No. 03-170
IN THE SUPREME COURT OF THE STATE OF MONTANA
2004 MT 324
JANICE RENVILLE,
Plaintiff and Appellant,
v.
CHARLA MAY FREDRICKSON,
Personal Representative of the Estate of
SHERLEE YORK FREDRICKSON, Deceased,
Defendant and Respondent.
APPEAL FROM: District Court of the Eighth Judicial District,
In and for the County of Cascade, Cause No. ADP 2001-212
The Honorable Julie Macek, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Dane J. Durham, Attorney at Law, Missoula, Montana; Joseph C. Engel, III,
P.C., Attorney at Law, Great Falls, Montana
For Respondent:
Robert F. James, Mark D. Meyer, Ugrin, Alexander, Zadick & Higgings,
P.C., Great Falls, Montana; Todd A. Stubbs, Graybill, Ostrem & Crotty,
PLLP, Great Falls, Montana
Submitted on Briefs: January 26, 2004
Decided: November 16, 2004
Filed:
__________________________________________
Clerk
Justice Patricia O. Cotter delivered the Opinion of the Court.
¶1 This Court issued its original Opinion in this case on August 31, 2004. See Renville
v. Frederickson, 2004 MT 239, 322 Mont. 503, ___ P.3d ___ (Renville I). Frederickson
filed a Petition for Rehearing on September 15, 2004. Renville filed her Objections to the
Petition for Rehearing on September 23, 2004. In her Petition, Frederickson raised an issue
that was neither briefed nor argued in the original briefs submitted to this Court. While the
failure to raise this issue initially on appeal would normally justify a summary denial of the
Petition for Rehearing, we conclude that, in the interest of clarity and uniformity of case law,
we must address the issue raised in the Petition, and affirm the District Court’s ruling. On
November 9, 2004, we issued an Order withdrawing our Opinion in Renville I. We replace
it with this superseding Opinion.
¶2 Janice Renville (Renville) sued the Estate of Sherlee York Frederickson (Frederickson
or the Estate) seeking damages for emotional distress and loss of consortium arising out of
the death of Renville’s adult son who was killed in an automobile accident while a passenger
in a car driven by Frederickson. Renville appeals the District Court’s Order granting the
Estate’s Motion for Summary Judgment. As indicated above, we affirm.
ISSUE
¶3 We restate the issue as follows: Did the District Court err in concluding that
Renville’s claims for negligent infliction of emotional distress (NIED) and loss of consortium
failed as a matter of law?
FACTUAL AND PROCEDURAL BACKGROUND
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¶4 On September 1, 2001, forty-four year old Gary Sorenson (Sorenson) died in an
automobile accident. The car in which Sorenson was a passenger was driven by Sherlee
York Frederickson (Frederickson). Frederickson also died in the accident.
¶5 The record is unclear on Sorenson’s marital status at the time of his death, but we
know he was survived by two children, numerous siblings, and his mother. His son, Jason
Sorenson, was named Personal Representative of his father’s estate. Jason prosecuted a
wrongful death claim against Frederickson’s estate. That action was settled in November
2001.
¶6 Sorenson’s mother, Renville, learned of her son’s death when a sheriff arrived at her
home in the early morning hours of September 2, 2001, and notified her that Sorenson had
died as a result of injuries sustained in the automobile accident. Renville reacted very
emotionally. She began to scream and her body shook. She claims that she had to take
tranquilizing medicine for several days and that six months after his death, she had no
interest in her home and had repeated crying spells.
¶7 In March 2002, Renville filed suit against the Frederickson Estate, asserting that
Frederickson’s negligence had caused Sorenson’s death. She sought damages for emotional
distress and loss of consortium.
¶8 The Estate moved for summary judgment arguing that Renville’s emotional distress
claim failed as a matter of law because Renville’s allegations of emotional distress did “not
rise to the level set forth by the Montana Supreme Court as necessary to establish a claim
for emotional distress.” Additionally, the Estate maintained that Renville’s loss of
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consortium claim must fail because Montana does not recognize a loss of consortium claim
for the death of an adult child. The District Court agreed and, in January 2003, granted
Frederickson’s Motion for Summary Judgment. Renville appeals.
STANDARD OF REVIEW
¶9 Summary judgment is proper only when no genuine issue of material fact exists and
the moving party is entitled to judgment as a matter of law. Rule 56(c), M.R.Civ.P. Our
standard in reviewing a district court’s summary judgment ruling is de novo. Watkins Trust
v. Lacosta, 2004 MT 144, ¶ 16, 321 Mont. 432, ¶ 16, 92 P.3d 620, ¶ 16 (citation omitted).
Accordingly, such review affords no deference to the district court’s decision and we
independently review the record, using the same criteria used by the district court, i.e., Rule
56, M.R.Civ.P., to determine whether summary judgment is appropriate. Moreover, all
reasonable inferences which may be drawn from the offered proof must be drawn in favor
of the party opposing summary judgment. Watkins Trust, ¶ 16.
DISCUSSION
¶10 Renville argued to the District Court that she suffered extreme emotional distress as
a result of her son’s death which she alleged was caused by Frederickson’s negligence. The
Estate countered Renville’s allegations with a two-fold argument: 1) because Renville did
not contemporaneously witness the underlying accident that killed her son or its immediate
aftermath, under Montana law she may not prosecute an independent claim for NIED; and
2) Renville’s emotional distress from the loss of her son was not “so severe that no
reasonable person could be expected to endure it.”(quoting Sacco v. High Country
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Independent Press (1995), 271 Mont. 209, 234, 896 P.2d 411, 426). The District Court did
not address Frederickson’s “contemporaneous witness” argument. Rather, it held that,
under Sacco, her emotional distress was insufficiently severe to support her NIED claim.
¶11 The State of Montana has long recognized “negligent infliction of emotional distress”
as a compensable tort and an independent cause of action. In Sacco, we engaged in a
comprehensive analysis of the historical development of emotional distress claims; therefore,
we need not do so again here. As the District Court recognized, we set forth in Sacco a
threshold level of emotional distress that must be met for such claims to be compensable.
We said:
Emotional distress passes under various names, such as mental suffering,
mental anguish, mental or nervous shock, or the like. It includes all highly
unpleasant mental reactions, such as fright, horror, grief, shame, humiliation,
embarrassment, anger, chagrin, disappointment, worry, and nausea. It is only
where it is extreme that the liability arises. Complete emotional tranquillity is
seldom attainable in this world, and some degree of transient and trivial
emotional distress is a part of the price of living among people. The law
intervenes only where the distress inflicted is so severe that no reasonable
[person] could be expected to endure it. The intensity and the duration of the
distress are factors to be considered in determining its severity. Severe distress
must be proved. . . . (emphasis added).
Sacco, 271 Mont. at 234, 896 P.2d at 426.
¶12 We acknowledge that “severe” and “serious” emotional distress may manifest in
various and subtle ways. In Henricksen v. State, we reiterated that the guidance provided
in the Restatement 2nd of Torts, § 46, comment k, was one commonly-used method for
identifying sufficiently severe and serious emotional distress:
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In cases where there is a physical manifestation of bodily harm resulting from
emotional distress, such as PTSD, this bodily harm is sufficient evidence that
the emotional distress suffered by the plaintiff is genuine and severe. As
explained in the Restatement 2nd of Torts, § 46, comment k, ‘[n]ormally,
severe emotional distress is accompanied or followed by shock, illness, or
other bodily harm, which in itself affords evidence that the distress is genuine
and severe.’ (Emphasis inoriginal.) This manifestation assures that only
genuine harm, not fraudulent claims, will be compensated.
Henricksen v. State, 2004 MT 20, ¶ 79, 319 Mont. 307, ¶ 79, 84 P.3d 38, ¶ 79.
¶13 In Sacco, we also noted that serious mental distress could be found “where a
reasonable man, normally constituted, would be unable to adequately cope with the mental
stress engendered by the circumstances of the case.” Sacco, 271 Mont. at 231, 896 P.2d at
424 (citation omitted). Other factors to be considered in determining the severity of
emotional distress are the intensity and duration of the distress, circumstances under which
the infliction occurred, and the party relationships involved. By evaluating these factors, one
may determine when and where a reasonable person should or should not have to endure
certain kinds of emotional distress. Sacco, 271 Mont. at 234, 896 P.2d at 426 (citation
omitted).
¶14 Our de novo review of the record leads us to conclude that Renville has not presented
evidence establishing that the distress caused by her son’s death was so severe “that no
reasonable person should be expected to endure it.” The only substantive testimony in the
record on this issue is Renville’s sworn statement dated March 6, 2002. In this statement,
Renville testified that when the officer notified her of Sorenson’s death, her adult daughter,
who was living with her at the time, began to scream and cry and she began to scream and
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cry and her body shook. She stated that while she had been taking Valium for approximately
fifteen years (since her brother’s death), she was required to take several additional pills
during the time between Sorenson’s death and his funeral. She also testified that her need
for Valium has increased “a little at times” since Sorenson’s death but that “sometimes [it
is] the same as it was before.” She indicated that she took anti-depressants for about two
weeks after his death but stopped taking them because she did not like to take pills. Renville
further related that over the months after Sorenson’s death, unexpected memories would
trigger tears. She claimed that some of her children have commented that she seems
depressed, “not all of the time, only when [Sorenson is] brought up.” She has not sought
counseling, nor has it been suggested by friends or family that she do so. She explained,
when asked why she did not seek professional help, “I don’t know. Talk to my family.
You’ve got to comfort each other. There’s nothing you can do about it. Life goes on, but
you still miss the person, especially when they’re close to you.” She further concluded that
she has “to learn to deal with it, and that’s that.”
¶15 While we sympathize with Renville for her loss, our review of her testimony does not
lead us to conclude that her emotional distress is so severe that it rises to the level of a
compensable claim. There was no indication of any physical manifestation of grief; no
counseling has been sought or recommended; Renville chose not to take anti-depressants;
her use of Valium has not dramatically increased; she does not have continuous nights of
sleeplessness or days without appetite; and she maintains close relationships with family
members and friends. The loss of or serious injury to a child, whether an adult or a minor,
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is no doubt a traumatic experience, but it is one experienced by countless parents every year.
And while we believe that under some circumstances the resulting distress may be “so severe
that no reasonable person could be expected to endure it,” Sacco, 271 Mont. at 234, 896
P.2d at 426, that is not the case here. In fact, Renville’s recognition that “life goes on” and
that it is a loss she must “learn to deal with” reveals a philosophical strength that would
likely be absent in a case of severe emotional distress.
¶16 We also conclude that it was appropriate for the District Court to resolve this issue
on summary judgment. As we explained in Sacco, “It is for the court to determine whether
on the evidence severe [serious] emotional distress can be found; it is for the jury to
determine whether, on the evidence, it has in fact existed.” Sacco, 271 Mont. at 233, 896
P.2d at 425, (quoting Restatement (Second) of Torts, § 46, comment j at 78.) In the case
before us, the District Court concluded that on the evidence presented, severe emotional
distress could not be found. Based upon our review, we agree and affirm the District Court’s
Order granting summary judgment in favor of the Estate on Renville’s negligent infliction
of emotional distress claim.
¶17 In addition to her NIED cause of action, Renville sought damages for loss of
consortium for the death of Sorenson. She argued that while this Court has not yet
recognized the right of parents to recover for the loss of consortium of an adult child, a U.S.
District Court in Montana (hereinafter the “federal court”) in Bear Medicine v. U.S., (D. MT
2002) 192 F.Supp.2d 1053 (discussed below), has recently held that such recovery should
be allowed. Frederickson counters that we are not constrained to follow the federal court.
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In its briefs to this Court, the Estate instead urged us to follow other jurisdictions that have
declined to recognize such a cause of action.
¶18 The District Court concluded that Renville’s “loss of consortium claim fails because
Montana does not recognize a loss of consortium claim for the death of an adult child.” The
court continued that “[t]here is no case law in Montana directly addressing whether parents
can recover for the loss of consortium of an adult child.” The court thereafter expressly
declined to expand the law to allow such a cause of action.
¶19 In its Petition for Rehearing, the Estate pointed out that a loss of consortium damage
claim arising from a negligently-inflicted death is an inextricable element of a wrongful
death action that may be brought only by the personal representative of the decedent under
§ 27-1-513, MCA. Renville responds that a cause of action for loss of consortium is not
synonymous with a cause of action for wrongful death.
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¶20 The relevant part of § 27-1-513, MCA (2001), states:
When injuries to and the death of one person are caused by the wrongful act
or neglect of another, the personal representative of the decedent’s estate may
maintain an action for damages against the person causing the death . . . .
¶21 This statute and its predecessor have been interpreted to mean that only one wrongful
death action arising out of an adult’s wrongful death may be brought and the decedent’s
personal representative is the only person who may bring such an action. State v. District
Court (1961), 139 Mont. 367, 370, 364 P.2d 739, 741. (“The [statute] specifically provides
that there can be but one action for a wrongful death and that such action must be prosecuted
and maintained by the personal representative . . . .” (Emphasis in original)). The personal
representative holds the proceeds of any damage award for the heirs of the decedent and the
award does not become part of the decedent’s estate.
¶22 Additionally, under § 27-1-323, MCA, which states, “[i]n every action under 27-1-
513, such damages may be given as under all the circumstances of the case may be just,” we
have held that loss of consortium and loss of comfort and society damages are examples of
“just” damages available in wrongful death actions. Payne v. Eighth Judicial Dist. Court,
2002 MT 313, ¶ 11, 313 Mont. 118, ¶ 11, 60 P.3d 469, ¶ 11. As indicated above, Sorenson’s
son, Jason, as Personal Representative, successfully prosecuted a wrongful death action on
behalf of himself and Sorenson’s other heirs. He pressed no claim, however, for Renville.
¶23 The District Court determined, and Renville did not appeal nor dispute, that she did
not have standing to bring a wrongful death action under § 27-1-513, MCA, as she was
neither Sorenson’s heir nor his personal representative. It was on this ground that the District
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Court should have determined that Renville’s claim for loss of consortium damages failed
as a matter of law.
¶24 Allowing a separate loss of consortium action by someone other than a personal
representative would create a multiplicity of lawsuits arising from the same wrongful death.
Such multiple actions are in contravention of legislative intent. Prior to 1987, in applicable
cases, both a “survivor” action and a “wrongful death” action could be brought for a single
negligently-inflicted death. Section 27-1-501, MCA (1985) and § 27-1-513, MCA (1985).
In 1987, the legislature determined that in those situations where both causes of actions were
applicable, to prevent multiple lawsuits arising from the same death, the personal
representative must bring both actions together. Furthermore, the legislature expressly stated
that any element of damages available under these actions could be recovered only once.
Section 27-1-501, MCA (1989).
¶25 A cause of action for wrongful death is a legislative creation. The legislature defines
who may bring such actions, when they may be brought, and what damages may be sought.
It is this Court’s role to construe and interpret the law, not modify legislative enactments.
¶26 Again, as noted above, the parties did not appeal, argue or present this issue in their
original briefs to the Court in Renville I; thus, we limited our review to the issues presented.
However, upon recognizing as a result of the argument presented in Frederickson’s
Rehearing brief on reconsideration, that our holding improperly expanded the rights available
under the applicable statute, we are bound to affirm the District Court’s correct ruling. As
for the District Court’s erroneous reason for reaching this correct decision, we have
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frequently affirmed a correct conclusion drawn by a District Court even when that
conclusion may have been arrived at for the wrong reason. See Wolfe v. Webb (1992), 251
Mont. 217, 234, 824 P.2d 240, 250. This rule applies to the case at bar as well.
¶27 For the foregoing reasons, we affirm the District Court’s Order granting summary
judgment in favor of the Estate on Renville’s NIED and loss of consortium claims.
/S/ PATRICIA O. COTTER
We Concur:
/S/ KARLA M. GRAY
/S/ JAMES C. NELSON
/S/ JIM REGNIER
/S/ JOHN WARNER
/S/ W. WILLIAM LEAPHART
/S/ JIM RICE
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