This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-1122

 

 

Roger Ellingson as trustee

for the next-of-kin of

Shane Louis Michaud, deceased, et al.,

petitioners,

Respondents,

 

vs.

 

Heather Barber, et al.,

Defendants,

 

Donald Kuperus, et al., intervenors,

Appellants.

 

 

Filed January 31, 2006

Affirmed
Klaphake, Judge

 

Mille Lacs County District Court

File No. C6-04-0243

 

John O. Murrin, III, 118 E. Superior Street, Suite 104, Duluth, MN  55802 (for respondents)

 

David W. Schneider, 706 First Street South, P.O. Box 776, Willmar, MN  56201 (for appellants)

 

            Considered and decided by Klaphake, Presiding Judge, Kalitowski, Judge, and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N

KLAPHAKE, Judge

            Appellants, who intervened in this action to distribute the proceeds of a settlement received by respondents, challenge the district court’s denial of their claims to part of the proceeds.  They argue that the district court failed to properly consider their pecuniary loss, as required by Minn. Stat. § 573.02 (2004).  Because the district court did not abuse its discretion, we affirm.

D E C I S I O N

            Minn. Stat. § 573.02, subd. 1 (2004), provides that the recovery in a wrongful death action is “the amount the jury deems fair and just in reference to the pecuniary loss resulting from the death, and shall be for the exclusive benefit of the . . . next of kin, proportionate to the pecuniary loss severally suffered by the death.”  The statute further provides that “[t]he court then determines the proportionate pecuniary loss of the persons entitled to the recovery and orders distribution accordingly.”  Id.

            Appellants argue that the district court abused its discretion by examining only the current circumstances and their lack of a relationship with the deceased minor at the time of his death, rather than considering the evidence that appellant Donald Kuperus had a significant relationship with his son until he was five years old, when Kuperus claims he was forced to leave the state due to respondent Deborah Ellingson’s vindictive behavior.  Kuperus claims that he submitted enough evidence to show that he had a past relationship with his son and that he could reasonably expect to enjoy a future relationship with him.

            “In cases involving the death of children, factors which shed light on [pecuniary loss] are the decedent’s age, intelligence, academic achievement, wages earned, career prospects, and care and devotion to parents.”  Ahrenholz v. Hennepin County, 295 N.W.2d 645, 648 (Minn. 1980) (citing Fussner v. Andert, 261 Minn. 347, 113 N.W.2d 355 (1961)).  “The parents may be compensated for loss of advice, comfort, assistance, and protection which they could reasonably have expected if the child had lived.”  Id.  Despite the parties’ differing positions, they tend to agree that in order to prove pecuniary loss, there must be “evidence of particular acts of service which contribute to the comfort, health, and well-being of the survivor.”  Fussner, 261 Minn. at 359, 113 N.W.2d at 362.

            Here, the lack of any acts of service on the part of the decedent towards Kuperus or towards the decedent’s other half-siblings, whom he did not even know existed, supports the district court’s determination that appellants sustained no pecuniary loss.  Cf. Murphy v. Duluth-Superior Bus Co., 200 Minn. 345, 346-47, 274 N.W. 515, 515 (1937) (stating that mother suffered no pecuniary loss through son’s death when evidence showed that there was no affection between them and that mother had deserted the family six years earlier, when son was only three years old, and he never knew her as his mother).  Conversely, the lack of any evidence that appellants performed any acts of service for the decedent in the years immediately preceding his death further supports the district court’s decision.  Particular acts of service must be based on some type of relationship between the parties.

            While Kuperus presented some evidence to suggest that the decedent may have thought about him and may have wondered about living with him someday, the district court was free to conclude that this evidence was insufficient to support a reasonable expectation that the decedent would have provided Kuperus or the other appellants with any advice, comfort, or assistance had he lived.  As respondents state, “[a]bsent [any] clear, concrete, specific, and real examples of particular contributions of service” and “absent developing the relationship beyond the mere expectancy for a richer relationship” in the future, this court cannot conclude that the district court abused its discretion by determining that appellants failed to prove that they suffered any pecuniary loss.

            We therefore affirm the decision of the district court.

            Affirmed.