Allen v. Sw. Vt. Med. Ctr., Inc., No. 334-9-10 Bncv (Hayes, J., Nov. 28, 2011)

[The text of this Vermont trial court opinion is un official. It has been reformatted from the origina l. The accuracy of the text and the accompanying data included in the Vermont trial cou rt opinion database is not guaranteed.] VERMONT SUPERIOR COURT SUPERIOR COURT CIVIL DIVISION Bennington Unit Docket No. 334-9-10 Bncv

Jodi Allen, as Administrator of the Estate of Christopher King Plaintiff

v. Southwestern Vermont Medical Center, Inc. Defendant

DECISION ON MOTION FOR PARTIAL SUMMARY JUDGMENT Plaintiff Jodi Allen, as administrator of her dece ased father’s estate, has filed this action against Southwestern Vermont Medical Center under Vermont’s Wrongful Death Act, 14 V.S.A. § 1492. In her amended complaint, plaintiff seeks damages for the following injuries: [M]edical expenses, funeral expenses, and pecuniary injuries for loss of support and services, loss of intellectual, moral and physical training, loss of care, nurture and protection, grief and mental anguish and the loss of comfort, love and co mpanionship and . . . the destruction of the parent-child relationship. Amended Complaint 5 (emphasis added). In its amend ed answer, defendant originally asserted five affirmative defenses: (1) “ failure to state a clai m upon which relief can be granted, particularly, b ut not solely related to claims for compensation for grief and/or mental anguish, and including any requests for damages not permitted under the provisions of 14 V. S.A. § 1492, et seq.”; (2) contributory negligence ; (3) compliance with the applicable standards of car e; (4) failure to mitigate; (5) bar to suit under 1 2 V.S.A. § 519 (relating to emergency medical care). Amended Answer 3-4. In the instant motion for partial summary judgment, plaintiff argued that def endant’s first, fourth, and fifth affirmative defen ses had no basis in law or fact. In its response, defe ndant withdrew its fourth and fifth affirmative def enses.2

As a result, the sole remaining issue confronting the court is whether grief and mental suffering ar e compensable under the Wrongful Death Act. For the purposes of this motion, the following mat erial facts are undisputed. On January 2, 2010, decedent Christopher King was admitted to the Southwestern Vermont Medical Center to undergo hemodialysis. While undergoing the treatme nt, Mr. King was eating a sandwich; at some point during the treatment, Mr. King began to choke on th at sandwich. Medical personnel at the hospital responded to the situation and attempted to revive Mr. King, but their efforts were ultimately unsuccessful. Mr. King died on January 5, 2010; hi s death certificate states the cause of death to be “Anoxic Brain Injury” resulting from “Aspiration of Food.” Plaintiff sues under a theory of medical negligence. Defendant denies any negligence, but a rgues that even if plaintiff proves that the defend ant did act negligently, and that negligence caused her father’s death, her recovery as his next of kin un der the Wrongful Death Act may not include grief and me ntal anguish.
DISCUSSION The Wrongful Death Act provides that: The court or jury before whom the issue is tried ma y give such damages as are just, with reference to the pecuniary injuries resulting from such death, to the wife and next of kin or husband and next of kin, as the case may be. In th e case where the decedent is a minor child, the term pecuniary injuries shall also include the loss of love and companionship of the child and for destruction of the parent-child relationship in such amount as under all the circumstances of the case, may be just. 14 V.S.A. § 1492(b). Initially, the court notes th at Vermont case law clearly establishes the plainti ff’s right to recover for most of the types of damages s he claims in her complaint. See generally **Mobbs v. Central Vermont Railway**  , 150 Vt. 311, 316 (1988). The parties’ arguments here are focused on whether, in addition to damages for financial losses and dir ect expenses, destruction of the parent-relationshi p and loss of love and companionship, the plaintiff c an recover for grief and mental anguish.3

The first sentence of § 1492(b) was included in the original version of the act, passed in 1849. 1849 Vt. Laws 8, § 3. The legislature added the se cond sentence in 1976, borrowing from a nearly identical Washington statute. See 1975 Vt. Laws 22 3, § 1; **Hartnett v. Union Mutual Fire Insurance Co.** , 153 Vt. 152, 154 (1989) (“The statutory language of the 1976 amendment to § 1492(b) was taken from a Washington statute . . .”); Wash. Rev. Code Ann. § 4.24.010. It is well-established under Vermont case law that the term “pecuniary injuries” is not limited to economic losses. In **Mobbs** , a car containing an adult father and mother, and three minor children collided with a train at a railroad crossing. Both parents and the youngest child were killed, but th e two older children survived and were the next of kin. The Court held, in that context, that: “The term ‘pecuniary injuries’ does not limit recovery to pur ely economic losses. In cases where it has been construed by this Court, the term has been held to contemplate compensation for lost intellectual, moral and physical training, or the loss of care, n urture and protection.” **Mobbs** , 150 Vt. at 316 (citing **Lazelle v. Town of Newfane** , 70 Vt. 440, 445 (1898)). As the Supreme Court noted in **Hartnett v. Union Mutual Fire Insurance Co.** , 153 Vt. 152 (1989), a case involving the tragic death of three young c hildren in a house fire, the 1976 amendment to the Act was intended to clarify the rights of parents to re cover damages for the deaths of minor children. Th e court noted that the addition to the statute, which specifically focused on minor children’s deaths, w as necessary because “the pecuniary loss rule has been particularly controversial in cases where the decedent is a child because it often allows no reco very at all.” **Hartnett,** 153 Vt. at 152 (citation omitted). Relying on Washington case law interpret ing that state’s virtually identical statute (as no ted above) , the Court declared: “We share the Washing ton Court's conclusion that the term ‘destruction o f the parent-child relationship’ must include grief, mental anguish and suffering or it is largely a meaningless concept.” **Id.** at 156. Although the **Hartnett** case does not directly state that loss of love and companionship also includes grief and mental an guish, it relies on the Washington case **Wilson v.**4

**Lund** , 80 Wash.2d 91 (1971), which makes reference to “l oss of love” as well as destruction of the parent-child relationship. **Id.** at 96.
In **Clymer v. Webster** , 156 Vt. 614 (1991), a case in which parents filed their claim under the Act for the death of their 18-year-old daughter, kill ed by a drunk driver, the court stated that “loss of love and companionship of an adult child is a real, dire ct and personal los that can be measured in pecunia ry terms. Children have an intrinsic value to their parents regardless of who is supporting whom at the time of death.” **Id.** at 629. Since then, the Court has gone on to clar ify that the right to recover for loss of companionship under the Act also extends to ad ult siblings, **Dubaniewicz v. Houman** , 2006 VT 99, 180 Vt. 367. Based on the reasoning of **Hartnett, Wilson** , and **Clymer** , this court concludes that “pecuniary injury” under § 1492 does include grief and mental anguish directly caused by the destruction of the parent-child relationship and loss of love and comp anionship, whether the claim is made by a child or a parent. The court notes that this conclusion appea rs to be contrary to that reached in a 2009 trial c ourt opinion issued by the Chittenden Superior Court ci ted by defendant in this case. See **Murphy v. Sentry**
**Insurance** , No. S0654-06 CnC, slip op. at 5 (Oct. 15, 2009) ( Toor, J.). This court recognizes that before the 1976 amendments, grief and mental anguish were view ed as non-pecuniary and therefore not compensable under the Act. **Lazelle,** 70 Vt. at 443-44 (“[T]he jury are confined to the pecuniary loss sustained by the widow or next of kin, and cannot t ake into consideration their grief or suffering . . .”). However, this court concludes that the amendment to the statute in 1976, and the Supreme Court’s subsequent decisions in **Mobbs, Hartnett, Clymer,**  and **Dubaniewicz** clearly signaled that the same kinds of damages are available in all wrongful deat h claims in Vermont, whether for the deaths of adul t relatives or minor children, and whether brought by parents, children, or other next-of-kin. This cou rt concludes that it is bound by the Supreme Court’s u nambiguous statement that the 1976 amendment of the act was intended “not to limit the damages avai lable to the relatives of adult decedents, but rath er5

to further the remedial purposes of the WDA by deve loping the definition of pecuniary injuries.” **Clymer** , 126 Vt. at 625-26. Accordingly, the plaintiff is entitled to attempt t o prove grief, mental anguish and suffering to the extent that it relates to loss of love and comp anionship of her father and destruction of the pare ntchild relationship. However, based on the limited undisputed facts presented, the court is unable to determine whether the plaintiff will be able to pre sent evidence sufficient to create a jury question on whether the loss of companionship, and the destruct ion of her relationship with her father did in fact cause her grief and mental anguish. The court is a lso not determining here whether such damages are subsumed within and a part of any recovery for the loss of the relationship. The decision to grant th e plaintiff’s motion for summary judgment as to the d efendant’s “affirmative defense” alleging that the plaintiff failed to state a claim for which relief could be granted under § 1492 by requesting compensation for grief and mental anguish, is essen tially the grant of a motion to dismiss this defens e under V.R.C.P. 12 (b). However, it means only that the plaintiff may be entitled to recover such damages, if she is able to prove them. She still h as the burden of proof.
ORDER Plaintiff’s Motion for Partial Summary Judgment (MP R #3), filed September 21, 2011, is (1) granted based on the defendant’s agreement, with respect t o defendant’s affirmative defenses #4 and 5; (2) granted with respect to defendant’s affirmative defense #3 as described above.

Dated at Bennington, Vermont this 28 th day of November, 2011.



### ______________________________ Katherine A. Hayes Superior Court Judge