Bohl v. Leibowitz
| Citation | 1 F.Supp.2d 67 |
| Decision Date | 24 March 1998 |
| Docket Number | No. CIV.A. 95-30091-MAP.,CIV.A. 95-30091-MAP. |
| Parties | Sally Ann BOHL, Individually and as Executrix of the Estate of Charles A. Bohl, Plaintiff, v. Eugene LEIBOWITZ, M.D, Defendant. |
| Court | U.S. District Court — District of Massachusetts |
Donald W. Goodrich, James R. Loughman, Donovan & O'Connor, Adams, MA, for Plaintiff.
Ronald E. Oliveira, Dawn M. Rich, Martin & Oliveira, Pittsfield, MA, for Defendant.
Upon de novo review this report and recommendation is hereby adopted and the motion for summary judgment is DENIED. The defect in the capacity of the plaintiff — if any — has been properly remedied. The clerk will set a status conference.
So Ordered.
REPORT AND RECOMMENDATION REGARDING DEFENDANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT
Sally Ann Bohl ("Plaintiff") has filed a three count complaint against Eugene Leibowitz, M.D. ("Defendant"). Both Counts I, for conscious pain and suffering, and II, for wrongful death, are brought in Plaintiff's capacity as executrix of the Estate of Charles A. Bohl ("Bohl"). Count III, for loss of consortium, is brought in Plaintiff's individual capacity. Defendant pursues the instant motion for partial summary judgment on Counts I and II on grounds that Plaintiff lacked the ancillary capacity as executrix of Bohl's estate to proceed against him. That motion has been referred to the court for a report and recommendation. See 28 U.S.C. § 636(b)(1)(B). For the reasons which follow, the court recommends that Defendant's motion for partial summary judgment be denied.
The gravamen of Plaintiff's complaint is that Defendant undertook Bohl's care on December 8, 1993, performed surgery on him on December 15, 1993, and "negligently, carelessly and with gross negligence and in reckless disregard for the health and life of Plaintiff's testate," (Complaint ¶ 10), failed to properly examine, diagnose and treat him. Plaintiff alleges that Bohl died on December 25, 1993, as a result of Defendant's negligence. (Complaint ¶¶ 7-10).
As of the date of Bohl's death, both Plaintiff and Bohl were residents of Stamford, Vermont. (Pl. Exhibit A.) On January 14, 1994, Plaintiff filed the required bond with the Vermont Probate Court, District of Bennington, (Pl. Exhibit C), and on February 2, 1994, she was duly appointed executrix of Bohl's estate. (Pl. Exhibit A.) Defendant resides and maintains his medical practice in Massachusetts.
On April 25, 1995, Plaintiff filed her complaint in this court based on diversity of citizenship. On July 11, 1995, pursuant to the provisions of M.G.L. ch. 231, the parties filed a stipulated request to refer the action to a state medical malpractice tribunal through the Berkshire Superior Court, which District Judge Michael A. Ponsor endorsed. (Docket No. 5.) The tribunal convened on February 29, 1996, and found that "the evidence presented in accordance with Section 60B of Chapter 231, if properly substantiated is not sufficient to raise a legitimate question of liability appropriate for a judicial inquiry." (Docket No. 6.) Thereafter, pursuant to M.G.L. ch. 231, Plaintiff filed a $6,000 bond with the Berkshire Superior Court in order to pursue her claims. Defendant filed his motion for partial summary judgment on July 7, 1997.
The role of summary judgment in civil litigation is to pierce the boilerplate of the pleadings and assay the parties' proof in an effort to determine whether trial is actually required. McIntosh v. Antonino, 71 F.3d 29, 33 (1st Cir.1995) (citing Wynne v. Tufts Univ. Sch. of Medicine, 976 F.2d 791, 794 (1st Cir.1992)). Summary judgment is appropriate where the record reveals no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). A "genuine" issue is one "that a reasonable jury could resolve ... in favor of the nonmoving party." McCarthy v. Northwest Airlines, Inc., 56 F.3d 313, 315 (1st Cir.1995) (quoting United States v. One Parcel of Real Property, 960 F.2d 200, 204 (1st Cir.1992) (internal quotation marks omitted)). Not every genuine factual conflict, however, necessitates a trial. "It is only when a disputed fact has the potential to change the outcome of the suit under the governing law if found favorably to the nonmovant that the materiality hurdle is cleared." Parrilla-Burgos v. Hernandez-Rivera, 108 F.3d 445, 448 (1st Cir. 1997) (quoting Martinez v. Colon, 54 F.3d 980, 983-84 (1st Cir.1995)). In cases where, as here, there is an absence of a genuine dispute of material fact, motions for summary judgment may be resolved as a matter of law. See Jimenez v. Peninsular & Oriental Steam Nav. Co., 974 F.2d 221, 223 (1st Cir.1992).
Defendant avers that partial summary judgment is appropriate on a narrow procedural ground, namely, that Plaintiff, the duly appointed executrix of Bohl's estate in the state of Vermont, failed to obtain ancillary powers as executrix in the Commonwealth of Massachusetts prior to filing suit. As a result, Defendant maintains, Plaintiff did not have the capacity to bring suit in the courts of Massachusetts. Moreover, Defendant argues, Plaintiff lacked the capacity to submit an offer of proof to the medical malpractice tribunal.
It was not until July 21, 1997, well after the medical malpractice tribunal convened and issued its finding, that Plaintiff obtained her ancillary appointment in Massachusetts pursuant to M.G.L. ch. 199A § 5. It was then that she filed with the Berkshire Probate and Family Court authenticated copies of her appointment as executrix by the Vermont Probate Court, the bond originally filed with that court, and her written appointment of her attorney as the estate's resident agent in Massachusetts. (Goodrich Aff. ¶ 5 (Docket No. 22).) Defendant was first informed of the ancillary appointment on July 25, 1997, when Plaintiff filed her opposition to Defendant's motion for partial summary judgment.
Defendant's motion is grounded in an ancient rule of law prohibiting a foreign executor or administrator to sue in Massachusetts on behalf of the foreign estate which she represents. See Brown v. Boston & M.R. Co., 283 Mass. 192, 186 N.E. 59, 60 (1933). Brown stands for the settled proposition "that the appointment of an administrator in one state confers no power beyond the limits of that state, and does not authorize him to maintain any suit in the courts, state or national, held in any other state." Id. at 60 (citations omitted). In essence, the court continued, "an administrator appointed in a foreign state is not a personal representative of the estate in any other state." Id. Administrators and executors are, for the purposes of this proposition, synonymous. Id.1
Although Defendant relies on Brown as the cornerstone of his motion, he somewhat inaccurately characterizes existing law. While still generally applicable in Massachusetts and other states, the Brown rule has not been rigidly applied. Saporita v. Litner, 371 Mass. 607, 358 N.E.2d 809, 814 (1976). In addition, several states have created exceptions to the rule, for example, when the decedent "left assets in the forum state or where the foreign administrator or executor appeared voluntarily in the suit." Id. at 813 (citing cases). One erosion of Brown in Massachusetts occurred with the passage of the Omnibus Probate Act ("Act"), St.1976 ch. 515 § 22, which provides, in applicable part, that a foreign executor shall be subject to the jurisdiction of Massachusetts courts "to the same extent that his decedent was subject to jurisdiction immediately prior to his death." M.G.L. ch. 199A § 9. See Saporita, 358 N.E.2d at 815. See also Martel v. Stafford, 992 F.2d 1244, 1247 (1st Cir.1993); Steego Corp. v. Ravenal, 830 F.Supp. 42, 48 (D.Mass.1993); Moore v. Healy, 745 F.Supp. 791, 793 (D.Mass.1990).
The Act also allows a foreign executor to maintain suit in Massachusetts under certain conditions. Thus, "a domiciliary foreign personal representative may file with a probate court in the commonwealth in a county in which property is located, authenticated copies of his appointment and any official bond he has given." M.G.L. ch. 199A § 5. A representative who has complied with section 5 "may exercise as to personal property in the commonwealth all the powers of a local personal representative acting in a similar representative capacity and may maintain actions and proceedings in the commonwealth. ..." M.G.L. ch. 199A § 6. Together, these provisions provide an expedited method by which an executrix may obtain an ancillary appointment in the Commonwealth. Compare Bliss v. Bliss, 221 Mass. 201, 109 N.E. 148, 150 (1915) ().
There is, however, no interpretive case law involving suits by an administrator appointed pursuant to this statute. Certain questions thus remain unsettled, for example, whether the term "property" in both sections 5 and 6 include such personal "assets" of the estate as are reflected in a wrongful death claim. Nonetheless, Defendant does not challenge the proposition that, upon receiving an ancillary appointment, an executrix can maintain just such a suit as is at issue here, Brown notwithstanding. In view of Defendant's concession, therefore, the court will take as settled for this case that, had Plaintiff had the ancillary appointment when she filed suit, she had the power to maintain the action. Regardless, Defendant asserts that Plaintiff did not in fact have that ancillary capacity when she commenced suit or when she proceeded before the medical malpractice tribunal. That Plaintiff has since cured the deficiency in her ancillary appointment, Defendant maintains, is of no benefit to her now.
Historically, a defendant was required to affirmatively file a special demand for proof of representative capacity if he was alleging a lack of such capacity on...
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