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Renville v. Fredrickson11/16/2004
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We also conclude that it was appropriate for the District Court to resolve this issue on summary judgment. As we explained in Sacco, "It is for the court to determine whether on the evidence severe [serious] emotional distress can be found; it is for the jury to determine whether, on the evidence, it has in fact existed." Sacco , 271 Mont. at 233, 896 P.2d at 425, (quoting Restatement (Second) of Torts , § 46, comment j at 78.) In the case before us, the District Court concluded that on the evidence presented, severe emotional distress could not be found. Based upon our review, we agree and affirm the District Court's Order granting summary judgment in favor of the Estate on Renville's negligent infliction of emotional distress claim.
In addition to her NIED cause of action, Renville sought damages for loss of consortium for the death of Sorenson. She argued that while this Court has not yet recognized the right of parents to recover for the loss of consortium of an adult child, a U.S. District Court in Montana (hereinafter the "federal court") in Bear Medicine v. U.S. , (D. MT 2002) 192 F.Supp.2d 1053 (discussed below), has recently held that such recovery should be allowed. Frederickson counters that we are not constrained to follow the federal court.
In its briefs to this Court, the Estate instead urged us to follow other jurisdictions that have declined to recognize such a cause of action.
The District Court concluded that Renville's "loss of consortium claim fails because Montana does not recognize a loss of consortium claim for the death of an adult child." The court continued that " here is no case law in Montana directly addressing whether parents can recover for the loss of consortium of an adult child." The court thereafter expressly declined to expand the law to allow such a cause of action.
In its Petition for Rehearing, the Estate pointed out that a loss of consortium damage claim arising from a negligently-inflicted death is an inextricable element of a wrongful death action that may be brought only by the personal representative of the decedent under § 27-1-513, MCA. Renville responds that a cause of action for loss of consortium is not synonymous with a cause of action for wrongful death.
The relevant part of § 27-1-513, MCA (2001), states:
When injuries to and the death of one person are caused by the wrongful act or neglect of another, the personal representative of the decedent's estate may maintain an action for damages against the person causing the death . . . .
This statute and its predecessor have been interpreted to mean that only one wrongful death action arising out of an adult's wrongful death may be brought and the decedent's personal representative is the only person who may bring such an action. State v. District Court (1961), 139 Mont. 367, 370, 364 P.2d 739, 741. ("The [statute] specifically provides that there can be but one action for a wrongful death and that such action must be prosecuted and maintained by the personal representative . . . ." (Emphasis in original)). The personal representative holds the proceeds of any damage award for the heirs of the decedent and the award does not become part of the decedent's estate.
Additionally, under § 27-1-323, MCA, which states, " n every action under 27-1513, such damages may be given as under all the circumstances of the case may be just," we have held that loss of consortium and loss of comfort and society damages are examples of "just" damages available in wrongful death actions. Payne v. Eighth Judicial Dist. Court , 2002 MT 313, 11, 313 Mont. 118, 11, 60 P.3d 469, 11. As indicated above, Sorens
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