No. 93-631 IN THE SUPREME COURT OF THE STATE OF MONTANA

MICHAEL BROCKIE, as Personal Representative of the Estate of ARIC C. BROCKIE, Deceased, Plaintiff and Appellant,

OM0 CONSTRUCTION, INC., Defendant and Respondent.

APPEAL FROM: District Court of the First Judicial District, In and for the County of Lewis and Clark, The Honorable Jeffrey Sherlock,Judgepresiding.

COUNSEL OF RECORD: For Appellant: Kurt M. Jackson,Hoyt & Blewett, Great Falls,Montana For Respondent: Michael J. Milodragovich and Margaret L. Sanner, Milodragovich, Dale & Dye,Missoula, Montana

Submitted on Briefs: June 23, 1994 

### DEC13

## 1994 Decided: December 13, 1994~ustice William E. Hunt, Sr., delivered the opinion of the Court. Appellant Michael Brockie, as personal representative of the estate of Aric ~rockie, appeals from an order of the First Judicial DistrictCourt,Lewisand ClarkCounty,denying appellant'srequest for a new trial on the question of damages for the survivorship action. Following filing of his appeal, appellant filed a notice of subsequent authority pursuant to this Court's recent decision in Newville & Gannet v. State of Montana, Department of Family Services (Mont. 1994), 51 St. Rep. 758, askingus to apply Newville retroactively to the wrongful death award. We discuss the application of the Newville decision in this opinion. Reversed and remanded. We state the issues as follows: 1. Was the jury's special verdict finding zero survivorship damages to the estate of Aric Brockie contrary to the evidence? 2. Did the District Court err by denying appellant'smotion for a partial new trial on the issue of the survivorship damages sustained by Aric Brockielsestate? Aric Brockie was killed in an automobile accident on November 26, 1989, on Interstate 94,east of Billings. Aric was a passenger in a vehicle that skidded on an icy bridge deck and collided with 

### a large, portable construction sign owned by defendant Omo Construction, Inc. Brockiev. Omo Construction,Inc.was first tried in September 1991, and resulted in a verdict of "no negligence" in favor ofdefendantOmo. Prior to trial,appellant settledwith and released the driver. This court reversed and remanded on the grounds of misconduct by the jury foreman. Brockiev. Omo Construction, Inc.

(1992), 255 Mont. 495, 844 P.2d 61. On remand, the jury returned a special verdict finding Om0 35 percent negligent for proximately causing Aric's injuries and death. The jury found that the non-party driver was 65 percent negligent for proximately causing Aric's injuries and death. The jury awarded Aric's parents $170,000 in wrongful death damages. That amount was adjusted to reflect the 35 percent negligence attributable to Omo. The jury awarded Aric's estate zero dollars in survivorship damages. Appellant filed a motion for a partial new trial pursuant to Rule 59, M.R.Civ.P., limited to the issue of survivorship damages sustained by Aric's estate. The District Court issued an order denying appellant'smotion. Appellant appeals the court's order. ISSUE 1 Was the jury's verdict finding zero survivorship damages to the estate of Aric Brockie contrary to the evidence? Appellant argues that the jury failed in its duty to award survivorship damages to the estate, despite the fact that the evidence and stipulationsestablished funeral andmedical expenses and a loss of future earning capacity for the remainder of Aric's work life expectancy. We have held that it is not the function 

### of this Court to agree or disagree with a jury's verdict. Schulkev. Gemar (1994),264 Mont. 184, 870 P.2d 1378. Arnold v. Boise Cascade Corporation (1993), 259 Mont. 259, 856 P.2d 217. This Court's role is to determine whether there was substantial evidence to support the verdict. Schulke, 870 P.2d at 1380; Arnold, 856 P.2d at 220. If conflicting evidence exists, we do not retry 

### a case because the jury chose to believe one party over another. Simchuck v. Angel Island Community Association (1992), 253 Mont. 221, 833 P.2d 158. However, a ''jury 

### may not disregard uncontradicted, credible, non-opinion evidence. Putnam 

### v. Pollei (1969)

## , 153 Mont. 406,

The record shows that prior to the second trial, the court granted appellant's motion for partial summary judgment finding that Aric survived the accident, entitling his estate 

### to a survivorship claim pursuant 

### to 5 27-1-501, MCA, which carries forward the claims the injured party had before death. Montana's survivorship statute,5 27-1-501,MCA, provides in pertinent part: (1) An action, cause of action, or defense does not abate because of the death or 

### disability of a party or the transfer 

### of any interest therein, 

### but whenever the cause of action or defense arose in favor of such party prior tohis death or disabilityor transfer of interest therein, it survives and 

### may be maintained by his representatives or successors in interest. 

# . .

# . (2) Actions brought underthissectionand 27-1-513 must be 

### combined in one legal action,

### and 

### any element of damagesmay be recovered only once. The statute allows recovery 

### by the decedent's personal representative of decedent's lost earnings 

### from the time of injury to death; the present value of his reasonable earnings during his life expectancy; 

### his medical and funeral expenses; reasonable

### compensationfor hispain and suffering;and other special damages. Swansonv. ChampionInternationalCorp. (1982), 197

### Mont. 509, 515, 646 

### P.2d 1166, 1169. 

### We have consistently held that the estate's right of recovery in a survivorship action is identical to that of the decedent's had he lived. "No reason exists why the scope of the action should diminish because ofhis death." Beelerv. Butte & 

### London Development Copper Co. (1910), 41Mont. 465, 478-79, 110 P. 

### 528, 532; see also Swanson, 646 P.2d at 1169; Hurley v. Star Transfer Co. (1962), 141Mont. 176, 184, 376 

### P.2d 504, 508;Autio

v. Miller (1932), 92Mont. 150, 169, 11 

### P.2d 1039, 1046. Theparties stipulatedthatAric's estate incurred funeraland medical expenses totaling $2,601.10. The parties also stipulated that at the timeofhis death,Aric was 19.45 years old and thathe had a work life expectancy of 40.75 years. Appellant presented evidence that in the year before his death, Aric earned $3,239.08 at an Eastern Montana College computer lab. Appellant's expert testified that Aric would have been expected to earn between $878,518and $1,113,929duringhiswork life, dependingonthetype and amount of his education. In Putnam, the personal representative of a college student killed in an automobile accident brought a survivorship action under 

### 5 93-2824, RCM, the predecessor of 5 

### 27-1-501, MCA. The plaintiff in Putnam offered expert testimony as to the decedent's potential lossof future earnings; thedecedent's life expectancy; and testimony concerning the decedent's employment history, education,andpersonal abilities. No evidencewas submittedas to
5

### the amount of money the decedent earned at her employment. The jury returned a verdict of $449.95, the amount of the decedent's personal property destroyed in the accident. The jury awarded nothing for the decedent's loss of future earning capacity. The district court set aside the verdict and ordered a new trial limited to the issue of damages and held that there was insufficient evidence to supportaverdict that thedecedenthad no future earning capacity. We affirmed and stated that the verdict

was impossible,giventheuncontradicted evidencewhichestablished an earning capacity at the time of death. We held that "therewas no substantial evidence justifying the jury verdict awarding no damages fordecedent's loss of earning capacity." Putnam,457 P.2d at 413. In the present case, the evidence offered by appellant to establish survivorshipdamageswas either stipulated to or offered without contradiction. The jury did nothave the choice whether to believe one party's evidence over the other. As a result, the jury's verdict in the present case is as impossible as was the verdict inPutnam. There is no substantial evidenceto justifythe jury's failure to award survivorshipdamages. In Rudeck v. Wright (l985), 218 Mont. 41, 709 

### P.2d 621,Mr. Rudeck died after a "lap mat" was negligently left in his stomach during surgery. His wife filed twomedical malpractice claims for wrongful death, and in her capacity as personal representative of her husband's estate, for his survival claims. The jury returned

averdict awardingMrs. Rudeck $75,000 onher wrongful death claimand zero on the estate's survival claim. The district court granted Mrs. Rudecklsmotion for a new trial. The defendant appealed. We affirmed and held that the jury's verdict in awarding damageson thewrongfuldeath claim,but no damages on the survival claim, was "totally inconsistent and contrary to the mandates of the law." Rudeck, 709 P.2d at 624. If Mr. Rudeck's death was caused by the negligence of defendant Wright, then the earlier injury to Mr. Rudeck which culminated in his death must have been caused by the samenegligence. Ifthe samenegligence

# . .. caused the personal injury to the living Mr. Rudeck and that samenegligence causedhis later death,the jury would be compelled to award damages for Mr. Rudeck's personal injury (whichwere sought in the survival claim on his behalf by the personal representativeof his estate) as well as awarding damages on the wrongful death claim. Because the jury did not do so, its verdict is inconsistent and is against the law. Rudeck, 709 P.2d at 624. Aric Brockie's death was caused in part by respondent's negligence. The injuries to the living Aric Brockiewere causedby the same negligent acts of respondent that resulted in Aric Brockie's death. The jury, therefore, was compelled to award survivorshipdamages forAricrs personal injuries. We conclude,as

we did inRudeck, thatbecause the jury failedto award damages for AricSspersonal injuries caused by respondent's negligence, its verdict is "totally inconsistent and contrary to the mandates of the law." Rudeck, 709 P.2d at 624.

### We hold that the jury's special verdict finding zero survivorshipdamages to the estate of Aric Brockie was contrary to the evidence. ISSUE 2 Did the District Court err by denying appellant'smotion for

apartial new trial on the issue of survivorshipdamages sustained by Aric Brockie's estate? A 

### new trialmaybe granted ongroundsof insufficientevidence to justify the verdict. Section 25-11-102(6), MCA. Our standard of review of a ruling on a motion for a new trial is whether the district court abused itsdiscretion. Estate of Spicherv. Miller

(l993), 260 Mont. 504, 506, 861 P.2d 183, 184; Gass v. Hilson (1990), 240 Mont. 459, 461, 784 P.2d 931, 933. Under Rule 61, M.R.Civ.P., the trial court must determine whether a refusal to grant the motion for a new trial would appear inconsistent with substantial justice. In Issue 1, 

### we held that there was insufficient evidence to justify the jury's verdict as to survivorship damages. BY answering Issue 1 in the affirmative, we must necessarily answer Issue 2 intheaffirmative pursuant to 5 

### 25-11-102(6),MCA, and our decisions in Putnam and Rudeck. Wehold the District Court erredby denyingappellant'smotion for a new trial on the issue of the survivorshipdamages sustained by Aric Brockie's estate. Thismatter is remanded to the District Court for a new trial on the issue of survivorship damages.Appellant's notice of subsequent authority pursuant to our decision inNewville asksus toapplyNewvilleretroactively to the wrongful death award. In that case, we concluded that the allocation of percentage of liability to non-parties violates substantive due process. We held that the relevant portion of 27-1-703 (4)

## , MCA, is unconstitutional. when a statute is declared unconstitutional, it is void 

### abinitio. State v. Coleman

(1979), 185 Mont. 299, 319, 605 P.2d 1000, 1013. Respondent argues that Newville should not be applied retroactively. Respondentconcedes thatthegeneralruleregarding Itchange of law" is that this Court must apply the law that is in effect at the time it renders its decision. Leev. Flathead County

(1985), 217Mont. 370, 704 P.2d 1060. Respondent asserts that the changed law should not be applied when it is necessary to prevent manifest injustice. See West-Mont Community Care v. Board of Health and Educational Sciences (1985), 217 Mont. 178, 703 P.2d 850. Respondent argues that application of the statuteas amended would result inmanifest injustice because respondentrelied on the pre-Newville statuteand did not name thedriver asthe third-party defendant. Had the trial takenplace under the lawafter Newville, respondent maintains it would have protected its rights to indemnity and contribution from the driver by naming him as a third-party defendant. Alternatively, respondent argues that in cases where new law has been applied retroactively, this Court has allowed the prejudiced party a new trial and the opportunity to amend the 9

### pleadings. Haines Pipelinev. MPC (1991),251Mont. 422, 830 P.2d 1230.Bothparties relied onpre-Newville lawwhen presenting their

cases at trial. The general rule is that a change of law between the law applied at trial and the time of appeal requiresthis Court to apply the changed law. Haines, 830 P.2d 1230; 

### Lee, 704 P.2d 1060; West-Mont, 703 P.2d 850;Wilson v. State Highway Commission (1962),140 Mont. 253, 370 P.2d 486. An exceptionto the general rule, is that the new law will not be applied when it is necessary to prevent manifest injustice. Haines, 830 P.2d at 1238. This Court has defined manifest injustice as an application of a new law that impairs a vested right. West-Mont, 703 P.2d at 852. "A 

### judgment is not a vested rightwhile it is subjectto review orwhile an appeal ispending.lt Haines, 830 P.2d at 1238. Because this case is still onappeal, respondenthasnovested right in the pre-Newville application of § 

### 27-1-703(4), MCA. The jury found respondent 35 

### percent negligent, and the non-party driver 65percent negligent, in causing Arictsinjuries and death. The jury awarded appellant $170,000 in wrongful death damages,and the court adjusted that amount to $59,000 to reflect the jury's allocation of negligence. On remand, the District Court will reinstate the full amount of the wrongful death award pursuant to our decision in Newville. That amount will be offset dollar-for-dollar by the pretrial settlement with the non-party driver.Wereversethejury verdict findingzero survivorship damages and remand for a new trial limited tothe issue of survivorship damages.

Justice

We concur:

Chief Justice

t

Just icesJustice Fred J. Weber dissents as follows: The majority opinion states issue one as follows: 1. Was the jury's verdict finding zero survivorship damages to the estate of Aric Brockie contrary to the evidence? That statement of the issue addresses only a part of the aspects which should be considered on this issue. I suggest that the defendant'sstatement of issue is more complete: 1. Whether the district court abused its discretion in refusing to grant a 

### new trial 

### on the sole issue of survivorship damages where the jury awarded $170,000as wrongful death damages. 

### In considering this issue,it isnecessary to keep inmind the questions answeredby the jury in the special verdict formprepared by the plaintiff: QUESTION NO. 6: Without making any reductions for percentages of negligence, what are Che total damages sustained by Michael and Susan Brockie as the heirs of Aric Brockie? ANSWER : $ 170,000 If you have assessed damages in answer to question number six, you must answer question number seven. If you have not assessed damages in answer to question number six, you must proceed to answer question number seven. QUESTION NO. 7: Without making any reduction for percentages of negligence,what are the total damages sustained by the estate of Aric Brockie as the result of his death? ANSWER : $ -0- From the wording of the special verdict it appears quite possible that survivorship damages could have been included in the $170,000answer to question six. That was the view of the trialjudge. Following is the analysisof the District Court inwhich it denied plaintiff's request for a new trial 

### on the issue of survivorship damages only: ORDER ON PLAINTIFF'SREQUEST FOR 

### A NEW TRIAL The 

### jury in this matter returned its verdict on October 20, 1993. In that verdict, the jury found that the total damages suffered by Michael and Susan Brockie as the heirs of Aric Brockie were $170,000. The jury further found that Defendant Omo was 35 percent negligent,which translates into an award of $59,500for the Brockies. The attorneys for the Brockies have moved 

### for a new trial 

### on the issue of survivorship damages alone. The Brockies argue that there is no dispute but that Axic survived the accident and had a survivorship action. The Court agrees that this was undisputed. 

## . . Defendant contends that the jury could totally disregard the expert testimony if they wanted to. This is consistent with the supremecourt holding in Putnamv. Pollei, 153 Mont. 406, 457 P.2d 776 (1969).



### . . 

## . Neither in that special verdict form nor in the closinq arsumentsdid Plaintiff'sattornevsoffer anyquidance to the iurv as to how the damaqes were to be split up between Aric'sparents as the heirs in a wronsful death action and damaqes to be awarded to the personal representative of the estate. It would not have been difficult at all for such 

### a jury questionnaire to have been drafted and offered,but none was. The Brockies insist that they have not had a fair trial. This Court feels that they have received a fair trial. All of the evidence that they wanted introduced was introduced. The special verdict form that they offered was used by the Court. The $170,000 that the iurv did award could well have been to compensate for Aric's medical and funeral expenses, alona with his earninq capacity and damaqes to his parents. This we will never know. Primarilywe will not knowthisbecause 

### of theway the verdict formwas crafted. For Plaintiff s counsel to now complain about the verdict 

### form that was crafted bv Plaintiff does not find 

### a receptive audience with this Court. Further, this is not a case as was Putnam where damages of $445 were awarded, nor was it a case such as Flahertyv. Butte Electric Railway, 42Mont 89, 111 P.2d 348 (1910)where $100 damages were awarded 

### for the loss of a three year old child. To allow a new trial on the survivorship action alone would allow Plaintiff to keep the money they have already won and roll the dice again. Thev have won asubstantial award from the jury,and the fact that it is not broken out between the survivorship 

### and wronsful death action is not the fault of Defendant nor this Court. Therefore, PlaintiffIs request for a new trial on the question of damages for the survivorship action is hereby denied. (Emphasis supplied.) In addressing this issue,the majority opinion emphasizes the uncontradicted evidence which establishes survivorship damages which should have been awarded, including funeral and medical expenses in the amount of $2,601.10and earnings testified to by theplaintiff s expert in

### an amount of $878,518to $l,ll3,929. The majority opinion then concludes there isno substantial evidence to justify the juryls failure to award such survivorship damages. The foregoing analysis does not addxess the specific matters considered by the District Court in its denial 

### of new trial. An example is the reference of the majority opinion to Putnam v. Pollei (1969), 153Mont. 406, 457 P.2d 776, in which the statement is made that the jury's verdict in the present case is as impossibleaswas the verdict in Putnam, This fails to address the analysis correctlymade by the District Court where it pointed out that in Putnam,the damages awarded were only $449.25,whereas in the present case, damages were awarded in the amount of $1701000 and that amount could have included survivorship damages. 

### In a similarmanner, themajority opinion relies on Rudeckv. Wright (l985),218 Mont. 41, 709 P.2d 621. The majority opinion points out that in Rudeck, a new trial was awarded in a case in which the jury returned a verdict awarding Mrs. Rudeck $75,000on

a wrongful death claim and $0 on the estate'ssurvival claim. Thekey difference between Rudeck and the present case is that in Rudeck the Court allowed a new trial on issues so that Mrs. Rudeck was not allowed to retain the $75,000 awarded her on the wrongful death damages and try again the issue of the estate1 s survivorship damages. As above quoted,the District Court concluded plaintiff had a fair trial. It emphasized that the special verdict form had been prepared by the plaintiff and that the "$l7O,OOOthat the jurydid award could well have been to compensate for Ariclsmedical and funeral expenses, along with his earning capacity and damages to hisparents. Thiswe will never know." TheDistrict Court further emphasized that neither in the special verdict form nor in the closing arguments did plaintiff'sattorneys offer any guidance to the jury as to how damages were to be divided between Aricls parents as his heirs in a wrongful death action and damages to be awarded to the personal representative of the estate. I concludethere isnoproper basis for overturning the denial of a new trial by the District Court, and I dissent on Issue I. On Issue 

### I, I do point 

### out that the argument which appeared strongest to me in behalf of the plaintiff was the possible contradiction between the various instructions. InstructionNo. 24 stated as follows: Your award should include reasonable compensation for burial expenses and funeral servicesforthe deceased and any reasonable medical. charges which were incurred in connection with the death. Defendant argues that this instruction fails to clearly tell the jury that the amount relating to medical and funeral expensesshould be allocated to the estate on a survivorship claim. That argumentdoes not consider the strongest argumentunder Instruction No. 34 which stated: Youraward should include reasonable compensation to Brockielsestate for: The amount of lost earnings between the time of death and the time of trial; the present value of Aric Brockie's reasonable earnings after the date of trial during the remainder of his life expectancy; and reasonable compensation for decedent's loss of established course of life. (Emphasis supplied. ) Aric

While rit is true that the specialverdict form did not sufficiently advise the jury as to how to divide the damages, and while there

was no explanation made by the plaintiff in the course of final argument, the above instruction certainly raises a significant issue. As a result, I believe it would have been proper for the majority opinion to conclude that there was sufficient confusion here to require a new trial and 

### then to order a new trial on aspects of the case. This would include a new trial on the issue of the $170,000of damages. It would 

### also allow considerationof the Newville case which is hereafter mentioned. Issue I1 is stated by the majority opinion as: Did the District Court err by denying appellant's motion for a partial new trial on the issue of survivorshipdamages sustained

### by Aric Brockielsestate? The defendant'sproposed issue is stated as follows: Whether a jury awardallocating $170,000 inwrongful death damages to the decedent'sheirs,but $0 dollars in survivorship damages to the decedentls estate, is reversible as 

### contrary to the 

### law when the plaint;iffappellant failed toprovide any guidance or instructions to the jury concerning allocation of damages, and the jury followed all instructions actually given to it.The majority opinion concluded that its answer on issue one required a reversal of the District Court. The authority for this decision is Putnam in which the keydistinction from this case was the award to Putnam of insignificant damages in the amount of $449.25. The distinctionfromRudeck is that inRudeck,the entire

case was remanded for a new trial including the $75,000awarded,as compared to the present case where the plaintiff 

### is allowed to retain his share of the $170,000,but is allowed to go to trial on the issue of survivorship damages. For the reasons set forth under Issue I, I dissent from the conclusionthat the District Court erred in denying theplaintiff's motion for a partial new trial on the issue of survivorship damages. Newville Application Themajority opinionpoints out that the plaintiff asks us to apply Newville v. Montana Department of Family Services (Mont. 19941, 51 St.Rep. 758, 882 P.2d 793,retroactivelyto thewrongful death award of $170,000. I think it important to quote the pertinent portions of Newville: We conclude that the allocation of percentases of liabilitvto non-oartiesviolates substantivedueDrocess as to the plaintiffs. We hold that the followingportion of 5 27-1-703 (4), MCA (1987),violates substantive due process:



## . . . persons released from liability by the claimant,persons immune from liability to the claimant, and any other persons who have a defense against the claimant



### . . .



## ... We further conclude that the remainder of the statute is capable of being executed in accordance with the legislative intent. 

### As a result of our holding of unconstitutionality,we have eliminated that portion ofthe statute which allowed an allocation of neqliqence to non-uarties 

## . . . (Emphasissupplied.) Newville, 51 St.Rep. at 766-67. For this analysis,the key aspect is that Newville determined there could be no allocation 

### of negligence to non-~arties. In the present case,all of theparties and the District Court

as well, concluded that § 27-1-703,MCA (1987),did allow an allocation of negligence to a non-partydriver. As a result, the verdict form prepared by the plaintiff and accepted by the defendant and given by the District Court, and used by the jury, resulted ina jury finding that the non-partydriver was 65percent negligent and the defendant Omo was 35 percent negligent. At that point, the understanding of the parties and of the District Court

was that the $170,000 in total damages would be reduced by the 65 percent negligence which was attributable to thenon-partydriver. As a result of the interpretation in the majority opinion, this understanding is disregarded and the $170,000 is reinstated in full. On its face, this demonstrates a manifest injustice to the defendant. While the majority opinion does not explain the basis for all of its decision, I assume that it is relying on State ex rel.Deere and Co. v. District Court (l986), 224 Mont. 384, 730 P.2d 396, which concluded that the 1985 version of 5 27-1-703,MCA, excluded

aparty againstwhom recoverywas not allowed--andhaving concluded that recovery was not allowed against a settling defendant, held that there was no right of contribution as to such settling defendant. After Deere was issued, § 27-1-703,MCA, was amended 18substantiallyin 1987. This 1987 amendment included the statement that for the determination of the percentage of liability attributable to eachparty whose action contributed to the injury, the trier of fact should consider the negligence of a number of stated persons, and specifically included persons released from liabilityby the claimant and persons immune from liability to the claimant. The amended statute required the trier of fact to apportion the percentage of negligence to all such persons. 

### I emphasize the distinction between allowing an allocation 

### of neslisence to persons released from liability, and allowing contribution from suchpersons released from liability. While this view of the statutehas not yet been consideredby this Court--the contention could be made under the 1987 statute that there can be

an allocation

### of negligence to a third-partydefendantwho hasbeen released from liability even though there could be no right of contribution from that third-party defendant who has already settledwith the plaintiff. As an example, in the present 

### case, if the driver of the vehicle who had settled with the plaintiff had been named as a third-party defendant,and if the juryverdict had been the same as in the present case then the result could have been precisely the same as in thepresent case--thatbeing an award of $170,000 for 

### all of 

### the damages 

### of the 

### plaintiff,but with the defendant Omo only responsible for 35percent of the same under the revised statute. I conclude there is amanifest injustice in the applicationof Newville to the defendant in themannerwhich hasbeen accomplishedin the majority opinion. I conclude that Newville isnot authority for the applicationmade in themajority opinionbecause it did not decide whether a party settling with the claimant still could be named as third-party defendant to whom negligence could be allocated. I dissent from the majority opinion.

~ustice

Chief Justice J.A. Turnate joins in the foregoing dissent.

I Justice Karla M. Gray joins in the foregoing dissent. '>,