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Alsenz v. Clark Co. School Dist.11/24/1993
ome and punitive damages could only succeed if such damages were available under NRS 41.085. Yet these types of damages are not listed in, or contemplated by, this statute. Therefore, we conclude that Alsenz's wrongful death claim was properly dismissed under NRS 41.085 for lack of recoverable damages.
Nevada's Survival of Actions Statute, NRS 41.100.
Alsenz also maintains that as the personal representative or administratrix of Alexander's estate, she may maintain a wrongful death cause of action under Nevada's survival of actions statute, NRS 41.100. Specifically, Alsenz claims that the wrongful death action is, in reality, the decedent's personal injury claim preserved for the estate by statute.
We again disagree. By its express terms, NRS 41.100 does not apply when the estate's representative sues for wrongful death: 41.100 Cause of action not lost by reason of death; damages; subrogation. . . . . 3. Except as otherwise provided in this subsection, when a person who has a cause of action dies before judgment, the damages recoverable by his executor or administrator include all losses or damages which the decedent incurred or sustained before his death, including any penalties or punitive and exemplary damages which the decedent would have recovered if he had lived, and damages for pain, suffering or disfigurement and loss of probable support, companionship, society, comfort and consortium. This subsection does not apply to the cause of action of a decedent brought by his personal representative for his wrongful death. (Emphasis added.)
We do not choose to tinker with the express language of the survival statute. Regardless of the cause of action's legal name, it is undisputed that Alsenz filed the estate's claim to recover for Alexander's wrongful death. Thus, NRS 41.100 does not apply and the wrongful death cause of action is not preserved in the estate.
Even assuming that the express exclusion did not exist, Alsenz's claim would still fail. Under Nevada law, wrongful
[109 Nev. 1062, Page 1067]
death actions must proceed under Nevada's wrongful death statute, NRS 41.085. NRS 41.085 provides that the decedent's heirs are entitled to wrongful death type damages (e.g., “loss of probable support, companionship, society, comfort and consortium, and damages for pain, suffering or disfigurement of the decedent. . . .” (emphasis added)). Allowing the estate to recover these same damages outside NRS 41.085 would result in double recovery. Statutory interpretation does not allow for such an unreasonable proposition. Smith, 91 Nev. at 733, 542 P.2d at 443; Presson, 38 Nev. at 210, 147 P. at 1083.
In view of the express language and reasonable interpretation of NRS 41.100, we conclude that the district court properly dismissed Alsenz's corresponding wrongful death claim. Coupled with our similar conclusion regarding NRS 41.085, we accordingly affirm the district court's decision dismissing Alsenz's cause of action against Clark County.
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