Overview of Damages available in Montana for Wrongful Death

Under Montana law, the personal representative of the estate of the deceased may sue the party responsible for wrongful death on behalf of the surviving heirs. The recovery made by the personal representative is not in his or her capacity as personal representative. Rather, the personal representative is the trustee of the award for each person entitled to compensation. Swanson v. Champion International Corp., 197 Mont. 509, 517-518, 646 P.2d 1166, 1170 (1982), citing MCA § 27-1-323.

“The law is not specific about the source of damages in a wrongful death action. It provides that ‘damages may be given as under all circumstances of the case may be just.’” Swanson, 197 Mont. at 517, 646 P.2d at 1170, citing MCA § 27-1-323. Generally, damages for wrongful death may include: 1) the loss of consortium by a spouse, by parents for the loss of minor and adult children, and by children for the loss of parents; 2) the loss of comfort and society of the decedent suffered by the surviving heirs; and, 3) the reasonable value of the contributions in money that the decedent would reasonably have made for the support, education, training and care of the heirs during the respective life expectancies of the decedent survivors. See, e.g., Swanson, 197 Mont. at 517, 646 P.2d at 1170.

The damages available in a wrongful death action for sorrow, mental distress or grief are an element of damages separate from loss of consortium damages; loss of consortium damages compensate plaintiff for loss of care, comfort, society and companionship of a decedent, whereas damages for grief and sorrow compensate plaintiff for mental anguish and anxiety which occurs as a result of decedent’s death. Mont. Code Ann. § 27-1-323; Bear Medicine v. U.S., 192 F.Supp.2d 1053, 1070 (2002).

Put another way, a Plaintiff’s wrongful death action allows for the recovery of damages for the mental anguish and anxiety that resulted from the person’s death. The loss of consortium action would allow the personal representative to recover damages for the loss of care, comfort, society, and companionship the deceased person had provided to the immediate family members in the past and would have continued to provide into the future. Indeed, Montana’s Wrongful Death Statute does not limit available damages and states that “such damages may be given as under all the circumstances of the case may be just.” Mont. Code Ann. § 27-1-323.

Therefore, a Plaintiff will generally be seeking the following categories of damages:

(1) Reasonable compensation as a result of the person’s death. The jury will consider any financial support which the Plaintiffs would have received or had a right to receive from the deceased except for the death, including the present value of his reasonable earnings during his life expectancy; and also the value of the society, comfort, guidance, education, care, protection, and companionship which the Plaintiffs have lost by reason of the person’s death. MPI2d 25.20.

(2) Reasonable compensation for burial expenses and funeral services for the deceased and any reasonable medical charges which were incurred in connection with the death. MPI2d 25.21.

(3) Reasonable compensation for grief, sorrow and mental anguish resulting from the death. MPI2d 25.22.

(4) Reasonable compensation to the Plaintiffs for damages suffered by the death if the death was not instantaneous. MPI2d 25.25. The Plaintiffs will be entitled to reasonable compensation for the present value of the deceased’s reasonable earnings after the date of death during the remainder of the decedent’s life expectancy; the medical and funeral expenses which were incurred as a result of the injury and death; reasonable compensation for the decedent’s conscious mental and physical pain and suffering in the interval between injury and death. MPI2d 25.25.

(5) Punitive damages which may be allowed provided the jury first finds that the Plaintiffs have suffered actual damage. MPI2d 25.61. Punitive damages may be awarded if the Plaintiffs suffered injury through the fraud or malice of another. MPI2d 25.61; see also MPI2d 25.63-25.66.

(6) Damages for infliction of emotional distress. MPI2d 15.01. Those damages include, but are not limited to, future wage loss and/or earning capacity; past and future medical expenses; physical and emotional pain and suffering; loss of enjoyment of life; and emotional suffering and distress, as well as, punitive damages in an amount which Plaintiffs’ trial jury seems just and fair under all of the circumstances.

(7) Damages for Loss of Consortium, which includes damages for the loss or impairment of the familial relations suffered by the Plaintiffs. MPI2d 25.32. This relation includes the right of support, aid, protection, affection and society. Id. 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. Hern, ¶ 46.

This provides a general framework for damages available in a Montana wrongful death action, but you should contact an attorney with experience handling wrongful death claims to determine what damages you should seek.