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Greenvall v. Maine Mut. Fire Ins. Co.(corrected 1-4-02)
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2001 ME 180
Docket:	Ken-01-414
Argued:	November 7, 2001
Decided:	December 27, 2001
	
Panel:		SAUFLEY, C.J., and CLIFFORD, RUDMAN, DANA, and CALKINS, JJ.

JERALD E. GREENVALL

v.

MAINE MUTUAL FIRE INSURANCE COMPANY

RUDMAN, J. 

	[¶1]  Jerald E. Greenvall, the personal representative of the estate of
Carla Madore, appeals from the judgment entered in the Superior Court
(Kennebec County, Marden J.), declining to apply the increased statutory
damages cap for loss of comfort, society, and companionship contained
within the 1995 amendment to Maine's Wrongful Death Act, 18-A M.R.S.A.
§ 2-804.  The amendment was enacted after Madore's death but prior to the
filing of this lawsuit.  Greenvall contends that the amendment did not amount to a
substantive change in the law and, therefore, should have been applied
retroactively to encompass the present case.  We disagree and affirm the
judgment of the Superior Court. 
	[¶2]  On February 11, 1995, Carla Madore was killed in an automobile
collision in Greene.  Madore and her vehicle were insured by Maine Mutual
Fire Insurance Company (Maine Mutual).  Her policy included
uninsured/underinsured motorist coverage up to $300,000.  James
Donahue, the other driver involved in the accident, was covered up to
$100,000 by liability insurance provided by Maryland Insurance Group. 
	[¶3]  On January 5, 1996, the estate settled with Donahue and
Maryland Insurance Group for $100,000, and released them from any
further liability resulting from the accident.  Following this agreement, the
estate requested payment from Maine Mutual in the amount of $200,000. 
This figure represented the difference between the decedent's uninsured
motorist coverage, $300,000, and the amount of the settlement with
Donahue and his insurer, $100,000.  Maine Mutual refused to make any
payment.  On April 4, 1997 Greenvall brought suit claiming breach of
contract, bad faith, and late payment.  Although the bad faith and late
payment claims were dismissed by a summary judgment,{1} the breach of
contract claim was tried before a jury. 
	[¶4]  On the day of the decedent's death, the Wrongful Death Act
restricted recovery for loss of comfort, society, and companionship at
$75,000.  18-A M.R.S.A. § 2-804 (Supp. 1989) (amended by P.L. 1995, ch.
577, § 1; P.L. 1999, ch. 772, § 1).  By the time Greenvall filed suit, the
Legislature had raised the statutory cap on these damages to $150,000.{2} 
P.L. 1995, ch. 577, § 1 (effective July 4, 1996).
	[¶5]  At the conclusion of the trial, the jury found that Donahue's
negligence was a proximate cause of the decedent's death and awarded
damages to the estate, including $150,000 for the loss of comfort, society,
and companionship.{3}  The court, however, ruled that the applicable cap for
loss of comfort, society, and companionship was $75,000, the limit at the
time the accident occurred, and entered judgment accordingly.  The court
held that because the increase in the statutory cap was a substantive change
to the Wrongful Death Act, it should not be retroactively applied to the
accident in question.  Greenvall filed this appeal.
	[¶6]  A statute is retroactively applied if it is "applied so as to
determine the legal significance of acts or events that occurred prior to its
effective date . . . ."  Terry v. St. Regis Paper Co., 459 A.2d 1106, 1108 (Me.
1983) (quoting Coates v. Maine Employment Sec. Comm'n, 406 A.2d 94, 96
(Me. 1979)).  The trial court's conclusion concerning the
retroactive/prospective application of the 1995 amendment is a question of
statutory interpretation which we review de novo.  Great N. Paper, Inc. v.
Penobscot Nation, 2001 ME 68, ¶ 14, 770 A.2d 574, 580. 
	[¶7]  When faced with similar issues in the past, we have often applied
the common law presumption that, absent language to the contrary,
legislation affecting procedural or remedial rights should be applied
retroactively, whereas legislation affecting substantive rights should be
applied prospectively.   See Riley v. Bath Iron Works, 639 A.2d 626 (Me.
1994); Danforth v. L.L. Bean, Inc., 624 A.2d 1231 (Me. 1993); Dobson v.
Quinn Freight Lines, 415 A.2d 814 (Me. 1980).  Alternatively, we have
applied the rule of statutory construction that "all statutes will be
considered to have a prospective operation only, unless the legislative intent
to the contrary is clearly expressed or necessarily implied from the language
used."  Coates, 406 A.2d at 97 (quoting Miller v. Fallon, 134 Me. 145, 148,
183 A. 416, 417 (1936)).  There is no reason why these methods of
statutory interpretation cannot be applied conjunctively. 
	[¶8]  Ordinarily, procedural amendments by definition affect only the
present treatment of process.  They do not change the legal significance of
acts occurring before the amendments.  Dobson v. Quinn Freight Lines, Inc.,
415 A.2d 814, 816 (Me. 1980) (application of a procedural amendment is
not "retroactive application in any sense that would require us to presume
that such application was not intended by the legislature").  If there is any
doubt as to whether the law in question is purely procedural, we will assume
the Legislature intended prospective application only. 
	[¶9]  The 1995 amendment doubled one's potential liability for the
loss of comfort, society, and companionship, and thus cannot be said to be
purely procedural.  Therefore, we assume that the amendment is
prospective unless the plain language clearly provides otherwise.  The
amendment stated, in pertinent part,

The jury may give such damages as it determines a
fair and just compensation with reference to the
pecuniary injuries resulting from the death to the
persons for whose benefit the action is brought and
in addition shall give such damages as will
compensate the estate of the deceased person for
reasonable expenses of medical, surgical and hospital
care and treatment and for reasonable funeral
expenses, and in addition may give damages not
exceeding $150,000 for the loss of comfort, society
and companionship of the deceased, including any
damages for emotional distress arising from the
same facts as those constituting the underlying
claim, to the persons for whose benefit the action is
brought, and in addition may give punitive damages
not exceeding $75,000, provided that the action is
commenced within 2 years after the death of the
decedent.

18-A M.R.S.A. § 2-804 (1998) (amended by P.L. 1999, ch. 772, § 1)
(emphasis added).  The amendment is not ambiguous and does not suggest a
retroactive application.  
	[¶10]  Therefore, the 1995 amendment is not applied retroactively
and does not apply to the present suit.  This is in accord with similar
decisions from other jurisdictions.  Thomas v. Cumberland Operating Co.,
569 P.2d 974, 976 (Okla. 1977) ("Statutes and amendments imposing,
removing or changing a monetary limitation on recovery for personal
injuries or death are generally held to be prospective only."); Bradley v.
Knutson, 215 N.W.2d 369 (Wis. 1974) (holding that an amendment to the
Wisconsin Wrongful Death Act that increased the amount of recoverable
damages for loss of society and companionship is a substantive change, and
finding that the limit of recoverable damages is set by statute at the time the
accident occurred); Mihoy v. Proulx, 313 A.2d 723, 725 (N.H. 1973) ("To
apply [an amendment which raises the recoverable limit for wrongful death]
after the date of the accident would clearly enlarge the defendant's liability
retrospectively.  In the absence of an express provision, we cannot conclude
that the legislature intended retrospective application.").
	The entry is:
			Judgment affirmed.
                                                         							
Attorney for plaintiffs:

Jeffrey T. Edwards, Esq.
Preti, Flaherty, Beliveau, Pachios & Haley, LLC
P O Box 9546
Portland, ME 04112-9546

Attorney for defendant:

William J. Kelleher, Esq.
7 East Crescent Street
Augusta, ME 04330-7433