Michaud v. McAnaney, et a l . 06-CV-408-SM 09/25/07 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Krista Michaud and Minda Fieldsend, Plaintiffs

v. Civil No. 06-CV-408-SM Opinion No.

Dianne McAnaney, Defendant

O R D E R

In two cases that have been removed from the New Hampshire

Superior Court, and consolidated here, Krista Michaud and Minda

Fieldsend have sued their mother, Diane McAnaney, for damages

arising out of her alleged failure to protect them from sexual,

physical, and emotional abuse at the hands of their stepfather,

David McAnaney, that allegedly took place from the 1970s through

1981. Before the court is defendant's motion for summary

judgment (document no. 12). For the reasons given, that motion

is denied.

Summary Judgment Standard

Summary judgment is appropriate when the record reveals "no

genuine issue as to any material fact and . . . the moving party

is entitled to a judgment as a matter of law." F e d . R. C i v . P. 56(c). "The role of summary judgment is to pierce the

boilerplate of the pleadings and provide a means for prompt

disposition of cases in which no trial-worthy issue exists."

Quinn v. City of Boston.

(1st Cir. 2003) (citing

Suarez v. Pueblo Int'l, Inc..

(1st Cir. 2000)).

When ruling on a party's motion for summary judgment, the court

must view the facts in the light most favorable to the nonmoving

party and draw all reasonable inferences in that party's favor.

See Lee-Crespo v. Schering-Plough Del Caribe Inc..

(1st Cir. 2003) (citing Rivera v. P.R. Aqueduct & Sewers

A u t h .,

, 185 (1st Cir. 2003)).

Background

Krista Michaud and Minda Fieldsend were born in 1966 and

1968, respectively, to defendant and Gary Kistler. Kistler died

in 1970, and defendant married David McAnaney in 1971.

In early May 2003, Michaud and Fieldsend sent their mother

an e-mail informing her "that the two of them had discovered

information . . . that caused them to hold [her] partially

responsible for injuries resulting from sexual abuse committed

against them while they were minors by . . . David McAnaney."

(Def.'s Mot. Summ. J., Dianne McAnaney Aff. 5 2). Specifically,

2 the sisters accuse their stepfather of abusing them from the

1970s through 1981. They say they first had reason to think that

their mother knew or should have known of David McAnaney's

abusive conduct in April of 2003. (Pl.'s O b j . to Summ. J., Ex. 5

5 5; i d ., Ex. 6 5 5.) Michaud and Fieldsend commenced suit

against their mother under New Hampshire law by writs of summons

dated September 27, 2006.

Discussion

Defendant moves for summary judgment on grounds that these

lawsuits are time-barred. After careful consideration, the court

disagrees.

The statute of limitations upon which defendant relies. New

Hampshire Revised Statutes Annotated ("RSA") 508:4-g provides:

A person, alleging to have been subjected to any offense under RSA 632-A or an offense under RSA 639:2, who was under 18 years of age when the alleged offense occurred, may commence a personal action based on the incident within the later of:

I. Seven years of the person's eighteenth birthday; or

II. Three years of the time the plaintiff discovers, or in the exercise of reasonable diligence should have discovered, the injury and its causal relationship to the act or omission complained of.

3 In defendant's view, the plain language of RSA 508:4-g entitles

her to judgment as a matter of law, given that plaintiffs

discovered the causal relationship between their injuries and her

alleged conduct no later than April 30, 2003, but did not file

suit until September of 2006. While RSA 508:4-g, II, could be

construed, literally, as requiring plaintiffs to have filed their

claims no later than April 30, 2006, that construction would be

entirely inconsistent with the plain intent of the legislature,

and would raise serious constitutional issues as well.

Before RSA 508:4-g became effective on July 22, 2005,

Michaud and Fieldsend had until April 30, 2009, to file suit

against their mother for personal injury. That is because their

causes of action arose no later than 1981, and, in Conrad v.

Hazen.

(1995), the New Hampshire Supreme Court held

that when, in 1986, the legislature amended RSA 508:4 — the

general tort statute of limitations — to reduce the limitations

period from six to three years, its decision to do so

prospectivelv left intact the six-year statute of limitations for

causes of action arising prior to July 1, 1986, the amendment's

effective date. I d . at 252. Defendant argues that the

legislature's subsequent enactment of RSA 508:4-g, II, manifested

an intent by the legislature to reduce the limitations period

4 applicable to personal injury actions arising before July 1,

1986, from six years to three years for plaintiffs alleging

personal injuries from child sexual abuse — that is, an intent to

carve out from the rule in Conrad v. Hazen a class of tort

plaintiffs consisting of child sexual abuse victims, and only

child sex abuse victims.

While, under New Hampshire law, legislative silence normally

leads to a presumption of retrospective application when

limitations statutes are amended, see Petition of Beauregard.

(2004); State v. Hamel.

(1994),

that rule should not control here, for at least two reasons.

First, the legislative history suggests otherwise. Senate Bill

("SB") 75, the bill that gave rise to RSA 508:4-g, was

consistently characterized as an effort to extend the statute of

limitations for plaintiffs filing civil actions based upon claims

of child sexual abuse. (Pl.'s O b j . to Summ. J., E x s . 2-4.)

Given that clear intent, it would be anomalous, to say the least,

to read RSA 508:4-g, II, as retrospectively applicable, and thus

having the effect of substantially shortening the pre-1986

limitations period only for those alleging injuries arising from

child sexual abuse, while leaving intact the six-year period for

all other similarly situated personal injury plaintiffs. See

5 Cloutier v. City of Berlin,

(2006) (explaining

that goal of state statutory construction "is to apply statutes

in light of the legislature's intent in enacting them, and in

light of the policy sought to be advanced by the entire statutory

scheme"); Becklev Capital Ltd. P'ship v. DiGeronimo.

(1st Cir. 1999) ("[s ]tatutory language should never be read

without attention to purpose even when the language seems clear

on its face") (citing NLRB v. Lion Oil Co..

(1957)).

The legislative history of SB 75 speaks only of the need to

provide those persons harmed by child sexual abuse with an

enlarged limitations period; nothing in the legislative history

suggests an intent to reduce the limitations period for any class

of plaintiffs, nor does it hint at a legislative purpose that

might be served by such a reduction. On the other hand, it is

entirely consistent with the intent of the legislature to

construe the three-year limitation period included in RSA 508:4-g

as little more than a reiteration of the general three-year

limitations period already applicable to personal injury claims

and already included in RSA 508:4. The three-year period

described in RSA 508:4-g also fairly includes by implication the

provision regarding prospective application, which preserves

6 rather than reduces the six-year limitation period available to

plaintiffs asserting claims of child sexual abuse that arose

prior to 1986.

Second, a significant constitutional impediment to

defendant's proposed construction of RSA 508:4-g, II, exists. It

seems apparent, given the decision in Carson v. Maurer.

(1980), overruled in part by Cmtv. Res, for Justice. Inc. v.

City of Manchester.

(2007), that the state

legislature could not, without transgressing the constitutional

principle of equal protection, limit a discrete class of

plaintiffs — those with pre-1986 causes of action arising from

child sexual abuse — to a three-year statute of limitations,

while allowing all other classes of personal injury plaintiffs

with pre-1986 causes of action to benefit from the previous six-

year statute of limitations. At least, it could not do so

without some rational justification. No such justification is

apparent here, no doubt because the legislature did not intend

such a result.

In Carson, the New Hampshire Supreme Court struck down, on

equal protection grounds, a state statute of limitations

applicable to medical injury actions, RSA 507-C:4, that required

7 minors injured when they were less than eight years old to file

suit no later than their tenth birthdays, thus denying that

particular class of personal injury plaintiffs the benefit of RSA

508:8, which allows minors claiming personal injury to file suit

up to two years after reaching the age of majority. I d . at 936-

37. In the court's view, the distinction drawn by the statute -

between medical injury claimants under eight years of age on the

one hand, and all other personal injury claimants under eight

years of age, on the other - did not advance the legislature's

objectives in enacting RSA 507-C and, consequently, "unfairly

burden[ed] and discriminate[d] against medical malpractice

plaintiffs, and . . . denie[d] such plaintiffs equal protection

of the laws." I d . at 937. A literal reading of RSA 508:4-g, II,

would render that statute vulnerable to the same constitutional

challenge directed against RSA 507-C and found meritorious in

Carson.

When construing state statutory provisions, the New

Hampshire Supreme Court "presume[s] that the legislature intended

to confine a statute's scope within constitutional limits." In

re R.A.,

(2005) (citing In re Pub. Serv. Co. of

N.H. .

(1982)). "A statute will not be

construed to be unconstitutional where it is susceptible to a construction rendering it constitutional." R.A.,

(citing White v. Lee.

(1983)). A construction

of RSA 508:4-g, II, that renders the statute constitutional is

one that presumes that the legislature imported the general

three-year statute of limitations from RSA 508:4 into RSA 508:4-

g, II, and intended that RSA 508:4-g, II, like RSA 508:4, would

operate prospectively only, rather than retrospectively to divest

plaintiffs claiming injuries from pre-1986 child sexual abuse -

and only those plaintiffs - of the six-year statute of

limitations. Thus construed, RSA 508:4-g, II, is not

unconstitutional and does not facially bar plaintiffs'’ suit,

since this action was filed within six years of plaintiffs'’

asserted discovery of the causal relationship between their

injuries and the acts or omissions of which they complain.

Finally, defendant's reliance upon Norton v. Patten.

(1984), is unavailing. Under New Hampshire law,

"statutes of limitation may be changed at the pleasure of the

legislative power, either by enlarging or restricting the period

within which suits may be brought." I d . at 416 (quoting Willard

v. Harvey.

(1852)). Such statutes may even be

changed retrospectively without violating Part I, Article 23 of

the New Hampshire Constitution. See State v. Hamel.

(1994) (quoting State v. Preston,

(1979); citing Norton,

)). But, unlike this case,

Norton involved a change in the law that applied to all potential

plaintiffs, not just a sub-class making a specific kind of claim.

And, of course, Carson stands for the proposition that the

legislative power to change statutes of limitation is constrained

by the constitutional guarantee of equal protection of the laws.

Thus, the legislature's unquestioned authority to retroactively

apply a change to a statute of limitations, without more, does

not counsel a different conclusion in this case.

Conclusion

For the reasons given, defendant's motion for summary

judgment (document no. 12) is denied.

SO ORDERED.

Ste'even J./McAuliffe Chief Judge

September 25, 2007

cc: Peter E. Hutchins, Esq. Cyrus F. Rilee, III, Esq. John A. Lassey, Esq.

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