Matter of Adventure Bound Sports, Inc.

• Decision Date: 29 June 1994
• Docket Number: No. CV 489-274.,CV 489-274.
• Citation: 858 F. Supp. 1192
• Parties: In the Matter of the ADVENTURE BOUND SPORTS, INC., and Andre Smith d/b/a Adventure Bound Sports for Exoneration from or Limitation of Liability.
• Court: U.S. District Court — Southern District of Georgia

858 F. Supp. 1192

In the Matter of the ADVENTURE BOUND SPORTS, INC., and Andre Smith d/b/a Adventure Bound Sports for Exoneration from or Limitation of Liability.

No. CV 489-274.

United States District Court, S.D. Georgia, Savannah Division.

June 29, 1994.

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Barnard Portman, Savannah, GA, Matthew W. Monroe, Boca Raton, FL, for petitioner.

Edwin D. Robb, Jr., Savannah, GA, for claimant Laufman.

Jeffrey W. Laskey, Savannah, GA, for claimant Wentzel.

Robert S. Glenn, Jr., Savannah, GA, Frank R. Seigel, Atlanta, GA, for claimant MacLean.

Lawrence B. Lee, Asst. U.S. Atty., Savannah, GA, for movant.

ORDER AND MEMORANDUM

NANGLE, District Judge.

This case arose from a deep sea scuba diving accident that occurred on June 4, 1989, in which Paul Wentzel and Warren Seeds were killed.¹ The owners of the vessel involved in the accident filed a petition for exoneration from and/or limitation of liability, and the decedents' personal representatives filed claims for recovery pursuant to the Death on the High Seas Act, 46 U.S.C.App. §§ 761-768 (1975) ("DOHSA"). The Court bifurcated this case on the issues of liability and damages and, after a bench trial on the liability question, denied the owners' petition for exoneration from and/or limitation of liability. In re Adventure Bound Sports, Inc., 837 F.Supp. 1244 (S.D.Ga.1993). Currently before the Court is the issue of the amount of damages sufficient to compensate the claimants under DOHSA. After hearing the evidence, examining the exhibits, pleadings, stipulations, and proposed findings of fact and conclusions of law of the parties, this Court makes its Findings of Fact and Conclusions of Law as to the amount of damages appropriate to compensate the claimants.

FINDINGS OF FACT AND CONCLUSIONS OF LAW²

DOHSA permits a decedent's spouse, parent, child, or dependent relative to recover for pecuniary losses sustained on account of the death. 46 U.S.C. §§ 761-762. "The measure of recovery under ... DOHSA is the actual pecuniary benefits that the decedent's beneficiaries could reasonably have expected to receive from the continued life of the decedent." Solomon v. Warren, 540 F.2d 777, 786 (5th Cir.1976), cert. dismissed sub nom. Warren v. Serody, 434 U.S. 801, 98 S.Ct. 28, 54 L.Ed.2d 59 (1977). Pecuniary losses include loss of support, loss of services, funeral expenses, and loss of nurture and guidance to the decedent's children. Mascuilli v. United States, 343 F.Supp. 439, 441-42 (E.D.Pa.1972), rev'd on other grounds, 483 F.2d 81 (3d Cir.1973). The Court need not establish the value of a claimant's pecuniary losses with mathematical precision. Shatkin v. McDonnell Douglas Corp., 727 F.2d 202, 207 (2d Cir.1984); Whitaker v. Blidberg Rothchild Co., 296 F.2d 554, 555 (4th Cir. 1961); In re Risdal & Anderson, Inc., 291 F.Supp. 353, 357 (D.Mass.1968). Nevertheless, "the amount awarded must bear some relation to the evidence and cannot be based on speculation." Dugas v. National Aircraft Corp., 438 F.2d 1386, 1393 n. 18 (3d Cir. 1971). In the instant case, therefore, claimants may recover damages for the loss of reasonably expected benefits to which a pecuniary value can be assigned.

I. Wentzel Claimants

Paul Wentzel's wife, Patricia, and his sons, Matthew and Justin, seek compensation for the pecuniary losses they have experienced due to Paul's death. Paul Wentzel was the sole provider for his family during his life. At the time of the accident, Paul and Patricia had been married for three years and had a strong marriage. Matthew Wentzel was two years old and Justin Wentzel six weeks old at the time of their father's death.

Paul Wentzel was born on March 21, 1960, and died on June 4, 1989. He was an enlisted man who had served eleven years in the United States Army, and at the time of his death he was an E-6 Sergeant First Class. Patricia Wentzel testified at trial and the Court finds that Paul would have remained in military service until 1998, when he would have become eligible for military retirement. He then would have sought civilian employment. Based on expert testimony adduced at trial, the Court finds that Paul would have retired from the civilian workforce in 2020, at the age of sixty. The parties have stipulated that Paul Wentzel would have lived until 2034.

A. Loss of Support. Paul Wentzel's family, Patricia Wentzel, Justin Wentzel, and Matthew Wentzel, may recover for the loss of Paul's support occasioned by his death. Sea-Land Servs., Inc. v. Gaudet, 414 U.S. 573, 584, 94 S.Ct. 806, 814, 39 L.Ed.2d 9 (1974). This loss of support takes several forms. The Wentzel claimants had a reasonable expectation of receiving benefits from Paul's military wages; Paul's military allowances, including allowances for quarters (BAQPD), separate rations, leave rations, and variable housing (VHA); Paul's military retirement income; and Paul's civilian income.

1. Military Wages and Allowances. The parties have stipulated that Paul Wentzel, an E-6 Sergeant First Class, received $16,714.80 per year in basic pay at the time of his death, and his family had a reasonable expectation of continuing to benefit from Paul's basic pay. The family also argues that Paul regularly received military allowances supplementing his basic pay: BAQPD (allowances for quarters), separate rations, leave rations, and VHA (variable housing). At trial, United States Army Major Andrew Milani testified that all married servicemen received BAQPD. Further, the Wentzel claimants have offered evidence indicating that Paul received separate rations, leave rations, and VHA consistently from the time of his marriage until his death. When Paul Wentzel died, he was receiving $7,822.44 per year in allowances, as follows: $4,654.80 per year in BAQPD; $2,052.00 per year in separate rations; $342.00 per year in leave rations; and $773.64 per year in VHA. The Court finds that the Wentzel claimants had a reasonable expectation of receiving these military allowances, making them a pecuniary loss under DOHSA. The Court thus will award the Wentzel claimants a total of $24,537.24 per year in military wages for the years Paul Wentzel would have continued military service, reduced to present value.³

2. Military Entitlements. The Wentzel claimants also seek compensation for several military entitlements, or fringe benefits, including medical care under the CHAMPUS program, social security coverage, a federal tax exemption, paid leave and holidays, education programs, morale, welfare, and recreation activities, counseling and assistance programs, and space available travel. A court may include lost fringe benefits in a lost support award, although courts often exclude these amounts for the sake of simplicity. Jones & Laughlin Steel Corp. v. Pfeifer, 462 U.S. 523, 534, 103 S.Ct. 2541, 2549, 76 L.Ed.2d 768 (1983). Because the Court finds that the Wentzel claimants did not prove sufficiently their pecuniary loss concerning these benefits, the Court will not award damages on this ground.

The Court finds that claimants did not experience a pecuniary loss as to their medical benefits under CHAMPUS, since they continue to receive CHAMPUS coverage despite Paul Wentzel's death. The Wentzel claimants' contention that their coverage is now qualitatively different, and that this difference is a pecuniary loss, asks the Court to speculate upon both the nature and pecuniary value of this difference. The Court refuses to engage in such speculation, and finds that, as the Wentzel family still receives CHAMPUS medical benefits, they have not experienced a pecuniary loss in this area.

Similarly, the Court finds that claimants did not experience a pecuniary loss as to their social security benefits. The Wentzel claimants argue that they had a reasonable expectation to receive social security coverage that they lost upon Paul Wentzel's death. Patricia Wentzel testified, however, that her family currently receives social security benefits as a result of Paul's death. Because the Wentzel claimants are currently receiving social security benefits, the Court finds that they did not experience a pecuniary loss as to social security coverage.

The Wentzel claimants have not successfully demonstrated that they had a reasonable expectation of receiving additional fringe benefits while Paul Wentzel was alive. Claimants' expert witness, Dr. Costen, briefly mentioned these benefits in a list of military entitlements that he culled from a compensation breakdown provided by the military. The parties agreed to an equally vague stipulation that Paul Wentzel "would have received fringe benefits while employed by the military." (Joint Stip. No. 36.) No further reference to these benefits exists in the record; the nature of these benefits and their continuing availability to claimants is not addressed. The Court therefore finds that the claimants have not provided sufficient evidence to show that they experienced a pecuniary loss as to these fringe benefits.

3. Military Retirement. The Wentzel family seeks compensation for the military retirement income Paul Wentzel would have received but for his death. The Court finds that Paul intended to complete twenty years of service in the military, retiring in 1998. This tenure would have entitled Paul to a retirement income from which the Wentzel claimants had a reasonable expectation of receiving a pecuniary benefit. The Court further finds the value of this annual retirement income to be fifty percent of Paul Wentzel's base pay at the time of his retirement.⁴ At the time of his death, Paul Wentzel earned $16,714.00 in basic pay. Applying a six percent growth rate to this figure,⁵ the Court estimates that, upon his 1998 retirement, Paul Wentzel would have earned $28,239.31 in basic pay. Paul Wentzel's annual retirement income, from 1999 until his death, would have been $14,119.66, and the Court will award...