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Schuff v. A.T. Klemens & Son12/27/2000
atever and conclude that the general "any other source" part of subpart (e) is limited to the less general or specifics of subparts (a-d). This seems to me a strained application of the maxim or canon of construction. Further, this interpretation effectively eliminates "any other source" from the statute all together.
The majority may be right in their interpretation. The Legislature may have intended that Social Security death benefits are not to be a collateral source. However, the Legislature did not say that and any amount of construction, rationalization, bending or manipulation will not make it so.
The object is to make a plaintiff whole for his damages caused by a defendant. On the other hand, it is not the object to make the plaintiff more than whole. The jury in this case determined the amount necessary to make the Plaintiff whole: 1.3 million dollars.
Unlike life insurance (an exception to collateral source) which one purchases with his own money or earns as part of his employment package, Social Security death benefits are part of the fabric of society paid for by all citizens, including the Plaintiff and the Defendant.
Since the District Court did not include Social Security death benefits as a collateral source, it erred and so do we by not setting this right at this time. The majority will make Plaintiff some $247,070 more than whole. By not simply applying the foremost canon of judicial construction, to-wit: read the statute, the majority does not apply the law as written by the Legislature and will in this case and countless others, enable some plaintiffs to be made more than whole at the unjust expense of those committing unintended torts. If the statute is to be rewritten to include language that the Legislature left out, then it is the Legislature's task, not this Court's to accomplish that.
As to Issue 6, the majority will also give Plaintiff prejudgment interest on the basis that it is calculable as to at least the $203,000, in medical and funeral expenses awarded by the jury. The Plaintiff made a demand of Defendant for this long before trial.
However, I believe the record reflects that even before Plaintiff's demand, the State Fund had paid these things. At some point before trial and after Plaintiff had settled with some other Defendants, Plaintiff was able to settle the State Fund's subrogation rights for $55,000. Plaintiff certainly cannot be faulted for settling a claim for 25 cents on the dollar and is certainly entitled to the benefit of the bargain.
Inherent in the concept of interest is that the purpose of interest is to compensate for the use or detention of money. In the case at bar, the medical and funeral expenses were paid by the State Fund. Plaintiff accepted the benefit of those payments and has waived all claims to prejudgment interest. See ยง 27-1-214, MCA.
Then, Plaintiff paid the State Fund $55,000 to settle the subrogation claim. All Plaintiff is out, that Plaintiff was entitled to from Defendant prior to trial, was $55,000 from the date Plaintiff settled the subrogation claim. Plaintiff's prejudgment interest should be based on the $55,000 Plaintiff lost the use of before trial.
To the extent the majority will allow Plaintiff prejudgment interest on more than the $55,000 for a longer period than from the date Plaintiff paid the $55,000, I dissent.
G. TODD BAUGH
District Judge sitting for Justice William E. Hunt, Sr.
Judge Gary L. Day, dissenting.
I dissent from the majority's decision and analysis as to Issue 1. Since I would remand for a new trial, I do not reach the remaining issues on
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