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Socia v. Traditions1/14/2005
a person's pecuniary loss or loss of companionship, the judge shall determine the proper division.
E. The above-mentioned distributions shall be made after the payment of legal expenses and costs of the action.
(Emphasis added.) Among other changes, the 1979 amendment deleted the former third sentence of section A and rewrote subsection B to separate and identify the various elements of damages and authorized recipients of same.
We reiterate the fundamental rule of statutory construction is to ascertain and give effect to the legislative intent and that such intent must first be sought in the language of a statute. Oklahoma Ass'n for Equitable Taxation v. City of Oklahoma City, 1995 OK 62, , 901 P.2d 800, 803. By amending §1053, we find the Legislature clearly intended to explicitly provide parents with a right to claim an element of damage for their "grief and loss of companionship" occasioned by the wrongful death of their child. We also find this right exists whether or not there are also surviving children of the decedent. The parents' right to assert such a claim under §1053(B) is not conditioned upon their status as "next of kin," and we will not read conditions into a statute not intended by the Legislature. Case-Aimola Properties, Inc. v. Thurman, 1988 OK 30, , 752 P.2d 1120, 1122. Only Appellant's actual receipt of a portion of the wrongful death recovery is conditional because the trial judge has the discretion to determine the proper division of any recovery which is to be distributed according to a person's loss of companionship. See §1053(B).
Because §1053 specifically recognizes Appellant's right to seek damages for her grief and loss of companionship occasioned by her child's wrongful death, we find the trial court's construction of Ouellette defeats the legislative intent and creates an absurd result. The trial court found under Ouellette, a surviving parent would only be entitled to damages for grief and loss of companionship if there are no surviving children. This is an inaccurate interpretation of Ouellette and not at all what the Supreme Court actually held. In Ouellette, the Supreme Court's focus was upon the person statutorily authorized to press (i.e., initiate) a wrongful death action as a party/plaintiff. The Ouellette Court explained:
A wrongful-death claim may be pressed only by persons authorized to bring it (§§1053 and 1054). By force of §1053(A) the action may be brought by the personal representative of the decedent, but if none has been appointed, then by the widow, or where there is no widow, by the decedent's next of kin (§1054). . . . . Only when the parents are the decedent's next of kin may they press for "grief and loss of companionship" damages as an element of their authorized recovery.
Ouellette at and 10, 918 P.2d at 1366-67(footnotes omitted, emphasis added). This language in Ouellette does not prohibit a parent from asserting her claim for a share in the post-recovery apportionment, but rather addresses when a parent may bring a wrongful death action.
In the instant case, a wrongful death action was properly initiated by the personal representative of the estate. During the post-recovery phase of the wrongful death proceeding, Appellant properly asserted her claim for a share in the apportionment of the settlement proceeds. Appellant also properly sought an evidentiary hearing to demonstrate the value of her grief and loss of companionship.
Based on the foregoing, we find the trial court erred as a matter of law when it overruled Appellant's motion for apportionment without first granting her an opportunity to demonstrate the value of her grief and loss o
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