Barrett v. Soyland

717 P.2d 1090, 221 Mont. 160, 1986 Mont. LEXIS 869

Opinions

MR. JUSTICE HUNT

delivered the Opinion of the Court.

Respondent, James Barrett, brought an action in the Fallon County District Court against appellants for the wrongful death of his daughter. Process was never served on Soyland. Appellant, Western Energy Company (Western), made two motions for summary judgment, a motion to dismiss, and a motion for a directed verdict. All appellant’s motions were denied. The case was tried to a jury that awarded respondent $100,000 on January 10, 1985. Appellant appeals the denial of its motions.

We affirm.

The issue on appeal is whether Barrett’s ex-wife’s prosecution and settlement of her action for the daughter’s wrongful death is a bar to James’ prosecution of his action.

James and Sandra Barrett were married in 1963. Brenda Lee Barrett was born in 1966, the only child of the marriage. James and Sandra were divorced in 1969, and Sandra was awarded custody of Brenda. James continued to pay child support for, and maintained contact with Brenda up until the date of her death.

Sandra remarried and became Sandra Askin. She subsequently moved to Fallon County, Montana, with her husband and Brenda.

On April 22, 1975, nine-year-old Brenda was killed in an automobile accident involving a truck driven by Soyland, an employee of Western.

At the time of Brenda’s death, Section 93-2809, R.C.M. (1947) was in effect. That statute read:

“A father, or in case of his death or desertion of his family, the mother, may maintain an action for the injury or death of a minor child . . ., when such injury or death is caused by the wrongful act or neglect of another.”

Two weeks after the decedent’s death, effective May 6, 1975, the legislature amended the wrongful death statute to read:

“Either parent may maintain an action for the injury or death of a minor child . . . when such injury or death is caused by the wrongful act or neglect of another.”

On July 14, 1975, approximately 10 weeks after the new statute went into effect, Sandra filed a wrongful death action in the Fallon County District Court alleging that she was the natural mother and legal custodian of the deceased. On the morning of trial, Sandra settled her case for $35,000. She was appointed personal representative of the decedent’s estate, and the court ratified the settlement. Then Sandra, acting individually, as mother, as trustee for the heirs, and as personal representative of the estate, executed a release approved by the court settling all claims arising out of the injuries to and the death of the decedent. James did not participate in the action by Sandra, and did not share in any of the proceeds of the settlement. He was not notified of the pendency of the proceedings, or joined as a party, but was aware of the lawsuit prior to settlement.

On April 12, 1978, James filed a wrongful death action in the Fallon County District Court. Western filed two motions for summary judgment, a motion to dismiss, and a motion for a directed verdict on the theory that Montana permits but one cause of action for wrongful death and that action had already been brought and settled by Sandra, and that the unamended statute was unconstitutional. Western’s motions were denied, and after Western admitted liability, the issue of damages was tried to a jury. The jury awarded James $100,000.

Appellant correctly argues that normally there can be but one legitimate wrongful death action arising from a decedent’s death. State ex rel. Carroll v. District Court (1961), 139 Mont. 367, 364 P.2d 739. However, the situation in the present case merits a different result.

A cause of action for wrongful death accrues in the statutory designee at the moment of death. Thomas v. Cumberland Operating Co. (Okla. 1977), 569 P.2d 974; Matter of the Estate of Boyd (Wy. 1980), 606 P.2d 1243. At the moment of death, Section 93-2809, R.C.M. (1947) was in effect. That statute gave James a cause of action for Brenda’s death. This cause of action was not affected by the legislature’s subsequent enactment of Section 93-2809, R.C.M. (Supp. 1977) because the legislature did not make that amendment retroactive.

There is a presumption in Montana against retroactive application of statutes. Dunham v. South Side National Bank of Missoula (1976), 169 Mont. 466, 548 P.2d 1383. For a statute to be retroactively applied such an intent must be expressly so declared by the legislature. Section 1-2-109, MCA. Section 93-2809, R.C.M. (Supp. 1977) was not declared retroactive by the legislature. Therefore, James’ cause of action for Brenda’s death remained intact subject only to the three year statute of limitations applicable to torts. Section 27-2-204, MCA.

Although the constitutionality of the unamended statute is challenged, we need not address that issue for a resolution of this case. Western’s injury stems from the possibility of two wrongful death actions, not from the language of the unamended statute. Therefore, Western lacks standing to challenge the statute’s constitutionality. Western itself is not injured by the alleged under-inclusiveness of the unamended statute because Western could never be a member of even a broadened class of potential claimants. Because the amended statute was not made retroactive, there existed, for the three year statute of limitation period following its enactment, the possibility of two causes of action for wrongful death. Western is not injured by the unamended statute, but by the legislature’s decision not to make the amended statute retroactive.

Therefore, we hold that James’ cause of action for Brenda’s wrongful death is legitimate, and the judgment of the District Court is affirmed.

MR. JUSTICES MORRISON, HARRISON and SHEEHY concur.