Minion v. Burdin CV-95-428-M 05/29/96 P UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Minion Incorporated; and Futamu Sakurai, Plaintiffs,

v. Civil No. 95-428-M

William T. Burdin, Esquire, Defendant.

O R D E R

Plaintiffs, Minion Inc. and Futamu Sakurai, filed a three-

count complaint against William T. Burdin, Esq., alleging legal

malpractice. Count I charges Burdin with negligence, and Count

II alleges breach of contract. In Count III, plaintiffs claim

they are entitled to enhanced compensatory damages. Burdin now

moves to dismiss plaintiffs' claim for enhanced compensatory

damages for failure to state a claim upon which relief can be

granted. Fed. R. Civ. P. 12(b)(6). For the reasons discussed

below, Burdin's motion is necessarily denied.

I. STANDARD OF REVIEW

A motion to dismiss under Fed. R. Civ. P. 12(b)(6) is one of limited inquiry, focusing not on "whether a plaintiff will

ultimately prevail but whether the claimant is entitled to offer

evidence to support the claims." Scheuer v. Rhodes,

(1974). In considering a motion to dismiss, "the

material facts alleged in the complaint are to be construed in

the light most favorable to the plaintiff and taken as admitted,

with dismissal to be ordered only if the plaintiff is not

entitled to relief under any set of facts he could prove."

Chasan v. Village District of Eastman,

(D.N.H. 1983), aff'd without opinion,

(1st Cir. 1984)

(citations omitted).

II. DISCUSSION

Under New Hampshire law, a claim for enhanced damages is not

a separate cause of action; it is a request for a particular

remedy. See Sweet v. Hadco, No. C-95-576-M, slip op. at 2

(D.N.H. Jan. 18, 1996). A plaintiff can recover enhanced

compensatory damages from a defendant when the defendant's

actions constitute a state law tort and are "wanton, malicious,

or oppressive." Munson v. Raudonis,

(1978)

(quoting Vratsenes v. N.H. Auto, Inc.,

(1972)).

2 In Count I of their complaint, plaintiffs allege that Burdin

acted negligently in providing them with legal representation.

Therefore, Count III of plaintiffs' complaint, which alleges that

Burdin also acted willfully, wantonly, maliciously, and

oppressively toward plaintiffs while representing them, is

properly interpreted not as a separate cause of action but as a

claim for enhanced damages resulting from the tortious conduct

alleged in Count I .

A. Enhanced Damages for Unintentional Torts

Burdin moves to dismiss plaintiffs' claim for enhanced

compensatory damages, arguing that under New Hampshire law

enhanced damages are available, as a matter of law, only when the

defendant's conduct constitutes an intentional tort and was also

wanton, malicious, or oppressive. Since plaintiffs only allege

an unintentional tort here (negligence), the argument goes,

enhanced damages are unavailable as a matter of law. Burdin's

restrictive view of the law of enhanced compensatory damages does

not, however, find substantial support in the New Hampshire

caselaw on which he relies.

3 1. The Nature of the Conduct

According to Burdin, a plaintiff may recover enhanced

compensatory damages only when he or she brings a cause of action

against a defendant for an intentional tort. Central to his

argument is the notion that the availability of enhanced damages

turns on the intentional or unintentional nature of the tort

alleged in the complaint. However, the New Hampshire Supreme

Court has never linked enhanced compensatory damages to the

nature of the tort alleged. Rather, that court has consistently

held that the availability of enhanced damages turns on the

wanton, malicious, or oppressive nature of the defendant's

tortious conduct, whether the conduct constitutes an intentional

or unintentional tort.

The seminal case of Vratsenes v. N.H. Auto Inc.,

(1972), makes clear that enhanced damages may be awarded whenever

the act or conduct that constitutes a tort is "wanton, malicious,

or oppressive," the intentional or unintentional nature of the

tort alleged being immaterial.

. The court stated, "In

a civil action founded on a tort, nothing but compensatory

damages can be awarded, but the injured party is entitled to full

compensation for all the injury sustained . . . ."

at 73

4 (quotations and citations omitted, emphasis added). In some

cases, "the material damages may be trivial, and the principal

injury be to the wounded feelings from the insult, degradation,

and other aggravating circumstances surrounding the act."

(quotations and citations omitted, emphasis added). So, "when

the act involved is wanton, malicious, or oppressive, the

compensatory damages awarded may reflect the aggravating

circumstances."

(emphasis added).

In short, neither Vratsenes nor its progeny explicitly or

implicitly condition the availability of enhanced compensatory

damages on the intentional nature of the cause of action brought

by the plaintiff. Rather, a plaintiff seeking enhanced damages

must allege and prove that the defendant's tortious conduct was

wanton, malicious, or oppressive. Gelinas v. Mackev,

(1983); Johnsen v. Fernald,

(1980);

Munson v. Raudonis,

(1978).

Furthermore, the New Hampshire Supreme Court has explicitly

recognized that enhanced compensatory damages are available in

connection with unintentional tort claims. In Johnsen v.

Fernald,

(1980), the plaintiff sued the defendant in

tort, alleging that he negligently operated a motor vehicle while

under the influence of alcohol. The plaintiff failed, however.

5 to specifically allege that the defendant acted in a wanton,

malicious, or oppressive manner. Id. at 441. The trial judge

declined to instruct the jury on enhanced compensatory damages.

The New Hampshire Supreme Court affirmed the trial court's

refusal to instruct on enhanced compensatory damages, not because

enhanced damages are unavailable as a matter of law in

unintentional tort cases, but because the plaintiff had not

properly pled facts (i.e., wanton, malicious, or oppressive

conduct) entitling her to those damages. The court held that in

order to recover enhanced damages a plaintiff must both allege

and prove wanton, malicious, or oppressive conduct by the

defendant. Id. at 442. The court also determined that the

plaintiff's allegations and proof that the defendant in that case

operated a vehicle while intoxicated did not, in and of

themselves, constitute allegations and proof that the defendant

acted maliciously. Id. at 441. In concluding, the court

explained the state of New Hampshire's law in summary form:

In Munson, we refused to eguate an intentional tort with malice for the purpose of enhancing damages and stated that "liberal compensatory damages will not be allowed without the allegation and proof of wanton, malicious, or oppressive conduct." . . . It is only logical that the same rule apply to the unintentional tort of negligence.

6 Id. at 442 (first emphasis in Johnsen, second emphasis added).

Therefore, the New Hampshire Supreme Court has recognized that

enhanced damages are, at least in theory, available under New

Hampshire common law for unintentional torts, if the reguisite

aggravated conduct is both alleged and proven.

2. Responsibility versus Compensability

Allowing the availability of enhanced damages to turn on the

intentional or unintentional character of the underlying tort

would effectively link two discrete standards that the New

Hampshire Supreme Court has consistently treated as independent

of one another. That is, the standard for determining

compensability would become directly linked to the standard for

determining legal responsibility for injuries resulting from

tortious conduct. In short, as a prereguisite to showing wanton,

malicious, or oppressive conduct for damages purposes, a

plaintiff would be reguired to show that the defendant's conduct

was intentional for liability purposes. New Hampshire law,

however, maintains a sharp distinction between the standards for

determining legal responsibility and compensability.

For example, in what is generally viewed as one of the

earliest New Hampshire cases touching upon enhanced damages (see

7 Buchanan v. Westinqhouse Elec. Corp., No. C-90-370-B, slip op. at

3 (D.N.H. Aug. 17, 1993)), the court in McBride v. Huckins,

(1911), recognized the insignificance of willful conduct

relative to determining negligence liability while recognizing

its significance relative to determining damages: "If it is true

that in an action for negligence it is immaterial on the question

of liability whether the defendant acted willfully in doing the

act complained of, the circumstances attending the act, including

the motives of the defendant, may often be considered in

assessing damages."

(emphasis added).

The New Hampshire Supreme Court recently followed its

practice of keeping the standards for determining responsibility

and compensability independent of one another. In Panas v.

Harakis,

(1987), the court rejected the plaintiff's

argument that liability and enhanced compensatory damages are

inextricably linked, noting, "We think a fairly clear distinction

can be made between the responsibility of [defendants] for

[plaintiff's] injuries and the compensability of those injuries."

. The notion that the standard for determining

compensability is independent of the standard for determining

responsibility also underlies the decisions in Munson v.

Raudonis,

(1978) (holding that plaintiff's allegation and proof of an intentional tort is not, ipso facto,

allegation and proof of wanton, malicious, or oppressive conduct

for purpose of enhanced damages) , and Johnsen v. Fernald,

(1980) (stating that allegation and proof of

particularly "deplorable" negligence tort does not constitute

allegation and proof of wanton, malicious, or oppressive conduct

for purpose of enhanced damages).

3. Wantonness

That enhanced compensatory damages are available in

negligence cases when the defendant's conduct is also wanton,

malicious, or oppressive finds further support in the New

Hampshire Supreme Court's treatment of the first of these three

types of aggravated conduct. In Thompson v. Forest,

(1992), the court determined that an allegation of "wanton"

conduct does not necessarily constitute and allegation of

"intentional" conduct that would give rise to a claim for an

intentional tort. Rather, the court held that wanton conduct, in

some situations, may only give rise to a negligence claim: "The

defendant who acts in the belief or consciousness that the act is

causing an appreciable risk of harm to another may be negligent,

and if the risk is great the conduct may be characterized as reckless or wanton, but it is not an intentional wrong."

(emphasis added). "Willful, wanton, and reckless conduct

may, or may not, be the basis for a properly pleaded intentional

tort."

Indeed, on another occasion the New Hampshire Supreme Court

suggested that allegations of wanton behavior are more consistent

with negligence torts than with intentional torts. In Akerlev

v. Hartford Ins. Group,

(1992), the court

distinguished negligence torts from intentional torts and noted

that "claims of willful, wanton, and reckless conduct have

generally been treated . . . as an aggravated type of

negligence."

. Therefore, it is entirely consistent

with New Hampshire tort law for "wanton" conduct justifying

enhanced damages to be found in connection with an unintentional

tort.

4. Federal Courts and State Law

In the face of this precedent, defendant relies heavily on

two decisions which, he argues, limit the recovery of enhanced

damages, as a matter of law, to cases involving intentional

torts. First, defendant points to the New Hampshire Supreme

Court's statement in Munson that "liberal compensatory damages

10 are to be awarded only in exceptional cases, and not in every

case involving an intentional tort." Munson,

.

But, as Justice Douglas later noted, Munson "merely stands for

the relatively innocuous proposition that not every intentional

tort is accompanied by 'malice.'" Johnsen,

(Douglas, J., concurring). Munson simply does not purport to

address the availability of enhanced damages for unintentional

torts.

The defendant also relies on Buchanan v. Westinqhouse

Electric Corp., No. C-90-370-B (D.N.H. Aug. 17, 1993), in which

this court (Barbadoro, J.) observed that "the New Hampshire

Supreme Court has shown no inclination to extend a plaintiff's

right to claim enhanced damages to negligence torts."

at 5

(citing DCPB, Inc. v. City of Lebanon,

(1st Cir.

1992)).1 The Westinqhouse decision recognizes that the

1 In DCPB,

, the Court of Appeals for the First Circuit stated, "To date, the New Hampshire cases have limited enhanced damages to particular causes of action sounding in tort - and even then, the remedy has been reserved for intentional torts committed under exceptionally unsavory circumstances."

Defendant interprets the second half of this statement, particularly the court's use of the word "reserved," as a declaration by the First Circuit that New Hampshire's common law limits the availability of enhanced damages to intentional torts. Read in context, however, the observation that "the remedy has been reserved for intentional torts committed under exceptional unsavory circumstances" is simply an accurate characterization of the cases in which the New

11 circumstances in which enhanced damages are available under New

Hampshire common law are very limited, and that the New Hampshire

Supreme Court has taken a decidedly restrictive approach to

enhanced damage awards. In fact, the New Hampshire Supreme Court

has yet to consider (or affirm) an actual award of enhanced

compensatory damages based on egregious conduct related to an

unintentional tort.

In this case too, plaintiffs' proof must pass a strict test,

both at the summary judgment stage and at trial, before a jury

will even consider an award of enhanced damages. However, where,

as here, plaintiffs' allegations of malicious, wanton, or

oppressive conduct are not merely subjective characterizations

unsupported by the facts alleged, dismissal at this early stage

would be inappropriate.

One other matter deserves mention. " [L]itigants who reject

a state forum in order to bring suit in federal court under

diversity jurisdiction cannot expect that new trails will be

blazed" through the field of state common law. Ryan v. Royal

Hampshire Supreme Court has had occasion to affirm the actual award of enhanced damages; it was likely not meant to suggest that New Hampshire does not, as a matter of law, award enhanced compensatory damages for unintentional torts. Moreover, the statement is dicta and had absolutely no bearing on the holding of DCPB - that enhanced damages are not available under New Hampshire common law for breach of contract.

12 Ins. C o .,

(1st Cir. 1990). However, where the

course the state court would chart is "reasonably clear," a

federal court should undertake its own prediction and application

of state law. Nieves v. University of Puerto Rico,

(1st Cir. 1993); Armacost v. Arnica Mut. Ins. Co.,

(1st Cir. 1993). Here, New Hampshire's law governing

enhanced damages is reasonably clear in light of Vratsenes and

Johnsen: Enhanced compensatory damages are available if the

plaintiff alleges and proves that the defendant's conduct is

tortious (cognizable either as an intentional or unintentional

tort) and was also wanton, malicious, or oppressive. That rule

of law would not be extended, nor any rights expanded, by its

application in this case.

Because, under New Hampshire common law, enhanced

compensatory damages are available when a defendant's conduct

constitutes a tort, either intentional or unintentional, and

plaintiff has both pled and proven that the tortious conduct was

wanton, malicious, or oppressive, and because plaintiffs here

have specifically alleged that Burdin's actions constituted

negligence and were wanton, malicious, or oppressive, their claim

for enhanced compensatory damages necessarily survives Burdin's

motion to dismiss for failure to state a claim upon which relief

13 can be granted. Whether plaintiffs can overcome a motion for

summary judgment on the point, or can offer sufficient evidence

to warrant an enhanced compensatory damages jury instruction,

remain to be seen.

III. CONCLUSION

For the reasons discussed, plaintiffs' complaint, having

alleged each predicate for recovery, does state a viable claim

for enhanced compensatory damages. Accordingly, defendant's

motion to dismiss plaintiffs' claim for enhanced damages

(document no. 6) is denied.

SO ORDERED.

Steven J. McAuliffe United States District Judge

May 2 9, 1996

cc: William L. Chapman, Esg. James K. Hillman, Esg.

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