Cummings v. Bostwick, Civ. No. 79-10-D.

• Citation: 481 F. Supp. 1251
• Decision Date: 02 January 1980
• Docket Number: Civ. No. 79-10-D.
• Parties: Richard CUMMINGS v. Stanley BOSTWICK; Donald P. Smith; Clinton B. Fuller.
• Court: U.S. District Court — District of New Hampshire

481 F. Supp. 1251

Richard CUMMINGS v. Stanley BOSTWICK; Donald P. Smith; Clinton B. Fuller.

Civ. No. 79-10-D.

United States District Court, D. New Hampshire.

January 2, 1980.

John Czeciuk, Cullity & Kelley, Manchester, N.H., for plaintiff.

David H. Bradley, Stebbins & Bradley, Hanover, N.H., for defendant.

MEMORANDUM OPINION

DEVINE, Chief Judge.

Plaintiff, Richard Cummings, a Vermont resident, allegedly sustained injuries on January 13, 1976, when he fell from a staging in White River Junction, Vermont, while employed by Trumbull-Nelson Construction Co., Inc. ("Trumbull"). On January 11, 1979, he filed the instant diversity action in this court naming three New Hampshire residents as defendants. These defendants are Stanley Bostwick, a Trumbull foreman; Donald Smith, safety engineer, officer, and director of Trumbull; and Clinton Fuller, also an officer and director of Trumbull.¹

The defendants moved to dismiss,² and the matter came before the Court for hearing. The Court has heard oral arguments of counsel, and has examined the pleadings, legal memos, and other documents on file.³

At issue here is the application of a statute (Senate Bill 52, Chap. 46, Laws of 1978, eff. date, June 27, 1978) passed in the waning hours of the 1978 Special Session of the New Hampshire Legislature. The obvious purpose of this statute was to restrict the scope of so-called "third party actions" which might be brought by injured employees or their dependents who are subject to the Workmens Compensation Act of New Hampshire (RSA 281).⁴Clark v. Jackson, 455 F.Supp. 537 (D.N.H.1978). A sweeping revision of the compensation law in 1947 permitted such actions, based on the concept that the ultimate loss from wrongdoing should fall upon the wrongdoer, and that the injured workman or his dependents should be granted an opportunity in such cases to obtain fair pecuniary compensation. Bilodeau v. Oliver Stores, Inc., 116 N.H. 83, 87, 352 A.2d 741, 744 (1976); Tarr v. Republic Corp., 116 N.H. 99, 102, 352 A.2d 708, 710-11 (1976).

Two particular sections of the statute are here involved. At the time plaintiff was injured on January 13, 1976, RSA 281:12 provided in pertinent part:

An employee of an employer subject to this chapter shall be conclusively presumed to have accepted the provisions hereof and to have waived his rights of action at common law to recover damages for personal injuries against his employer, or against the employer's insurance carrier . . .. The spouse of an employee entitled to benefits under this chapter shall have no direct right of action against the employer, or the employer's insurance carrier, to recover for consequential damages.

Prior to an amendment in 1971 (Laws of 1971, 539:5), the above statute did not contain any language relative to actions brought by or on behalf of the spouse. However, in 1970, the court held that a wife's right to sue for loss of consortium is separate and distinct from her husband's rights against his employer to recover for the injuries he sustains. LaBonte v. National Gypsum Co., 110 N.H. 314, 269 A.2d 634 (1970). The 1971 amendment was designed to bar, therefore, a spouse's right of action "at common law" to recover for consequential damages. The amendment was not considered applicable to fatal injuries sustained in 1969 by the husband of a wife who was again entitled to recover for consortium. Archie v. Hampton, 112 N.H. 13, 287 A.2d 622 (1972). Nor was it held applicable to bar the wife's right of consortium for work-related injuries sustained by her husband in 1972. Ahern v. Laconia Country Club, Inc., 118 N.H. 623, 392 A.2d 587 (1978).

The reasoning behind these cases was that the waiver contained in the language of RSA 281:12 referred to the employee's rights of action, and not to the wife's separate right to sue for loss of consortium, which itself was created by statute in 1967 (RSA 507:8-a). The Legislature again responded by amending the statute in 1973 to the form which it was at the time of the instant plaintiff's injury, i. e., barring a spouse's "direct right of action against the employer". It was accordingly subsequently held that the 1973 amendment barred a wife's cause of action for consortium where the injuries sustained by her husband occurred in 1974. O'Keefe v. Associated Grocers of New England, Inc., 117 N.H. 132, 370 A.2d 261 (1977). However, it was held in the same year, 1977, that the employee's waiver of his "rights of action at common law" pursuant to RSA 281:12 did not bar the administrator of his estate from suing the employer, as this statute served only to bar common law rights, and not a statutorily created right to recover for wrongful death. Ransmeier v. Camp Cody, Inc., 117 N.H. 736, 378 A.2d 752 (1977).

RSA 281:14, as it stood at the time the plaintiff in the instant case sustained his injury, provided in pertinent part:

I. When an injury for which compensation is payable under the provisions of this chapter has been sustained under circumstances creating in some person other than the employer, or the employer's insurance carrier, a legal liability to pay damages in respect thereto, the injured employee, in addition to the benefits of this chapter, may obtain damages from or proceed at law against such other person to recover damages . . ..

II. When death of an employee has resulted under circumstances creating in some person other than the employer, or the employer's insurance carrier, a legal liability to pay damages in respect thereto, the administrator of the employee's estate, in addition to the benefits of this chapter which are payable to the employee's dependents, may obtain damages from or proceed at law against such other person to recover damages. . . .

In 1953 this statute had been construed as permitting suit by the administrator of a deceased employee against a fellow employee who allegedly caused his fatal injuries. Merchants Mutual Casualty Company v. Tuttle, 98 N.H. 349, 101 A.2d 262 (1953). This holding was expanded, again in 1977, to permit action by one employee against a supervisory employee, the court considering and rejecting the contention that such supervisor should be viewed as the employer's alter ego. Vittum v. New Hampshire Insurance Company, 117 N.H. 1, 369 A.2d 184 (1977). And on May 17, 1978, the court rendered its decision in Stevens v. Lewis, 118 N.H. 367, 387 A.2d 637 (1978). Therein, the plaintiff sustained injuries while operating a machine used in the manufacture of shoe components, and successfully recovered from the defendant, who was the president, treasurer, and sole stockholder as well as a director of the corporate employer. The Court held that it was for the jury to determine whether defendant was the alter ego of the corporation, and if so, whether the function he allegedly performed negligently was a corporate responsibility or a responsibility owed by one employee to another. The court concluded that unless the defendant was both the corporate alter ego and was performing a corporate responsibility, he could derive no immunity under RSA 281:12. Id. at 370, 387 A.2d at 639; Clark v. Jackson, supra, at 538.

The amendatory legislation which is the subject of the motions before the Court followed in the 1978 Special Session. As so amended, RSA 281:12 now provides:

An employee of an employer subject to this chapter shall be conclusively presumed to have accepted the provisions hereof and on behalf of himself, or his personal or legal representatives, to have waived all rights of action whether at common law or by statute or otherwise:

I. Against the employer or the employer's insurance carrier; and

II. Except for intentional torts, against any officer, director, agent, servant or employee acting on behalf of the employer or the employer's insurance carrier.

The spouse of an employee entitled to benefits under this chapter or any other person who might otherwise be entitled to recover damages on account of the employee's personal injury or death, shall have no direct action whether at common law or by statute or otherwise, to recover for such damages against any person identified in paragraphs I. and II.

RSA 281:14 as so amended now provides in pertinent part:

I. When an injury for which compensation is payable under the provisions of this chapter has been sustained under circumstances creating in some person other than a person against whom action has been barred under RSA 281:12, a legal liability to pay damages in respect thereto, the injured employee, in addition to the benefits of this chapter, may obtain damages from or proceed at law against such other persons to recover damages . . ..

II. When the death of an employee has resulted under circumstances creating in some person other than a person against whom action has been barred under RSA 281:12, a legal liability to pay damages in respect thereof, the administrator of the employee's estate, in addition to the benefits of this chapter which are payable to the employee's dependents may obtain damages from or proceed at law against such other person to recover damages. . . .⁵

Simply stated, the defendants, conceding that the 1978 amendments to the statute have no application to suits which were pending as of the date of passage of the amendments (June 27, 1978), contend that they are applicable and therefore serve to bar any actions which have been brought since that date. Plaintiff responds that the act is prospective in its application only, and therefore cannot serve to bar any legal actions brought within the applicable limitations period which arise from injuries sustained before the effective date of the amendments.

Article 14 of Part I of the New Hampshire Constitution provides in part that "every subject of this state is entitled to a certain remedy, by having recourse to the laws, for all injuries he may receive in his person, . . . to obtain right and justice freely, . . . completely, and without any denial . . ....