IN THE MATTER OF THE ESTATE OF: JENNIFER E. BOUSHEE, Deceased.
Submitted on Briefs: October 3, 2018
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
Appellant: Christopher J. King, Greear Clark King, P.C.,
Appellee: Kirk D. Evenson, Nicole F. Morton, Marra, Evenson
& Levine, P.C., Great Falls, Montana
McGrath, Chief Justice
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
Davey McMillan appeals from a March 5, 2018 Eighth Judicial
District Court order determining the allocation and
distribution of settlement proceeds. We affirm.
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.
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.
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.
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.
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
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
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