Gerrard v. Larsen

• Decision Date: 27 May 1975
• Docket Number: No. 74-1623,74-1623
• Parties: James S. GERRARD, Appellee, v. William G. LARSEN, Special Administrator of the Estate of Jack K. Gibbens, Deceased, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1127

517 F.2d 1127

James S. GERRARD, Appellee, v. William G. LARSEN, Special Administrator of the Estate of

Jack K. Gibbens, Deceased, Appellant.

No. 74-1623.

United States Court of Appeals,

Eighth Circuit.

Submitted Jan. 9, 1975.

Decided May 27, 1975.

Evan F. Heustis, Devils Lake, N. D., for appellant.

Neil Thompson, Devils Lake, N. D., for appellee.

Before BRIGHT, STEPHENSON, and WEBSTER, Circuit Judges.

BRIGHT, Circuit Judge.

The appellant, William G. Larsen, special administrator of the estate of Jack K. Gibbens, appeals from, inter alia, a summary judgment of dismissal of a wrongful death claim against the appellee, James S. Gerrard, the driver of an automobile which collided with the automobile driven by the deceased, Jack K. Gibbens. The district court granted the dismissal on the ground that the administrator was collaterally estopped by a judgment in a prior action for contribution by Gerrard against Gibbens' estate in which a jury determined that Gibbens' negligence had contributed to the accident. We hold that estoppel has not been established on the record presented and we reverse and remand for further proceedings.

Federal court action to recover for injuries and medical expenses was initiated by Elsperger and his mother, Lois, residents of the State of Arizona. They brought the action for damages against only Gerrard, who had previously pled guilty in state court to a charge of aggravated reckless driving arising out of this accident. The Elspergers contended that Gerrard's negligence had caused the accident and consequent injuries to Dennis. Following filing and service of the Elspergers' complaint, Gerrard brought his third-party action for contribution against William G. Larsen as special administrator of the estate of the deceased Gibbens, alleging that Gibbens' negligence had caused or contributed to the accident. The administrator filed an answer denying liability and, in addition, brought a counterclaim against Gerrard seeking to recover both damages for Gibbens' pain and suffering prior to his death and, for the benefit of Gibbens' parents, James and Helma Gibbens, the sum of $100,000, plus funeral expenses of $1,811. Larsen brought this latter claim under the provisions of North Dakota's wrongful death statute. N.D.Cent.Code §§ 32-21-01 to -06 (1960).

The trial commenced on June 4, 1974. On that date, the district court severed the counterclaim from the trial of the main action ¹ on motion of the administrator. After hearing evidence in the main action and in the contribution claim by Gerrard against Larsen, the jury returned a verdict in favor of the plaintiffs, Dennis and Lois Elsperger, in the sum of $25,000, and the jury also determined that Gerrard was entitled to contribution from administrator-Larsen. Thereafter, on July 16, 1974, the trial court, on motion of Gerrard, dismissed the counterclaim and this appeal followed.

The appellant-special administrator Larsen raises two issues on this appeal: (1) Did the trial court err by denying his motion for judgment n. o. v. or for a new trial in the main action on the ground that there was no substantial evidence of Gibbens' negligence? (2) Did the trial court err in granting a summary judgment dismissing the counterclaim against appellee-Gerrard?

I. Sufficiency of the Evidence.

We reject the appellant's first contention. The jury was entitled to find under the evidence that Gibbens' conduct driving at a high rate of speed while presumably under the influence of alcohol constituted negligence, contributing in some degree to the accident. The trial court properly presented this issue to the jury.

II. Collateral Estoppel.

Appellant bases his contention that the trial court erroneously dismissed the wrongful death action upon his differing fiduciary capacities in the main action and counterclaim. In defending against Gerrard's complaint in the main action, Larsen represented only the decedent's estate. In the counterclaim for wrongful death, Larsen represents the decedent's parents. The counterclaim asserts two separate claims: (1) damages for the decedent's pain and suffering prior to death; and (2) damages for loss sustained by the parents from the death of Jack Gibbens.

North Dakota law authorizes an action for wrongful death by the following persons in the following order:

(1) The surviving husband or wife, if any;

(2) The surviving children, if any;

(3) The surviving mother or father;

(4) The personal representative.

(N.D.Cent.Code § 32-21-03.)

Such an action may be maintained if the defendant would have been liable to the decedent if death had not ensued. N.D.Cent.Code § 32-21-01. In this case, according to the district court opinion, the contributory negligence of the decedent bars recovery by the parents in the wrongful death action. The appellant contends, however, that the administrator, who served as representative of the estate in the main action, serves in the counterclaim for wrongful death only as a representative of the parents and that, consequently, the judgment against him in his capacity as administrator for the estate does not bar him from proceeding in a different capacity on the counterclaim.

The court properly dismissed the estate's claim for damages suffered by Jack Gibbens, for the parties to this claim and the prior action are identical. The estate is bound by the prior finding that the decedent was guilty of negligence contributing to the accident and that issue is not subject to relitigation by the estate. See Restatement of Judgments § 68(1) (1942); see also Cromwell v. County of Sac, 94 U.S. 351, 353-54, 24 L.Ed. 195 (1876); see generally 1B J. Moore, Federal Practice PP 0.441(1)-(3) (2d ed. 1974).

In dismissing the counterclaim, including the claim for wrongful death, the district court reasoned as follows:

The Defendant-Third Party Plaintiff relies on Armstrong v. Miller, 200 N.W.2d 282 (N.D.1972), contending the four tests (for collateral estoppel) enunciated in that case have been met.

"(1) Was the issue which was decided in the prior adjudication identical with the one presented in the action in question? (2) Was there a final judgment on the merits? (3) Was the party against whom the plea is asserted a party or in privity with a party to the prior adjudication? and (4) Was the party against whom the plea is asserted given a fair opportunity to be heard on the issue?"

Third Party Defendant takes the position that the third test has not been met, contending that William G. Larsen, in defending the estate against the claim for contribution and in representing the heirs on the counterclaim, was representing different parties and that when the trial of the counterclaim was severed privity was destroyed. Third Party Defendant's argument is rejected. While Larsen may be representing different parties, obviously privity must have been present initially to give Larsen standing to assert the counterclaim. Larsen has failed to explain to the satisfaction of this Court how the severance of the trial of the counterclaim destroyed that privity. (Order of July 16, 1974, Civ. No. 4784 at 2.)

To determine whether Larsen is barred from maintaining the wrongful death action by the earlier finding of negligence on the part of Gibbens, we must focus on whether Larsen, in presenting the wrongful death claim, can be said to be a party to the earlier third party action or in privity, or its equivalent, with his status as special administrator in defending against that action. Both counsel cite Armstrong v. Miller, 200 N.W.2d 282 (N.D.1972), to support their arguments, but the decision in Armstrong is not dispositive of this question.

For background, we relate the facts and holdings in Armstrong v. Miller. In that case Mrs. Armstrong sustained injuries and her husband was killed in a three-vehicle accident involving the Armstrong car, a truck driven by one Miller, and a second car driven by one Mickelson. In a prior action she had sued, as a representative of her husband's heirs, Mickelson and Miller for damages for the wrongful death of her husband and had recovered against both defendants. Subsequently, she brought an action against these same defendants for her own personal injuries and sought to use the judgment in the prior action to preclude (or collaterally estop) the defendants from relitigating the liability issues in the case. The trial court approved this use of the prior judgment, but the Supreme Court of North Dakota reversed, rejecting her attempt to apply the doctrine of collateral estoppel offensively. ² The court reasoned as follows Adhering to the mutuality rule, Mrs. Armstrong, not being in privity in the first action, is neither bound by nor may she claim the benefits of the former adjudication of liability in the prior judgment. (200 N.W.2d at 288.)

In Armstrong v. Miller a nonparty to the prior action, Mrs. Armstrong as an individual, sought but was denied the right to invoke the collateral estoppel doctrine against parties to the prior action. Here, to the contrary, a party to the prior action, Gerrard, seeks to invoke the doctrine defensively against the wrongful death claim asserted by the administrator, Larsen. Although Larsen was a party in the prior litigation as administrator of Gibbens' estate and is a party in the wrongful death action as the representative of Gibbens' parents, the application of the collateral estoppel doctrine rests upon the status and financial interests of the beneficiaries and not upon the identity of the fiduciary in the two actions. Campbell v. Ashler, 320 Mass. 475, 70 N.E.2d 302, 305 (1946); Armstrong v. Miller,supra, 200 N.W.2d at 285-88; Restatement of Judgments § 80(3); see also Deep Rock Oil Corp. v. Sheridan, 173 F.2d 186, 191 (10th Cir. 1949); see generally 1B J. Moore, Federal Practice P 0.411(3) at 1435-47.

Thus, in applying the doctrine of collateral estoppel, we disregard Larsen's formal status and look to the interests he repres...