Dominguez v. Rogers, 5930
| Decision Date | 15 November 1983 |
| Docket Number | No. 5930,5930 |
| Parties | Juliette DOMINGUEZ, Deceased, By and Through Surviving Natural Mother and Personal Representative, Estrellita Dominguez, Plaintiff-Appellee, and Phillip Sosa, Plaintiff/Intervenor-Appellant, v. Billy ROGERS, Gonzales Funeral Home, Inc., H.Y.C., Incorporated, d/b/a Aid Ambulance, Las Vegas Hospital, Inc., and Kenneth Osgood, M.D., Defendants-Appellees. |
| Court | Court of Appeals of New Mexico |
Appellant, Phillip Sosa, appeals from the District Court's refusal to allow his intervention in this cause.
On September 11, 1981, plaintiff, Estrellita Dominguez, filed a claim against the named defendants for the wrongful death of her eight-year-old daughter, Juliette Dominguez, who was struck by a car while riding her bicycle. Plaintiff settled with some defendants for $25,000 and continued proceedings against other defendants. Appellant filed his motion to intervene on April 5, 1982, alleging in his amended motion that he is the natural father of Juliette Dominguez and that he has an interest in the pending action.
NMSA 1978, Civ.P.R. 24(a) (Repl.Pamp.1980) provides for intervention of right:
(1) when a statute confers an unconditional right to intervene; or
(2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant's interest is adequately represented by existing parties.
Appellant claims as his interest that he is the child's father and therefore entitled to benefits under New Mexico's wrongful death statute.
NMSA 1978, Sec. 41-2-3 (Repl.Pamp.1982) provides:
Every such action as mentioned in Section 41-2-1 NMSA 1978 shall be brought by and in the name or names of the personal representative or representatives of such deceased person, and the jury in every such action may give such damages, compensatory and exemplary, as they shall deem fair and just, taking into consideration the pecuniary injury or injuries resulting from such death to the surviving party or parties entitled to the judgment, or any interest therein, recovered in such action, and also having regard to the mitigating or aggravating circumstances attending such wrongful act, neglect or default. The proceeds of any judgment obtained in any such action shall not be liable for any debt of the deceased: provided, he or she shall have left a husband, wife, child, father, mother, brother, sister or child or children of the deceased child, but shall be distributed as follows:
* * * if such deceased be a minor, childless and unmarried, then to the father and mother, who shall have an equal interest in the judgment, or if either of them be dead, then to the survivor. * * *
We hold that the wrongful death statute does not confer on appellant an unconditional right to intervene within the meaning of Rule 24(a)(1). Thus, he must meet the requirements of Rule 24(a)(2) in order to intervene as of right. Rule 24(a)(2)
Rule 24(a)(2) allows intervention of right if the applicant (1) claims an interest relating to the action and (2) shows his ability to protect the interest will be impaired or impeded as a practical matter, unless existing parties adequately represent his interest.
In order to claim an interest, appellant attempted to show a paternal relationship with the deceased child. He offered documentary evidence for the trial court to consider, and on appeal points to the following documents in the record: a newspaper article reporting the death of the child and identifying her "paternal grandparents" as "Mr. and Mrs. Estanislado Sosa"; a welfare URESA (Uniform Reciprocal Enforcement of Support Act) petition of the New Mexico Department of Human Services by which the department sought to recover "its expenditures made on behalf of dependent minor children"; the "Findings, Certificate and Order" of the New Mexico District Court; and a consent order signed by appellant on October 29, 1981, in which he agreed to reimburse the Department of Human Services by making monthly payments. We note that appellant has introduced no evidence to indicate that he acknowledged paternity of the child at any time before her death. The deceased child's birth certificate under "NAME OF FATHER" says, "Not-Stated," and her death certificate under "FATHER-NAME" says, "None". No other evidence relating to paternity appears in the record of this case. Evidence not preserved in the record will not be considered on appeal. Adams v. Loffland Brothers Drilling Company, 82 N.M. 72, 475 P.2d 466 (Ct.App.1970).
Following a hearing on appellant's motion to intervene, the trial court found, inter alia:
1. That movent [sic] has failed to establish a prima facia [sic] case as the natural father of the deceased child. * * *
We agree with appellant and hold that the record contains sufficient evidence to establish a prima facie showing that he had an "interest" as required by Rule 24. He has failed, however, to make a sufficient showing that his interest may be impeded or impaired by inadequate representation.
Section 41-2-3 designates "the personal representative" as the party in whose name an action for wrongful death shall be brought. The personal representative is the only one who may bring the action. Kilkenny v. Kenney, 68 N.M. 266, 361 P.2d 149 (1961). He or she becomes the statutory trustee for the discoverable and identifiable beneficiaries named in the statute. Stang v. Hertz Corporation, 81 N.M. 348, 467 P.2d 14 (1970).
Appellant has not sought to remove the child's mother as personal representative by claiming that she could not fulfill her responsibilities in that role or that she is otherwise unsuited. Instead he asks, in effect, to be joined with the mother as a fellow personal representative by pointing out that section 41-2-3 refers to "personal representative or representatives." The reference in the wrongful death statute to the possibility of multiple representatives does not automatically give potential intervenors the right to join in that capacity. Moreover, appellant never requested the trial court or the probate court to recognize him as a personal representative. Had he done so, he would likely have had to show more than a prima facie case of fatherhood in order to withstand a challenge to his appointment from the mother.
In arguing that his interest will be impaired or impeded, appellant has offered no proof that the child's mother would not adequately represent his interest. He says she has flatly denied the existence of his interest citing the following from the settlement hearing held on October 1, 1981.
Appellant argues that this interchange amounted to giving the court misinformation in derogation of his interest. We do not believe that these statements indicate Mrs. Dominguez would not fulfill her statutory responsibilities. Additionally, at the time of the settlement hearing Mrs. Dominguez could not have known that appellant admitted paternity, since he did not do so until October 29, 1981.
Some courts in other jurisdictions have allowed intervention in wrongful death actions similar to the one here. See, e.g., Nunez v. Nunez, 25 Ariz.App. 558, 545 P.2d 69 (1976). We distinguish the approach of other jurisdictions on the basis of their wrongful death statutes. While some states calculate the measure of damages for wrongful death on the basis of general injury to the statutory beneficiaries, New Mexico gives a jury the power to award "damages, compensatory and exemplary, as they shall deem fair and just" and limits consideration of the beneficiary's specific injury to "pecuniary injury". See Sec. 41-2-3. Appellant has not claimed, and cannot claim, that he personally suffered any pecuniary injury as a result of the child's death.
Appellant further argues a possibility exists that the mother could be found comparatively negligent and that knowing this she might settle for a lesser amount and thereby fail to protect his best interest. A similar argument was made and rejected in Matter of Estate of White, 41 Or.App. 439, 599 P.2d 1147 (1979). Although New Mexico's wrongful death statute, unlike Oregon's, does not require court approval of...
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