Lujan v. Estate of Rosario

Opinion

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5 IN THE SUPERIP R COURT OF GUAM

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I SHAWN MICHAEL Q. LUJAN, 9 Plaintiff,

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il t2 ESTATE OF ISABEL CRUZ SANTOS ROSARIO and ROSA CRUZ PEREZ, 13

t4 Defendant. t5

t6 ESTATE OF ISABEL CP.UZ SANTOS ROSAzuO, 17 CIVL CASE NOS. CV 0505-12 and l8 Defendant/Third-Party Plaintiff, cv 0861-12 t9 v DECISION AND ORDER

20 GOVERNMENT OF GUAM, 2l Third-P arty D efendant.

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23 BARBARA C. CAMACHO, individually 24 and BARBARA C. CAMACHO, as the Administratrix for the ESTATE OF 25 THERESE MARIE PEREZ LUJAN 26 Plaintiff,

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CV 0505-12 and CV 0861-12; Lujanv. Estøte of Rosario andCamachov. Estate of Rosario

I ESTATE OF ISABEL CRUZ SANTOS 2 ROSARIO and ROSA CRUZ PEREZ,

J Defendant. 4

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6 INTRODUCTION 7 This matter came before the Honorable Arthur R. Barcinas on the 5th day of September, 8 2014, for hearing on the Plaintiff Barbara C. Camacho's Motion to Alter or Amend Judgment 9 and the Defendant Estate of Isabel Cruz Santos Rosario's Cross Motion to Alter or Amend the l0

ll Amended Judgments and the Amended Findings of Fact and Conclusions of Law. Attorney

12 Michael J. Berman represented the Plaintiffs Shawn Michael Q. Lujan and Barbara C.

Camacho, and Attorney Phillip Torres represented the Defendant Estate of Isabel Cruz Santos 13

l4 Rosario. For the reasons set forth below, both motions are DENIED.

l5 BACKGROUND

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t7 On July 21,2010, at the Liberation Day Parade in Hagatna, Guam, a limb of a dead tree

l8 fell on Shawn Michael Q. Lujan ("Plaintiff Lujan") and Therese Marie Perez Lujan. Therese r9 was killed by the tree branch and Shawn was injured. On Aprrl26,2012, Shawn brought suit 20 against the Estate of Isabel Cruz Santos Rosario ("the Defendant") and Rosa Cruz Perez for 2l negligence, alleging that they owned the parcels of land the tree was situated on. On July 18, 22

23 2012, Barbara C. Camacho ("Plaintiff Camacho"), Therese Marie Perez Lujan's sister, also

24 brought suit against the Defendants, both as an individual and on behalf of the Estate of Therese 25 Marie Perez Lujan. The parties stipulated to the dismissal of Rosa CruzPercz as a defendant on 26 November 15,2012. The Defendant brought a third-party claim against the Government of 27

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CV 0505-12 and CV 0861-12; Lujanv. Estate of Rosario andCamqchov. Estate of Rosario

Guam, alleging that the tree was at least partly on the Government's-Iánd. These matters wefe I

2 consolidated.

3 On August 16,2013, the Court granted the Government of Guam's motion for summary 4 judgment on grounds that the Defendant had produced no evidence raising actual or 5 constructive knowledge of a hazardous condition on Government property. A bench trial 6

occurred on October 14,2013. On February 10,2014, the Court issued its Findings of Fact and 7

I Conclusions of Law, which was amended the next day to reflect the fact that Rosa Cruz Perez

9 was no longer a defendant.

l0 The Court found that Therese Marie Perez Lujan's death and Plaintiff Lujan's injuries ll were caused by the tree falling on them, that the tree was located in part on land owned by the t2

13 Defendant, and that the tree was obviously dead at the time it fell. The Court concluded that he

t4 Defendant had constructive notice of the dangerous condition of the tree, that the Defendant had

l5 was obligated to safeguard against the risk of injury posed by dangerous conditions on the l6 property, and that neither Therese Marie Perczlujan nor Plaintiff Lujan had assumed the risk of l7 injury nor were contributorily negligent. The Court awarded $133,325.28 to Plaintiff Lujan for l8

t9 medical expenses and pain and suffering. The Court found that Plaintiff Camacho experienced

20 tremendous grief in the wake of Therese's death, but concluded that she had not presented 2l evidence of pecuniary loss and thus was not entitled to recovery under Guam's wrongful death 22 statute.

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On February 19,2014, Plaintiff Camacho moved to alter or amend the judgment on 24

25 grounds that the court erred in ruling that Plaintiff Camacho could not recover damages for loss

26 of consortium for the death of a sibling. On February 21, the Defendant opposed the motion and 27 filed its own cross motion to alter or amend, arguing that the tree's extension onto the 28

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CV 0505-12 and CV 0861-12; Lujanv. Estate of Rosario andCamachov. Estate of Rosario

Defèndant'l property was de minimis, that the tree wâs not obviously dead añd that the I

2 Defendant had no actual or constructive knowledge that the tree was dead, that the Defendant

3 lacked a duty, and that the Plaintiffs assumed the risk. The Plaintifß opposed the cross motion 4 on March 2I, arguing that the Defendant had not stated a proper basis for a motion to alter or 5 amend. The Court heard oral argument on the motions on September 5, 2014.

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DISCUSSION

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8 I. Motions to Alter or Amend 9 Rule 59(e) of the Guam Rules of Civil Procedure permits a party to move to alter or t0 amend a judgment within ten days of the judgment's entry. GRCP 59(e). Rule 59(e) motions are lt only appropriate to final judgments. See Van Skiver v. U.S.,952 F.zd 1241, 1243 (10th Cir.

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l3 I99I).. The Court's Amended Judgment was issued February I1,2014, and the parties' motions

l4 were filed on February 19 and February 21. Am. J., Feb. ll,2014; Pl.'s Mot., Feb. 19,2014;

15 Def.'s Opp. and Cross-Mot., Feb. 21,2014. Both motions move to amend afinaljudgment and 16 are timely.

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Rule 59(e) motions may only be made in certain circumstances. They are appropriate if 18

l9 the trial court: "(1) is presented with new evidence; (2) committed clear effor or the decision 'Ward

20 was manifestly unjust, or (3) if there is an intervening change in controlling law." v.

2t Reyes, 1998 Guam 1, ï 10 (quoting an interpretation of the analogous federal rule in School 22 'NTn

Tlicf I T Multnomah Õnr rntr¡ v  ño-rlQ Tnn 5 F.3d 1255, 1263 (9th Cir. 1993), cert.

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denied, 114 S.Ct. 2742 (1994)); see also Allstate Ins. Co. v. Herron,634F.3d 1101, 1111 (9th 24

25 Cir.2011) (likewise interpreting Federal Rule of Civil Procedure 59(e)).

26 Plaintiff Camacho argues that the Court erroneously concluded that a sibling may not 27 recover damages for loss of consortium for the loss of her sibling. Pl.'s Mot. 2,Feb. 19,2014.

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CV0505-12andCV0861-12; Lujanv. Estateof R.osarioandCamachov. Estateof Rosørio

This is an argument that the Court committed a clear èrror of law. The Defendant does not I

2 clearly specify which of the permitted bases the motion falls under. See Def.'s Opp. and Cross-

3 Mot., Feb.21, 2014. 4 II. Plaintiff Camacho's Motion 5 In its Amended Findings of Fact and Conclusions of Law, the Court wrote that under 6

Newby v. Government of Guam, a plaintiff in an action for wrongful death may only recover 7

8 damages for loss of comfort, protection, and society to the extent that the damages constitute a

9 pecuniary loss. Am. Findings of Fact and Conclusions of Law 5, Feb. II, 2014; Newb)¡ v. l0 Government of Guam,2010 Guam 4 nn 25-26. Because Plaintiff Camacho did not present any 1l evidence of pecuniary loss, the Court could not award her money damages. Am. Findings of t2

13 Fact and Conclusions of Law 5 n7, Feb. 11,2014. The Court continued to write,

l4 [t]o the extent that Barbara raises a claim for loss of consortium separate from that implicit in a claim for wrongful death, the Court notes that recovery for loss of 15 consortium at common law was limited to a husband's claim arising out of t6 injuries to his wife...The tort was only recently expanded by some jurisdictions to encompass claims by wives for injuries to their husbands, and even more recently l7 to encompass by parents for injuries to their children or by children for injuries to their parents. Barbara has cited no authority, and the Court can find none, for the l8 novel proposition that loss of consortium damages are available for injuries r9 suffered by a sibling.

20 Id.at5fl8. 2t The Plaintiff argues that this statement constitutes a clear error of law that is appropriate 22 for alteration or amendment under Rule 59(e). See Pl.'s }l4ol 2, Feb. 19, 2014. The Plaintiff 23

offers the following case law: In re Estate of Finley, 601 N.E.zd 699 (Ill. 1992); Crystal v.

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25 Hubbard, 324 N.W.2d 869 (Mich. 1982); Leavy v. Yates, 142 N.Y.S.Zd 874 (N.Y. Sup. Ct.

26 1955); Wachocki v. Bernalillo County Sheriffs Dept., 2011-NMCA-039, 265 P.3d 701, 150 27

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CV 0505-12 and CV 086 l-12; Lujan v. Estate of Rosario and Camacho v. Estate of Rosario

N.M. 650 (N.M. 20ll); and Levens v. Commêrcial Union Ins. Co., 485 So.2d 521 (La Ct. Aþp.

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2 I 986). Pl.'s Mot. 2-3, F eb. 19, 2014.

3 Paragraphs seven and eight of the Court's Findings of Fact and Conclusions of Law 4 refer to two different causes of action. Paragraph seven, citing Newby v. Government of Guam, 5 2010 Guam 4 nn 25-26, and stating"a plaintiff in an action for wrongful death," addresses loss 6

of consortium as a measurement of damages under Guam's wrongful death statute, codihed at 7 7

8 GCA $ 12109. Am. Findings of Fact and Conclusions of Law 5 li 7,Feb.II,2014; see 7 GCA $

9 12109 (2005); see Newby v. Govemment of Guam, 2010 Guam 4 nn 25-26. In contrast, l0 paragraph eight, by referringto "a claim for loss of consortium separate from that implicit in a 1l claim for wrongful death," discusses loss of consortium as a common law tort of negligence, t2

t3 distinct from the wrongful death statute. Am. Findings of Fact and Conclusions of Law 5 11 8,

t4 Feb. 11,2014. Traditionally at common law the tort of loss of consortium was only available to

l5 a husband claiming injuries to his wife. See Charles T. McCormick, Damages $ 92 (1935).

16 More recently, the tort has expanded in most American states to allow actions by wives to t7 recover damages for loss of consofiium due to injuries to her husband. Jacob A. Stein, Stein on l8

t9 Personal Injury Damages $ 13:19 (1991). A minority of states also allow for loss of consortium

20 actions by children for injuries to injured parents. Id. at $ 13:20. 2l In contrast, standing to sue under Guam's wrongful death statute is broader, permitting 22 the deceased's "heirs or personal representatives on their behalf'to sue for damages. 7 GCA $ 23

12109(a) (2005). The statute further defines "heirs" as: (1) persons who would be entitled to 24

25 succeed to the decedent's estate; (Ð if dependents of the decedent, spouses, children,

26 stepchildren, and parents; and (3) minors residing in the decedent's household. 7 GCA $ 27 12109(bxl)-(3) (2005). Plaintiff Camacho, as the sister of the decedent Therese Marie Perez 28

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CV 0505-12 and CV 0861-12 Lujan v. Estate of Rosario and Camacho v. Estqte of Rosario

ujan, may qualify unilér subsèction (bxl). The Court does not disagree with Pláintiff I

2 Camacho's contention that"a sibling may recover damages for loss of consortium for the loss

3 of her sibling," as applied to recovery pursuant to the wrongful death statute. See Pl.'s Mot. 2, 4 Feb. 19,2014.

5 However, the reason Plaintiff Camacho could not recover damages under the wrongful 6

death statute was not a lack of standing, but a limitation on the types of damages permitted. In 7

8 Newby v. Govemment of Guam, the Supreme Court interpreted Guam's wrongful death statute

9 to reach "the pecuniary value of society, comfort, and protection that might reasonably be l0 expected had the decedent lived," but not to reach "damages for anguish caused by the death of ll the decedent." Newb)'v. Government of Guam,2010 Guam 4n26. Because Plaintiff Camacho t2

l3 only presented evidence of emotional anguish, and did not present evidence of pecuniary loss,

t4 the Court could not award her money damages. Am. Findings of Fact and Conclusions of Law 5

l5 tf 7, Feb. 11,2014.

l6 Any error of law identified by Plaintiff Camacho must distinguish between loss of t7 consortium damages in an action under the wrongful death statute, to which siblings may l8

t9 recover, and loss of consortium damages in a tort of negligence. However, four of the five cases

20 cited by Plaintiff Camacho refer to the former category, not the latter one. See In re Estate of 2l Finley, 601 N.E.2d 699,702 (Ill. 1992) (ruling that a sibling's society is a pecuniary injury for 22 which siblings may recover under lllinois's wrongful death statute); see Crystal v. Hubbard, 324 23

N.V/.2d 869, 880 (Mich. 1982) (ruling that siblings of a deceased person may recover damages 24

25 for loss of society and companionship under the Michigan wrongful death statute); see Leavy v.

26 Yates, 142 N.Y.S.2d 874,876 (N.Y. Sup. Ct. 1955) (ruling that a surviving twin may recover 27 damages in an action for wrongful death); see Levens v. Commercial Union Ins. Co., 485 So.2d 28

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CV 0505-12 and CV 0861-12; Lujanv. Estate of Rosario andCqmachov. Estate of Rosario

521, 522 (La Ct. App. 1986) (stating in dicta that a sibling may iècover under Louisiana's I

2 wrongful death statute). In such cases, the scope of standing to sue depends on the statutory

3 language and interpretation. Restatement (Second) of Torts $ 925 (1979). Guam's statute 4 permits suits by a decedent's heirs who are entitled to succeed to the decedent's estate. 7 GCA $ 5 121Oe(bx1) (200s).

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7 Only one case cited by Plaintiff Camacho refers to the tort of loss of consortium. In

8 Wachocki v. Bernalillo County Sheriffs !çpt., the New Mexico Supreme Court ruled that a

9 sibling could recover on a loss of consortium claim, without regard to the wrongful death l0 statute, so long as the plaintiff sibling could prove a "mutual dependence" with the decedent ll sibling, but that this standard was not met on the particular facts. Wachocki v. Bernalillo County t2

l3 SherifFs Dept., 2011-NMCA-039, 265 P.3d 701,704 (N.M. 2011). The New Mexico Supreme

t4 Court also noted that many other states have expressly rejected sibling loss of consortium l5 claims. Id.

r6 Plaintiff Camacho has identified one case that stands for what this Court called "the 17

novel proposition that loss of consortium damages are available for injuries suffered by a l8

t9 sibling." Am. Findings of Fact and Conclusions of Law 5 I 8, Feb. 1I,2014. However, the

20 identification of one case from another jurisdiction that effectuated a reform of a longstanding 2l coÍtmon law principle does not convince this Court that it has made a clear error of Guam law, 22 in the absence of legislation or Supreme Court guidance to the contrary.

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24 III. Defendant's Motion

25 The Defendant moves pursuant to Guam Rules of Civil Procedure 52 and 59 to amend

26 the Court's Findings of Fact and Conclusions of Law and the ensuing judgment. Def.'s Opp. 27 and Cross-Mot.2, Feb.21,2014. The basis of the objection is not clearly stated, although the 28

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CV0505-l2andCV086l-12; Lujanv. Estateof RosarioandCamachov. Estateof Rosørio

-fèstimony

liné "based upon an error in the interpretation of the and the detérmilation of I

2 liability," arguably could suggest a basis of clear error, both of fact and of law. Id. The Plaintiffs

3 oppose the cross-motion, arguing that the Defendant has not identified a basis for the motion 4 and is merely seeking relitigation of past matters. Pl.'s Opp. 2,Mar.21,2014.

5 The Defendant argues that, contrary to the Court's finding that the tree was partly on the 6

Defendant's land, any extension of the tree onto the Defendant's land was de minimis, could not 7

8 be reasonably determined by a layperson, and did not appear on the surveyor's map. Def.'s

9 Opp. and Cross-Mot. 2, Feb. 21, 2014. The Defendant likewise disagrees with the Coutl's l0 finding that the tree was obviously dead. Id. at 3. Lastly, the Defendant disagrees with the ll Court's finding that the Plaintiffs did not assume the risk. Id.

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t3 These arguments do not amount to any of the permitted bases for a Rule 59(e) motion,

14 which are a presentation of new evidence, clear error or manifest injustice, or an intervening l5 change in controlling law. See Ward v. Reyes,1998 Guam 1, ï 10. Instead, the arguments l6 amount to a disagreement with the Court's fact-finding, and adjudicating them would amount to l7 relitigating matters already decided, which is beyond the permitted scope of Rule 59(e). See t8

t9 Demasse v. I.T.T. Corporation, 915 F. Supp. 1040, 1048 (D. Arizona 1995).

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CV0505-12andCV086l-12; Lujønv. Estateof RosarioandCamachov. Estqteof Rosario

CONCLUSION

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2 For the reasons set forth above, Plaintiff Camacho's Motion to Alter or Amend ?

Judgment and the Defendant's Motion to Alter or Amend the Amended Judgments and the 4 Amended Findings of Fact and Conclusions of Law are both DENIED.

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9 IT IS SO ORDERED this day of sEP I 0 ?r14 10

ll 12 NO AS l3 Judge, Superior Court of Guarn

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