Olson v. Olson, 24649.

CourtSupreme Court of South Dakota
Writing for the CourtZinter
Citation2008 SD 39,751 N.W.2d 706
PartiesJames W. OLSON, In His Capacity as the Personal Representative of the Elda L. Carlson Estate, Plaintiff and Appellant, v. The Glenn E. OLSON ESTATE and Wayne A. Olson, In His Capacity as the Personal Representative of the Glenn E. Olson Estate, Defendants And Appellees.
Docket NumberNo. 24649.,24649.
Decision Date04 June 2008
751 N.W.2d 706
2008 SD 39
James W. OLSON, In His Capacity as the Personal Representative of the Elda L. Carlson Estate, Plaintiff and Appellant,
v.
The Glenn E. OLSON ESTATE and Wayne A. Olson, In His Capacity as the Personal Representative of the Glenn E. Olson Estate, Defendants And Appellees.
No. 24649.
Supreme Court of South Dakota.
Considered on Briefs April 21, 2008.
Decided June 4, 2008.

Thomas E. Alberts, Avon, SD, for plaintiff and appellant.

Craig K. Thompson, Vermillion, SD, for defendants and appellees.

ZINTER, Justice.


[¶ 1.] Glenn E. Olson and his sister Elda L. Carlson died in a single-car accident. Elda's Estate subsequently sought recovery of a claimed loss of prospective inheritance from Glenn's Estate. Elda's Estate contended Glenn was negligent, and Elda's wrongful death beneficiaries were entitled to recover the prospective inheritance that Elda would have received from Glenn's Estate had she survived the car accident and died later. This claim was asserted even though Glenn's will expressly disinherited Elda if she did not survive Glenn for thirty days. The circuit court granted summary judgment in favor of Glenn's Estate, concluding that the prospective

751 N.W.2d 707

inheritance claim never vested and was too remote and speculative. We affirm.

I.

[¶ 2.] On August 3, 2002, Glenn Olson was operating an automobile owned by his sister Elda, who was a passenger. Glenn and Elda were involved in a single car accident causing their deaths. Glenn died testate. Under his will, much of Glenn's estate passed to Elda, and some passed to Glenn's "nephews and nieces ... in equal shares, share and share alike ... all of which shall be subject to a life estate in my sister, Elda Carlson." Glenn's will further provided, however, that if a beneficiary died within thirty days of Glenn's death, the beneficiary was deemed to have predeceased him.1

[¶ 3.] Elda's Estate brought this suit claiming under both survivorship2 and wrongful death causes of action. The complaint stated the suit was brought "for the benefit of [Elda's] estate and decedent's surviving next of kin." With respect to wrongful death, the complaint asserted that: the accident was caused by Glenn's negligence; Elda (age sixty-eight) had a life expectancy of fifteen years; her premature death deprived her nieces and nephews of comfort, society, counsel and enjoyment, valued at a minimum of $100,000; and because of Glenn's negligence, Elda's Estate's beneficiaries were deprived of the benefits of Glenn's will, in an amount of approximately $250,000.

[¶ 4.] Elda's Estate argued that a jury question existed whether, but for Glenn's negligence, Elda would have outlived Glenn by more than thirty days, thereby entitling Elda's wrongful death beneficiaries to claim the share of Glenn's Estate. Elda's Estate acknowledged that Elda did not survive Glenn by thirty days and was therefore disinherited under the will's common disaster clause. Elda's Estate argued, however, that the common disaster clause should not be enforced because a jury should determine whether Glenn intended the clause to disinherit Elda when Glenn caused her death.

[¶ 5.] The circuit court granted summary judgment, concluding that "under South Dakota law, [ ] [Elda] had, at best, a future contingent interest that never vested." The circuit court also concluded the claim was too speculative. Elda's Estate appeals asserting that Elda's prospective inheritance is a recoverable element of damages in a wrongful death action brought by Elda's Estate on behalf of Elda's wrongful death beneficiaries. In reviewing the summary judgment, we "determine whether the moving party demonstrated the absence of any genuine issue of material fact and [established] entitlement to judgment on the merits as a matter of law." Behrens v. Wedmore, 2005 SD 79, ¶ 18, 698 N.W.2d 555, 565.

II.
Prospective Inheritance

[¶ 6.] Elda's Estate's recovery is governed by South Dakota's wrongful death statute. SDCL 21-5-7 provides, "[i]n every action for wrongful death the jury may give such damages as they may think proportionate to the pecuniary injury resulting from such death to the persons respectively for whose benefit such action shall be brought." Elda's Estates sole authority

751 N.W.2d 708

for one estate's recovery of a prospective inheritance against another estate under a wrongful death statute is a Delaware unpublished trial court opinion, Wilgus v. Estate of Law, 1996 WL 769335 (Del.Super.Ct. 1996).

[¶ 7.] In Wilgus, Law was driving a car in which Wilgus was a passenger. Both Law and Wilgus were killed in an accident when Law failed to yield the right of way to another vehicle. Wilgus's estate brought a wrongful death action seeking damages for loss of prospective inheritance. Law's estate contended that as a matter of law, claims for prospective inheritance were prohibited. Wilgus extensively analyzed the issue, citing the authorities allowing3 and disallowing4 a wrongful death recovery for prospective inheritance. Applying Maryland law, the Wilgus court concluded that the Maryland wrongful death statute allowed recovery if there was sufficient proof of a lost inheritance:

[L]oss of inheritance is clearly a pecuniary loss and is recoverable under the

751 N.W.2d 709

applicable wrongful death statute, provided that there is sufficient evidence to support properly such damages and avoid excess speculation. This approach permits recovery by those parties who are able to offer sufficient proof of a prospective inheritance, while denying recovery to those who make general or unverifiable claims.

Id. at *7 (emphasis added). The decision in O'Toole v. United States, 242 F.2d 308 (3rdCir.1957), cited in Wilgus, indicated commentators generally agree that when proved, a loss of...

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1 practice notes
  • Briggs v. Briggs, 4:17-CV-04167-KES
    • United States
    • United States District Courts. 8th Circuit. United States District Courts. 8th Circuit. District of South Dakota
    • June 27, 2018
    ...two cases that have reached the South Dakota Supreme Court—Niesche v. Wilkinson, 841 N.W.2d 250 (S.D. 2013) and Olson v. Olson Estate, 751 N.W.2d 706, 707-09 (S.D. 2008)—and the South Dakota Supreme Court expressed no opinion on the existence of the tort in either case.Page 8 In Niesche, th......
1 cases
  • Briggs v. Briggs, 4:17-CV-04167-KES
    • United States
    • United States District Courts. 8th Circuit. United States District Courts. 8th Circuit. District of South Dakota
    • June 27, 2018
    ...two cases that have reached the South Dakota Supreme Court—Niesche v. Wilkinson, 841 N.W.2d 250 (S.D. 2013) and Olson v. Olson Estate, 751 N.W.2d 706, 707-09 (S.D. 2008)—and the South Dakota Supreme Court expressed no opinion on the existence of the tort in either case.Page 8 In Niesche, th......

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