Adult siblings can claim wrongful death damages, says Vermont high court.

The Vermont Supreme Court has ruled that the adult sibling of a murder victim is entitled to damages under the state's wrongful death act. In partially reversing a lower court ruling, the state's highest court said the plaintiff, Dennis Dubaniewicz, could be compensated for funeral expenses and loss of companionship after his brother's slaying, but not for his brother's pain and suffering. (Dubaniewicz v. Houman, 2006 WL 2640172 (Vt. Sept. 1, 2006).)

"Because the term 'next of kin' in the wrongful death act should carry the same meaning as it does in the laws of descent, brothers and sisters of a decedent can be next of kin entitled to recover damages under the act," wrote Justice John Dooley for the majority.

Dooley cited precedent from appellate courts in Illinois and Oklahoma as well as Clymer v. Webster, a 1991 Vermont case in which the high court found that "the loss of the comfort and companionship of an adult child is a real, direct, and personal loss that can be measured in pecuniary terms." (596 A.2d 905 (Vt. 1991).)

To the defendants' argument that Clymer had been wrongly decided, Dooley responded that they had offered no compelling reasons to reconsider the ruling, "which is consistent with the modern trend and the decisions of the majority of jurisdictions construing similar statutes."

Patrick Ankuda, a Springfield, Vermont, lawyer who represented Dubaniewicz, said, "This is a major decision, particularly in Vermont, which has never allowed claims for any other family members" beyond spouses and minor children. "The wording of our [wrongful death] statute says 'next of kin' are entitled to compensation, but the Vermont Supreme Court has never said exactly what is 'next of kin.'"

In 1998, Michael Dubaniewicz was shot to death in the Castleton home he shared with two friends: Robert Houman and Houman's girlfriend, Linda LaPenna. Although police investigators treated the death as a homicide, the chief suspect, Houman, was never charged. Houman, who was a convicted felon when he bought the weapon used to kill Michael just days before the shooting, eventually pleaded guilty to a federal charge of illegal gun possession and was incarcerated.

Dennis Dubaniewicz, as Michael's executor, sued Houman, LaPenna (who was also home when the murder took place), and the owners of the store where Houman purchased the weapon. The suit against the gun store was settled. The trial court awarded Dennis a default judgment on liability against Houman and LaPenna but ruled that he was not entitled to claim damages.

The Vermont Supreme Court said Dennis did not provide enough evidence of his brother's pain and suffering at the time of death to support a damages award, noting that he relied solely on the uncorroborated testimony of one state trooper who said Michael had tracked blood through several rooms of the house (indicating that he died slowly). But the court said Dennis did provide evidence of financial loss and loss of companionship.

"This was a very sympathetic plaintiff, and a very appealing story," said Ankuda, who said he grew up with the Dubaniewicz family. "To put it plainly, Michael was a saint. When his brothers, Steven and Dennis, testified in court about their relationship with him, it was astounding. The court said they just had to 'prove a loss,' and they certainly did that."

In a dissent joined by Chief Justice Paul Reiber, Judge Brian Burgess wrote that despite the "horrific" facts of the case, "Vermont's wrongful death act creates no cause of action for grief, anguish, and loss of companionship resulting from the wrongful killing of a brother or sister. The right to recover any damages for wrongful death is purely statutory. No such claim exists in common law."

Dooley acknowledged the dissent's argument but noted that "in this case ... [the] plaintiff's suit was not brought under the common law, but rather under [section] 1492 (b), which allows damages for pecuniary injuries resulting from the death of next of kin, and thus superseded the common law notion that recovery for damages ceases upon death."

Ankuda said the case "bodes well for the future. Many people have lost loved ones and had no recourse in the courts. This puts a human face on their predicament. The law should always move in a humanistic fashion."