BARKER, Judge.
¶ 1 Plaintiffs Annette Forrester, Scott Walsh, Steven Walsh, and Lisa Cline ("the children") appeal from the superior court's award of zero dollars in damages for the wrongful death of their father. They claim that this award is insufficient under Rule 59(a)(5) of the Arizona Rules of Civil Procedure. The trial court considered the issue to have been waived. We uphold the jury's right to award zero damages and remand for the court to rule on the Rule 59(a)(5) motion
¶ 2 This appeal arises out of a claim for the wrongful death of Jerome Walsh brought by his wife, Elizabeth Walsh, and his surviving adult children. The liability facts are uncontested on this appeal.
¶ 3 Jerome and Elizabeth Walsh were lifetime residents of Minnesota. In December, 2003, Jerome and Elizabeth were in Arizona when Jerome became ill. Jerome's primary care physician referred him to Defendant Warren Zeitlin.
¶ 4 At trial, Elizabeth Walsh and the children testified extensively as to their relationship with Jerome. This testimony was not contested by Defendants; their counsel did not cross-examine the witnesses on this issue.
¶ 5 On May 26, 2009, the jury in the superior court found in favor of Plaintiffs on their wrongful death claim against Advanced Cardiac Specialists and its employees. It awarded damages of $1,000,000 to wife Elizabeth Walsh and made a finding of zero damages for each of the children. The jury handwrote "0" on the verdict form in the space for damages by each child's name.
¶ 6 After the jury was discharged, the children filed a motion for a new trial under Rule 59(a)(5) of the Arizona Rules of Civil Procedure stating that our decisions in White v. Greater Arizona Bicycling Ass'n, 216 Ariz. 133, 163 P.3d 1083 (App.2007), and Sedillo v. City of Flagstaff, 153 Ariz. 478, 737 P.2d 1377 (App.1987), mandated an award of at least nominal damages. Defendants argued that the children's motion should have been brought under Rule 49(c) before the jury was discharged. Accordingly, Defendants asserted that the children's claim was untimely and waived. The court agreed with Defendants and dismissed the children's motion. The children timely appealed the trial court's ruling. We have jurisdiction under Arizona Revised Statutes ("A.R.S.") section 12-2101(B) (2003).
¶ 7 On appeal, the children argue that the trial court erred in holding that their motion was waived under Rule 49(c) of the Arizona Rules of Civil Procedure. They further assert that our previous holdings in White, 216 Ariz. 133, 163 P.3d 1083, and Sedillo, 153 Ariz. 478, 737 P.2d 1377, require us to reverse and remand for a new trial on damages. The trial court's ruling on waiver is premised on the required application (by the trial court) of our holdings in White and Sedillo. In short, the trial court determined that White and Sedillo require at least some damages, and because the verdict form was returned without any damages, the verdict was inconsistent under the holdings of those two cases. Because that objection was not made with the jury present, the trial court found the issue waived.
¶ 8 Both White and Sedillo were split-panel decisions from this court. As set forth below, we agree with each dissent's proposed outcome; namely, that White and Sedillo were wrongly decided and a jury's verdict of zero damages in a statutory wrongful death case can be a permissible verdict. As such, Rule 49(c) is not implicated, and the waiver issue is moot.
¶ 9 The critical aspect of our analysis is the difference between a statutory
¶ 10 A wrongful death claim, however, is essentially a creature of statute—not the common law. In re Lister's Estate, 22 Ariz. 185, 187, 195 P. 1113, 1113 (1921) ("Under the common law there was no right of action for damages for wrongful death. The right is statutory and was originally provided for in England by what is known as Lord Campbell's Act.").
A.R.S. § 12-613. Thus, unlike a negligence claim, damages is not an essential element of a wrongful death claim. Rather, a person who, absent the death, "would have been liable" for the act that caused the death, now becomes "liable to an action for damages" to those whom the statute specifies. A.R.S. § 12-611. In that action, the jury is to "give such damages as it deems fair and just." A.R.S. § 12-613. The statutory language does not preclude an award of zero damages if that is the amount the fact finder determines to be "fair and just." Id.
¶ 11 In construing statutes, we follow the legislature's pronouncements. "We first consider the statute's language `because we expect
¶ 12 Our construction of the statute, permitting a zero damages award, is also consistent with other previous holdings. For instance, in Quinonez v. Andersen, 144 Ariz. 193, 198, 696 P.2d 1342, 1347 (App.1984), we construed the "fair and just" provision of § 12-613 to permit an award of zero damages. There, we held that a jury could consistently find in favor of the plaintiff on a wrongful death claim but decline to award damages. Id. In Quinonez, the beneficiary making the damages claim was the decedent's husband. Id. Due to the abusive relationship between the husband and the decedent-wife, we determined that "the jury may have concluded that ... a just and fair award for this loss was zero." Id. Thus, Quinonez illustrates the principle that in a wrongful death case damages is not an essential element of the claim itself and the jury may return a verdict of zero damages even after a liability verdict.
¶ 13 Related cases dealing with the nature of damages recoverable in a wrongful death action are also helpful in understanding why, unlike a negligence claim, a jury can permissibly return a verdict of zero damages. In Mullen v. Posada Del Sol Health Care Center, 169 Ariz. 399, 400, 819 P.2d 985, 986 (App.1991), a mother sought wrongful death damages based on how her son was treated prior to his death in a nursing home. We turned to the language of § 12-613 limiting damages to "the injury resulting from the death." Id. We noted that "[w]ithin the meaning of the statute, the death is the source of the injury, not the negligent act." Id. (quotations omitted) (emphasis added). Thus, the key distinction between a negligence claim and a wrongful death claim is that damages in a wrongful death claim are not tied to the liability-causing event (the negligent act). Rather, damages are based on the injuries that come from the result of the negligent act (the death).
¶ 14 Similarly, Girouard v. Skyline Steel, Inc., 215 Ariz. 126, 127-28, ¶¶ 3-7, 158 P.3d 255, 256-57 (App.2007), espouses this principle. There, the decedent was pinned in a car and burned to death as a result of the defendant's acts. Id. We clarified Mullen to ensure that the manner of death, which the statutory beneficiaries claimed increased their own injury "resulting from the death," may be considered. Id. at 129-33, ¶¶ 10-23, 158 P.3d at 258-62. We made it plain, however, that a statutory beneficiary could not recover for pain and suffering experienced by the decedent:
Id. at 131, ¶ 19, 158 P.3d at 261 (internal citations omitted). As both Mullen and Girouard hold, "the issues of liability and damages in a wrongful death action are generally distinct because recoverable damages are not based on the negligent act but, rather, on the survivors' injuries `resulting from the [decedent's] death.'" Englert v. Carondelet Health Network, 199 Ariz. 21, 27, ¶ 16, 13 P.3d 763, 769 (App.2000) (quoting A.R.S. § 12-613).
¶ 15 Thus, the statutory scheme in a wrongful death action does not preclude a jury from returning a verdict of zero damages. Our case law, with the exception of White and Sedillo, to which we will now turn, supports this conclusion.
¶ 16 As noted, the children rely on White and Sedillo to assert their position that a finding of zero damages requires a new trial.
¶ 17 In Sedillo, the plaintiffs brought a wrongful death action against the City of Flagstaff after the decedent died from an auto accident caused by ice on the roadway. 153 Ariz. at 480, 737 P.2d at 1379. At trial, the decedent's wife, daughter, three sons from a prior marriage, and mother, all statutory beneficiaries under the wrongful death statute, testified as to their close family relationship with the decedent. Id. at 480, 482, 737 P.2d at 1379, 1381. This testimony was not impeached, contradicted, or refuted by the City. Id. at 481, 737 P.2d at 1380. The jury, however, awarded zero damages to three of the beneficiaries: two of the decedent's adult children and the decedent's mother. Id. The majority of the Sedillo court held that an award of zero damages was insufficient because unrefuted evidence as to damages was presented at trial. Id. at 482, 737 P.2d at 1381. The court distinguished Quinonez because in that case there was contested evidence such that the jury could have come to the conclusion that an award of zero damages was appropriate. Id. The majority contrasted Quinonez with the circumstance in Sedillo where "the unimpeached evidence ... demonstrates that the Sedillos all enjoyed close family relationships with decedent, and all suffered substantial emotional, and possibly financial, injuries due to his death." Id.
¶ 18 In dissent, Judge Jacobsen focused on the statutory language in A.R.S. § 12-613 which requires the jury to give "such damages as it deems fair and just with reference to the injury resulting from the death." Id. at 485, 737 P.2d at 1384 (Jacobsen, J., dissenting) (quoting A.R.S. § 12-613). The dissent focused on the lack of pecuniary loss to certain defendants.
Id. (citing S. Pac. Transp. Co. v. Lueck, 111 Ariz. 560, 535 P.2d 599 (1975)). The dissent cited Begay v. City of Tucson, 148 Ariz. 505, 508, 715 P.2d 758, 761 (1986), for the proposition that
Id. Judge Jacobsen reasoned, relying on Quinonez, "[i]t necessarily follows that if no pecuniary loss is suffered, no recovery is warranted." Id.
¶ 19 In White, the wife and adult children of the decedent bicyclist brought a wrongful death action against a bicycling event organizer over the organizer's negligence regarding a cattle guard in the bike path. 216 Ariz. at 135, ¶¶ 2-3, 163 P.3d at 1085. The wife and children gave uncontradicted testimony as to their relationship with the decedent, but the jury did not award damages to the children. Id. at ¶ 5. The majority reversed, affirming the rule presented in Sedillo that
¶ 20 The majority in White agreed that damages were not an element of a wrongful death claim: "[U]nlike in a traditional negligence case, damage to the plaintiff is not an element of liability in a wrongful death action." Id. at 138, ¶ 16, 163 P.3d at 1088. As we have set forth above, the White majority appropriately differentiated between a negligence claim and a wrongful death claim by stating: "Instead, once a jury determines the defendant is liable for a wrongful death, it then, pursuant to § 12-613, determines `fair and just' damages `to the surviving parties' as defined by § 12-612." Id. The White majority then went on to hold, however, that "there must be support in the record, however slight, for a jury's decision to disregard a witness's testimony." Id. at 140, ¶ 22, 163 P.3d at 1090. Like Sedillo, the majority distinguished Quinonez because there was clearly contradictory evidence in Quinonez from which a jury could find that an award of zero damages was appropriate. Id. at 141, ¶ 27, 163 P.3d at 1091.
¶ 21 The dissent authored by Judge Espinosa in White asserted, accurately from our perspective, that "[t]he majority today fashions a new, unprecedented rule of appellate review that says: `There must be support in the record, however slight, for a jury's decision to disregard a witness's testimony.'" Id. at 144, ¶ 36, 163 P.3d at 1094 (Espinosa, J., dissenting). The dissent pointed out:
Id. (Espinosa, J., dissenting). Judge Espinosa's dissent was premised on the view that the majority in White "significantly distort[ed] our standard of review." Id. at ¶ 37.
¶ 22 Turning now to our analysis of White and Sedillo, we emphasize that we do not disrupt existing precedent absent clear error or "cogent reasons" to do so. Scappaticci v. Sw. Sav. & Loan Ass'n, 135 Ariz. 456, 461, 662 P.2d 131, 136 (1983) ("[W]e consider decisions of coordinate courts as highly persuasive and binding, unless we are convinced that the prior decisions are based upon clearly erroneous principles, or conditions have changed so as to render these prior decisions inapplicable.") (quoting Castillo v. Indus. Comm'n, 21 Ariz.App. 465, 471, 520 P.2d 1142, 1148 (1974)); see also State v. Patterson, 222 Ariz. 574, 580, ¶ 19, 218 P.3d 1031, 1037 (App.2009) (collecting citations for the principle that "[w]hen we disagree with a prior decision of our Court ... we should do so only upon the most cogent of reasons being presented"). In this case such cogent reasons exist. Specifically, and as we discuss in more detail below, we conclude the rule announced in White and Sedillo that "[t]here must be support in the record, however slight, for a jury's decision to disregard a witness's testimony," White, 216 Ariz. at 140, ¶ 22, 163 P.3d at 1090, is wrong. This is particularly so in a setting where the plaintiff bears the burden of proof. Stated differently, to require an award of damages to a plaintiff in a wrongful death case absent contradictory evidence is legally flawed because (1) the burden is on a plaintiff to prove damages, (2) that burden does not shift, and (3) a jury is free to disregard the evidence that a plaintiff produces. To adopt the rule that White and Sedillo promulgate does away with these foundational principles.
¶ 23 Every day in Arizona courtrooms juries are instructed as follows:
Rev. Ariz. Jury Instr. ("RAJI") (Civil), at 5 (4th ed. 2005) (emphasis added). We have frequently referred to this as our "standard
¶ 24 The reason for this rule is the jury has the critical role in evaluating and weighing the testimony of witnesses and the evidence, and we defer to the jury's determination in these areas. The fact finder "sees the witnesses, hears the testimony, and has a special perspective of the relationship between the evidence and the verdict which cannot be recreated by a reviewing court from the printed record." Hutcherson v. City of Phoenix, 192 Ariz. 51, 53, ¶ 12, 961 P.2d 449, 451 (1998) (quoting Reeves v. Markle, 119 Ariz. 159, 163, 579 P.2d 1382, 1386 (1978)). As an appellate court, "[w]e must not `take the case away from the jury' by combing the record for evidence supporting a conclusion or inference different from that reached" by the finder of fact. Id. at 56, ¶ 27, 961 P.2d at 454 (quoting Tennant v. Peoria & Pekin Union Ry. Co., 321 U.S. 29, 35, 64 S.Ct. 409, 88 L.Ed. 520 (1944)). The jury's role in evaluating testimony is of particular importance in the realm of intangible loss where the court system grants monetary compensation for something typically unquantifiable. Hernandez v. State, 128 Ariz. 30, 32, 623 P.2d 819, 821 (App.1980). As we have said, "[t]ranslation into dollars of the loss of companionship, affection, and society, and the anguish ... experienced as a result of ... death is peculiarly the jury's function." Id.
¶ 25 The practical effects of forbidding an award of zero damages are also anomalous. The White majority noted that, although an award of zero damages would be impermissible, "nothing ... prohibits a jury from awarding nominal damages." White, 216 Ariz. at 142 n. 7, ¶ 29, 163 P.3d at 1092 n. 7. We repeat, damages are not an essential element of a statutory wrongful death claim. Thus, we fail to see how an award of $1 would be "sufficient" as a matter of law, but an award of zero damages would not. See id.
¶ 26 Critically, to require an award of some damages based simply on the absence of any affirmative evidence in the record that the statutory beneficiaries should not recover fundamentally alters the burden of proof. Each plaintiff in a wrongful death case bears the burden of proof to show a compensable loss. See Patania v. Silverstone, 3 Ariz.App. 424, 429, 415 P.2d 139, 144 (1966) ("[P]laintiff has the burden of proof in establishing damages ...."); see also Wilmot v. Wilmot, 203 Ariz. 565, 571, ¶ 22, 58 P.3d 507, 513 (2002) ("The judge should instruct the jury to `find the amount of damages sustained by each beneficiary.'" (quoting Nunez v. Nunez, 25 Ariz.App. 558, 562, 545 P.2d 69, 73 (1976))). Requiring the defendant to come forth with evidence that the plaintiff did not sustain the damages asserted shifts this burden of proof. While such a burden-shifting scheme may be present in other areas of law, see, e.g., McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) (holding that in Title VII employment discrimination cases, the burden of proof shifts to defendant after the plaintiff shows a prima facie case of racial discrimination), this structure is not supported by the language of our wrongful death statutes. Plaintiffs in wrongful death cases begin and end with the burden of proving their damages.
¶ 27 To the extent that the children rely upon, and the White majority cites, authority supporting the proposition that the jury may not "arbitrarily disregard" the uncontradicted testimony of a fact witness, the cases are nearly all Industrial Commission cases.
¶ 28 As we set forth earlier, nothing in the statutory scheme mandates an award of damages, even when liability is found. The majorities in White and Sedillo interpreted A.R.S. § 12-613 to place the jury under obligation to affirmatively award damages to the statutory beneficiaries. This was based on the portion of the statute that states the "jury shall give such damages as it deems fair and just." White, 216 Ariz. at 141, ¶ 28, 163 P.3d at 1091 (emphasis added) (quoting A.R.S. § 12-613); see also Sedillo, 153 Ariz. at 481, 737 P.2d at 1380. "Shall," however, is not an imperative requiring the jury to award damages in a particular amount. Rather it is an imperative to do what is "fair and just." As Judge Espinosa phrased it,
¶ 29 Finally, we note that "[i]n reviewing a jury verdict, we view the evidence in a light most favorable to sustaining the verdict." Styles v. Ceranski, 185 Ariz. 448, 450, 916 P.2d 1164, 1166 (App.1996). Viewed in a light most favorable to sustaining the verdict, the evidence (or lack of evidence) supporting the jury's award of zero damages is two-fold: (1) the burden is on the children to prove damages, and (2) the jury is free to disregard the evidence that the children produced, and the jury apparently did so here.
¶ 30 For these reasons, we hold that a jury finding of zero damages in a wrongful death case—even without contradictory evidence on damages—may be upheld.
¶ 31 The children argue that any overruling of White and Sedillo should apply only prospectively. Arizona appellate opinions in civil cases generally operate both retroactively and prospectively. Law v. Superior Court, 157 Ariz. 147, 160, 755 P.2d 1135, 1148 (1988) (supplemental opinion). This rule favoring retroactivity may be overcome if three conditions are satisfied:
Id. To decide whether to apply a rule prospectively, we must balance these three factors. Id. at 161, 755 P.2d at 1149.
¶ 32 As to the first factor, our opinion establishes a contrary precedent to the prior holdings in White and Sedillo. Each of those cases, however, had strong dissents. Under Law we are to consider whether the earlier precedent is "clear and reliable." Id. While White and Sedillo are "clear," the force of logic embodied in the dissents, and our own reasoning above, weigh in the balance as to the reliability factor. Additionally, deference to the fact finder has been a time-honored and well-established principle, and this underlying law drives our decision today.
¶ 33 As to the second factor, retroactive application does not adversely affect the purpose behind the new rule. The purpose behind the "new rule" is simply to re-enthrone the language in A.R.S. § 12-613. That statute permits the jury to return an award that is "fair and just," which can include an award of zero. The statute emphasizes the role of the fact finder when awarding damages in an intangible-loss case. This purpose is better served through retroactive application.
¶ 34 As to the third factor, retroactive application would not produce substantially inequitable results. Had we followed White and Sedillo, the children would have automatically been granted a new trial on their award of zero damages, but the grant would not have been automatic had they been awarded $1 in damages. Declining to automatically grant a new trial based on an award of zero damages, when a new trial would not be automatic for damages of $1, is not "substantially inequitable." Further, and importantly, by remanding this matter to the trial court to consider the Rule 59(a)(5) motion, the children have the same rights any party in the future would have: the trial judge may consider, but is not required to grant, a motion for new trial. Weighing these three factors, we determine that retroactive application under Law is appropriate.
¶ 35 For the reasons stated above, we remand this matter to the trial court for proceedings in accordance with this opinion.
CONCURRING: DONN KESSLER, Presiding Judge, and JON W. THOMPSON, Judge.
A.R.S. § 12-611.
Smethers, 210 Ariz. at 172, ¶ 19, 108 P.3d at 951 (quoting RAJI (Civil), at 21 (3d ed. 1997)).
