury for personal injuries and wrongful death sustained in an aircraft accident on or about April 11, 2008.” On November 10, 2008, the estate “disallowed” Olson's claim in a document 1 that informed her the “Claim Against Estate shall be barred unless the claimant files a petition for allowance in this Court or commences a proceeding against the Personal Representative not later than 60 days after the mailing of this notice of disallowance.”

[¶ 4] On January 7, 2009, Olson filed this wrongful death and survival action against the estate. The estate moved for summary judgment dismissing the action. The estate argued Olson's claims were barred because she did not serve the personal representative in that capacity and the failure to present her claims in the probate action made them res judicata. The estate also argued Olson could not show Hanna was injured before Rustad died, and therefore, both the wrongful death and survivor claims were barred under the nonclaim provisions of the Probate Code. The district court rejected the estate's arguments that service of process was insufficient and that the action was barred by res judicata. The court concluded Olson presented no evidence to show Hanna died before Rustad, and dismissed the wrongful death and survival actions because they were barred by the nonclaim provisions of the Probate Code.

[¶ 5] The district court further noted Rustad had an aircraft insurance policy and the nonclaim provisions did not prevent Olson from recovering to the extent of insurance coverage available for the accident. The estate subsequently filed a motion to amend the court's order, arguing the limits of Rustad's insurance policy were $103,000, and conceded for purposes of the motion that a jury would find Rustad at least 50 percent liable and award Olson at least $103,000 in damages. Olson in response to the motion argued that a decision on the issue was not appropriate at the time and that the limits of the insurance policy were $1,000,000. The court ruled the language in the insurance policy unambiguously limited coverage under the circumstances to $103,000, and a judgment was entered in favor of Olson for $103,000.

II

[¶ 6] Olson argues the district court erred in granting summary judgment dismissing her wrongful death and survival claims.

[¶ 7] Our standard for reviewing summary judgments is well-established:

Summary judgment is a procedural device used to promptly resolve a controversy on the merits without a trial if either party is entitled to judgment as a matter of law and the material facts are undisputed or if resolving the disputed facts would not alter the result. ‘Summary judgment is inappropriate if neither party is entitled to judgment as a matter of law or if reasonable differences of opinion exist as to the inferences to be drawn from the undisputed facts.’ Whether a district court has properly granted a motion for summary judgment is a question of law, which this Court reviews de novo on the record.

When we review a district court's decision on a motion for summary judgment, we view the evidence in a light most favorable to the party opposing the motion and give the opposing party all favorable inferences. In determining whether summary judgment is appropriate, the court may examine the pleadings, depositions, admissions, affidavits, interrogatories, and inferences to be drawn from the evidence. The moving party must show there are no genuine issues of material fact and the case is appropriate for judgment as a matter of law. A party resisting the motion for summary judgment “cannot merely rely on the pleadings or other unsupported conclusory allegations, but must present competent admissible evidence by affidavit or other comparable means which raises an issue of material fact.”

Hayden v. Medcenter One, Inc., 2013 ND 46, ¶ 6, 828 N.W.2d 775 (quoting Riedlinger v. Steam Brothers, Inc., 2013 ND 14, ¶ 10, 826 N.W.2d 340).

[¶ 8] Wrongful death actions are authorized by N.D.C.C. ch. 32–21. Section 32–21–01, N.D.C.C., provides:

Whenever the death of a person shall be caused by a wrongful act, neglect, or default, and the act, neglect, or default is such as would have entitled the party injured, if death had not ensued, to maintain an action and recover damages in respect thereof, then and in every such case the person who, or the corporation, limited liability company, or company which, would have been liable if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured or of the tort-feasor, and although the death shall have been caused under such circumstances as amount in law to felony.

“Wrongful death actions are intended to compensate the survivors of the deceased for the losses they have sustained as a result of a wrongful killing.” Sheets v. Graco, Inc., 292 N.W.2d 63, 66 (N.D.1980). A wrongful death action accrues at the time of the death of the party injured. Id. at 67.

[¶ 9] The relevant survival statute in this case is N.D.C.C. § 28–01–26.1, which provides that [n]o action or claim for relief, except for breach of promise,alienation of affections, libel, and slander, abates by the death of a party or of a person who might have been a party had such death not occurred.” “Survival statutes ‘are remedial in nature, and are intended to permit recovery by the representatives of the deceased for damages the deceased could have recovered had he lived.... A survival action merely continues in existence an injured person's claim after death as an asset of his estate.’ Weigel v. Lee, 2008 ND 147, ¶ 12, 752 N.W.2d 618 (quoting Sheets, 292 N.W.2d at 66–67). Olson's survival action is based on negligence. [S]urvival actions accrue, or come into existence as a legally enforceable right, not at the time of the death of the injured party, but at the time the deceased was first injured.” Sheets, at 67. This Court has not resolved, and is divided over the question whether the discovery rule applies to extend the accrual of a survival action beyond the date of the decedent's death. See Mertz v. 999 Quebec, Inc., 2010 ND 51, ¶¶ 58–62, 780 N.W.2d 446.

[¶ 10] In Ness v. St. Aloisius Hosp., 301 N.W.2d 647, 652 (N.D.1981), this Court explained:

A wrongful death action, like a survival action, is dependent upon the injuries sustained by the deceased, and ensues from the injuries which caused his death. However, a wrongful death action is an entirely new cause of action for the benefit of persons close in relationship to the deceased who have suffered injury as a result of the wrongful death while a survival action permits recovery by the representatives of the deceased...

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3 cases
  • Sparks v. Mach
    • United States
    • Nebraska Supreme Court
    • July 21, 2023
    ... 314 Neb. 724 Kayleen Sparks, appellant, v. David Mach, Special Administrator of the Estate of Leo Mach, deceased, appellee. No. S-21-1041 Supreme Court of Nebraska July 21, 2023 ... Estate of Stirling , 537 N.W.2d 554 (N.D. 1995), ... disapproved on other grounds, Olson v. Estate of ... Rustad , 831 N.W.2d 369 (N.D. 2013); Matter of Estate ... of Chase , 125 Ariz ... ...
  • State v. Sanchez
    • United States
    • North Dakota Supreme Court
    • November 6, 2018
    ...is jurisdictional, we will not treat the time limit as affecting the jurisdiction of a court or administrative agency.’ " Olson v. Estate of Rustad , 2013 ND 83, ¶ 19, 831 N.W.2d 369 (quoting Interest of T.H. , 2012 ND 254, ¶ 7, 825 N.W.2d 844 ). In cases involving nonjurisdictional time pe......
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    • United States
    • North Dakota Supreme Court
    • November 6, 2018
    ...is jurisdictional, we will not treat the time limit as affecting the jurisdiction of a court or administrative agency.'" Olson v. Estate of Rustad, 2013 ND 83, ¶ 19, 831 N.W.2d 369 (quoting Interest of T.H., 2012 ND 254, ¶ 7, 825 N.W.2d 844). In cases involving nonjurisdictional time period......

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