Estabrook v. American Hoist & Derrick, Inc.

Decision Date15 August 1985
Docket NumberNo. 84-202,84-202,84-310 and 84-234,Nos. 84-411,No. 84-234,No. 84-411,No. 84-310,84-411,84-310,84-234,s. 84-411
Citation127 N.H. 162,498 A.2d 741
PartiesLois ESTABROOK, Administratrix of the Estate of Nelson J. Estabrook v. AMERICAN HOIST & DERRICK, INC. et al. (). Sheila TAYLOR, Administratrix of the Estate of James A. Taylor v. Frank A. NUTTING, Jr. et al. (). Daniel HAYES and Mary Hayes v. Peter E. STULTZ (). Margaret I. SHORTELL and William Shortell v. Carl MITCHELL and John Mammone ().
CourtNew Hampshire Supreme Court

Devine, Millimet, Stahl & Branch, Manchester (E. Donald Dufresne, on the brief and orally and Lee C. Nyquist on the brief), for plaintiff in No. 84-411.

Stark & Peltonen P.A., Manchester (Rodney L. Stark on the brief), for defendants Midwest Tank & Const. Mfng., Inc. and Midwest Tank & Const. Holding Corp. in No. 84-411.

James M. Winston, Manchester, by brief and orally, for defendants Stanley Stone and Harry Smith in No. 84-411.

James S. Yakovakis P.A., Manchester (Brian T. McDonough on the brief and James S. Yakovakis on the brief and orally), for defendants Stanley Stone and Harry Smith in No. 84-411.

Cullity and Kelley, Manchester (George W. Roussos) for Independent Insu. Agents of New Hampshire and the New Hampshire Ass'n. of Domestic Ins. Companies, joined in the brief filed by Brian T. McDonough and James S. Yakovakis for defendants Stanley Stone and Harry Smith as amici curiae in No. 84-411.

McLane, Graf, Raulerson & Middleton P.A., of Manchester (Jack B. Middleton on the brief and orally and Judy E. Reardon on the brief), for the New Hampshire Trial Lawyers Ass'n. as amicus curiae in No. 84-411.

Barto & Gfroerer, Concord (Michael G. Gfroerer, on the brief and orally and Mark H. Puffer on the brief), and for the Alliance of American Insurers, the American Ins. Ass'n, and the Nat. Ass'n of Independent Insurers, as amici curiae in 84-411.

Barry I. Harkaway and Clifford R. Kinghorn, Jr. (orally), Nashua on the brief, for plaintiff in No. 84-202.

Hamblett & Kerrigan P.A., Nashua (John V. Dyer, Jr., on the brief and James M. McNamee, Jr., on the brief and orally), for defendant Frank A. Nutting, Jr., in 84-202.

Wiggin & Nourie, Manchester (Andrew A. Merrill on the brief and orally and Thomas P. Manson on the brief), for defendant Dale Schofield in No. 84-202.

Leonard & Borrelli, Nashua (Vera R. Borrelli on the brief and orally), for defendants Frank A. Nutting, Jr., George A. Fuller, Jr., and Dale Schofield in No. 84-202.

Stephen R. Fine & Associates P.A., Manchester (Stephen R. Fine on the brief and orally and Charles A. Meade on the brief), for plaintiffs in No. 84-310.

Wadleigh, Starr, Peters, Dunn & Chiesa, Manchester (Theodore Wadleigh on the brief and orally), for defendant in No. 84-310.

Burns, Bryant, Hinchey, Cox & Shea P.A., Dover (Paul R. Cox, Dover), for defendant joined in the above brief.

Shea & Mertens P.A., Wolfeboro (Edward J. Mertens, II, on the brief and orally and Lorraine Rogus Sager on the brief), for plaintiffs in No. 84-234.

Ransmeier & Spellman, Concord (John C. Ransmeier on the brief and orally and Steven E. Hengen on the brief), for defendants in No. 84-234.

Stephen E. Merrill, Atty. Gen. (James A. Sweeney, on the brief), for the New Hampshire Dept. of Labor, as amicus curiae in 84-411, 84-202, and 84-310.

PER CURIAM.

The plaintiffs in these four consolidated cases challenge the constitutionality of certain provisions of RSA 281:12, II (Supp.1983), a part of the workers' compensation law. That paragraph bars actions for non-intentional torts by an employee or his personal or legal representatives against "any officer, director, agent, servant or employee" of his employer for personal injury, as defined in RSA 281:2, V (Supp.1983). We hold that this provision is unconstitutional, except when liability would rest on acts performed by a defendant as the alter ego of a corporate employer while performing a corporate responsibility as described in Stevens v. Lewis, 118 N.H. 367, 387 A.2d 637 (1978). One of the cases also challenges the constitutionality of RSA 281:12 (Supp.1983) insofar as it bars spousal consortium claims against persons named in paragraph II predicated on non-intentional torts. We hold that this provision is unconstitutional as well.

Case No. 84-411 is, inter alia, a negligence action for wrongful death brought by the widowed administratrix of the estate of Nelson J. Estabrook. On August 22, 1981, the decedent was an employee at an asphalt plant operated by Lane Construction Company in Manchester. While the decedent was performing maintenance work inside a large mixing machine, his foreman, the defendant Stanley Stone, accidentally activated the mixer, which crushed the decedent and caused his death. The plaintiff brought action against the manufacturer of the mixer and its two successor corporations, as well as against Stone and the plant superintendent, Harry Smith. Stone and Smith moved to dismiss on the ground that action is barred under RSA 281:12, II (Supp.1983), which provides that an employee subject to the workers' compensation law is conclusively presumed to have waived all rights of action "[e]xcept for intentional torts, against any officer, director, agent, servant or employee acting on behalf of the employer or the employer's insurance carrier." The plaintiff objected that the statutory bar to non-intentional tort actions against co-employees violates the due process clauses of the fifth and fourteenth amendments of the Federal Constitution and part I, article 14 of the State Constitution, and the equal protection clauses of the fourteenth amendment and part I, articles 1 and 12. The Superior Court (O'Neil, J.) granted the motion to dismiss. We reverse.

Case No. 84-202 is a negligence action for wrongful death brought by the widowed administratrix of the estate of James A. Taylor. The decedent was a fireman employed by the Town of Hudson. On July 26, 1981, he was a passenger in a tanker firetruck en route to a fire, when the truck failed to negotiate a turn and collided with a pole, crushing the decedent and causing his death. In May, 1983, the plaintiff brought an action against the decedent's fellow employees, Dale Schofield, the driver of the truck, George A. Fuller, Jr., who maintained the truck, and Frank A. Nutting, Jr., the chief of the department. The defendants moved to dismiss on the ground of the bar to co-employee actions contained in RSA 281:12, II (Supp.1983), and the plaintiff objected on grounds of due process and equal protection. On September 23, 1983, the plaintiff also moved to add new counts charging that each defendant had acted in a "willful, wanton and reckless manner" and claiming damages for loss of consortium as the decedent's widow and the next friend of her minor son. The defendants objected to the motion to amend as untimely under RSA 556:11, since it was filed more than two years after the decedent's death. The Superior Court (Flynn, J.) granted both the motions to amend and the motions to dismiss the original counts. The defendants then filed further motions to dismiss the new counts. The same trial judge ruled that the amendments were timely, but that they failed to allege intentional torts so as to remove the bar of RSA 281:12, II (Supp.1983) and, in claiming loss of consortium by the widow and son, failed to state causes of action. The court accordingly dismissed the new counts. We reverse the dismissal of the original counts. For this reason, the correctness of dismissing the new counts as alleging death from willful, wanton and reckless action is moot. The dismissals of the new counts, to the extent that they include claims for losses of consortium, have not been briefed or argued and are therefore waived.

Case No. 84-310 includes negligence actions for personal injury and loss of consortium. The plaintiff Daniel Hayes and the defendant were both employees of Treisman Brothers, Inc. On March 9, 1982, the defendant was operating an automobile in which Daniel Hayes was a passenger, each of them acting within the scope of his employment. The automobile collided with a school bus, injuring Daniel Hayes. He then brought a negligence action for personal injuries, and his wife, Mary Hayes, brought a separate action for loss of consortium. The defendant moved to dismiss Daniel Hayes's action on the basis of the bar to co-employee actions contained in RSA 281:12, II (Supp.1983) and Mary Hayes's action on the basis of the further provision of RSA 281:12, II (Supp.1983), that the spouse of an employee covered by the chapter "shall have no direct action whether at common law or by statute or otherwise, to recover for ... damages against any person identified in [paragraphs] I and II." The plaintiff objected on the ground that the statutory provisions were unconstitutional under part I, articles 2, 12 and 14 of the State Constitution. The Superior Court (Dickson, J.) transferred without ruling the question of the constitutionality of RSA 281:12, II (Supp.1983).

The negligence actions in case No. 84-234 were brought by William Shortell for personal injury and by Margaret Shortell for loss of consortium. William Shortell was on duty as chief of police of the Town of Middleton on March 5, 1982, when he entered the town hall and fell through an open trap door in the floor, resulting in serious injury. Earlier in the day the fire chief, John Mammone, and a selectman, Carl Mitchell, had gone together to the town hall, and one of them had opened the trap door to give them access to inspect faulty plumbing. The plaintiffs brought actions against each for negligent failure to close the trap door. The plaintiffs took the position that RSA 281:12, II (Supp.1983), was inapplicable because neither defendant had been acting in the capacity of an "officer, director, agent, servant or employer" of the town and, further, that the bar to each action contained in § 12 was unconstitutional under part I, articles 2 and...

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