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In re Estate of Boushee

Supreme Court of Montana

November 13, 2018

IN THE MATTER OF THE ESTATE OF: JENNIFER E. BOUSHEE, Deceased.

          Submitted on Briefs: October 3, 2018

          APPEAL FROM: District Court of the Eighth Judicial District, In and For the County of Cascade, Cause No. ADP-15-185 Honorable Gregory G. Pinski, Presiding Judge

          For Appellant: Christopher J. King, Greear Clark King, P.C., Worland, Wyoming

          For Appellee: Kirk D. Evenson, Nicole F. Morton, Marra, Evenson & Levine, P.C., Great Falls, Montana

          OPINION

          Mike McGrath, Chief Justice

         ¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum opinion and shall not be cited and does not serve as precedent. Its case title, cause number, and disposition shall be included in this Court's quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports.

         ¶2 Davey McMillan appeals from a March 5, 2018 Eighth Judicial District Court order determining the allocation and distribution of settlement proceeds. We affirm.

         ¶3 Tahnia Santiago and Davey McMillan are the parents of the deceased, Jennifer Boushee. On July 12, 2015, when Ms. Boushee was nineteen years old, she illegally purchased alcohol from a Holiday gas station and attended a house party where she consumed alcohol. That evening, Ms. Boushee drove under the influence of alcohol and died shortly after her vehicle was involved in a highspeed accident.

         ¶4 Ms. Boushee died intestate. Santiago, without objection from McMillan, was appointed personal representative of Ms. Boushee's estate on October 5, 2015. In her capacity as personal representative, Santiago pursued wrongful death and survival claims against Holiday Stationstores and the owners of the home where the party was located.[1]

         ¶5 The claims against Holiday Stationstores were settled preceding litigation for $325, 000 without allocating specific amounts to wrongful death or survival damages. The District Court approved the settlement, without objection from McMillan. After attorney's fees, costs, and expenses, $204, 866.39 remained for distribution.

         ¶6 On August 2, 2017, Santiago filed a motion requesting the District Court to allocate and distribute the remainder of the settlement proceeds. After a hearing, the District Court allocated $194, 136.43 to the survival action and the remaining $10, 729.96 to wrongful death damages. The District Court held that McMillan could not inherit any portion of the survival damages and awarded him $7.51 in wrongful death damages. The District Court also denied McMillan's motion to remove Santiago as personal representative, finding that she had not breached her fiduciary duty as McMillan claimed.

         ¶7 We review a district court's conclusions of law to determine whether they are correct and its findings of fact to determine whether they are clearly erroneous. Pilgeram v. GreenPoint Mortg. Funding, Inc., 2013 MT 354, ¶ 9, 373 Mont. 1, 313 P.3d 839. We review a district court's decision regarding removal of an estate's personal representative for an abuse of discretion. In re Estate of Anderson-Feeley, 2007 MT 354, ¶ 6, 340 Mont. 352, 174 P.3d 512. We review discretionary trial court rulings, including trial administration issues and evidentiary rulings, for abuse of discretion. State v. Price, 2006 MT 79, ¶ 17, 331 Mont. 502, 134 P.3d 45.

         ¶8 McMillan asserts that the District Court's allocation of survival damages was not supported by sufficient evidence and that he is entitled to inherit survival damages from the estate.

         ¶9 When a decedent's death was caused by the negligence of another, the personal representative may pursue a survival action against the responsible party on the decedent's behalf. Sections 27-1-501(1), 72-3-604, MCA; Swanson v. Champion Int'l Corp., 197 Mont. 509, 515, 646 P.2d 1166, 1169 (1982). Damages recoverable in a survival action are personal to the decedent and belong to his or her estate. They do not include damages suffered by the decedent's heirs. Marinkovich v. Tierney, 93 Mont. 72, 86, 17 P.2d 93, 96 (1932). When a decedent dies intestate, the survival damages are administered in accordance with the intestate succession statutes. In re Estate of Bennett, 2013 MT 230, ¶ 12, 371 Mont. 275, 308 P.3d 63. In Montana, the personal representative may not seek survival damages if the decedent dies instantaneously. Dillon v. Great Northern Ry. Co., 38 Mont. 485, 503, 100 P. 960, 966 (1909). The cause of action must have existed in the lifetime of the decedent to fall under the survivorship statute. Swanson, 197 Mont. at 516, 646 P.2d at 1169. Both economic and noneconomic damages may be recovered ...


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