Walsh v. Chartered

CourtCourt of Appeals of Arizona
Citation258 P.3d 172,609 Ariz. Adv. Rep. 17,227 Ariz. 354
Docket NumberNo. 1 CA–CV 09–0751.,1 CA–CV 09–0751.
PartiesElizabeth WALSH, surviving wife of Jerome Walsh, deceased; and Annette Forrester, Scott Walsh, Steven Walsh, and Lisa Cline, surviving children of Jerome Walsh, deceased, Plaintiffs/Appellants,v.ADVANCED CARDIAC SPECIALISTS CHARTERED, Defendant/Appellee.
Decision Date26 May 2011

227 Ariz. 354
258 P.3d 172
609 Ariz.
Adv. Rep. 17

Elizabeth WALSH, surviving wife of Jerome Walsh, deceased; and Annette Forrester, Scott Walsh, Steven Walsh, and Lisa Cline, surviving children of Jerome Walsh, deceased, Plaintiffs/Appellants,

No. 1 CA–CV 09–0751.

Court of Appeals of Arizona, Division 1, Department A.

May 26, 2011.

[258 P.3d 173]

Law Office of Scott E. Boehm, P.C. By Scott E. Boehm, Phoenix, Co–Counsel for Plaintiffs/Appellants.Copple & Copple, P.C. By Steven D. Copple, S. Christopher Copple, Phoenix, Co–Counsel for Plaintiffs/Appellants.Jennings, Strouss & Salmon, P.L.C. By John J. Egbert, Phoenix, Co–Counsel for Defendant/Appellee.Jardine, Baker, Hickman & Houston, P.L.L.C. By Neil C. Alden, Curtis M. Bergen, Phoenix, Co–Counsel for Defendant/Appellee.
BARKER, Judge.

¶ 1 Plaintiffs Annette Forrester, Scott Walsh, Steven Walsh, and Lisa Cline (“the children”) appeal from the superior court's award of zero dollars in damages for the wrongful death of their father. They claim that this award is insufficient under Rule 59(a)(5) of the Arizona Rules of Civil Procedure. The trial court considered the issue to have been waived. We uphold the jury's right to award zero damages and remand for the court to rule on the Rule 59(a)(5) motion

[258 P.3d 174]

for new trial consistent with the principles that follow.
Facts and Procedural History

¶ 2 This appeal arises out of a claim for the wrongful death of Jerome Walsh brought by his wife, Elizabeth Walsh, and his surviving adult children. The liability facts are uncontested on this appeal.

¶ 3 Jerome and Elizabeth Walsh were lifetime residents of Minnesota. In December, 2003, Jerome and Elizabeth were in Arizona when Jerome became ill. Jerome's primary care physician referred him to Defendant Warren Zeitlin. 1 Jerome was treated by Dr. Zeitlin and various other doctors who were all employed by Defendant Advanced Cardiac Specialists. The Walshes returned to Minnesota, and their son Scott Walsh arranged to have Jerome seen at the Mayo Clinic located there. Jerome entered the Mayo Clinic on March 17, 2009. He died the following day of endocarditis, a form of heart infection. Jerome's wife and the children claimed that Advanced Cardiac Specialists' employees failed to diagnose and cure Jerome's heart infection, thus causing his death.

¶ 4 At trial, Elizabeth Walsh and the children testified extensively as to their relationship with Jerome. This testimony was not contested by Defendants; their counsel did not cross-examine the witnesses on this issue.

¶ 5 On May 26, 2009, the jury in the superior court found in favor of Plaintiffs on their wrongful death claim against Advanced Cardiac Specialists and its employees. It awarded damages of $1,000,000 to wife Elizabeth Walsh and made a finding of zero damages for each of the children. The jury handwrote “0” on the verdict form in the space for damages by each child's name.

¶ 6 After the jury was discharged, the children filed a motion for a new trial under Rule 59(a)(5) of the Arizona Rules of Civil Procedure stating that our decisions in White v. Greater Arizona Bicycling Ass'n, 216 Ariz. 133, 163 P.3d 1083 (App.2007), and Sedillo v. City of Flagstaff, 153 Ariz. 478, 737 P.2d 1377 (App.1987), mandated an award of at least nominal damages. Defendants argued that the children's motion should have been brought under Rule 49(c) before the jury was discharged. Accordingly, Defendants asserted that the children's claim was untimely and waived. The court agreed with Defendants and dismissed the children's motion. The children timely appealed the trial court's ruling. We have jurisdiction under Arizona Revised Statutes (“A.R.S.”) section 12–2101(B) (2003).

1. Whether a Jury May Return a Verdict of Zero Damages on a Wrongful Death Claim

¶ 7 On appeal, the children argue that the trial court erred in holding that their motion was waived under Rule 49(c) of the Arizona Rules of Civil Procedure. They further assert that our previous holdings in White, 216 Ariz. 133, 163 P.3d 1083, and Sedillo, 153 Ariz. 478, 737 P.2d 1377, require us to reverse and remand for a new trial on damages. The trial court's ruling on waiver is premised on the required application (by the trial court) of our holdings in White and Sedillo. In short, the trial court determined that White and Sedillo require at least some damages, and because the verdict form was returned without any damages, the verdict was inconsistent under the holdings of those two cases. Because that objection was not made with the jury present, the trial court found the issue waived.

¶ 8 Both White and Sedillo were split-panel decisions from this court. As set forth below, we agree with each dissent's proposed outcome; namely, that White and Sedillo were wrongly decided and a jury's verdict of zero damages in a statutory wrongful death case can be a permissible verdict. As such, Rule 49(c) is not implicated, and the waiver issue is moot.

a. The Difference Between a Wrongful Death Claim and a Traditional Negligence Claim

¶ 9 The critical aspect of our analysis is the difference between a statutory

[258 P.3d 175]

wrongful death claim and a negligence claim. In a traditional negligence claim, damages must be proved for a claim to exist. Glaze v. Larsen, 207 Ariz. 26, 29, ¶ 15, 83 P.3d 26, 29 (2004). The four traditional elements for a negligence claim are duty, breach of that duty, causation, and damages. Gipson v. Kasey, 214 Ariz. 141, 143, ¶ 9, 150 P.3d 228, 230 (2007) (“To establish a claim for negligence, a plaintiff must prove four elements: (1) a duty requiring the defendant to conform to a certain standard of care; (2) a breach by the defendant of that standard; (3) a causal connection between the defendant's conduct and the resulting injury; and (4) actual damages.”). Where there are no damages in a negligence case, there is simply no cause of action upon which a plaintiff can recover. Glaze, 207 Ariz. at 29, ¶ 15, 83 P.3d at 29. Thus, were a jury to find in favor of a plaintiff on a negligence matter and award zero damages, the verdict would be defective as a matter of law.

¶ 10 A wrongful death claim, however, is essentially a creature of statute—not the common law. In re Lister's Estate, 22 Ariz. 185, 187, 195 P. 1113, 1113 (1921) (“Under the common law there was no right of action for damages for wrongful death. The right is statutory and was originally provided for in England by what is known as Lord Campbell's Act.”).2 The statutory framework for a wrongful death claim differs substantially from a common law negligence claim. Our statutory scheme provides that “[w]hen death of a person is caused by wrongful act, neglect or default, ... the person who ... would have been liable if death had not ensued shall be liable to an action for damages.” A.R.S. § 12–611.3 The statutory scheme then directs that

the jury shall give such damages as it deems fair and just with reference to the injury resulting from the death to the surviving parties who may be entitled to recover, and also having regard to the mitigating or aggravating circumstances attending the wrongful act, neglect or default.A.R.S. § 12–613. Thus, unlike a negligence claim, damages is not an essential element of a wrongful death claim. Rather, a person who, absent the death, “would have been liable” for the act that caused the death, now becomes “liable to an action for damages” to those whom the statute specifies. A.R.S. § 12–611. In that action, the jury is to “give such damages as it deems fair and just.” A.R.S. § 12–613. The statutory language does not preclude an award of zero damages if that is the amount the fact finder determines to be “fair and just.” Id.

¶ 11 In construing statutes, we follow the legislature's pronouncements. “We first consider the statute's language ‘because we expect

[258 P.3d 176]

it to be the best and most reliable index of a statute's meaning.’ ” Zamora v. Reinstein, 185 Ariz. 272, 275, 915 P.2d 1227, 1230 (1996) (quoting State v. Williams, 175 Ariz. 98, 100, 854 P.2d 131, 133 (1993)). When statutory language “is plain and unambiguous, courts generally must follow the text as written.” Canon Sch. Dist. No. 50 v. W.E.S. Constr. Co., 177 Ariz. 526, 529, 869 P.2d 500, 503 (1994). This applies with particular force here because a wrongful death claim is statutory in nature. Bowslaugh v. Bowslaugh, 126 Ariz. 517, 519, 617 P.2d 25, 27 (1979) (“A cause of action for wrongful death is purely statutory in origin and we must adhere to the plain language of the statute, leaving any deficiencies or inequities to be corrected by the legislature.”); see also In re Estate of Winn, 225 Ariz. 275, 277, ¶ 12, 237 P.3d 628, 630 (App.2010) (“It is for the legislature to make policy decisions about the scope of recoverable damages in a statutory cause of action.”). Thus, under a plain language reading of the statute, there is no necessary flaw in the jury's award of zero damages in a wrongful death claim. Such a result is permitted.

¶ 12 Our construction of the statute, permitting a zero damages award, is also consistent with other previous holdings. For instance, in Quinonez v. Andersen, 144 Ariz. 193, 198, 696 P.2d 1342, 1347 (App.1984), we construed the “fair and just” provision of § 12–613 to permit an award of zero damages. There, we held that a jury could consistently find in favor of the plaintiff on a wrongful death claim but decline to award damages. Id. In Quinonez, the beneficiary making the damages claim was the decedent's husband. Id. Due to the abusive relationship between the husband and the decedent-wife, we determined that “the jury may have concluded that ... a just and fair award for this loss was zero.” Id. Thus, Quinonez illustrates the principle that in a wrongful death case damages is not an essential element of the claim itself and the jury may return a verdict of zero damages even after a...

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