Compensation for Care Nurture and Guidance DOHSA
Maritime lawyer James Beard has been seeking fair compensation for the children of deceased maritime workers, crewmen and fisherman for 30 years. Let Beard and his partners Lanning Trueb and Douglas Johnson explain to you the rights of children to recover compensation for loss of care, nurture and guidance caused by the death of their parent. Don’t accept a low offer of compensation for your child’s case. Contact Beard and his partners at Johnson Beard & Trueb PC to find out what a child’s claim for care, nurture and guidance may be worth. Federal maritime law is complex, but the clear trend is to increase recoveries for care, nurture and guidance damages. Their analysis of maritime law relating to care, nurture and guidance damages is set forth below.
Federal Maritime Law governs damages in the case of a death occurring on the high seas. By Federal Statute, the Death On the High Seas Act, (DOHSA), 46 USC 761 eq. seq., recovery is limited in wrongful death high seas act cases to pecuniary losses. It is black letter law that when a parent dies on the high seas, his/her minor children may make a claim for, among other things, loss of the deceased parent’s care, nurture and guidance. Care, nurture and guidance damages are deemed to be compensable as pecuniary losses under DOHSA. See Michigan Central Rail Co. v. Vreeland, 227 U.S. 59, 73 (1913). It is equally as clear that a child may not recover for the loss of a deceased parent’s love and affection, as those damages are considered to be non-pecuniary.
To properly compensate a child who has lost a parent for the value of the care, nurture and guidance the child has lost, requires an understanding of the complex and powerful relationship between a child and a parent. Expert developmental child psychologists, sociologists, and cultural anthropologists have long studied the parent-child relationship and the consequential impact the death of a parent has upon a child. It is well established that the impact of the death of a parent on a minor child is an irreversible damage that will last the rest of the child’s life.
Some may think care, nurture and guidance damages are intuitive to jurors and judges. However, it is the intuitive nature of this category of damages which makes it all the more important that it not be casually glossed over in the presentation of a child’s maritime wrongful death damage case. Damage evidence of care, nurture and guidance must be built piece by piece, day by day, year by year, category by category, so the trier of fact is given evidence of the importance of a parent’s every day interaction with his/her child.
Admission of actual evidence of the deceased parent’s relationship with his/her minor child is critical to supporting a reasonable compensatory award. Each piece of evidence presented at trial should evoke in a judge or juror a personal memory of their own relationship with their parents or their own child. It is a foolish defense counsel who attempts to wade into the treacherous waters of jurors or judges’ fondest childhood memories of their parents.
Pictures can speak louder than a thousand words. But care, nurture and guidance evidence goes far beyond the family photo album and digital recordings; it strikes at the very foundation of who a child grows up to become. Shortly following birth, children begin the learning process by watching, listening and imitating their parents. The parent-child relationship is the very basis for all other future relationships in the child’s life. The parental relationship is where basic principles such as trust, respect, affection and expression of emotion are learned. Through each interaction a child has with their parent, the child is imprinted with values, beliefs, thoughts, and feelings which go on to be the foundation upon which they build their lives.
It is wrong to equate the loss of care, nurture and guidance to the economic support a parent makes to his child. There is no correlation between a parent’s monthly paycheck and the value of care, nurture and guidance they provide to their children. Unquestionably, parents may be economically depressed but be rich in ability to provide valuable care, nurture and guidance to their children. For example, the value of care, nurture and guidance given by hard-working blue collar type parents may be far more valuable to their child than the care, nurture and guidance given by a doctor, lawyer or politician to their child. Being able to provide a rich developmental environment to a child is not a lineal graph where the more money you make the more care, nurture and guidance is given the child. In fact the converse may be true, in that the poorer the parent, the more value there may be in the care, nurture and guidance a parent imparts upon their child. The majority of people will have to look no further than their own childhood to understand this principle.
Similarly, we should not solely associate the value of care, nurture and guidance with the future economic success of the child. In addition to providing their child with a foundation for future employment, a parent can teach their child the love of music, art, or reading; an appreciation of nature; a commitment to making the world environmentally sound; a devotion to community service, religion and/or spirituality; a love of sports; the concepts of being a good father and mother - all of these are products of care, nurture and guidance.
Distinguishing between compensatory damages for love and affection and compensatory damages for care, nurture and guidance can be readily and easily done. Love and affection damages are emotional damages a child suffers when they lose a parent. In contrast to this are care, nurture and guidance damages, which are compensatory damages for the lost acts that a parent performs while raising a child. Parents give care, nurture and guidance to their children out of love. Parental care, nurture and guidance can be properly characterized as the labor of love, and it is that lost labor of love which entitles the child to compensation.
In the context of non-maritime cases, most wrongful death claims do not attempt to distinguish between loss of a parent’s love and affection and loss of a parent’s care, nurture and guidance. The two damages are presented as conglomerated damages and not infrequently result in million dollar compensation awards for general damages. However, when attempts are made to segregate the two damages, emotions versus acts, it is probable that most jurors are valuing care, nurture and guidance damages as the greater loss to the child than the emotional loss of love and affection. At best, these two elements of damages should be considered equal in terms of their compensability to a child who has lost a parent.Federal Maritime Law Relating to Damages for Care, Nurture and Guidance the Keystone to a Child’s Sucessful Future
It is now universally held that loss of a parent’s care, nurture and guidance due to the parent’s wrongful death are pecuniary damages under Federal Maritime Law. Higgenbotham v. Mobil Oil Corp. 360 F. Supp. 114 (1973); Michigan Central Railroad Co. v. Vreeland .227 U.S. 59, (1913). Parental care, nurture and guidance has been referred to as the “keystone to the arch” of a child’s future living. See Thomas v. Conemaugh Black Lick Railroad, 133 F. Supp. 533 (W.D. Penn. 1955).
The law makes a clear distinction between loss of society, which is deemed a non- pecuniary loss, and loss of care, nurture and guidance, which is deemed a pecuniary loss. This distinction is well established in all circuits. In noting this distinction, the Ninth Circuit Court of Appeals in Nygard v. Peter Pan 701 F. 2d 77 upheld Judge Beeks’ decision to strike the beneficiaries of a seaman’s claim for loss of society. However, Judge Beeks remanded the case, finding it error to not consider the beneficiaries claims for loss of care, nuture and guidance as a distinct item of damage. See also Law v. Sea Drilling Corporation 510 F. 2d 242, 250-51, (5th Cir. 1975); and Barger v. Petroleum Helicopters 514 F. Supp. 1199 (E.D. Texas 1981).
The fact that care, nurture and guidance damages may not be quantified to a mathematical certainty does not bar their recovery. See Mascuilli v. U.S. 343 439 (E. D. Pn 1972) [ the fact that there is no mathematical formula to convert these benefits into a precise number of dollars does not mean that no award should be allowed].
In Vreeland at 71, the Supreme Court stated that the term “pecuniary loss” should not be so narrowly construed to exclude damages for loss of care, nurture and guidance. Vreeland attempted to distinguish non-pecuniary damages such as loss of society from pecuniary losses such as care, nurture and guidance on the basis that pecuniary loss of a parent’s care, nurture and guidance “can only be supplied by the services of another for compensation.” Citing Tilley v. Hudson R. Co. 24 N.Y. 471, the Vreeland decision said that the word pecuniary was used in distinction to those injuries to the affections and sentiments which arise from the death of relatives and which, although most painful and grievous to be borne, cannot be measured or recompensed by money. Vreeldand held:
A minor child sustains a loss from the death of a parent, and particularly a mother, altogether different from that of a wife of husband from the death of a spouse. The loss of society and companionship, and the acts of kindness which originate in the relation and are not the nature of services are not capable of being measured by any material standard. But the duty of a mother to a minor child is that of nurture, and the intellectual, moral and physical training, such as when, when obtained from others, must be for financial compensation. In such a case, it has been held that the depravation is such to admit of definite valuation, if there be evidence of fitness of the parent, and that the child has been actually deprived of such advantages.
In Solomon v. Warren 540 F. 2d 777, 789 (5th Cir. 1976) the Court articulated the principle relating to allowance of care, nurture and guidance damages followed by most circuits, including the Ninth Circuit, as follows:
Although this item of damage cannot be computed with any degree of mathematical certainty, the courts in applying the structured pecuniary loss test of DOHSA have held that the loss to a child of the nurture, instructions, physical and intellectual, and moral training that they would have received from their parents, but for the parents’ wrongful death, may constitute a pecuniary loss and, as such maybe be recoverable element of damages under DOHSA.
The significance of these damages was described by the District Court of Massachusetts in Anderson v. F/V Midnight Sun, 291 F. Supp. 353, 358 (1968), where the Court stated:
A child is not fairly compensated for the loss of his parent whose fitness has been shown, unless he is compensated for loss of nurture, because the guidance of a parent in matters material, moral and spiritual is of definite practical and financial value and is subject to pecuniary estimate.
Evidence of the manner in which a seaman interacted with his child prior to his death may be adequate alone to support a beneficiary’s claim for loss of care, nurture and guidance under DOHSA. See Adventure Bound Sports 858 F. Supp. 1192 (S.D. GA 1994). A jury may place a value on these services, although the calculation is not subject to mathematical certainty. See Kalas v. Carnival 2009 WL 901507 (S.D. Fl. 20090 [stating: “… the fact finder may use its own experiences and other fact witnesses at trial to determine if the deceased parent furnished training and guidance and what the value of those services is.”] Most courts hold that expert testimony to mathematically calculate and establish a precise figure for the value of the decedent’s care, nurture and guidance is unnecessary. In fact, attempts by experts to monetarily calculate the value of care, nurture and guidance services of a parent have had difficulty overcoming Daubert type motions to exclude their testimony. See Kalas.
To attempt to further support and quantify the value of the care, nurture and guidance services provided by a parent, evidence of the salaries of psychologists, teachers, and social workers has been held admissible. This evidence by analogy allows the trier of fact a means to a attempt to quantify the value of the deceased seaman’s care, nurture and guidance services to his child. See Adventure Bound Sports at 120; and Zilko v. Golden Alaska Seafoods, 123 Wash App. 1020 (2004).
Employers and ship owners argue that evidence that a seaman who works aboard ship for prolonged periods of time each year and is therefore absent from the home, limits a claim for care, nurture and guidance as the seaman is not present to deliver such services. See Decentro v. Gulf Fleet 798 F. 2d 138, 141-2, (5th Cir. 1986). These arguments are countered by the fact that we lead our children by example, and that includes teaching them the values and morals of being hard working, dependable and supporting one’s family. A book can’t teach such basic principles to a child. A parent, and only a parent, teaches this to their child by the examples they set, and that includes making sacrifices to support one’s family. A parent working two jobs to make financial ends meet for their family may get few precious hours with their child each day. However, by example, these hard-working parents are teaching and training their child in core family values. The same holds true for seamen who risk their lives at sea each day to support their families.
Courts have not hesitated to define the nature of services performed by parents for their children which constitute recoverable damages for loss of a parent’s care, nurture and guidance. The Fifth Circuit Court of Appeals in Solomon v. Warren, 540 F. 2d 777,789, (1976) stated:
The intellectual, moral, and physical training which a child receives from a careful and competent parent during the formative years of its minority should result in preparing the child to make a life and living on its own.
Although there are few recent reported cases involving verdicts for care, nurture and guidance in maritime cases, the modern trend appears to be towards increasing compensation for this element of damages. In addition to a child‘s compensation for the loss of his parent’s care, nurture and guidance, a child is also entitled to compensation for loss of his deceased parent’s services. See Sea-Land Services v. Gaudet, 414 U.S. 573, 584-85 (1973). In drafting jury instructions, special caution needs to be given to distinguish between care, nurture and guidance damages and loss of services damages to avoid potential problems with double damages.
There appears to be gradual expansion of the care nurture and guidance remedy. The Second Circuit Court of Appeals in Mckee v. Colet Electronics, 849 F. 2d 46 (1988), held that adult children were not precluded from recovering care, nurture and guidance damages. Mckee at 52 recognized “the realities of an increasingly complex society where children rely more heavily and for a greater number of years on the guidance of their parents. In another District Court case, an award for spousal care, nurture and guidance was made. See Brantaus v. Odette Therese Fishing Co, 5. F3d 535 (1993). These cases expanding the remedies appear to emphasize the nature of the pecuniary damage suffered by the adult child or spouse and that, given specific factual patterns, an award may be made for care, nurture and guidance to spouses and adult children. There is no specific formula in the DOHSA act which limits care, nurture and guidance damages to any one class of beneficiaries. In this modern age, it is only a matter of time before the case arises where an aged parent receives compensation for the moral support and care lost as the result of a loving child’s death on the high seas.
To learn more about a child or spouse’s claim for loss of care, nurture and guidance damages, contact Beard and his partners at Johnson Beard & Trueb PC toll free at 1-800-621-1091. There is no charge for an initial consultation. Johnson Beard & Trueb PC represent clients on a contingency fee basis; no fees are charged until a recovery has been made.