Goodleft v. Gullickson

• Decision Date: 10 December 1996
• Docket Number: No. 950206,950206
• Citation: 556 N.W.2d 303
• Parties: Myrtle GOODLEFT for herself and the Estate of Dustin Seewalker, Plaintiff and Appellant v. Phillip GULLICKSON, a/k/a Philip Gullikson, Defendant v. MIDWEST CASUALTY INSURANCE COMPANY, Intervenor and Appellee. Civil
• Court: North Dakota Supreme Court

Page 303

556 N.W.2d 303

Myrtle GOODLEFT for herself and the Estate of Dustin

Seewalker, Plaintiff and Appellant v. Phillip GULLICKSON, a/k/a Philip Gullikson, Defendant v. MIDWEST CASUALTY INSURANCE COMPANY, Intervenor and Appellee.

Civil No. 950206.

Supreme Court of North Dakota.

Dec. 10, 1996.

Fintan L. Dooley, Bismarck, for plaintiff and appellant.

Joel W. Gilbertson, of Pearce & Durick, Bismarck, for intervenor and appellee.

VANDE WALLE, Chief Justice.

Myrtle Goodleft, for herself and for the estate of her five-year old grandson, Dustin Seewalker, appealed from a summary judgment dismissing her claim against Phillip Gullickson for the wrongful death of Dustin. We hold that, under N.D.C.C. § 32-21-03, Goodleft was not entitled to bring a wrongful death claim as Dustin's "surviving mother or father" and she failed to satisfy the statutory requirements for bringing the claim in her capacity as personal representative of Dustin's estate. However, we conclude that, under N.D.R.Civ.P. 17(a), the trial court should have granted a reasonable time for the substitution of Dustin's parents as plaintiffs, or for their ratification of this action, and we remand for further proceedings.

On February 29, 1992, Gullickson was driving a car which was involved in an accident. Dustin's mother, Ila Painte, owned the car, and Painte and Dustin were passengers in it when the accident occurred. On March 2, 1992, Dustin died from injuries sustained in the accident. In charges stemming from the mishap, Gullickson pled guilty to driving while under the influence and to aggravated and reckless driving, and Painte pled guilty to having no liability insurance.

On February 23, 1994, Goodleft was appointed personal representative of Dustin's estate. According to Goodleft, prior to her appointment as personal representative, she met with Painte and Dustin's father, Ronald Seewalker, and they entered into a "working agreement" for Goodleft to pursue a wrongful death action against Gullickson. By service of a summons and complaint on February 24, 1994, Goodleft, for herself and Dustin's estate, commenced an action against Gullickson, alleging his negligence "caused ... serious injuries to and [the] ultimate death of Dustin." Gullickson did not answer or appear, and Goodleft moved for a default judgment. The trial court treated Goodleft's complaint as an action for the wrongful death of Dustin and denied her motion for default judgment, ruling she had failed to satisfy the statutory requirements for bringing a wrongful death action under N.D.C.C. § 32-21-03.

Goodleft's uninsured motorist carrier, Midwest Casualty Insurance Company, then intervened and moved for summary judgment. The trial court granted Midwest's motion, holding that under N.D.C.C. § 32-21-03, Goodleft did not have standing to personally bring this wrongful death action and, as personal representative, she had failed to make a proper demand on the persons with higher priority for bringing the action. The court concluded Goodleft's action was barred by the two-year statute of limitations in N.D.C.C. § 28-01-18(4).

The trial court dismissed Goodleft's action by summary judgment, a procedural device for promptly disposing of a lawsuit without a trial if, after viewing the evidence in the light most favorable to the party against whom it is sought, and giving that party the benefit of all favorable inferences, there is no genuine dispute as to either the material facts or the inferences to be drawn from the undisputed facts, or if only a question of law is involved. Diegel v. City of West Fargo, 546 N.W.2d 367 (N.D.1996). See N.D.R.Civ.P. 56.

I

At common law there was no cause of action for wrongful death, and, absent statutory authorization, there was no right to recover for the wrongful death of another. Sheets v. Graco, Inc., 292 N.W.2d 63 (N.D.1980); Willard v. Mohn, 24 N.D. 390, 139 N.W. 979 (1913); Satterberg v. Minneapolis, St. Paul & S.S.M. Ry. Co., 19 N.D. 38, 121 N.W. 70 (1909); Harshman v. Northern Pacific Ry. Co., 14 N.D. 69, 103 N.W. 412 (1905). See generally 1 Speiser, Krause, Madole, Recovery for Wrongful Death and Injury, § 1:1 (3rd ed.1992).

Our wrongful death statutes are found in N.D.C.C. Ch. 32-21, and the interpretation of those statutes is a question of law, which is fully reviewable by this court. See Jones v. Pringle & Herigstad, P.C., 546 N.W.2d 837 (N.D.1996). Our primary objective in interpreting a statute is to determine the Legislature's intent. Jones. We look first to the language of the statute and give it its plain, ordinary, and commonly understood meaning. Jones; N.D.C.C. § 1-02-02. When a statute is clear and unambiguous, we do not disregard the letter of the statute under the pretext of pursuing its spirit. Jones. We construe statutes as a whole to give each provision meaning and effect. Stewart v. Ryan, 520 N.W.2d 39 (N.D.1994).

Here, the primary issue is the interpretation of N.D.C.C. § 32-21-03, which outlines a statutory hierarchy for bringing a wrongful death action:

"The action shall be brought by the following persons in the order named:

"1. The surviving husband or wife, if any.

"2. The surviving children, if any.

"3. The surviving mother or father.

"4. The personal representative.

"If any person entitled to bring the action refuses or neglects so to do for a period of thirty days after demand of the person next in order, such person may bring the same."

Under the plain language of N.D.C.C. § 32-21-03, Dustin's surviving mother and father, Painte and Seewalker, are the preferred persons for bringing this wrongful death claim. However, Goodleft contends she was entitled to bring this action under N.D.C.C. § 32-21-03(3), because she was Dustin's "psychological" or "de facto" mother.

A wrongful death action must be prosecuted by a person with statutory authority to bring the action. Willard; Satterberg; Harshman. See generally 2 Speiser, at § 11:29; 25A C.J.S. Death § 57 (1966); 22A Am.Jur.2d Death § 398 (1988). However, the person authorized to bring a wrongful death action does not have an absolute right to the damages recovered, and, instead, brings the action in a representative capacity for the exclusive benefit of the persons entitled to recover. Broderson v. Boehm, 253 N.W.2d 864 (N.D.1977); Armstrong v. Miller, 200 N.W.2d 282 (N.D.1972); Satterberg. See generally 25A C.J.S. Death, at §§ 33(1) and 37(1)(a).

Under our wrongful death statutes, a jury may award damages "to the persons entitled to the recovery," N.D.C.C. § 32-21-02, and the amount recovered shall not be liable for the decedent's debts, but "shall inure to the exclusive benefit of the decedent's heirs at law" for their losses. N.D.C.C. § 32-21-04; Broderson; Satterberg. The trial court may allocate damages to the decedent's heirs at law as the court deems necessary. N.D.C.C. § 32-21-04; Gorley v. Parizek, 475 N.W.2d 558 (N.D.1991). In Broderson, we said "heirs at law" was not synonymous with the persons authorized by N.D.C.C. § 32-21-03, to bring a wrongful death action, and we construed the term to mean those persons entitled to a decedent's estate by the laws of intestate succession. See Satterberg. See also N.D.C.C. Ch. 30.1-04 [outlining laws of intestate succession].

Our wrongful death statutes thus differentiate between the capacity to bring an action and the right to share in the damages recovered. Broderson; Satterberg; Harshman. See also N.D.C.C. § 32-21-06 [The person authorized to bring a wrongful death action may compromise the action, and the compromise is "binding upon all persons authorized to bring the action or to share in the recovery."]. See generally 2 Speiser, at § 10.1; 25A C.J.S. Death, at § 32; 22A Am.Jur.2d Death, at § 89.

This case involves Goodleft's right to bring a wrongful death claim, not the determination of Dustin's heirs at law or the allocation of damages. In Harshman, this court considered an analogous issue of whether the decedent's father was entitled to bring a wrongful death action under the predecessor of N.D.C.C. § 32-21-03, which did not then include language authorizing the decedent's "surviving mother or father" to bring the action. ¹ This court noted the difference between a party authorized to bring a wrongful death action and the ultimate beneficiary of the action, and held that, under the plain language of the prior statute, the surviving father's complaint did not state a cause of action for the wrongful death of his son even though the father may have been the sole heir.

A grandmother is not explicitly authorized to bring a wrongful death action under N.D.C.C. § 32-21-03. The preferred person for bringing this action under N.D.C.C. § 32-21-03 is Dustin's "surviving mother or father." The ordinary meaning of mother is "a woman who has borne a child." Webster's New World Dictionary 928 (2nd Coll. Ed.1980). See State Farm Mut. Auto. Ins. Co. v. Clyde, 920 P.2d 1183 (Ut.1996) [ordinary meaning of parent is one who begets offspring]; Vallati v. Gniazdowski, 31 Conn. Supp. 238, 328 A.2d 431 (1974) [same]. Cf. N.D.C.C. § 14-19-01(6) [" 'Mother' means a woman who gives birth to a child...."]. In the absence of an express statutory authorization, we decline to extend the ordinary meaning of mother to include grandmother. ² See Harshman.

We also reject Goodleft's argument that she was entitled to bring this wrongful death claim because she was Dustin's "psychological" or "de facto" mother. It is generally held, notwithstanding the care and support of a child, a person standing in loco parentis is not a child's father or mother for purposes of a wrongful death action. Solomon v. Harman, 107 Ariz. 426, 489 P.2d 236 (1971) [foster parents were not parents]; Marshall v. Macon Sash Door & Lumber Co., 103 Ga. 725, 30 S.E. 571 (1898) [stepfather was not father]; Taylor v. Parr, 678 S.W.2d 527 (Tex.Ct.App.1984) [managing conservators and foster parents were not parents]; Clyde [grandparents were not...