Kulawik v. ERA Jet Alaska

BURKE, Justice,

dissenting in part.

I respectfully disagree with the court’s treatment of the issue of “prospective inheritance.” Alaska Statute 09.55.580(c)(1) (1983 & Supp.1990) plainly precludes consideration of a decedent’s possible future accumulations for purposes of determining damage awards in wrongful death suits brought by statutory beneficiaries. The statute, therefore, effectively bars any recovery of damages for loss of prospective inheritance.

Alaska Statute 09.55.580(c)(1) (1983 & Supp.1990) states partly that a jury, in awarding damages, must consider the loss of “expect[ed] ... pecuniary benefits” to the beneficiaries. This provision, however, contains its own limitation. Such consideration is to be given “without regard to probable accumulations of what the deceased may have saved during his lifetime. ”1 Because I can think of no feasible way to calculate a decedent’s prospective estate without necessarily considering the “probable accumulations” of his “sav[ings] during his lifetime,”2 I conclude that the words of the statute, given their plain and ordinary meaning, preclude an award of damages for prospective inheritance.

It is true that, even when a statute appears plain on its face, we will consider evidence tending to demonstrate a legislative intent contrary to the one indicated by the statute’s language. See Alaska Public Employees Ass’n v. City of Fairbanks, 753 P.2d 725, 727 (Alaska 1988); State v. Alex, 646 P.2d 203, 208-09 & n. 4 (Alaska 1982); State, Dep’t of Natural Resources v. City of Haines, 627 P.2d 1047, 1049 & n. 6 (Alaska 1981). However, we must be “mindful that the plainer the language, the more convincing contrary legislative history must be.” Alex, 646 P.2d at 209 n. 4 (quoting United States v. United States Steel Corp., 482 F.2d 439, 444 (7th Cir.), cert. denied, 414 U.S. 909, 94 S.Ct. 229, 38 L.Ed.2d 147 (1973)). Here, in my judgment, the “history” which supports the opinion of the court falls short of the required mark.

. Because this language operates as an express limitation on one of the enumerated measures of damage in AS 09.55.580(c), I reject Kulawik’s contention that damages for loss of prospective inheritance may be allowed under the "not limited to” clause contained in that section. Cf. Tommy’s Elbow Room v. Kavorkian, 727 P.2d 1038, 1047 (Alaska 1986) (although not expressly enumerated in AS 09.55.580, statutory beneficiaries permitted to recover damages for their “anguish, grief and suffering”).

. Damages for loss of prospective inheritance cannot be determined without first determining the amount likely to be in a decedent’s estate at the time of death, had the death been due to natural causes. This figure is determined by calculating "the net savings which the [decedent] would have accumulated ... at the expiration of his life expectancy.” Macey v. United States, 454 F.Supp. 684, 686 (D. Alaska 1978).