Katz v. Filandro, 2

• Court: Arizona Court of Appeals
• Writing for the Court: LACAGNINA; HATHAWAY
• Citation: Katz v. Filandro, 153 Ariz. 601, 739 P.2d 822 (Ariz. App. 1987)
• Decision Date: 16 April 1987
• Docket Number: CA-CV,No. 2,2
• Parties: Karyn KATZ, Personal Representative of the Estate of Bobbi Sacklow, deceased, Plaintiff/Appellant/Cross-Appellee, v. Frank J. FILANDRO, Administrator of the Estate of Mary Filandro, deceased, Defendant/Appellee/Cross-Appellant. 87-0011.

Page 822

739 P.2d 822

153 Ariz. 601

Karyn KATZ, Personal Representative of the Estate of Bobbi Sacklow, deceased, Plaintiff/Appellant/Cross-Appellee, v. Frank J. FILANDRO, Administrator of the Estate of Mary Filandro, deceased, Defendant/Appellee/Cross-Appellant.

No. 2 CA-CV 87-0011.

Court of Appeals of Arizona Division 2, Department B.

April 16, 1987.

[153 Ariz. 602] Langerman, Begam, Lewis and Marks by Amy G. Langerman, Phoenix, for plaintiff/appellant/cross-appellee.

Shannon & Cronin by Robert S. Cronin, Jr., Phoenix, for defendant/appellee/cross-appellant.

OPINION

LACAGNINA, Judge.

On September 17, 1981, Elinor Joan Sacklow, age 47, and Mary Filandro were killed as the result of a one-vehicle rollover accident. On September 15, 1983, Bobbi Sacklow, Elinor's mother, age 73, brought an action against Frank Filandro, the administrator of Mary Filandro's estate, for wrongful death alleging as follows:

As a direct and proximate result of the death of ELINOR JOAN SACKLOW, BOBBI SACKLOW, mother of the deceased, has been deprived of the love, affection, comfort, care, protection and financial support she would have received from her daughter, had she lived; ....

She also alleged special damages in the form of medical and funeral expenses as a result of Elinor's death. Although Bobbi brought the action only as the surviving mother of Elinor, it was later learned she was also executrix of Elinor's estate.

Bobbi died five days after the complaint was filed. On December 21, 1984, Bobbi's attorney filed a motion for substitution of party plaintiff, stating she had just learned of Bobbi's death, and requested the court to substitute "Karyn Katz ¹ as personal representative for Bobbi Sacklow's estate for the death of Elinor Joan Sacklow." Filandro noticed a hearing on the motion, did not oppose the motion, and on February 6, 1985, the trial court granted the motion.

On December 12, 1985, four days prior to trial, Filandro filed a motion in limine to limit Katz's damages to the loss of support suffered by Bobbi up to the date of her death, thereby excluding any damages for Elinor's lost earning capacity or pension benefits. On December 16, 1985, the day of trial, Katz's attorney sought to amend her pleadings pursuant to Rule 15(b), Ariz.R.Civ.P., 16 A.R.S., to include the estate of Elinor Sacklow as a party plaintiff to the action. Filandro objected, arguing prejudice and surprise, and claimed that Katz was attempting to argue a new cause of action now barred by the statute of limitations under A.R.S. § 12-542.

While the trial judge agreed that Karyn Katz as personal representative for the estate of Bobbi Sacklow was the proper person to bring the action, he denied the motion to amend and precluded evidence of damages beyond the two-year period from Elinor's death to Bobbi's death. The jury considered the economic support and maintenance Elinor would have provided to her mother during that two-year period plus the stipulated amount for funeral expenses ($2,176.16). The jury awarded the estate $45,576. Katz filed a motion for new trial on damages only limited to the time period following Bobbi's death. This motion was denied.

Katz argues that the existence of a statutory beneficiary at the time of the filing of a wrongful death action does not preclude a claim for damages to the estate of the decedent under A.R.S. §§ 12-612 and 14-3110. Filandro argues that there was no evidence to support a claim for damages by the estate of Elinor Sacklow (except for stipulated funeral expenses). He also cross-appeals claiming the court gave an improper instruction on speed pursuant to A.R.S. § 28-701(B)(3). He argues the wrongful death statute does not allow a cause of action brought in the name of the personal representative of the estate of a deceased statutory beneficiary. Finally, he argues that the motion for new trial on damages sustained by Elinor's estate after Bobbi's death was improper under Rule 59(h), Ariz.R.Civ.P., 16 A.R.S., as calling for piecemeal litigation.

We disagree with the arguments raised by both parties and affirm the trial court because we find as follows:

1. Bobbi survived Elinor within the meaning of the wrongful death statute, and therefore,

2. The estate of Elinor Joan Sacklow is not a statutory beneficiary within the meaning of the statute;

3. Bobbi's claim for loss of economic support survived her death ²; and

4. Her damages are limited to those which had accrued at the time of her death.

I BOBBI SACKLOW AS A SURVIVOR

In responding to Katz's motion to amend the pleadings to conform to the evidence, specifically alleging that the estate of Elinor Sacklow was a proper party and that the estate's measure of damages was the proper measure of damages, the court denied the motion stating in part as follows:

With respect to the motion to amend the Complaint to conform to evidence in reading the statute 12-612, the word "survivor" as it is used in this means a person who survives the decedent, that is, the person who died as a result of the wrongful act of another and, in this case, the person who survived was the mother. She brought the action and she was the only one under our statute, I believe, who was entitled to bring that action.

We agree with the trial court that Bobbi survived Elinor within the meaning of the statute. The present wrongful death statute reads in pertinent part as follows:

§ 12-612. Parties plaintiff; recovery; distribution

A. An action for wrongful death shall be brought by and in the name of the surviving husband or wife or personal representative of the deceased person for and on behalf of the surviving husband or wife, children or parents, or if none of these survive, on behalf of the decedent's estate.

B. Either parent may maintain the action for death of a child, and the guardian for death of his ward.

C. The amount recovered in an action for wrongful death shall be distributed to the parties provided for in subsection A in proportion to their damages, and if recovery is on behalf of the decedent's estate the amount shall be an asset of the estate.

Black's Law Dictionary defines survivor as "one who survives another; one who outlives another; one who lives beyond some happening; one of two or more persons who lives after the death of the other or others." Black's Law Dictionary at 1279 (4th ed. 1979). In this case the "happening" after which Bobbi lived was the wrongful death of Elinor. The two-year survival time is also significant. This is not a case of splitting hairs because of the temporal proximity of the deaths. See, e.g., Pedroli v. Missouri Pac. Ry., 524 S.W.2d 882 (Mo.App.1975) (beneficiary survived for 16 days); In re Dillman's Estate, 8 Ill.App.2d 239, 131 N.E.2d 634 (1956) (husband survived wife for a few hours).

The Arizona Supreme Court has previously focused on the time of the wrongful death as the time when survivors/statutory beneficiaries are determined. In Hurt v. Superior Court, 124 Ariz. 45, 601 P.2d 1329 (1979), the court held that a posthumously born child of the decedent was included within the term "children" for whose benefit a wrongful death action may be brought. In its holding, the court found that because the child was conceived before the time of death, even though born after, it was a beneficiary within the meaning of the statute.

II ELINOR'S ESTATE IS NOT A STATUTORY BENEFICIARY

It is well settled that a right of action for wrongful death is purely statutory. Gibson v. Boyle, 139 Ariz. 512, 679 P.2d 535 (App.1983). The action must be brought in the names of the persons to whom the right was given by statute. Solomon v. Harman, 107 Ariz. 426, 489 P.2d 236 (1971), citing Barragan v. Superior Court, 12 Ariz.App. 200, 469 P.2d 92, modified on other grounds, 12 Ariz.App. 402, 470 P.2d 722 (1970). In Summerfield v. Superior Court of Maricopa County, 144 Ariz. 467, 476, 698 P.2d 712, 721 (1985), the supreme court stated the legislative intent to allow full recovery for survivors:

In enacting the wrongful death statute of 1887, and in returning to its terms under the present statute, the legislature explicitly recognized the legal right of the survivors to be compensated for their loss resulting from the victim's death.

(Emphasis in original). The supreme court had previously held, in the case where there were survivors and the question was the authority of the personal representative to compromise the wrongful death claim, that a wrongful death claim of a surviving widow and children was not a claim made by the estate. See In re Estate of Milliman, 101 Ariz. 54, 61, 415 P.2d 877, 884 (1966). In Solomon v. Harman, supra, the supreme court distinguished the proper party plaintiff from the right to be a beneficiary and concluded that after the 1956 amendment, the estate is a beneficiary "only if none of those named beneficiaries survive." 107 Ariz. at 430, 489 P.2d at 240 (1971).

We have also held, in discussing distribution of damages following the 1956 statutory amendment (that damages to survivors be distributed according to the laws of intestacy), that this manner of distribution controls "only when the action is brought for the benefit of the estate, that is, when there is no surviving spouse, parent or child." Salinas v. Kahn, 2 Ariz.App. 181, 194, 407 P.2d 120, 133, modified, 2 Ariz.App. 348, 409 P.2d 64 (1965) (emphasis added). It is thus clear that the estate of the decedent is a beneficiary only if no specifically named beneficiary "survives" within the meaning of the statute.

This is also not a situation where the primary beneficiary dies and the question arises as to the effect of that death on a different class of beneficiaries. In this case, at the time of Elinor's death, there was a statutory survivor, which precluded any claim by Elinor's estate. See Solomon v. Harman, supra, (when the statute called for distribution of damages according to intestate succession) where the court stated:

It is clear that ...