Dubaniewicz v. Houman, 04-306.

• Decision Date: 15 September 2006
• Docket Number: No. 04-306.,04-306.
• Citation: 2006 VT 99,910 A.2d 897
• Court: Vermont Supreme Court
• Parties: Dennis J. DUBANIEWICZ, Executor of the Estate of Michael P. Dubaniewicz v. Robert HOUMAN, Linda LaPenna, St. John's Sporting Goods, Inc., Thomas St. John and Dorothy St. John.

910 A.2d 897

2006 VT 99

Dennis J. DUBANIEWICZ, Executor of the Estate of Michael P. Dubaniewicz v. Robert HOUMAN, Linda LaPenna, St. John's Sporting Goods, Inc., Thomas St. John and Dorothy St. John.

No. 04-306.

Supreme Court of Vermont.

September 15, 2006.

Patrick M. Ankuda of Parker & Ankuda, P.C., Springfield, for Plaintiff-Appellant.

Samuel Hoar, Jr. of Dinse, Knapp & McAndrew, P.C., Burlington, for Defendant-Appellee.

Present: REIBER, C.J., and DOOLEY, JOHNSON and SKOGLUND, JJ., and BURGESS, D.J., Specially Assigned.

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.

¶ 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 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, 151 Ill.2d 95, 176 Ill.Dec. 1, 601 N.E.2d 699, 702 (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, 171 Ill.App.3d 344, 121 Ill.Dec. 452, 525 N.E.2d 258, 265 (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., 291 N.J.Super. 569, 677 A.2d 1163, 1167 (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:

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, 121 Ill.Dec. 452, 525 N.E.2d at 265 (internal citations omitted); see Sheahan v. Ne. Ill. Reg'l Commuter R.R., 146 Ill.App.3d 116, 100 Ill.Dec. 114, 496 N.E.2d 1179, 1182 (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, "[n]owhere in the wrongful death statute is there a distinction between the types of damages recoverable based upon who the next of kin is." Finley, 176 Ill.Dec. 1, 601 N.E.2d at 702. Because this Court has held that damages for loss of companionship are available under § 1492(b...