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Clement v. Fulton4/8/2005
t concluded that the children's need for mental health treatment justified a departure from the formula. The court balanced the needs of the children against the needs of Michael Fulton, a seasonal worker with a sporadic work history, and allocated forty-five percent of the settlement to Michael, twenty percent to Christopher, and thirty-five percent to Savannah. The court denied Clement's reconsideration motion. She now appeals.
III. DISCUSSION
A. Standard of Review
We review for clear error the factual findings that supply the foundational basis upon which to apply Horsford in allocating a wrongful death action recovery. We will reverse a finding of fact as clearly erroneous when we are left with a definite and firm conviction based on the totality of the record that the superior court has made a mistake. To the extent the superior court, in determining the most equitable allocation, deviates from the allocation strictly compelled by the Horsford formula or chooses not to apply the formula, we apply an abuse of discretion standard of review and will not reverse unless the allocation is clearly unjust.
B. It Was Not Clear Error for the Superior Court
To Reject Clement's Assertion that Mary Had a Life Expectancy of Only One Year.
In contending that it was error to allocate anything, or so much, to Michael, Clement argues that the superior court erred in finding that Mary had a life expectancy of more than one year. Mary's life expectancy is one factor potentially relevant to determining the expected years of dependency of her minor children and husband. Under the Horsford formula, the superior court allocates wrongful death damages among the beneficiaries based on each beneficiary's expected years of reasonably significant dependency. The number of years each beneficiary is expected to be dependent on the decedent out of the total number of years of dependency determines the beneficiary's share of the settlement proceeds. The formula assumes that the annual pecuniary loss for each statutory beneficiary is equal.
Michael's proposed allocation assumed that he would predecease Mary; it therefore used his life expectancy, not Mary's, to estimate the duration of his dependency. Michael's proposal calculated each minor child's expected dependency to the age of majority. Based on the beneficiaries' relative years of expected dependency and the Horsford formula, Michael's proposal allocated sixty-three percent of the proceeds to Michael, twenty-four percent to Savannah, and thirteen percent to Christopher.
Clement's written opposition to Michael's proposed allocation asked the superior court to "abandon" the Horsford formula and divide the proceeds "equitably," allocating nothing to Michael. She based this argument in part on her assertion that it was incorrect to assign a normal life expectancy to Mary "when she more likely than not would have survived only another year," even if the hospital had not been negligent.
The superior court eventually rejected the allocations proposed by both sides. Recognizing that it could modify the formula to reflect the needs of the children, it allocated forty-five percent to Michael, thirty-five percent to Savannah, and twenty percent to Christopher. Although the court never explicitly stated what life expectancy it attributed to Mary, it was clearly greater than one year, given the settlement share the court allocated to Michael.
1. It was not Clear Error to Give Little Weight to the Unsworn Reports
On appeal, Clement argues that it was clear error for the superior court not to find that Mary had a life expectancy of only one year. She asse
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