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Friesen v. Ace Doran Hauling & Rigging, Inc.

United States District Court, Ninth Circuit

November 8, 2013

CANDACE FRIESEN, Individually and as Representative of the Estate of Ladell Friesen and as Next Friend of her Minor Daughter Abigail Ladell Friesen; STAN FRIESEN; LOIS FRIESEN, Plaintiffs,
v.
ACE DORAN HAULING & RIGGING, INC.; and DOES 1-25, Defendants.

ORDER

DANA L. CHRISTENSEN, Chief District Judge.

This order resolves two interrelated motions in this case: (1) Defendant Ace Doran Hauling and Rigging Co.'s motion for summary judgment on Abigail Friesen, Stan Friesen, and Lois Friesen's claims (Doc. 38.); and (2) Defendant Ace Doran's motion to strike inadmissible evidence (Doc. 71).

For the reasons articulated below, Defendant's motion for summary judgment will be granted in part and denied in part, and Defendant's motion to strike will be denied as moot.

I. FACTS

This matter arises out of a motor vehicle accident that occurred on U.S. Route 2 in Montana on or about February 22, 2011. Ladell Friesen died as a result of that accident. At the time of his death, Ladell Friesen was married to Candace Friesen, who was also in the vehicle, and who was pregnant with their only child, Abigail Friesen. Ladell Friesen was the adult son of Stan and Lois Friesen. Ladell died intestate, and Candace Friesen is the personal representative of Ladell Friesen's estate.

Plaintiffs third amended complaint (Doc. 76) brings numerous claims against the Defendants. The scope of the motions addressed in this order are limited to Plaintiff's "Seventh Cause of Action - Wrongful Death and Survival Cause of Action Damages, " which states:

Candace Friesen has been appointed the personal representative of the Estate of Ladell Friesen. Candace Friesen therefore asserts on behalf of the Estate of Ladell Friesen, as well as the heirs of Ladell Friesen including Candace Friesen, [and] Ladell Friesen's minor daughter, Abigail Ladell Friesen, a cause of action for the wrongful death of Ladell Friesen seeking all elements of damages permitted under Montana law pursuant to MCA 27-1-323, MCA 27-1-513 and MCA 27-1-501 and all other applicable statutes as well as the common law of Montana. Further, Candace Friesen, individually and as next friend of her minor daughter, Abigail Ladell Friesen, Stan Friesen and Lois Friesen all seek wrongful death damages in their individual capacity. The wrongful death of Ladell Friesen was proximately caused by the negligence, negligence per se and gross negligence of Ace Doran and the negligence and negligence per se of Coles[1]. Further, Stan and Lois Friesen would say and show that they had an unusually close and interdependent relationship with their son Ladell, including financial dependency as described above and therefore are entitled to recover for loss of consortium as a result of the death of their son, Ladell Friesen, in addition to the grief, sorrow, mental anguish and anxiety that they suffered as a result of their son's death.

(Doc. 76 at 26-27.)

The Court's jurisdiction over this matter is based on diversity of citizenship under 28 U.S.C. § 1332. "The source of substantive rights enforced by a federal court under diversity jurisdiction... is the law of the States." Guar. Trust Co. of N.Y. v. York, 326 U.S. 99, 112 (1945).

II. MOTION FOR SUMMARY JUDGMENT

Ace Doran filed a motion for summary judgment on Abigail Friesen, Stan Friesen, and Lois Friesen's claims. (Doc. 38.) Plaintiffs opposed the motion. (Doc. 54.) Ace Doran moves for summary judgment on three points: (1) Abigail, Stan, and Lois Friesen lack standing to assert a wrongful death claim as a matter of law, since Candace Friesen is the personal representative of Ladell Friesen's estate, and thus the only party entitled to assert such a claim; (2) Abigail, Stan, and Lois Friesen are not entitled to wrongful death damages as a matter of law; and (3) Stan and Lois Friesen's claims should be dismissed as a matter of law because they cannot establish significant evidence of an extraordinarily close and interdependent relationship between them and their adult son that would justify an award of loss of consortium damages. (Doc. 40 at 2-3.)

Summary judgment is proper if the moving party demonstrates "that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). The movant bears the initial burden of informing the Court of the basis for its motion and identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (internal quotation marks omitted).

The movant's burden is satisfied when the documentary evidence produced by the parties permits only one conclusion. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). Where the moving party has met its initial burden, the party opposing the motion "may not rest upon the mere allegations or denials of his pleading, but... must set forth specific facts showing that there is a genuine issue for trial." Id. at 248 (internal quotation marks omitted).

A. Abigail, Lois, and Stan Friesen do not have standing to bring a wrongful death claim.

Ace Doran argues that Candace Friesen, as the personal representative of the Estate of Ladell Friesen, is the only person that has standing to bring a wrongful death action for Ladell's death. Thus, Ace Doran asserts that Abigail, Stan, and Lois Friesen's claims should be dismissed.

"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...." MCA § 27-1-513 (2011). The Montana Supreme Court has interpreted this statute 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." Renville v. Fredrickson, 101 P.3d 773, 777 (Mont. 2004). The law is clear on this point, and Plaintiffs concede that "[i]t is true that only Candace Friesen as personal representative of the estate can litigate the claims of the other plaintiffs" (Doc. 54 at 6). Thus, Ace ...


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