IN THE SUPREME COURT, STATE OF WYOMING
`
`2014 WY 28
`
`February 25, 2014
`
`OCTOBER TERM, A.D. 2013
`
`February 25, 2014
`
`IN THE MATTER OF THE
`WRONGFUL DEATH OF DANIEL P.
`SORAN, II, DAN SORAN, PERSONAL
`REPRESENTATIVE:
`
`DAN SORAN, LYNETTE SORAN and
`SARAH SORAN,
`
`Appellants
`(Plaintiffs),
`
`v.
`
`LAURA SORAN,
`
`Appellee
`(Plaintiff).
`
`S-13-0098
`
`Appeal from the District Court of Laramie County
`The Honorable Thomas T.C. Campbell, Judge
`
`Representing Appellants:
`Thomas B. Jubin of Jubin & Zerga, LLC, Cheyenne, WY, and Michael L. Weiner
`of Yaeger, Jungbauer & Barczak, PLC, Saint Paul, MN. Argument by Mr. Jubin.
`
`Representing Appellee:
`Scott W. Meier, Lucas Buckley, and Traci L. Lacock of Hathaway & Kunz, P.C.,
`Cheyenne, WY. Argument by Mr. Meier.
`
`Before KITE, C.J., and HILL, VOIGT*, BURKE, and DAVIS, JJ.
`
`*Justice Voigt retired effective January 3, 2014.
`
`

`
`NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third.
`Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building,
`Cheyenne, Wyoming 82002, of any typographical or other formal errors so that correction may be
`made before final publication in the permanent volume.
`
`

`
`HILL, Justice.
`
`[¶1] This case involves a wrongful death claim brought on behalf of the beneficiaries
`of Daniel P. Soran, II (Decedent). Decedent’s father, in his capacity as personal
`representative, settled the wrongful death claim with the applicable liability insurance
`companies for $400,000. Thereafter, a dispute arose between the beneficiaries as to how
`the settlement proceeds should be distributed, with Decedent’s allegedly estranged wife,
`Laura Soran, on one side, and Decedent’s parents and sister on the other side. Following
`a bench trial on distribution of the damages, the district court awarded Laura Soran 75%
`of the settlement proceeds and divided the remainder of the proceeds among Decedent’s
`parents and sister. Decedent’s parents and sister appeal, contending that the court erred
`in imposing on them the burden to disprove Laura Soran’s damages and that the court’s
`distribution was clearly erroneous in light of the evidence. We reverse and remand for
`proceedings consistent with the direction herein.
`
`ISSUES
`
`[¶2] Decedent’s parents and sister, Appellants, present the issues for our review as
`follows:
`
`1.
`
`2.
`
`The trial court erred as a matter of law, in imposing the
`burden upon other beneficiaries to disprove the
`estranged wife’s claim to wrongful death damages.
`
`When distributing settlement proceeds to wrongful
`death beneficiaries, the trial court’s decision to award
`75% of these proceeds to the estranged wife was
`clearly erroneous where the evidence proved a clear
`and unquestionable mutual intent to end the marriage,
`and where the estranged wife failed to prove the loss
`of a future relationship with the decedent.
`
`FACTS
`
`[¶3] On February 19, 2011, Decedent died of injuries sustained in an automobile
`accident. Decedent was survived by his wife, Laura Soran, by his parents, Dan and
`Lynette Soran, and by his sister, Sarah Soran. Robert A. Curran was the driver of the
`vehicle in which Decedent was a passenger when he died, and Decedent’s father, Dan
`Soran, in his capacity as wrongful death personal representative, settled with Curran’s
`insurance providers for the sum of $400,000. A dispute arose between Decedent’s
`beneficiaries as to how the settlement proceeds should be distributed. On October 18,
`2011, Dan Soran, again in his personal representative capacity, filed a Rule 67 motion to
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`deposit the settlement proceeds for holding by the clerk of court until such time as their
`proper distribution among Decedent’s survivors could be determined.
`
`[¶4] On February 4, 2013, a bench trial was held to determine distribution of the
`settlement proceeds. Decedent’s parents and sister were represented on one side of the
`dispute, and they framed the dispute in their pretrial memorandum as follows:
`
`The remaining dispute lays between, on the one hand,
`Daniel’s estranged wife Laura Soran, and on the other,
`Daniel’s immediate family, consisting of his father, mother,
`and sister (respectively Dan, Lynn and Sarah Soran).
`Daniel’s parents and sister collectively dispute the portion
`claimed by Laura, based on evidence that the marriage
`between Daniel and Laura was irretrievably broken, and that
`Daniel had unquestionably planned to divorce Laura. In
`addition to presenting evidence showing the extremely close,
`loving and ongoing relationship between Daniel and his
`parents and sister, an additional focus at trial will be on the
`extensive evidence documenting Daniel’s intent to end his
`marriage to Laura, refuting her damage claims.
`
`[¶5] Decedent’s wife, Laura Soran, was represented on the other side of the dispute,
`and she described the dispute as follows in her pretrial memorandum:
`
`Laura Soran claims that she has significant damages
`resulting from the death of her husband, Daniel P. Soran, II.
`Laura Soran’s damages include economic damages of loss of
`support as well as non-economic damages resulting from the
`loss of care[,] comfort and society of Decedent.
`On information and belief, the other wrongful death
`beneficiaries claim that they have damages resulting from
`the death of Decedent and further claim that Laura Soran and
`Decedent’s marriage would have ended in divorce and that,
`therefore, Laura Soran’s damages in this matter are limited
`to the care, comfort, society and support that Laura Soran
`would have received prior to any divorce.
`Laura Soran denies that her marriage would have
`ended in divorce.
`
`[¶6] At trial, Decedent’s parents and sister submitted evidence of their close
`relationship with Decedent. They also presented evidence, through testimony and
`exhibits, including copies of text messages, and divorce documents, that Decedent and
`his wife were living separately within their home, that Decedent’s wife was making plans
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`to move from the home, and that Decedent and his wife had divided property, had found
`new homes for their pets, and were planning to divorce. Laura Soran, on the other hand,
`testified that she felt Decedent had a drinking problem, that the actions she had taken
`toward divorce in the months before Decedent’s death were intended to force him to get
`help, and that she was not certain that she and Decedent would ultimately have divorced.
`She also testified concerning the economic loss she suffered as a result of Decedent’s
`death and the loss she suffered as a result of losing the companionship of Decedent, who
`she described as her best friend.
`
`[¶7] On February 25, 2013, the district court issued its order distributing the settlement
`proceeds. The court ordered Decedent’s wife, Laura Soran, to receive a 75% share of the
`settlement proceeds, Decedent’s parents to each receive a 10% share, and Decedent's
`sister to receive a 5% share. Decedent’s parents and sister timely filed a notice of appeal.
`
`STANDARD OF REVIEW
`
`[¶8] The parties’ claims to distribution of the wrongful death settlement proceeds were
`tried to the court, and we therefore apply the following standard of review:
`Following a bench trial, this court reviews a district
`court’s findings and conclusions using a clearly erroneous
`standard for the factual findings and a de novo standard
`for the conclusions of law. Piroschak v. Whelan, 2005
`WY 26, ¶ 7, 106 P.3d 887, 890 (Wyo. 2005).
`The factual findings of a judge are not entitled to the
`limited review afforded a jury verdict. While the
`findings are presumptively correct, the appellate court
`may examine all of the properly admissible evidence
`in the record. Due regard is given to the opportunity of
`the trial judge to assess the credibility of the witnesses,
`and our review does not entail re-weighing disputed
`evidence. Findings of fact will not be set aside unless
`they are clearly erroneous. A finding is clearly
`erroneous when, although there is evidence to support
`it, the reviewing court on the entire evidence is left
`with the definite and firm conviction that a mistake has
`been committed.
`Piroschak, ¶ 7, 106 P.3d at 890. Findings may not be set aside
`because we would have reached a different result. Harber v.
`Jense [Jensen], 2004 WY 104, ¶ 7, 97 P.3d 57, 60 (Wyo.
`2004). Further,
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`
`we assume that the evidence of the prevailing party
`below is true and give that party every reasonable
`inference that can fairly and reasonably be drawn from
`it. We do not substitute ourselves for the trial court as
`a finder of facts; instead we defer to those findings
`unless they are unsupported by the record or erroneous
`as a matter of law.
`Id.
`
`Pennant Service Co., Inc. v. True Oil Co., LLC, 2011 WY 40,
`¶ 7, 249 P.3d 698, 703 (Wyo. 2011) (quoting Hofstad v.
`Christie, 2010 WY 134, ¶ 7, 240 P.3d 816, 818 (Wyo. 2010))
`(some citations omitted). We review the district court’s
`conclusions of law de novo. Lieberman v. Mossbrook, 2009
`WY 65, ¶ 40, 208 P.3d 1296, 1308 (Wyo. 2009).
`
`Claman v. Popp, 2012 WY 92, ¶ 22, 279 P.3d 1003, 1012 (Wyo. 2012).
`
`A.
`
`Burden of Proof
`
`DISCUSSION
`
`[¶9] Decedent’s parents and sister contend that in allocating the wrongful death
`settlement proceeds, the district court improperly shifted the burden to them to prove that
`Decedent’s marriage to Laura Soran would not have continued had Decedent survived
`and thus improperly resolved any doubt on that question against them. Based on our
`review of the court’s order, we must agree.
`
`[¶10] Wyoming’s wrongful death statute provides as follows concerning damages:
`
`The court or jury, as the case may be, may award such
`damages, pecuniary and exemplary, as shall be deemed fair
`and just. Every person for whose benefit an action for
`wrongful death is brought may prove his respective damages,
`and the court or jury may award such person that amount of
`damages to which it considers such person entitled, including
`damages for loss of probable future companionship, society
`and comfort.
`
`Wyo. Stat. Ann. § 1-38-102(c) (LexisNexis 2013). Under Wyoming’s wrongful death
`statute, “[n]o damages can be awarded beyond those damages that are proven at trial.”
`Knowles v. Corkill, 2002 WY 119, ¶ 25, 51 P.3d 859, 866 (Wyo. 2002). This Court has
`further explained:
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`Under the statute, damages are not presumed. Each individual
`participating must bring and prove their respective claim for
`damages. See Farmers Ins. Exchange v. Dahlheimer, 3 P.3d
`820, 823 n. 1 (Wyo.2000) (“each person entitled to participate
`must establish damages”).
`
`Knowles, ¶ 23, 51 P.3d at 866.
`
`[¶11] The district court acknowledged the above-quoted burden of proof, but it then
`went on to state as follows concerning the evidence relating to Decedent’s marriage (our
`emphasis added):
`
`Having determined that Laura is a proper
`4.
`beneficiary under the wrongful death statute, the Court must
`address the effect of the evidence concerning her and Daniel’s
`marriage. Initially, this Court notes that there is no Wyoming
`law specifically on point. Fair guidance can be found by the
`following statement in Recovery for Wrongful Death:
`The e s s e n c e o f t h e q u e s t i o n o f
`appropriate damages in death actions is, “Has
`an appropriate plaintiff suffered compensable
`damage, and, if so, to what extent?” This is the
`question the fact-finder must answer, not some
`separate question—r i f e w i t h m o r a l
`connotations—which might be, “Should one
`who is guilty of marital misconduct or familial
`negligence be allowed to recover damages in
`spite of that misconduct or negligence?”
`Thus the general rule as to the role of
`intra-family relations
`is
`that
`the right
`to
`maintain an action for the wrongful death is not
`destroyed entirely by less-than-perfect relations
`between spouses or by misconduct of either
`spouse so long as it does not culminate in a
`divorce. Rather, the relationship or misconduct
`may affect the amount of recovery. The general
`rule applies whether the benefits in question are
`defined by statute or determined by precedent.
`However, an action for compensation for the
`death of a purported spouse cannot be sustained
`where the marriage is shown to be invalid.
`2 Stuart M. Speiser et al., Recovery for Wrongful Death § 9.1
`(4th ed. 2005).
`
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`Plaintiff’s (sic) argue that “wrongful death recoveries
`are premised entirely on post-death damages” and based on
`the evidence regarding Laura and Daniel’s marriage they
`assert she cannot show any expectation of future support,
`care, comfort or companionship from Daniel. This argument
`is based largely on speculation about what would have
`happened between Daniel and Laura. While recognizing the
`Plaintiffs[’] evidence regarding the status of the marriage, it
`must also consider the wife’s testimony, and the uncertainty
`as to what would have happened. Of paramount importance
`to this Court is the fact that no divorce was signed or filed and
`the nature and quality of text message, friend and family
`testimony does not resolve the uncertainty in [P]laintiffs[’]
`favor.
`
`[¶12] We agree with the district court’s observation that less-than-perfect relations
`between spouses do not destroy the right of a spouse to maintain a wrongful death action
`but rather may affect the amount of any recovery. Our concern is with the court’s
`analysis following this observation.
`
`In evaluating the evidence, the court described the future of the marriage as
`[¶13]
`speculative and uncertain. It then concluded that the evidence presented by Decedent’s
`parents and sister was insufficient to resolve that uncertainty in their favor. Such a
`conclusion suggests that there is a presumption of damages in favor of a spouse that other
`damage claimants must overcome. As noted above, however, there is no such
`presumption under Wyoming’s wrongful death statute, and each damage claimant must
`prove his or her claim to damages. Knowles, ¶ 23, 51 P.3d at 866. Thus, if there was an
`uncertainty as to any future relationship between Decedent and Laura Soran, that
`uncertainty did not shift the burden to the remaining damage claimants to prove that the
`relationship probably would have ended. Rather, the burden was on Laura Soran to prove
`that despite the uncertainty in the marital relationship, she had suffered a “loss of
`probable future companionship, society and comfort.” Wyo. Stat. Ann. § 1-38-102(c)
`(emphasis added). Because the court’s decision shows that the court concluded that the
`uncertainty in the evidence weighed in favor of the party who bore the burden of proof,
`we find that the court erred in its analysis.
`
`In so holding, we also reject Laura Soran’s contention on appeal that the district
`[¶14]
`court properly allocated the burden of proof because the question of the future viability of
`Decedent’s marriage, which was a question raised by Decedent’s parents and sister, was
`an affirmative defense. First, we note that the district court did not at any point in its
`analysis refer to the question as an affirmative defense or treat the question as an
`affirmative defense. Moreover, the question of the future viability of Decedent’s
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`marriage simply is not an affirmative defense. This Court has defined an affirmative
`defense as follows:
`
`In pleading, matter asserted by defendant which,
`assuming the complaint to be true, constitutes a defense to it.
`A response to a plaintiff’s claim which attacks the plaintiff’s
`legal right to bring an action, as opposed to attacking the truth
`of claim . . . .
`
`Matter of Corman, 909 P.2d 966, 969 (Wyo. 1996) (quoting Black’s Law Dictionary 60
`(6th ed. 1990) (emphasis in original)).
`
`[¶15] The evidence presented by the Decedent’s parents and sister relating to the
`Decedent’s marriage was evidence presented to contradict Laura Soran’s claim that she
`had suffered damages based on her loss of probable future companionship, society and
`comfort. This was evidence directed at the factual basis of Laura Soran’s damages claim,
`not an assertion of a legal bar to her claim. Decedent’s parents and sister thus did not
`assert an affirmative defense in response to Laura Soran’s damages claim, and the district
`court’s shifting of the burden of proof was not justified on this ground.
`
`B.
`
`75% Award to Decedent’s Wife
`
`[¶16] We turn next to the claim of Decedent’s parents and sister that the district court’s
`distribution of 75% of the settlement proceeds to Decedent’s wife was clearly erroneous
`in light of the evidentiary record. In particular, they argue that Laura Soran’s testimony
`that her divorce from Decedent was not imminent was too at odds with other evidence,
`including divorce documents and text messages exchanged between Decedent and Laura
`Soran, to be considered credible. They further argue that even if Laura Soran’s testimony
`were credible, her testimony did little to substantiate that her marriage to Decedent was
`likely to continue. To that effect, Decedent’s parents and sister cite, among other
`testimony, the following testimony of Laura Soran:
`
`So you were going to get a divorce?
`Q.
`I was trying. I didn’t know what I was going to
`A.
`do. That would be [a] correct statement of – I don’t know
`what was going to happen.
`Q. When you took your name off his bank
`account[,] when he took his name off your bank account[,]
`was that an effort to try to get him to come around or would
`you agree that that’s evidence that the two of you were
`splitting up?
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`
`I would agree that I didn’t know what I was
`A.
`going to do, and he had asked me to take myself off the bank
`account. He was asking me to do these things, so I did them.
`
`[¶17] This Court does not substitute its judgment for that of the trier of fact on questions
`of witness credibility or the weight evidence should be given. Claman, ¶ 22, 279 P.3d at
`1012. Our concern with the district court’s findings and award in this case, however,
`does not stem from the weight or credibility determinations the court made. We are
`instead concerned with the inconsistencies evident in the court’s findings and rulings.
`
`[¶18]
`
`In making the distribution award, the district court explained:
`
`In making this determination, the Court considered
`both the degree of the relationship (ie. spousal, parental,
`sibling) and the nature and quality of those relationships, as
`well as the decedent’s likely future involvement in their lives.
`The Court, having listened to the claimants and reviewed the
`exhibits in this matter, concludes that the wife Laura Soran
`should receive 75%, the father Dan Soran 10%, the mother
`Lynette Soran [10%], and the sister Sarah Soren [5%].
`
`[¶19] By this order, the district court declared that Decedent’s wife met her burden of
`proving that she was entitled to 75% of the settlement proceeds based on her loss of
`“probable” future companionship, society and comfort. See Wyo. Stat. Ann. § 1-38-
`102(c). “Probable” means “[h]aving more evidence for than against; supported by
`evidence which inclines the mind to believe, but leaves some room for doubt; likely.”
`Hamburg v. State, 820 P.2d 523, 529 (Wyo. 1991) (quoting Barrett v. Green River &
`Rock Springs Live Stock Co., 205 P. 742, 744 (Wyo. 1922)). If the court’s settlement
`distribution were based on a finding that Decedent’s wife had shown that her marriage
`was likely to continue, then perhaps we would be less troubled by the court’s award. The
`court’s order, however, contains an opposite finding. In particular, the court found that
`the future of Decedent’s marriage to Laura Soran was uncertain and speculative. The
`decision thus rules on the one hand, that the future of Decedent’s marriage was uncertain
`and speculative, but on the other hand, that Decedent’s wife suffered the greater
`percentage of damages for loss of “probable” future companionship, society and comfort.
`
`[¶20] This Court cannot reconcile the district court’s conflicting findings—that
`Decedent’s marital relationship was uncertain, and that Decedent’s wife was entitled to
`an award of 75% of the settlement proceeds for loss of “probable” or “likely” future
`companionship, society and comfort. Moreover, the district court made no other or more
`specific findings to support its award or to otherwise reconcile the seemingly inconsistent
`findings. Given the inconsistencies in the district court’s findings, we are left with a firm
`conviction that the court erred. In particular, it is apparent that the court’s error in
`
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`
`applying the burden of proof carried through to the distribution of the settlement
`proceeds, and the order distributing the settlement proceeds must therefore be reversed.
`We remand for entry of a distribution order that is supported by findings sufficient to
`show application of the appropriate burden of proof, with no presumption in favor of any
`of the damage claimants.
`
`CONCLUSION
`
`[¶21] The district court’s distribution order was clearly erroneous in that it misapplied
`the burden of proof and improperly presumed damages in favor of Decedent’s wife. We
`reverse and remand for proceedings consistent our direction herein.
`
`9