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Brockie v. Omo Construction12/13/1994
Rehearing Denied January 18, 1995.
, 51 St.Rep. 1322
Submitted on Briefs June 23, 1994.
Appellant Michael Brockie, as personal representative of the estate of Aric Brockie, appeals from an order of the First Judicial District Court, Lewis and Clark County, denying appellant's request for a new trial on the question of damages for the survivorship action.
Following filing of his appeal, appellant filed a notice of subsequent authority pursuant to this Court's recent decision in Newville & Gannet v. State of Montana, Department of Family Services (1994), [267 Mont. 237], 883 P.2d 793, asking us to apply Newville retroactively to the wrongful death award. We discuss the application of the Newville decision in this opinion.
Reversed and remanded.
We state the issues as follows:
1. Was the jury's special verdict finding zero survivorship damages to the estate of Aric Brockie contrary to the evidence?
2. Did the District Court err by denying appellant's motion for a partial new trial on the issue of the survivorship damages sustained by Aric Brockie's estate?
Aric Brockie was killed in an automobile accident on November 26, 1989, on Interstate 94, east of Billings. Aric was a passenger in a vehicle that skidded on an icy bridge deck and collided with a large, portable construction sign owned by defendant Omo Construction, Inc.
Brockie v. Omo Construction, Inc. was first tried in September 1991, and resulted in a verdict of "no negligence" in favor of defendant Omo. Prior to trial, appellant settled with and released the driver. This court reversed and remanded on the grounds of misconduct by the jury foreman. Brockie v. Omo Construction, Inc. (1992), 255 Mont. 495, 844 P.2d 61.
On remand, the jury returned a special verdict finding Omo 35 percent negligent for proximately causing Aric's injuries and death. The jury found that the non-party driver was 65 percent negligent for proximately causing Aric's injuries and death. The jury awarded Aric's parents $170,000 in wrongful death damages. That amount was adjusted to reflect the 35 percent negligence attributable to Omo. The jury awarded Aric's estate zero dollars in survivorship damages.
Appellant filed a motion for a partial new trial pursuant to Rule 59, M.R.Civ.P., limited to the issue of survivorship damages sustained by Aric's estate. The District Court issued an order denying appellant's motion. Appellant appeals the court's order.
ISSUE 1
Was the jury's verdict finding zero survivorship damages to the estate of Aric Brockie contrary to the evidence?
Appellant argues that the jury failed in its duty to award survivorship damages to the estate, despite the fact that the evidence and stipulations established funeral and medical expenses and a loss of future earning capacity for the remainder of Aric's work life expectancy.
We have held that it is not the function of this Court to agree or disagree with a jury's verdict. Schulke v. Gemar (1994), 264 Mont. 184, 870 P.2d 1378. Arnold v. Boise Cascade Corporation (1993), 259 Mont. 259, 856 P.2d 217. This Court's role is to determine whether there was substantial evidence to support the verdict. Schulke, 870 P.2d at 1380; Arnold, 856 P.2d at 220. If conflicting evidence exists, we do not retry a case because the jury chose to believe one party over another. Simchuck v. Angel Island Community Association (1992), 253 Mont. 221, 833 P.2d 158. However, a "jury may not disregard uncontradicted, credible, non-opinion evidence." Putnam v. Pollei (1969), 153 Mont. 406
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