McMichael v. McMichael

241 A.3d 582

Tina MCMICHAEL, individually and as Executrix of the Estate of Seth W. McMichael, Deceased

v.Michelle J. MCMICHAEL, Executrix of the Estate of Peter D. McMichael, Deceased; Janice McMichael; P&J Construction and Landscape Nursery LLC; and MarkWest Energy Partners, L.P.

Appeal of: Michelle J. McMichael, Executrix of the Estate of Peter D. McMichael, Deceased, and P&J Construction and Landscape Nursery LLC

Tina McMichael, individually, and as Executrix of the Estate of Seth W. McMichael, Deceased, Appellee

v.Michelle J. McMichael, Executrix of the Estate of Peter D. McMichael, Deceased, and P&j Construction and Landscape Nursery LLC, Appellants

No. 50 WAP 2019

No. 51 WAP 2019

Supreme Court of Pennsylvania.

Submitted: April 16, 2020

Decided: November 18, 2020

OPINION

JUSTICE TODD

In this appeal by allowance, we consider whether the trial court abused its discretion in denying a motion for a new trial following a jury award of zero dollars in damages in a wrongful death action. Upon review, we conclude that the trial court erred in denying a new trial with respect to the non-economic damages award,¹ and, therefore, we affirm in part and reverse in part the Superior Court's decision remanding for a new trial, limiting the new trial on remand to non-economic damages.

Peter McMichael and his wife, Janice McMichael, entered into a lease with MarkWest Energy Partners, LP (hereinafter "MarkWest") whereby MarkWest was to install a natural gas pipeline on the McMichaels’ property in Beaver County, Pennsylvania. The lease required MarkWest to hire P&J Construction and Landscaping Nursery, LLC (hereinafter "P&J"), which was owned by the McMichaels, to perform the tree clearing on the property in preparation for the installation of the pipeline. Peter McMichael, on behalf of P&J, hired his 51-year-old nephew, Seth McMichael (hereinafter, "Decedent"); Decedent's son, David; and another individual, Michael Hudak, all of whom were familiar with the process of tree removal, to assist in clearing the trees on the property. On January 25, 2013, while Peter McMichael was supervising the tree clearing process, he simultaneously was using a bulldozer to clear an access road. As a result, Peter would periodically turn his back to the tree cutters. At a time when Peter's back was turned, a tree cut by Hudak split and fell towards Decedent, striking him from behind and killing him.

On August 30, 2013, Tina McMichael, Decedent's widow and executrix of his estate (hereinafter, "Wife"), filed a wrongful death and survival action on behalf of herself, individually, and on behalf of Decedent's estate, against Peter McMichael, Janice McMichael, P&J, and MarkWest, raising claims of premises liability, negligence, and negligent supervision.² At a jury trial, Wife presented the testimony of an economic expert, Dr. William Houston Reed, who calculated Decedent's projected lost income at various ages. Wife also testified that Decedent had performed home repairs, mowed the lawn, did 80% of the cooking, and drove her to work in inclement weather. She stated that, as a result of her husband's death, she was unable to service the furnace, and had to work overtime in order to pay bills. Notably, however, neither the economic expert, nor Wife herself, proffered an estimated value of the loss of these household contributions by Decedent, nor did Wife offer any evidence as to the cost of hiring someone to perform these tasks.

The jury awarded Wife, as executrix of Decedent's estate, $225,000 in survival damages, which was reduced to $135,000 to reflect the jury's finding that Decedent was 40% negligent, and, of particular import in this appeal, zero dollars in wrongful death damages.³ Wife sought a new trial on her claims for wrongful death and survival damages, and P&J sought judgment notwithstanding the verdict, or a new trial on liability. With regard to Wife's motion, and relevant to the instant appeal, the trial court concluded, inter alia , that Wife failed to present sufficient evidence of the value of her economic and non-economic loss for wrongful death damages and, thus, the jury was free to award zero dollars in damages on the wrongful death claim. Specifically, with regard to the evidence of economic loss, the court stated:

Unlike the evidence presented in [ Kiser v. Schulte , 538 Pa. 219, 648 A.2d 1 (1994) ], in which the economic expert provided a specific range of value of the services provided by the decedent, [Wife's] expert in this case, Dr. William Houston Reed, did not present any testimony on the value of any services provided by [Decedent]. Moreover, there was absolutely no testimony with regard to the amounts that [Decedent] contributed to his family during his lifetime. The only thing that Dr. Reed testified to was a reduction in the amount of economic loss under the Survival Act for lost wages based upon personal maintenance for [Decedent] himself. ...

The only testimony offered with regard to services provided to the family came from [Wife], who testified that [Decedent] performed repairs around the house such as cutting grass and did other projects around the house such as building a grape arbor for her on Mother's Day. There was no testimony whatsoever as to a value for these services, nor was there any testimony as to the amount of costs associated with these services or projects. In fact, there was nothing that the jury had to accept, and the jury was free to reject this testimony under the case law set forth above because it was not definite. No one testified as to any economic contributions that [Decedent] provided to his family.

Trial Court Opinion, 4/19/18, at 21-22.

Cognizant that a spouse may also recover wrongful death damages for non-economic loss, which includes loss of companionship, comfort, society, guidance, solace, and protection, as well as loss of consortium, see Spangler v. Helm's New York-Pittsburgh Motor Express , 396 Pa. 482, 153 A.2d 490, 492 (1959), the trial court noted that, although Wife testified "that she had a good marriage with [Decedent], which lasted from 1982 to the time of his death in 2012," Wife "barely touched upon their actual relationship and what they did in their time spent together during her testimony." Trial Court Opinion, 4/19/18, at 23. Explaining that it found "no evidence of unfairness, mistake, partiality, prejudice, corruption or the like that requires disregarding the jury's rejection of the claim for non-economic damages," the court denied Wife's motion for a new trial. The trial court also denied P&J's post-trial motions, and the parties cross-appealed to the Superior Court.

In a unanimous unpublished memorandum opinion, the Superior Court affirmed in part, reversed in part, and remanded for further proceedings. McMichael v. McMichael & P&J Construction and Landscape Nursery LLC , 721 & 795 WDA 2018, 2019 WL 1613152 (Pa. Super. filed April 15, 2019). Of particular relevance herein, the Superior Court reversed the trial court's denial of a new trial on Wife's wrongful death damages claim. In so doing, the court first noted that Wife testified regarding Decedent's "services to the household, including repairs, servicing the furnace, mowing the lawn, cooking, and driving Wife to work in inclement weather." Id. at 27. Citing this Court's opinion in Carroll v. Avallone , 595 Pa. 676, 939 A.2d 872, 875 (2007) ("if there is no argument or opposition on a particular point, the jury may not be free to disregard such information"), the Superior Court concluded that P&J "did not contest, through expert testimony, cross examination, or argument, the services Decedent rendered to his household with regard to wrongful death damages." McMichael , 721 & 795 WDA 2018, at 30.

The Superior Court acknowledged that P&J "vaguely reference[d] wrongful death damages" in its closing argument, wherein P&J's counsel stated:

Another item of damages is the support that [Decedent] was providing to the family, and so, I don't recall hearing any testimony about what that was. We know [Wife] works full-time, and I don't believe there was any indication there were any children living in the home, so you'll have to determine what, if any, amount that was, whether there was any additional support to the family, and the Judge instructs on all [of that], you don't have to rely on me.

Id. at 29-30 (quoting N.T. Trial, 7/17/17 (Excerpt II), at 7). The court opined, however, that "counsel's failure to recall what evidence Wife presented does not amount to a challenge to the underlying facts supporting Wife's wrongful death damages." Id. at 30.

The Superior Court ultimately concluded:

While Wife did not present specific dollar amounts for the services Decedent rendered to the household, it unquestionably amounted to more than zero dollars. Instead of attempting to estimate the amount of these services, the jury completely disregarded the evidence presented on the question of wrongful death damages and settled on an inadequate amount of zero dollars. Therefore, we conclude that the trial court abused its discretion in denying Wife's motion for a new trial as to wrongful death damages.

Id.

P&J filed a petition for allowance of appeal with this Court, and we granted review to consider whether the trial court abused its discretion in denying Wife's motion for a new trial based on the jury's award of zero dollars in wrongful death damages, as held by the Superior Court.

Prior to addressing the arguments of the parties, we briefly review the distinction between survival damages and wrongful death damages. A survival action under 42 Pa.C.S. § 8302 is brought by the administrator or executor of a decedent's estate in order to recover damages for the decedent's pain and suffering, the loss of gross earning power from the time of injury to death, and the loss of earning power, less personal maintenance expenses, for the estimated working life span of the decedent. Kiser, 648 A.2d at 4. By contrast, a wrongful deathful action...