Opinion
1 CA-CV 20-0346
02-15-2022
AHMADULLAH POPAL, et al., Plaintiffs/Appellants, v. MICHAEL D. BECK, M.D., et al., Defendants/Appellees.
The Nathanson Law Firm, Scottsdale By Philip J. Nathanson Counsel for Plaintiffs/Appellants Holden & Armer, P.C., Phoenix By Scott A. Holden, Nathan S. Ryan Counsel for Defendant/Appellee Michael D. Beck, M.D.
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Maricopa County No. CV2017-056031 The Honorable Cynthia J. Bailey, Judge (Retired).
The Nathanson Law Firm, Scottsdale
By Philip J. Nathanson
Counsel for Plaintiffs/Appellants
Holden & Armer, P.C., Phoenix
By Scott A. Holden, Nathan S. Ryan
Counsel for Defendant/Appellee Michael D. Beck, M.D.
Presiding Judge D. Steven Williams delivered the decision of the Court, in which Judge Jennifer B. Campbell joined. Judge James B. Morse Jr. specially concurred.
MEMORANDUM DECISION
WILLIAMS, Judge.
¶1 Ahmadullah Popal, Selma Popal (collectively, "the Popals"), and Mohammad Shafiq Khalik appeal the superior court's grant of partial summary judgment to Michael Beck on claims for non-economic and economic damages in this medical malpractice and wrongful death case. For the following reasons, we affirm.
FACTUAL AND PROCEDURAL HISTORY
¶2 Beck provided medical care to 11-year-old W.P. on January 6, 2016. W.P. was pronounced brain dead eight days later on January 14 and taken off of life support on January 25.
We use initials to protect the decedent's identity.
¶3 W.P.'s parents, the Popals, filed a medical malpractice and wrongful death claim against Beck in November 2017. The Popals filed an amended complaint shortly thereafter. Both complaints listed W.P. as a plaintiff. The amended complaint, in part, sought to compensate the Popals for their loss of economic support upon W.P.'s death and to compensate W.P. for her loss of future earnings and loss of a normal life.
There can only be one plaintiff in a wrongful death action. A.R.S. § 12-612; Wilmot v. Wilmot, 203 Ariz. 565, 569, ¶ 11 (2002); Nunez v. Nunez, 25 Ariz.App. 558, 562 (1976). The procedural defect with having both parents serve as plaintiffs is not material to this appeal.
W.P. was not the proper party to claim damages relating to the personal injury cause of action; the personal representative of her estate was the proper party to assert the personal injury action and damages claim against Beck. See A.R.S. § 14-3110; Barragan v. Superior Court, 12 Ariz.App. 402, 404 (1970); Quintero v. Rogers, 221 Ariz. 536, 539, ¶ 6 (App. 2009). No personal representative of W.P.'s estate had been appointed at the time the Popals filed the original complaint.
¶4 Beck moved for partial summary judgment on the claim for non-economic damages for W.P.'s loss of a normal life, which the superior court granted. Beck then moved for partial summary judgment on the claim for economic damages, specifically for W.P.'s lost earning capacity and household services. The Popals responded in opposition and moved concurrently to amend the complaint to substitute Khalik, the personal representative of W.P.'s estate, for W.P., which the superior court granted. In the second amended complaint, the estate sought compensation for W.P.'s lost future earnings and lost value of her life, and the Popals again sought compensation for lost economic support upon W.P.'s death. After oral argument, the court granted Beck's motion for partial summary judgment on the economic damages claim and entered judgment dismissing those claims against Beck pursuant to Rule 54(b) of the Arizona Rules of Civil Procedure.
Khalik was appointed as personal representative of W.P.'s estate on November 1, 2019.
¶5 We have jurisdiction over appellants' timely appeal pursuant to Article 6, Section 9, of the Arizona Constitution and A.R.S. § 12-2101(A)(1).
DISCUSSION
¶6 We review de novo the grant of summary judgment. Dabush v. Seacret Direct LLC, 250 Ariz. 264, 267, ¶ 10 (2021). We view the facts "in the light most favorable" to appellants, against whom the superior court granted summary judgment. Id. When there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law, we will affirm. Ariz. R. Civ. P. 56(a); Thompson v. Pima County, 226 Ariz. 42, 44, ¶ 5 (App. 2010).
I. Non-Economic Damages
¶7 Appellants challenge the grant of summary judgment on the claim for W.P.'s "loss of normal life" or "loss of enjoyment of life" damages, often referred to as hedonic damages. See Ogden v. J.M. Steel Erecting, Inc., 201 Ariz. 32, 38, ¶ 26 (App. 2001) (describing "hedonic damages" as "damages to the plaintiff for the loss of enjoyment of life's activities").
¶8 Arizona's preclusion of an award for damages for pain and suffering of an injured person upon death includes damages for the loss of enjoyment of life. A.R.S. § 14-3110; Quintero v. Rodgers, 221 Ariz. 536, 539-40, ¶¶ 6-10 (App. 2009) (concluding that a loss of "enjoyment of life" claim is encompassed under the ban of damages for pain and suffering of a decedent under A.R.S. § 14-3110); Martin v. Staheli, 248 Ariz. 87, 89, ¶ 1 (App. 2019) (holding that an injured party's death extinguishes claim for hedonic damages). Thus, A.R.S. § 14-3110 precludes damages for W.P.'s loss of enjoyment of life.
¶9 Appellants argue that damages for the loss of W.P.'s "normal life" is not a component of pain and suffering because it relates to "disability" and would compensate for W.P.'s "complete inability to live at all." Appellants state the claim as "loss of normal life," rather than "loss of enjoyment of life." No Arizona statute or case, however, recognizes a claim for such loss, regardless of how it is phrased. And as for any argument regarding compensation for hedonic damages from the time of the alleged malpractice until W.P.'s death 19 days later, Arizona law also precludes such a claim. See A.R.S. § 14-3110; Badia v. City of Casa Grande, 195 Ariz. 349, 354-56, ¶¶ 18-24 (App. 1999) (finding no error in superior court ruling concluding any damages for pain and suffering arguably caused by alleged use of excessive force did not survive death that occurred several hours later); Eades v. J.P. House, 3 Ariz.App. 245, 247 (1966) (concluding that an action for pain and suffering does not survive the death of the injured person when death occurs during an appeal from a judgment in a personal injury action and specifically noting the cause of action for pain and suffering abates upon death).
In the response to the motion for summary judgment, appellants argued that because W.P. was permanently disabled from her brain damage for 19 days between the alleged malpractice and her death, she was entitled to hedonic damages for that time period, which was separate from any compensable loss of "normal life" that resulted from her death. Appellants refer to such disability in the opening and reply brief without explicitly differentiating between any injury suffered before death and loss of a normal life due to death.
¶10 Appellants also contend that A.R.S. § 14-3110 only prohibits damages for pain and suffering, but not for loss of enjoyment of life, which are separate damages as set forth in Ogden and Mendoza v. McDonald's Corp., 222 Ariz. 139 (App. 2009). Although both Ogden and Mendoza differentiate between pain and suffering damages and hedonic damages as related but separate items of general damages for jury-instruction purposes, neither involved claims pursuant to A.R.S. § 14-3110. Ogden, 201 Ariz. at 38-39, ¶¶ 26-31; Mendoza, 222 Ariz. at 150, ¶ 33 n.17. Moreover, in Quintero, this court directly addressed the distinction between pain and suffering and hedonic damages for purposes of A.R.S. § 14-3110. 221 Ariz. at 539-40, ¶¶ 6-10. There, we held that there was no persuasive distinction between them for purposes of A.R.S. § 14-3110 and barred recovery for hedonic damages in a survival action. Id.; see also Martin, 248 Ariz. at 89, ¶ 1, at 92, ¶ 18 n.1. Appellants offer no compelling reason to stray from that holding here. Thus, the superior court properly granted summary judgment on the claim for non-economic damages.
II. Economic Damages
A. The Popals' Economic Damages Claims
¶11The Popals argue they are entitled to recover W.P.'s lost economic support under Arizona's wrongful death act, A.R.S. §§ 12-611 through -613. Beck argues that such damages in the case of an unemployed 11-year-old minor would be speculative and that the court properly granted summary judgment on this issue.
¶12 Although statutory beneficiaries in a wrongful death action can recover their economic loss resulting from death, speculative damages may not form the basis of a judgment. Coury Bros. Ranches, Inc. v. Ellsworth, 103 Ariz. 515, 521 (1968) (finding evidence was insufficient to establish damages with reasonable certainty). In response to the motion for summary judgment, the Popals provided no evidence of any history of 11-year-old W.P.'s employment or documented history of providing monetary support for the family. The jury would need to engage in layer upon layer of assumptions to reach a damage award in this case, including assuming that W.P. would reach the age of majority, obtain a job, and decide to contribute financially to her parents. Given the number of assumptions required and the lack of any evidence supporting the Popals' economic damages claim, the court properly granted summary judgment on this issue. See Ariz. R. Civ. P. 56(e); MacConnell v. Mitten, 131 Ariz. 22, 25 (1981) (in response to summary judgment motion, non-moving party must show by competent evidence specific facts demonstrating genuine trial issue).
See A.R.S. § 12-613 (stating that "jury shall give such damages as it deems fair and just" in wrongful death action); Katz v. Filandro, 153 Ariz. 601, 606 (App. 1987) (recognizing damages for lost economic support and maintenance in mother's wrongful death lawsuit for adult daughter); Braun v. Moreno, 11 Ariz.App. 509, 512 (1970) (upholding jury award for compensatory damages to parents, including economic support, in wrongful death case for adult son); Walsh v. Advanced Cardiac Specialists Chartered, 229 Ariz. 193, 196, ¶ 8 (2012) (damages in wrongful death action may include decedent's prospective earning capacity).
B. The Estate's Economic Damages Claim
¶13 Appellants argue the estate is permitted to recover W.P.'s lost future earnings under both the wrongful death and survival statutes. However, the estate is not entitled to economic damages under the wrongful death statute because it can seek such damages only if none of the statutory beneficiaries survive and here W.P.'s parents survived her. See A.R.S. § 12-612(A).
¶14 As for the estate's claim under the survival statute, Beck argues any such damages would be limited to recovery from the time of accident to death. We agree. Although W.P.'s personal injury action against Beck survived her death, the personal representative of her estate is limited to recovery of any of W.P.'s lost earnings from the time of the alleged malpractice injury to the time of her death 19 days later. See A.R.S. § 14-3110; Barragan, 12 Ariz.App. at 404 (expressing temporal limitation under survival statute for damages suffered by decedent "from the time of accident until his death"); Martin, 248 Ariz. at 92, ¶ 15 (citing Barragan and explaining the "survival statute provides for recovery of damages sustained by the deceased party from the time of accident until [her] death"); Rodriguez v. Lytle, 1 CA-CV 20-0048, 2021 WL 566293, at *2, ¶ 8 (Ariz. App. Feb. 16, 2021) (mem. decision) (permitting superior court to consider whether minor decedents suffered economic damages from time of accident until death occurred). As noted, there is no evidence in the record that 11-year-old W.P. earned an income or was deprived of any income from the date of her injury to the date of her death.
Beck also argues that the statute of limitations expired on the estate's claim for damages for lost income because the survival action had not been formally pled and the estate was not a party at the time Beck filed his motion for summary judgment, an argument the superior court rejected. We do not address this argument because we uphold the court's ruling on the merits.
¶15 Appellants rely on Arizona cases that predate the enactment of the survival statute and non-binding cases from other jurisdictions in support of their argument that W.P.'s damages should not be limited to the time between the alleged malpractice and her death. See, e.g., Manion v. Ameri-Can Freight Sys. Inc., 391 F.Supp.3d 888 (D. Ariz. 2019); Calhoun v. Yamaha Motor Corp., U.S.A., 40 F.3d 622, 639 n.31 (3d Cir. 1994), aff'd, 516 U.S. 199 (1996); W. Truck Lines v. Berry, 52 Ariz. 38 (1938); Ariz. Binghampton Copper Co. v. Dickson, 22 Ariz. 163 (1921). Appellants' reliance on Berry and Dickson to support a claim by the estate for future earnings of the decedent is misplaced. Both cases predate the enactment of the survival statute, revisions to the wrongful death statute, and their allowance of damages for lost future wages "was a result of the estate's being the only allowable statutory beneficiary at that time." See Katz, 153 Ariz. at 605. And though Manion may well support Appellants' position, since 1970, Arizona courts have held otherwise. Though the survival statute's plain language preserves "[e]very cause of action," and does not exclude claims for economic loss, our state courts have interpreted the statute to limit the scope of economic damages to those "sustained . . . from the time of accident until [the decedent's] death." Barragan, 12 Ariz.App. at 404; Martin, 248 Ariz. at 92, ¶ 15. A claim brought under the survival statute is "for the wrong to the injured person and is confined to [her] personal loss." Barragan, 12 Ariz.App. at 405. Once an injured person dies, she has no more personal loss in the form of future wages.
¶16 Finally, appellants argue that if W.P.'s estate is not permitted to recover for W.P.'s lost future earnings under either A.R.S. § 12-613 or § 14-3110, then both statutes are unconstitutional as applied in violation of the anti-abrogation and equal protection clauses of the Arizona Constitution.
¶17 As discussed supra, the estate has no claim under the wrongful death statute for W.P.'s lost earnings; any claim for lost future earnings under the wrongful death statute belong to her parents as statutory beneficiaries. See A.R.S. § 12-612(A)-(B); Barragan, 12 Ariz.App. at 404. Thus, the wrongful death statute is not implicated in the estate's claim for lost future wages, and we do not address its constitutionality. Salinas v. Kahn, 2 Ariz. App. 181, 193 (1965) (stating that "the law is that a person who is not injured by an unconstitutional provision of a statute may not raise an objection as to its constitutionality"), reh'g denied and opinion modified, 2 Ariz.App. 348 (1965).
¶18 As for the challenge to the constitutionality of the survival statute, there is no abrogation where the right to recover damages under the common law for injury after death did not exist at the time of the adoption of the constitutional provision prohibiting limitations on damages recovery. Harrington v. Flanders, 2 Ariz. App. 265, 266 (1965) (noting that only common law rights and remedies that existed at the time of the adoption of the Arizona Constitution are preserved and that at common law, personal injury cause of action abated upon death of injured party). Moreover, there is no violation of the equal protection clause when applied to W.P.'s claim, because the temporal limitations on damages from the time of injury to the time of death applies equally to minors and adults. See State v. Panos, 239 Ariz. 116, 118, ¶ 7 (App. 2016) (noting state equal protection clause requires law to treat all similarly situated people alike).
¶19 There being no evidence to support the estate's claim for lost wages from the time of the alleged malpractice until W.P.'s death and no viable constitutional challenges, the superior court properly granted summary judgment on the estate's economic damages claim.
CONCLUSION
¶20 For the foregoing reasons, we affirm the superior court's ruling. We award costs to Beck upon compliance with Arizona Rule of Civil Appellate Procedure 21.
MORSEJ., specially concurring:
¶21 I write separately to note my agreement with the analysis in Manion, 391 F.Supp.3d at 892-94. If we were writing on a blank slate, I would likely reach the same conclusion as the District Court. But Barragan is more than 50 years old and our Supreme Court recently reminded us of the importance of stare decisis in matters of statutory interpretation. See Brnovich v. Arizona Board of Regents, 250 Ariz. 127, ---, ¶¶ 16-18 (2020). Accordingly, I concur in majority's reasoning and the result.