Hartnett v. Union Mut. Fire Ins. Co., No. 87-033

Docket NºNo. 87-033
Citation153 Vt. 152, 569 A.2d 486
Case DateNovember 17, 1989
CourtUnited States State Supreme Court of Vermont

Page 486

569 A.2d 486
153 Vt. 152
Jonette T. HARTNETT
v.
UNION MUTUAL FIRE INSURANCE CO., City of St. Albans, et al.
No. 87-033.
Supreme Court of Vermont.
Nov. 17, 1989.

[153 Vt. 153] John P. Maley and Geoffrey M. FitzGerald of Sylvester & Maley, Inc., Burlington, for plaintiff-appellee.

David A. Barra of Paul, Frank & Collins, Inc., Burlington, for defendant-appellant.

Page 487

Before [153 Vt. 152] PECK and DOOLEY, JJ., BARNEY, C.J. (Ret.), KEYSER, J. (Ret.) and SPRINGER, D.J. (Ret.), Specially Assigned.

[153 Vt. 153] DOOLEY, Justice.

Plaintiff, Jonette Hartnett, brought this wrongful death action to recover for the death of her three children in a fire in her home. She sued a number of defendants, including the City of St. Albans, appellant here, alleging that its fire chief had negligently approved a chimney where the fire started. She settled with all defendants except the City and, after a jury trial, obtained a verdict against the City. The City raises two issues on appeal: (1) the trial court erred in allowing recovery for the parents' mental grief and anguish as a result of the death of their children; and (2) the trial court erred in not requiring expert testimony on the issue of whether the parents suffered mental grief and anguish. We affirm.

Vermont's Wrongful Death Act is a remedial statute designed to alleviate the harsh common-law rule that denied recovery for negligently inflicted death. See Vaillancourt v. Medical Center Hosp. of Vermont, Inc., 139 Vt. 138, 141, 425 A.2d 92, 94 (1980). It is based on Lord Campbell's Act and generally awards damages to the decedent's next of kin only for "pecuniary loss." See Calhoun v. Blakely, 152 Vt. 113, ----, 564 A.2d 590, 592 (1989); Allen v. Moore, 109 Vt. 405, 407, 199 A. 257, 257 (1938). The pecuniary loss rule has been particularly controversial in cases where the decedent is a child because it often allows no recovery at all. See, e.g., Comment, The Pecuniary Loss Rule as an Inappropriate Measure of Damages in [153 Vt. 154] Child Death Cases, 18 Ind.L.Rev. 731 (1985). In modern times, the loss to parents and other next of kin from the death of a child is more likely to be nonpecuniary--for example, mental anguish and loss of companionship--than pecuniary.

Recognizing the limited usefulness of the Wrongful Death Act in child victim cases, the Vermont Legislature amended the statute in 1976 to broaden the losses for which compensation may be obtained. The statute now reads:

(b) The court or jury before whom the issue is tried may give such damages as are just, with reference to the pecuniary injuries resulting from such death.... In the case where the decedent is a minor child, the term pecuniary injuries shall also include the loss of love and companionship of the child and for destruction of the parent-child relationship in such amount as under all the circumstances of the case, may be just.

14 V.S.A. § 1492(b). We have not had the occasion to interpret this language. The dispute between the parties in this case is whether § 1492(b) allows recovery for grief and mental anguish. Plaintiff argues that its legislative history, if not its wording, shows that it was intended to allow such recovery. Defendant argues that it cannot be interpreted to allow recovery for grief.

The statutory language of the 1976 amendment to § 1492(b) was taken from a Washington statute which, in all respects material to this case, is identical to § 1492(b) as amended. See Wash.Rev.Code Ann. § 4.24.010 (relevant language adopted in 1967). 1 One other state has adopted this statute: Oklahoma. See 12 Okla.Stat.Ann. § 1055 (adopted in 1975).

Where Vermont adopts a statute copied from another state, the presumption is that the Legislature also adopted the construction given the statute by the courts of the other state. See 2A N. Singer, Sutherland Statutory Construction § 52.02, [153 Vt. 155] at 522 (4th ed. 1984); State v. Francis, 151 Vt. 296, 307, 561 A.2d 392, 399 (1989). We can find nothing to rebut the presumption in this case. Accordingly, in construing § 1492(b) we look to the construction of the

Page 488

Washington statute by the Washington courts.

The Washington Supreme Court has, on a number of occasions, interpreted its statute to allow recovery for grief and mental anguish. The leading case is Wilson v. Lund, 80 Wash.2d 91, 96, 491 P.2d 1287, 1290 (1971), where the Washington court construed the terms "loss of love" and "destruction of the parent-child relationship" to include recovery for parental grief, mental anguish and suffering. The court's conclusion is based in part on the history of the legislation in Washington and on the court's determination that the only possible meaning of the words included mental anguish. On the latter point, the court stated:

[R]ecovery for mental anguish is the only category of damages which we can conceive could have been intended by the legislature in enacting the disputed statutory phrase. Simply and directly stated, no legally recognizable category or element of damages remains--other than the category describable as compensation for mental anguish.

Id. at 99, 491 P.2d at 1292. While the court noted that it was required to follow legislative intent even if "shocked" by the result, it did find its construction of the statute consistent with the trends to provide compensation for intangible-emotional injuries. Id. at 100, 491 P.2d at 1292. The Washington courts have reaffirmed the holding of Wilson v. Lund on numerous occasions. See, e.g., United Pacific Ins. Co. v. Edgecomb, 41 Wash.App. 741, 744, 706 P.2d 233, 234 (1985); Harbeson v. Parke-Davis, Inc., 98 Wash.2d 460, 475, 656 P.2d 483, 493 (1983); Hinzman v. Palmanteer, 81 Wash.2d 327, 329, 501 P.2d 1228, 1230 (1972); see also Shaw v. United States, 741 F.2d 1202, 1209-10 (9th Cir.1984) (Federal Tort Claims Act action based on Washington law).

The only other state with a statute with identical language is Oklahoma. In Gaither v. City of Tulsa, 664 P.2d 1026, 1030-31 (Okla.1983), the Oklahoma Supreme Court interpreted its statute[153 Vt. 156] as allowing recovery for parental grief, mental pain and suffering in appropriate circumstances. See also Note, Recovery for Wrongful Death, 34 Okla.L.Rev. 659, 669 (1981) (the only guidance to construe the child-wrongful death act "is provided by decisions of the Supreme Court of Washington"); Comment, Wrongful Death of Children in Oklahoma: Statutory Expansion of Recoverable Damages, 11 Tulsa L.J. 98, 103 (1975) (Washington statute as construed by the Washington Supreme Court is guide for Oklahoma interpretation).

We believe that the interpretation of the damages language by the Supreme Court of Washington is reasonable and adopt it as the proper interpretation of the 1976 amendment to 14 V.S.A. § 1492(b). We share the Washington Court's conclusion that the term "destruction of the parent-child relationship" must include grief, mental anguish and suffering or it is largely a meaningless concept. We are aware, of course, that distinguished commentators were urging an expansion of permissible damages to cover grief and anguish at the same time as the Vermont Legislature acted. See Speiser & Malawer, An American Tragedy: Damages for Mental Anguish of Bereaved Relatives in Wrongful Death Actions, 51 Tul.L.Rev. 1 (1976).

The City has provided us with an all-state summary of wrongful death statutes, as interpreted by the applicable state courts, to show that states like Vermont which generally base wrongful death recovery on "pecuniary loss" rarely find that grief and anguish is compensable. We fail to see the relevance of this analysis to this case. Our Legislature was no doubt aware of the long line of cases from this Court limiting recovery in child death cases and chose to act to expand the compensable elements of a damage award. They chose as a model the statute of a state whose highest court had consistently interpreted it as allowing recovery for grief. That interpretation is reasonable. The actions of other states with different statutes are irrelevant to the proper construction of our statute.

The City raises one other argument in support of its position that the decision to allow the jury to award damages for

Page 489

grief and mental anguish was error. That argument is that the trial court allowed double recovery by allowing the jury to award [153 Vt. 157] damages for destruction of the parent-child relationship and for grief and mental anguish. The argument is directed at the charge and the special interrogatory the court submitted to the jury. The charge stated:

If you reach the issue of damages, you must consider two distinct elements. One is in a sense positive. The other is negative. Damages in a case such as this are difficult to assess. But you must do your best to reach a result that will be just to both parties.

In the sense of what I've called positive damages, you must consider and assess the value of the loss of certain positive attributes of these three children to these parents. These damages are specified as the loss of love and companionship of the three children, and any loss of positive attributes of the parent-child relationship. You should not attempt to make any judgment as to the value of a life, but only the losses I've just stated.

Second, you must consider what I term negative damages. This is mental anguish and grief. It may be considered the parents' emotional response to the deaths of these children. I know it may be difficult to fully separate these positive and negative issues, but the law makes this distinction and we must attempt to apply it here.

The interrogatories for the jury had a special section dealing with damages if the jury found liability. That section directed the jury to specify a damage amount for "loss of love and companionship, and for destruction of the parent-child relationship," and then a separate amount for "mental anguish and grief." It...

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16 practice notes
  • Clymer v. Webster, No. 88-631
    • United States
    • Vermont United States State Supreme Court of Vermont
    • June 7, 1991
    ...on other grounds, Lewis v. State, 256 N.W.2d 181, 192 (Iowa 1977). 6 Nor does our holding in Hartnett v. Union Mutual Fire Insurance Co., 153 Vt. 152, 569 A.2d 486 (1989), disturb this belief. In Hartnett, the issue was whether specific terms within the 1976 amendment--"loss of love and com......
  • Dutton v. Rando, DOCKET NO. A-1049-16T1
    • United States
    • New Jersey Superior Court – Appellate Division
    • February 26, 2019
    ...v. Schindler, 651 S.W.2d 249, 251 (Tex. 1983) ; Jones v. Carvell, 641 P.2d 105, 107 (Utah 1982) ; Hartnett v. Union Mut. Fire Ins. Co., 153 Vt. 152, 569 A.2d 486, 488 (1989). Alabama is the only state in which plaintiffs may not recover compensatory damages in wrongful death cases, though t......
  • Lavalley v. E.B. & A.C. Whiting Co., No. 94-657
    • United States
    • Vermont United States State Supreme Court of Vermont
    • January 17, 1997
    ...also adopted the construction given the statute by the courts of the other [jurisdiction]." Hartnett v. Union Mut. Fire Ins. Co., 153 Vt. 152, 154, 569 A.2d 486, 487 (1989). The section of FEPA that sets out the regulatory standard was adopted in 1963.1963, No. 196, § 1. It was amended to i......
  • Felis v. Downs Rachlin Martin PLLC, No. 15–092.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • October 16, 2015
    ...Giguere v. E.B. & A.C. Whiting Co., 107 Vt. 151, 157–58, 177 A. 313, 316 (1935) ; see also Hartnett v. Union Mut. Fire Ins. Co., 153 Vt. 152, 155, 569 A.2d 486, 487 (1989) (noting presumption that Legislature adopted construction given statute by courts of other state is rebuttable). That p......
  • Request a trial to view additional results
16 cases
  • Clymer v. Webster, No. 88-631
    • United States
    • Vermont United States State Supreme Court of Vermont
    • June 7, 1991
    ...on other grounds, Lewis v. State, 256 N.W.2d 181, 192 (Iowa 1977). 6 Nor does our holding in Hartnett v. Union Mutual Fire Insurance Co., 153 Vt. 152, 569 A.2d 486 (1989), disturb this belief. In Hartnett, the issue was whether specific terms within the 1976 amendment--"loss of love and com......
  • Dutton v. Rando, DOCKET NO. A-1049-16T1
    • United States
    • New Jersey Superior Court – Appellate Division
    • February 26, 2019
    ...v. Schindler, 651 S.W.2d 249, 251 (Tex. 1983) ; Jones v. Carvell, 641 P.2d 105, 107 (Utah 1982) ; Hartnett v. Union Mut. Fire Ins. Co., 153 Vt. 152, 569 A.2d 486, 488 (1989). Alabama is the only state in which plaintiffs may not recover compensatory damages in wrongful death cases, though t......
  • Lavalley v. E.B. & A.C. Whiting Co., No. 94-657
    • United States
    • Vermont United States State Supreme Court of Vermont
    • January 17, 1997
    ...also adopted the construction given the statute by the courts of the other [jurisdiction]." Hartnett v. Union Mut. Fire Ins. Co., 153 Vt. 152, 154, 569 A.2d 486, 487 (1989). The section of FEPA that sets out the regulatory standard was adopted in 1963.1963, No. 196, § 1. It was amended to i......
  • Felis v. Downs Rachlin Martin PLLC, No. 15–092.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • October 16, 2015
    ...Giguere v. E.B. & A.C. Whiting Co., 107 Vt. 151, 157–58, 177 A. 313, 316 (1935) ; see also Hartnett v. Union Mut. Fire Ins. Co., 153 Vt. 152, 155, 569 A.2d 486, 487 (1989) (noting presumption that Legislature adopted construction given statute by courts of other state is rebuttable). That p......
  • Request a trial to view additional results

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