Moreno v. Board of Education of the Jordan School District , 303 Utah Adv. Rep. 20 ( 1996 )

HOWE, Justice,

separate opinion:

I concur in that part of the lead opinion which holds that when a guardian brings a wrongful death action for the death of his ward, it is brought on behalf of the ward’s heirs and not for the personal benefit of the guardian. However, I dissent as to that part which holds that the instant action brought by the Morenos must be dismissed because the notice of claim given to the School District was defective.

Utah Code Ann. § 63-30-ll(3)(a) provides that a notice of claim shall contain (1) a brief statement of the facts, (2) the nature of the claim asserted, and (3) the damages incurred by the claimant so far as they are known. The purpose of a notice of claim is to give timely notice of the above requirements so that the state or one of its political subdivisions may conduct an investigation. In this case, that purpose was fulfilled. The notice of claim given by the Morenos stated the facts surrounding Bill’s drowning and made claim for his wrongful death. Amounts of damage were stated for his hospitalization, medical care, funeral, and loss of companionship. Because the Morenos were laboring under a mistake of law, they claimed damages for their loss of companionship rather than for the heir’s loss.

We hold that the notice of claim is sufficient to support the wrongful death action filed by the Morenos even though we have now decided that Bill’s heirs, not the More-nos, are the beneficiaries. Since section 78-11-6 authorizes a guardian to maintain an action for the wrongful death of his ward, it follows that the guardian has the authority to file the prerequisite notice of claim. The notice here was timely filed, set out the facts and the nature of the claim, and stated the damages incurred by the claimant “so far as they are known.” The Morenos, acting upon the advice of legal counsel and in good faith, erroneously claimed damages for their loss of companionship because of their misapprehension of the law. This should not be fatal since irrespective of who the beneficiaries of a wrongful death action are, the damages claimed for medical, hospitalization, and funeral costs do not change. Only the damages for loss of companionship might differ. In fact, because of Bartlett’s detachment from Bill, her damages might well be less than those of the Morenos. Therefore, no prejudice can be shown to the School District because the claim was filed by the Morenos in their own behalf rather than in a representative capacity for Bartlett or Bill’s heirs.

We hold that the notice of claim given to the School District was legally sufficient to support the maintenance of this wrongful death action, although the Morenos mistakenly assumed that they, not Bartlett, would be the beneficiaries of the action.

STEWART, Associate C.J., and DURHAM, J., concur.