Porter v . Dartmouth College, et a l . CV-07-28-JL 1/12/10 P UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

Christina M . Porter, Deceased, by Brent M . Porter and Mary M . Salstrom, As Administrators of Civil N o . 07-cv-28-JL Her Estate and Individually Opinion N o .

v.

Dartmouth College, et a l .

OPINION AND ORDER

The question before the court is whether this wrongful death

case must be dismissed because the plaintiffs, who brought suit

three years ago claiming to be the administrators of their

daughter’s estate, were not actually appointed as administrators

until six months ago, after the statute of limitations expired.

The defendant, Dartmouth College, has moved to dismiss for lack

of standing, see Fed. R. Civ. P. 12(b)(6), arguing that timely

appointment is required for an administrator to maintain a

wrongful death action under New Hampshire law. The plaintiffs

argue that they cured their good-faith mistake by ultimately

becoming administrators and that their case should not be

dismissed on a “technicality.”

This court has subject-matter jurisdiction under

(a)(1) (diversity). After oral argument, Dartmouth’s

motion is denied. Although the plaintiffs may not have strictly

complied with the wrongful death and survival statute, see N.H.

Rev. Stat. §§ 556:9 et seq., the New Hampshire Supreme Court has “given [the statute] a liberal interpretation, so as to fully

protect the rights of those interested in the estate.” Owen v .

Owen,

3 4 , 536 (1969) (quoting Halle v . Cavanaugh,

1 8 , 420 (1920)). This court, applying New Hampshire law,

must do the same. The relevant case law from the New Hampshire

Supreme Court suggests that the plaintiffs should be allowed to

proceed to trial now that they have been appointed as

administrators of their daughter’s estate.

I. Applicable legal standard

For purposes of ruling on Dartmouth’s motion to dismiss,

this court must accept the plaintiffs’ well-pleaded facts as true

and must draw all reasonable inferences in their favor. Phoung

Luc v . Wyndham Mgmt. Corp.,

5 , 88 (1st Cir. 2007).

Because the motion challenges the plaintiffs’ capacity to

maintain suit on behalf of their daughter’s estate, it is

governed by “the law of the state where the court is located.”

Fed. R. Civ. P. 17(b)(3); see also Martel v . Stafford,

(1st Cir. 1993) (applying forum state’s law in determining

administrator’s capacity). In applying New Hampshire law, this

court is “bound by the teachings of the state’s highest court.”

Phoung Luc, 496 F.3d at 8 8 . To the extent that the New Hampshire

Supreme Court “has not definitively weighed in,” this court “may

consider analogous decisions, considered dicta,” and other

2 reliable sources in making an “informed prophecy” about how that

court would resolve the issue. Janney Montgomery Scott LLC v .

Tobin,

6 2 , 164 (1st Cir. 2009).1

II. Background

Christina Porter, a sophomore at Dartmouth College, suffered

catastrophic injuries while participating in the school’s

introductory ski class at the Dartmouth Skiway on February 3 ,

2004. After nearly a year of medical care, she ultimately died

from the injuries on January 1 6 , 2005. At the time of her death,

she was 21 years old with no spouse, no children, no siblings, no

will, and no tangible assets other than her portfolio of artwork

from grade school to college. Her closest living relatives were

her parents, plaintiffs Brent Porter and Mary Salstrom.

1 The plaintiffs also try to invoke federal law by moving to supplement their complaint with a paragraph describing their appointment as administrators, see Fed. R. Civ. P. 15(d), and then arguing that the paragraph relates back to the time of filing under Fed. R. Civ. P. 15(c). It is true that “Rule 15(c) applies in a diversity case notwithstanding the incidence of a more restrictive state rule.” Morel v . DaimlerChrysler AG,

0 , 25 (1st Cir. 2009). But if state law is less restrictive, then it automatically controls. See id. at 2 6 . Because New Hampshire law applies by virtue of Rule 17(b)(3) and allows this case to go forward, see infra Part I I I , this court need not conduct a separate analysis under Rule 15(c). The plaintiffs’ motion for leave to file an amended/supplemented complaint, see document n o . 9 5 , will be resolved in due course after briefing has been completed.

3 The plaintiffs filed this lawsuit against Dartmouth on

February 2 , 2007, just before the three-year anniversary of their

daughter’s accident. They asserted claims for wrongful death and

negligence under New Hampshire law, both individually and as

purported administrators of their daughter’s estate. Dartmouth

initially moved to dismiss the case as barred by the New

Hampshire Ski Statute. See N.H. Rev. Stat. § 225-A:24 (giving

ski area operators limited immunity against personal injury

claims that result from the inherent risks of skiing). The court

denied the motion, but noted that because their daughter was an

adult, the plaintiffs could not maintain individual claims for

loss of consortium. See Porter v . Dartmouth Coll.,

3 1 ,

7-8 n.3 (Barbadoro, D . J . ) .

Two years into the case, with discovery still underway,

Dartmouth asked the plaintiffs for a copy of their estate

administration papers, which it needed to obtain confidential

medical records from their daughter’s medical providers. In

attempting to satisfy that request, plaintiffs’ counsel learned

in May 2009 that neither the plaintiffs nor anyone else had ever

sought appointment as administrators of their daughter’s estate.

The plaintiffs mistakenly believed that, as surviving parents,

they became administrators automatically when their daughter died

without a will.2

2 Both plaintiffs have filed affidavits regarding their mistaken belief. At oral argument, plaintiffs’ counsel took

4 Hoping to rectify this good-faith mistake, the plaintiffs

immediately began the process of seeking appointment as

administrators from the probate court in Kings County (Brooklyn),

New York, where they and their daughter resided at the time of

her death. In the meantime, Dartmouth moved to dismiss this case

for lack of standing. Two weeks later, on July 2 1 , 2009, the

plaintiffs finally obtained letters of administration from the

probate court.

As briefing continued on the motion to dismiss, the court

denied Dartmouth’s previously submitted motions for summary

judgment, leaving the case on track for a February 2010 trial.

See Porter v . Dartmouth Coll.,

(Barbadoro, D.J.)

(denying summary judgment motion relating to liability release

agreement); margin order dated Aug. 1 9 , 2009 (Barbadoro, D.J.)

(denying summary judgment motion relating to standard of care).

The case was then reassigned to this chambers after Judge

Barbadoro recused himself.

responsibility for the mistake, admitting--as officers of the court, see N.H. R. Prof. Conduct 3.3; L.R. 83.5, DR-1--that they failed to ask the plaintiffs for letters of administration or to check with the probate court. They denied having any intent to mislead Dartmouth or this court. Dartmouth has not identified, nor can this court conceive o f , any plausible reason why the plaintiffs would have intentionally misrepresented their status. This court therefore finds that the plaintiffs acted in good faith.

5 III. Analysis

This court must decide whether the plaintiffs have standing

to continue litigating their claims under New Hampshire’s

wrongful death and survival statute, N.H. Rev. Stat. §§ 556:9 et

seq. Dartmouth argues that the plaintiffs lack standing because

they were not appointed as administrators of their daughter’s

estate within the statute of limitations and they failed to

satisfy the statutory requirements for someone other than an

administrator to maintain such an action. The plaintiffs argue,

in response, that they made a good-faith mistake, which has since

been cured by their appointment as administrators, and that their

case should not be dismissed on a “technicality.” After

analyzing (A) the statutory framework and (B) the relevant case

law, this court (C) concludes that the plaintiffs have standing

and may proceed to trial.

A. The statutory framework

New Hampshire’s wrongful death and survival statute provides

that “the administrator of the deceased party” may bring a

wrongful death action as plaintiff on behalf of the estate. N.H.

Rev. Stat. § 556:12. Like most personal actions under New

Hampshire law, a wrongful death action “may be brought only

within three years of the act or omission complained of.”

6 Cheever v . S . N.H. Reg’l Med. Ctr.,

(1997)

(quoting N.H. Rev. Stat. § 508:4, which applies to wrongful death

cases by virtue of N.H. Rev. Stat. § 556:11). 3 If not filed in a

timely manner, the action is forever barred. See Heath v .

Cleveland,

5 1 , 453 (1963) (citing Poff v . New Eng. Tel.

& Tel. Co.,

6 4 , 165 (1903)).

The statute also allows other interested persons to file a

wrongful death action and then seek the administrator’s approval:

Any person interested in the estate of a person deceased may begin an action as administrator, which shall not be abated nor the attachment lost because such person is not administrator, nor by his decease, if the administrator then or afterward appointed shall, at the first or second term of the court, indorse the writ and prosecute it as plaintiff.

N.H. Rev. Stat. § 556:19. Unchanged since 1842, this provision

is an exception to the “general rule” that an “administrator is

the only proper party to bring or defend actions relating to the

personal estate of the deceased.” Scamman v . Sondheim,

(1952).

The plaintiffs have not strictly complied with the statute

in this case. They did bring suit within the three-year

limitations period, claiming to be the administrators of their

daughter’s estate. At the time, however, they had not sought

appointment as administrators and thus were not authorized to

3 The plaintiffs argue that the applicable statute of limitations should be six years, not three years. But the New Hampshire Supreme Court expressly rejected that argument in Cheever,

.

7 bring suit in that capacity. They were merely interested

persons, authorized to “begin an action” under § 556:19 but then

required to get the administrator’s approval within “the first or

second term of the court.”4 They later became the administrators

and endorsed the action, but not within two terms of court, nor within the statute of limitations.5

The New Hampshire Supreme Court, though, has not always

required strict compliance with the statute. To the contrary, it

has “given [§ 556:19] a liberal interpretation, so as to fully

protect the rights of those interested in the estate.” Owen,

(quoting Halle, 79 N.H. at 4 2 0 ) . Whether this court

agrees or disagrees with that approach to statutory

interpretation is irrelevant. On issues of New Hampshire law,

this court’s “task is to ascertain the rule the state court would

most likely follow under the circumstances, even if [this

court’s] independent judgment on the question might differ.”

4 New Hampshire law provides for at least two terms of court annually. See N.H. Rev. Stat. § 496:1(II). Both parties agree, and this court assumes for purposes of analysis, that the statute’s antiquated reference to “the first or second term of the court” therefore means within at least one year of when the suit is filed. See Merrill v . Woodbury,

0 4 , 504 (1881) (measuring the two court terms from when “the action was brought”). 5 The plaintiffs argue that, notwithstanding the statute of limitations, administrators may bring an action at any time within one year of the original grant of administration under N.H. Rev. Stat. § 556:7. But that provision “does not apply to actions for personal injuries or wrongful death.” Perutsakos v Tarmey,

1 , 52 (1966); see also N.H. Rev. Stat. § 556

8 Rodriguez v . Suzuki Motor Corp.,

0 2 , 406 (1st Cir.

2009) (quotation omitted). As explained below, the case law

indicates that the New Hampshire Supreme Court would allow the

plaintiffs to maintain their wrongful death case under these

circumstances, notwithstanding their failure to comply strictly

with the statute.

B. The case law

The New Hampshire Supreme Court has wrestled with the

meaning of § 556:19 in four key cases spanning more than a

century: Merrill v . Woodbury,

(1881), Tanner v .

King,

(1960), Owen,

, and Canty v .

Hopkins,

(2001). While none of the cases is exactly

like this one, they all involve similar issues and thus offer

some insight into how the state supreme court would resolve the

issue here.

In the first case, Merrill, the administrator refused to

endorse the plaintiff’s action to collect a debt belonging to her

husband’s estate. The New Hampshire Supreme Court initially felt

compelled to dismiss the case:

It is not a matter of discretion whether the suit shall abate or not. Without the [wrongful death] statute the suit could not have been brought as it was; and as no person, legally representing the deceased, appeared within the time fixed by the statute, and the administrator declines to appear, there is no plaintiff in court, and the action cannot be maintained.

9

.

During the next court term, however, the Merrill plaintiff

moved for leave to amend her complaint by inserting the

administrator’s name as plaintiff and indemnifying him against

any litigation costs.

To prevent “a serious hardship and a

grave injustice,” the New Hampshire Supreme Court changed its

mind and allowed the case to go forward:

Having in good faith undertaken to collect a claim belonging to her husband’s estate, in which she has an interest, a compulsory abandonment of the suit may leave her without other redress . . . . The defendant cannot complain if he is put to his defence on the merits by a trial of this action, which will conclude the rights of all parties.

In the second case, Tanner, no administrator was ever

appointed. The New Hampshire Supreme Court had to decide whether

the decedent’s husband, as an interested person, “can prosecute

[the case] to a conclusion in that capacity or must it be

prosecuted by an administrator.”

. The court

decided that the case could not go forward because “the

Legislature intended that actions to recover damages for wrongful

death were to be handled by an administrator accountable to the

probate court” in order to “insure[] an orderly procedure in the

prosecution of the action and a supervised payment of claims and

distribution of the proceeds.”

; see also Hebert v .

Hebert,

(1980) (“[I]n Tanner, we held that only

10 the administrator may maintain an action under the survival

statute.”). The New Hampshire Supreme Court later called Tanner

a case where even “a liberal interpretation of the statute could

not save the day.” Owen,

.

In the third case, Owen, the plaintiff brought suit as a

voluntary administrator of his wife’s estate, not a regular

administrator appointed by the probate court. Id. at 535. At

the time, New Hampshire law allowed a spouse to become the

voluntary administrator of a small estate (consisting entirely of

personal property not exceeding $1500) by filing an affidavit

with the probate court, rather than having to petition for formal

letters of administration.6 Id. (citing N.H. Rev. Stat. §

553:31, 1961 N.H. Laws ch. 1 0 8 , repealed by 2005 N.H. Laws ch.

252). The plaintiff’s wrongful death action technically exceeded

his authority as a voluntary administrator. At oral argument,

though, the plaintiff informed the supreme court that he recently

had been appointed as regular administrator and sought leave to

amend the complaint to that effect.

Although the time for administrator endorsement had already

passed under § 556:19 and the statute of limitations had also

6 The position of voluntary administrator did not exist when § 556:9 was originally enacted.

11 expired,7 the New Hampshire Supreme Court decided that the case

could go forward:

[T]he action for wrongful death was instituted by an administrator, even though he was a voluntary administrator rather than a regular administrator. A voluntary administrator ought to be allowed to turn over to a regular administrator any rights or assets without jeopardy or abatement and this is what the statute contemplates. In this jurisdiction . . . ‘pleading is considered only a means to an end. The end is accomplished if counsel can understand the dispute and the court can decide the controversy on its merits.’ This approach to the problem of abatement is applicable to wrongful death actions.

Id. at 537 (quoting Morency v . Plourde,

4 4 , 346 (1950),

and citing 1961 N.H. Laws ch. 1 0 8 ) .

In the fourth case, Canty, the plaintiff brought suit as the

administrator of his father’s estate after the probate court

removed him from that position for failing to fulfill his

administrative duties. The probate court replaced him with a

special administrator, who declined to endorse the suit. The New

Hampshire Supreme Court held that, by virtue of his prior removal

from the administrator position, “the plaintiff lacked standing

to bring any claims as administrator of his father’s estate.”

.

7 While Owen does not expressly discuss the statute of limitations, it indicates that the plaintiff became regular administrator more than two years after his wife’s death. At that time, the applicable limitations period was two years. See Heath,

(citing N.H. Rev. Stat. § 556:11, 1887 N.H. Laws ch. 7 1 , since replaced by 1983 N.H. Laws ch. 1 7 7 ) .

12 C. Application to this case

This case is much closer to Owen than to any of the other

New Hampshire Supreme Court cases applying § 556:19. As in Owen,

the plaintiffs have now become administrators of their daughter’s

estate and have endorsed the case in that capacity. It is true

that, as Dartmouth stresses, neither the appointment nor the

endorsement happened within “the first or second terms of the

court” under § 556:19, or within the three-year statute of

limitations. But the same was true in Owen. There, too, the

plaintiff brought suit within the statute of limitations, but was

not appointed as administrator until after two court terms and

the limitations period expired. Nevertheless, the New Hampshire

Supreme Court allowed his case to go forward. While not directly

controlling here, Owen strongly suggests that this case should be

allowed to proceed to trial as well.

Dartmouth argues that Owen is distinguishable because the

plaintiff there was already an administrator (albeit a voluntary

one, not a court-appointed one) when he filed suit. Indeed, that

is the reason why Owen is not directly controlling. But the

distinction is not nearly as significant as Dartmouth suggests.

As a voluntary administrator, the Owen plaintiff had only limited

authority to administer a small estate consisting entirely of

personal property; he did not have authority to bring the

wrongful death action. See In re Estate of Magoon,

1 1 ,

13 213 (1968) (ruling that the appointment of a voluntary

administrator had “no effect with respect to property of the

deceased not administrable in that form”). Thus, for purposes of

that action, the Owen plaintiff was in more or less the same

position as the plaintiffs here: he was the most logical and

likely choice to represent the estate, but technically lacked

authority to do so until later appointed as regular

administrator.

By the same token, this case is meaningfully distinguishable

from the other three New Hampshire Supreme Court cases, none of

which had the support of an administrator (even a late-appointed

one). In one of them, Tanner, no administrator was ever

appointed; the plaintiff sought to litigate the case to

completion as merely an interested person. Here, in contrast,

the plaintiffs have been authorized to represent their daughter’s

estate and seek to complete the case in that capacity.8 The

policy goals that Tanner attributed to § 556:19--i.e.,

accountability to the probate court, orderly prosecution, and

supervised distribution of proceeds--can all be achieved in this

8 Dartmouth argues that this case is effectively the same as Tanner because no administrator had been appointed when it filed the motion to dismiss. In other words, Dartmouth argues that the plaintiffs’ post-motion appointment is irrelevant to the analysis. But Owen suggests otherwise. There, the plaintiff did not announce his appointment as regular administrator until the appellate oral argument, but the New Hampshire Supreme Court still considered i t .

14 posture. See Owen,

(distinguishing Tanner due to

the lack of an administrator).

In the other two cases, Merrill and Canty, the administrator

affirmatively refused to support the plaintiff, meaning that the

case went against the express wishes of the estate’s appointed

representative. No such conflict exists in this case. The

plaintiffs were the first and only administrators appointed for

their daughter’s estate. Unlike in Merrill and Canty, there is

no risk here that the estate will incur unnecessary and unwanted

litigation expenses, or that Dartmouth will face duplicative

litigation. See Owen,

(distinguishing Merrill

due to the administrator’s opposition).

Moreover, the New Hampshire Supreme Court ultimately allowed

the Merrill plaintiff to go forward with her case anyway, in

order to prevent “grave injustice” and “serious hardship.”

. The opinion emphasized that she had acted “in good

faith,” had no “other redress than the precarious chance of

charging the administrator,” and had given the defendant adequate

notice of the dispute.

The same is true here. The

plaintiffs have acted in good faith and have no other means of

seeking redress for their daughter’s untimely death, except

perhaps the precarious chance of suing their own attorneys for

not advising them to open the estate earlier. Even more so than

in Merrill, it would be a “grave injustice” and a “serious

15 hardship” to dismiss their case now that they have been appointed

as administrators.

Like the defendants in Merrill and Owen, Dartmouth “cannot

complain if [it] is put to [its] defence on the merits by a trial

of this action, which will conclude the rights of all parties.”

Merrill,

. The plaintiffs filed this suit three

years ago, within the statute of limitations, and thus gave

Dartmouth ample--and timely--notice of their claims. The parties

have conducted extensive discovery, and Dartmouth has twice moved

for summary judgment. All along, both parties proceeded under

the assumption that the plaintiffs were authorized to represent

their daughter’s estate--and now they are. Their good-faith

mistake has been cured, the substance of the case remains

unchanged, and Dartmouth has not suffered any prejudice.9

Dismissing the case under these circumstances would be a

stricter application of § 556:19 than the New Hampshire Supreme

Court has ever condoned. Moreover, it would be inconsistent with

“the mode of analysis which the Court has employed in [recent

wrongful death] decisions,” which “has evinced a greater

solicitude for the substantive right to the redress of actionable

personal injuries which the statute provides.” 8 Richard B .

9 Dartmouth argued in its motion that the plaintiffs’ late appointment as administrators prejudiced its efforts to obtain their daughter’s medical records. At oral argument, however, Dartmouth acknowledged that it now has all of the records and that they turned out to be of little significance.

16 McNamara, New Hampshire Practice, § 10:02 (3d ed. 2003). The New

Hampshire Supreme Court has expressed a strong preference for

reaching decisions on the merits, not only in wrongful death

cases but also in its broader jurisprudence. See, e.g., Roberts

v . Gen. Motors Corp.,

(1996) (“our State has

a different legal tradition than other States” and “make[s] every

effort to reach a judgment on the merits, to achieve the ends of

justice unobstructed by imaginary barriers of form”); In re

Proposed N.H. R. Civ. Pro.,

1 2 , 516 (1995) (calling it

“practically impossible to lose an action because of a

‘procedural technicality’” in New Hampshire); Morency, 96 N.H. at

346 (“in no state is pleading treated more liberally and regarded

as less of a game than in this jurisdiction”).

It is worth noting that the “great majority of cases” in

other states have allowed wrongful death cases to go forward

where the plaintiff files suit within the statute of limitations

but is not appointed as administrator until after the limitations

period has expired. J.F. Rydstrom, Running of statute of

limitations as affected by doctrine of relation back of

appointment of administrator,

, § 3[a] (1965 &

supp.) (citing cases, which apply various theories depending on

the state’s l a w ) ; see also Wozniak v . United States,

(D. Mass. 1988). If the court were to rule otherwise

here, it would have the perverse effect of treating New Hampshire

17 as one of the strictest states in this area, when it strives to

be the most lenient. This would not be the “informed prophecy”

required of a federal court applying state law. Janney

Montgomery Scott,

.

Dartmouth argues that New Hampshire would reject the

majority view because, unlike most states, it regards timely

filing and timely administrator appointment as “conditions

precedent” that, if not satisfied, extinguish any right to relief

under the wrongful death statute. See Gen. Motors Corp. v .

Arnett,

(Ind. C t . App. 1981) (distinguishing

the majority view on that basis). Whatever validity this

“condition precedent” argument may have, see Heath,

; but see New Hampshire v . Preston,

7 7 , 880 (1979),

the New Hampshire Supreme Court did not view it as a barrier in

Owen and Merrill. In fact, Owen characterized the timing of

administrator appointment as a “pleading” issue that should be

“considered only a means to an end.”

(quoting

Morency, 96 N.H. at 3 4 6 ) . According to Owen, that “end is

accomplished if counsel can understand the dispute and the court

can decide the controversy on its merits.” Id. In this case,

there is no question that the parties, their counsel, and the

court all fully understand the dispute. As in Owen and Merrill,

the controversy here can be decided on the merits.

18 IV. Conclusion

For the reasons set forth above, this court concludes that

the plaintiffs have standing to maintain their wrongful death

case as the appointed administrators of their daughter’s estate.

Dartmouth’s motion to dismiss for lack of standing10 is therefore

DENIED.

SO ORDERED.

United States District Judge

Dated: January 1 2 , 2010

cc: Charles J. Raubicheck, Esq. Julie Kurzrok, Esq. K. William Clauson, Esq. Kevin Murphy, Esq. Bradford T . Atwood, Esq. Matthew R. Johnson, Esq. Thomas B.S. Quarles, Jr., Esq.

10 Document n o . 6 7 .

19