1997 -NMCA- 103, Estate of Gilmore

• Decision Date: 12 September 1997
• Docket Number: No. 17775,17775
• Citation: 124 N.M. 119,946 P.2d 1130,1997 NMCA 103
• Parties: , 1997 -NMCA- 103 In the Matter of the ESTATE OF Vernon Dana GILMORE, Deceased. Connie GILMORE, Natural Mother and Guardian of Tracy Gilmore, a minor, and Jason Gilmore, Petitioners-Appellees, v. Diana GILMORE, Individually and as Personal Representative, Respondent-Appellant.
• Court: Court of Appeals of New Mexico

Page 1130

946 P.2d 1130

124 N.M. 119, 1997 -NMCA- 103

In the Matter of the ESTATE OF Vernon Dana GILMORE, Deceased.

Connie GILMORE, Natural Mother and Guardian of Tracy

Gilmore, a minor, and Jason Gilmore, Petitioners-Appellees, v.Diana GILMORE, Individually and as Personal Representative,

Respondent-Appellant.

No. 17775.

Court of Appeals of New Mexico.

Sept. 12, 1997.

Wayne E. Bingham, M. Dwight Hurst, Crider, Calvert & Bingham, P.C., Albuquerque, for Petitioners-Appellees.

Peter J. Broullire III, Albuquerque, for Respondent-Appellant.

OPINION

HARTZ, Chief Judge.

¶1 This appeal requires us to determine which state's law governs the distribution of the proceeds of a wrongful-death claim when the state where the tort and death occurred (Texas) is not the domicile of the decedent or of any of the potential beneficiaries of the claim.We hold that, absent compelling circumstances, the governing law is that of the state where the tort and death occurred.No such compelling circumstances exist here, because the applicable law is essentially the same as that of the states of domicile of three of the four potential beneficiaries.Because the district court erred in applying New Mexico law, we reverse and remand with instructions to distribute the proceeds in accordance with the law of Texas.

I.BACKGROUND

¶2Vernon Dana Gilmore(the Decedent) was killed on a Texas highway on April 16, 1995 when his motorcycle collided with a motor vehicle driven by a Texan (the Tortfeasor).At the time of his death, Decedent and his wife, Diane Gilmore, were domiciled in New Mexico.Other than Diane, his survivors were his two children by a former marriage--Tracy and Jason (the Children)--who have resided in the State of Washington since their parents were divorced in 1985, and his mother, Helen Morland(Decedent's Mother), who is a resident of Idaho.

¶3 Diane was appointed personal representative of Decedent's estate by the Bernalillo County District Court.In that capacity she collected $110,000 for his wrongful death--$100,000 paid on Tortfeasor's liability policy and $10,000 paid on Decedent's uninsured-motorist policy.The Children petitioned the district court to distribute the proceeds in accordance with the New Mexico Wrongful Death Act, NMSA 1978, § 41-2-3(Repl.Pamp.1996).Diane contended that Texas law should govern.The parties moved for summary judgment.The district court granted the Children's motion and denied Diane's.Diane appeals.

¶4 The damages recoverable under the New Mexico statute are based on the "worth of the life of the decedent,"Stang v. Hertz Corp., 81 N.M. 348, 350, 467 P.2d 14, 16(1970), even if there are no surviving relatives.Id.The recovery, however, is not an asset of the Decedent's estate.SeeBaca v. Baca, 71 N.M. 468, 473-74, 379 P.2d 765, 768-69(1963);cf.§ 41-2-3(if no statutory beneficiaries, proceeds of wrongful-death judgment "shall be disposed of in the manner authorized by law for the disposition of the personal property of deceased persons").Under Section 41-2-3 the statutory beneficiaries of the wrongful-death claim are Diane and the Children, who would each receive one-third of the proceeds.

¶5 Diane contends that the insurance proceeds should be distributed in accordance with the Texas wrongful-death statute.Under Texas law the statutory beneficiaries in a wrongful-death claim are "the surviving spouse, children, and parents of the deceased."Tex.Civ.Prac. & Rem.Code Ann. § 71.004(a)(West 1997).The amount of recovery is based on the loss suffered by each of the statutory beneficiaries, with the judgment to be apportioned accordingly.Seeid.§ 71.010(b)(distribute proceeds "in shares as found by the jury in its verdict");St. Louis, A. & T. Ry. Co. v. Johnston, 78 Tex. 536, 15 S.W. 104, 106(1890), overruled on other grounds bySanchez v. Schindler, 651 S.W.2d 249, 251(Tex.1983);Missouri Pac. Ry. Co. v. Henry, 75 Tex. 220, 12 S.W. 828, 829(1889), overruled on other grounds bySanchez v. Schindler, 651 S.W.2d 249, 251(Tex.1983).In particular, a statutory beneficiary who has not suffered a compensable loss as a result of the death is not entitled to any recovery.See, e.g., Johnston.

¶6We also note the laws of the other potentially relevant states.The statutory beneficiaries under Washington law would be Diane and the Children.SeeWash.Rev.Code Ann. § 4.20.020(West 1988).The jury awards damages as "may to them seem just."Id.As we understand Washington law, the amount of recovery is based on the sum of the losses suffered by each of the statutory beneficiaries, seeKramer v. Portland-Seattle Auto Freight, 43 Wash.2d 386, 261 P.2d 692(1953), with the recovery to be apportioned among the beneficiaries accordingly, seeHansen v. Stimson Mill Co., 195 Wash. 621, 81 P.2d 855, 856(1938), overruled on other grounds byWood v. Dunlop, 83 Wash.2d 719, 521 P.2d 1177, 1180(1974).Under Idaho law the statutory beneficiaries would be Diane, the Children, and Decedent's Mother.SeeIdaho Code § 5-311(1990).The statute provides for damages "as under all the circumstances of the case as may be just."Id.The statute provides no formula for apportionment among the statutory beneficiaries; apparently the share that each should receive is based upon the loss to that particular beneficiary.SeeHogan v. Hermann, 101 Idaho 893, 623 P.2d 900(1980)(settlement of defendant with one statutory beneficiary does not preclude suit by other statutory beneficiaries);Hepp v. Ader, 64 Idaho 240, 130 P.2d 859(1942)(separate verdicts for each statutory beneficiary).

¶7 Thus, it appears that Texas, Washington, and Idaho are alike in providing recovery to each statutory beneficiary in accordance with the loss to that beneficiary.Diane and the Children are statutory beneficiaries under the law of all three states, while Decedent's Mother is a statutory beneficiary only under the laws of Texas and Idaho.Diane apparently prefers a Texas-type statute because she believes that under that law she would receive more than one-third of the insurance proceeds, which is the portion specifically provided by the New Mexico statute.

II.DISCUSSION

¶8 There are no disputed material facts.Our review of the summary judgment is limited to whether the law was correctly applied to the facts.SeeGeneral Elec. Credit Corp. v. Tidenberg, 78 N.M. 59, 61, 428 P.2d 33, 35(1967);Rule 1-056(C) NMRA 1997.

¶9 A claim for wrongful death is a tort cause of action.In determining which state's law to apply in a tort action, New Mexico "generally follows the doctrine of lex loci delicti,"Torres v. State, 119 N.M. 609, 613, 894 P.2d 386, 390(1995), meaning "[t]he law of the place where the crime or wrong took place."Black's Law Dictionary 630 (abr. 6th ed.1991).We have said that the "place of the wrong is the location of the last act necessary to complete the injury."Wittkowski v. State Corrections Dep't, 103 N.M. 526, 528, 710 P.2d 93, 95(Ct.App.1985), overruled on other grounds bySilva v. State, 106 N.M. 472, 477, 745 P.2d 380, 385(1987).Accordingly, in First National Bank v. Benson, 89 N.M. 481, 553 P.2d 1288(Ct.App.1976), we held that the New Mexico Wrongful Death Act applied to a claim arising from the death of Missouri residents in an airplane crash in New Mexico.

¶10 To circumvent this authority, the Children contend that the place-of-the-wrong rule does not extend to procedural rules and that the law governing the distribution of the insurance proceeds is a matter of procedure rather than substance.The first component of their argument is supported by precedent.New Mexico opinions have said that "the law of the forum governs matters of procedure."Sierra Life Ins. Co. v. First Nat'l Life Ins. Co., 85 N.M. 409, 413, 512 P.2d 1245, 1249(1973).AccordSatterwhite v. Stolz, 79 N.M. 320, 325, 442 P.2d 810, 815(Ct.App.1968);seeRestatement of Conflict of Laws§ 585(1934)("All matters of procedure are governed by the law of the forum.")(Restatement First).

¶11 Before addressing the second component of the Children's argument (that is, whether the law governing the distribution of proceeds is "procedural"), a few comments are in order about the legitimacy of the substance/procedure dichotomy in conflict-of-laws jurisprudence.We are mindful of the powerful criticisms of the use of that dichotomy.SeeSun Oil Co. v. Wortman, 486 U.S. 717, 726-28, 108 S.Ct. 2117, 2123-25, 100 L.Ed.2d 743(1988);Nez v. Forney, 109 N.M. 161, 164, 783 P.2d 471, 474(1989)(Montgomery, J., specially concurring);Restatement (Second) of Conflict of Laws§ 122 cmt. b (1971)(Restatement Second).These criticisms, however, are not directed at the correctness of the results in the great bulk of decisions that rely on the distinction between "substance" and "procedure."Rather, they focus on the unthinking use of this terminology, which appears in several areas of the law besides conflict of laws.The problems arise when a perfectly sound decision in one area of the law classifies a matter as "substantive" or "procedural" and then a court considering another area of the law blindly applies the precedent despite the different considerations that should come into play.SeeRestatement Second§ 122 cmt. b (noting that the Restatement avoids classifying issues as procedural or substantive and that its provisions "face directly the question whether the forum's rule should be applied").The line between substance and procedure is not always clear, seeAmmerman v. Hubbard Broad., 89 N.M. 307, 310, 551 P.2d 1354, 1357(1976), and the judgment about where to draw the line in a particular case may depend on the reasons for drawing the line, seeSun Oil Co., 486 U.S. at 726, 108 S.Ct. at 2124("Except at the extremes, the terms 'substance' and 'procedure' precisely describe very little except a dichotomy, and what they mean in a particular context is largely determined by the purposes for which the dichotomy is...