Rice v. Ryder

• Citation: 400 S.E.2d 263,184 W.Va. 255
• Decision Date: 06 December 1990
• Docket Number: No. 19386,19386
• Court: Supreme Court of West Virginia
• Parties: Martha J. RICE, Administratrix of the Estate of Joyce Gale Rice v. Larry E. RYDER and Steven W. Ryder.

Page 263

400 S.E.2d 263

184 W.Va. 255

Martha J. RICE, Administratrix of the Estate of Joyce Gale Rice v. Larry E. RYDER and Steven W. Ryder.

No. 19386.

Supreme Court of Appeals of

West Virginia.

Dec. 6, 1990.

Syllabus by the Court

1. "Not only has the Legislature liberalized the wrongful death recovery statute through the years, but this Court has adopted a liberal construction of the statute from our earliest cases." Syllabus point 1, Bond v. City of Huntington, 166 W.Va. 581, 276 S.E.2d 539 (1981).

2. West Virginia Code § 55-7-6 (1985) did not require that parents, brothers, or sisters be financially dependent upon the decedent in order to receive "compensation for reasonably expected loss of income of the decedent, and services, protection, care and assistance provided by the decedent...."

3. In a wrongful death action, a showing of financial dependency upon the decedent is not a prerequisite to recovery of the damages specified in W.Va.Code § 55-7-6(c)(1) (1989).

4. West Virginia Code § 55-7-6(b) (1989) directs that damages awarded in an action for wrongful death shall be distributed in accordance with the decedent's will or, if there is no will, in accordance with the laws of descent and distribution set forth in W.Va.Code § 42-1-1 et seq.

5. " 'Findings of fact by a trial court without a jury will not be set aside unless they are clearly wrong.' Syllabus Point 1, McDaniel v. Romano, 155 W.Va. 875, 190 S.E.2d 8 (1972)." Syllabus point 1, Moore v. Goode, 180 W.Va. 78, 375 S.E.2d 549 (1988).

6. " 'Rule 59(a), R.C.P., provides that a new trial may be granted to any of the parties on all or part of the issues, and in a case where the question of liability has been resolved in favor of the plaintiff leaving only the issue of damages, the verdict of the jury may be set aside and a new trial granted on the single issue of damages.' Syllabus Point 4, Richmond v. Campbell, 148 W.Va. 595, 136 S.E.2d 877 (1964)." Syllabus point 6, King v. Bittinger, 160 W.Va. 129, 231 S.E.2d 239 (1976).

7. "A new trial may be limited to the single issue of damages when it is apparent from a review of the evidence that: (1) the issue of damages is separate and distinct from the issue of liability; (2) the liability of the defendant is definitely established; and (3) the limitation will not operate to the prejudice of the defendant." Syllabus point 7, King v. Bittinger, 160 W.Va. 129, 231 S.E.2d 239 (1976).

Everette F. Thaxton, Norman T. Daniels, Charleston, for Martha J. Rice.

Edward M. Kowal, Jr., Campbell, Woods, Bagley, Emerson, McNeer & Herndon, Huntington, Carl F. Stucky, Jr., Steptoe and Johnson, Charleston, for Larry E. Ryder and Steven W. Ryder.

BROTHERTON, Justice:

The appellant, Martha J. Rice, Administratrix of the Estate of Joyce Gale Rice, appeals from the December 23, 1988, order of the Circuit Court of Kanawha County, which awarded the appellant $181,231.05 in damages as a result of a wrongful death action she initiated in that court following the death of her daughter.

Joyce Gale Rice, age twenty-nine, was struck and killed by a car which was jointly owned by Steven W. Ryder and Larry E. Ryder, and which was being driven by Steven W. Ryder, on May 24, 1986. She was unmarried and had no children at the time of her death. As the personal representative of her daughter's estate, the victim's mother subsequently filed suit under the West Virginia Wrongful Death Act (W.Va.Code §§ 55-7-5, 55-7-6, and 55-7-7). The defendant denied that he was negligent and counterclaimed for damages to his car. On May 12-18, 1988, the issues were tried without a jury before the Circuit Court of Kanawha County.

At trial, the appellant introduced evidence that the decedent had been enrolled in the data information processing curriculum at Garnet Career Center in Charleston for two years. An expert testified to her reasonably expected income for her anticipated work life and concluded that the decedent's total lost income and benefits net of consumption and reduced to present value net of inflation as of the date of the trial was $401,934.27.

In an opinion order dated December 23, 1988, the court found that the appellee, Steven W. Ryder, was 60% negligent and "was the primary proximate cause of the accident in that he failed to keep a proper lookout, overdrove his lights, failed to reduce his speed when blinded by the head lamps and otherwise exceeded the speed limit." The court also found that the decedent's own negligence "contributed to the accident to a comparative degree of forty percent. This negligence consisted of placing herself in a position of danger and failing to maintain a proper lookout thereby contributing to the fatal accident."

Applying the principle of comparative negligence and reducing the appellant's total award by 40%, the court awarded the appellant $180,000 in damages for sorrow, mental anguish and solace, as well as $1,231.05 for reasonable funeral expenses. ¹ However, the court did not award any damages pursuant to W.Va.Code § 55-7-6(c)(1)(B) (1985) for compensation for reasonably expected loss of (i) income of the decedent, and (ii) services, protection, care and assistance provided by the decedent. The appellant now argues that although she and the decedent's father, brother and sister were not financially dependent upon the decedent, financial dependency is not a prerequisite to recovery under W.Va.Code § 55-7-6 (1985). We agree and, for the reasons set forth below, we reverse and remand this case to the Circuit Court of Kanawha County.

West Virginia Code § 55-7-6(c)(1) (1989) delineates the types of damages which may be awarded under the Wrongful Death Act. Specifically, § 55-7-6(c)(1) provides that:

The verdict of the jury shall include, but may not be limited to, damages for the following: (A) Sorrow, mental anguish, and solace which may include society, companionship, comfort, guidance, kindly offices and advice of the decedent; (B) compensation for reasonably expected loss of (i) income of the decedent, and (ii) services, protection, care and assistance provided by the decedent; (C) expenses for the care, treatment and hospitalization of the decedent incident to the injury resulting in death; and (D) reasonable funeral expenses. (Emphasis added.)

In this case, the circuit court found that "there was no financial dependence upon decedent" by her family and concluded that the type of damages envisioned by W.Va.Code § 55-7-6(c)(1)(B) (1985) were not recoverable. The court cited Bond v. City of Huntington, 166 W.Va. 581, 276 S.E.2d 539, 543 (1981), in support of this finding. As in the case now before us, the question in Bond was whether the surviving parents of a deceased unmarried daughter could recover for pecuniary losses arising from her wrongful death. However, as the appellant now points out, Bond was decided under the 1965 version of W.Va.Code § 55-7-6, which contained a "dependency requirement" for all family members. West Virginia Code § 55-7-6 (1965) provided, in relevant part, that:

In addition, the jury may award such further damages, not exceeding the sum of one hundred thousand dollars, as shall equal the financial or pecuniary loss sustained by the dependent distributee or distributees of such deceased person, and shall be distributed as though part of the decedent's estate to decedent's dependent distributees in the proportions provided by the laws of descent and distribution. (Emphasis added.)

In Bond, the decedent was eighteen years old and employed, living with parents to whom she contributed household services but no direct monetary support. Addressing the issue of dependency, this Court stated that:

... it is clear that we have interpreted W.Va.Code, 55-7-6 (1965) to mean that there must be some showing of legal or factual dependency at the time of death to recover for pecuniary loss. While legal dependency is easily shown, factual dependency can be shown by evidence that the deceased rendered services for which a monetary value can be estimated.

Bond, 166 W.Va. at 589-90, 276 S.E.2d at 544. We noted in Bond that "[n]ot only has the Legislature liberalized the wrongful death recovery statute through the years, but this Court has adopted a liberal construction of the statute from our earliest cases." Id., 166 W.Va. at 585, 276 S.E.2d at541.

In 1976, the Legislature enacted a new "fair and just" compensation standard for recovery in wrongful death actions. West Virginia Code § 55-7-6 was "substantially broadened" and the dependency requirement was removed for parents, brothers and sisters and retained only as to the remainder class. Id. at 541. The 1976 Act stated, in pertinent part:

In any such action for wrongful death the jury may award such damages as to it may seem fair and just, and may direct in what proportion they shall be distributed to the surviving spouse and children, including adopted children and stepchildren, and grandchildren of the deceased, or if there be none such, then to the parents, brothers and sisters of the deceased, if there be none such, only then to such person or persons who were dependent upon the decedent for support. (Emphasis added.)

Amendments to W.Va.Code § 55-7-6(b) in 1985 directed that persons other than family members who were dependent upon the decedent for support would receive damages before parents and siblings. However, this section, which was applied by the lower court in this case, still did not require that parents and siblings be dependent upon the decedent in order to recover damages. West Virginia Code § 55-7-6(b) (1985) stated:

In every such action for wrongful death the jury, or in a case tried without a jury, the court, may award such damages as to it may seem fair and just, and, after making provision for those expenditures, if any, specified in subdivision (2), subsection (c) of this section, may direct in what proportion the remaining net damages shall be distributed to the surviving spouse and children,...