Hossler v. Barry

• Decision Date: 26 June 1979
• Citation: 403 A.2d 762
• Parties: Carol HOSSLER, Individual and Next Friend of William and Kevin Dows v. John J. BARRY, Administrator of the Estate of Margaret L. Barry.
• Court: Maine Supreme Court

Page 762

403 A.2d 762

Carol HOSSLER, Individual and Next Friend of William and Kevin Dows v. John J. BARRY, Administrator of the Estate of Margaret L. Barry.

Supreme Judicial Court of Maine.

June 26, 1979.

Preti, Flaherty & Beliveau by Thomas A. Cox, Jonathan S. Piper (orally), Portland, for plaintiff.

Hewes, Culley & Feehan by Richard D. Hewes (orally), Portland, for defendant.

Before McKUSICK, C. J., and POMEROY, WERNICK, ARCHIBALD, DELAHANTY, GODFREY and NICHOLS, JJ.

DELAHANTY, Justice.

Following a June 13, 1977 jury trial in the Superior Court, York County, a verdict of $25,500 was returned for the plaintiff, Carol Hossler, as next friend for her children, William and Kevin Dows. This appeal, brought by the defendant, John Barry, as administrator of his wife's estate, challenges the presiding Justice's rulings on matters relating to the conflict of laws and the use of collateral estoppel.

We sustain the appeal.

On July 2, 1969, an accident occurred in Kittery, Maine involving two automobiles. The defendant was a passenger in a vehicle driven by his wife while William and Kevin Dows were riding in the other vehicle operated by their father, Ray Dows. The Barrys were life-long residents of Massachusetts. Carol Hossler and Ray Dows, married at the time of the accident, were apparently living in Connecticut with their children.

On March 29, 1971, John Barry commenced an action in the Superior Court, York County, against Ray Dows for personal injuries allegedly sustained by his wife and him. Barry's wife died shortly thereafter, and on May 17, 1971 he was appointed administrator of her estate, which estate was probated in Massachusetts. In January of 1972, Ray Dows brought an action against Margaret Barry's estate seeking compensation for personal injuries, property damage to his automobile, and his expenses for medical and hospital services rendered to his children. The two actions were consolidated for trial, and on August 14, 1973 a jury found Dows thirty percent negligent and the defendant's decedent wife seventy percent liable. Judgment was entered and satisfied.

The present action, commenced by Carol Hossler on May 27, 1975, sought damages against the defendant's decedent wife for the children's pain and suffering and for the plaintiff's nursing services. ¹ The parties stipulated that on the date of the accident the decedent carried liability insurance whose limit exceeded the amount being sought. Raising the statute of limitations as an affirmative defense, the defendant moved to dismiss because the time for commencing suit against an estate had expired under the laws of both Massachusetts (Mass.Gen.Laws Ann. ch. 197, § 9) and Maine (18 M.R.S.A. § 2651). The presiding Justice denied the motion on the ground that neither non-claim statute barred the action as long as there was insurance coverage available to satisfy any judgment that would be obtained. Further, the court granted the plaintiff's motion for partial summary judgment on the question of liability based upon the previous adjudication of this issue.

I. Conflict of Laws

Advancing various interests that Massachusetts has with the instant suit and relying upon Beaulieu v. Beaulieu, Me., 265 A.2d 610 (1970), the defendant asserts that the Massachusetts limitation period should have been applied by the court below. According to the defendant, the applicable statute of limitations is found in Massachusetts' non-claim statute, Mass.Gen.Laws Ann. ch. 197, § 9, which at the time of the decedent's death provided that all suits against an estate had to be commenced within one year from the time the administrator first gave his performance bond. This suit, commenced more than four years after the defendant was appointed administrator, was therefore untimely.

As would be expected, the plaintiff, mustering all of Maine's relevant contacts with the parties and the accident, asserts that under a Beaulieu analysis Maine's substantive and procedural laws would control the suit. This action, commenced within the six-year period contained in 14 M.R.S.A. § 752, was timely brought.

Prior to Beaulieu v. Beaulieu, supra, there is little doubt that Maine's limitation period would have controlled the suit.

Viewing the non-claim provision as a statute of limitations, the traditional rule is that Maine As the forum of the suit would apply its own limitation period. Alropa Corp. v. Britton, 135 Me. 41, 188 A. 722 (1936). The theory underlying the rule is that a statute of limitations ordinarily affecting only the remedy is considered procedural and is thus subject to the law of the forum. Miller v. Fallon, 134 Me. 145, 183 A. 416 (1936). As set forth in Pringle v. Gibson, 135 Me. 297, 301, 195 A. 695, 697 (1937), a case whose lex loci delicti doctrine was admittedly abandoned in Beaulieu v. Beaulieu, supra,

it is a general and well-settled rule that remedies are regulated and governed by the lex fori, (citations omitted), and that included in the procedural policy of the state are statutes of limitations . . ..

Two exceptions to this general rule have been recognized, one statutory and the other common law. To prevent forum shopping and the interminable tolling of the statute of limitations, Developments, Statutes of Limitations, 63 Harv.L.Rev. 1177, 1262-64 (1950), borrowing statutes have been enacted the effect of which, when applicable, is to enable the forum to borrow and use the statute of limitations of another state in determining the timeliness of an action. Our borrowing statute, 14 M.R.S.A. § 866, reads in pertinent part:

No action shall be brought by any person whose cause of action has been barred by the laws of any state, territory or country while all the parties have resided therein.

For the borrowing statute to apply, "(t)he parties must reside in the same state at the same time." Frye v. Parker, 84 Me. 251, 254, 24 A. 844 (1892). Since the plaintiff never resided in Massachusetts, the state where the defendant resided, 14 M.R.S.A. § 866 could not have been triggered.

A second exception is where a statute in a foreign jurisdiction has created the liability sought to be enforced in the forum. In such circumstances, if passage of the appropriate foreign limitation period bars the right and not merely the remedy, then an action to enforce that liability cannot be maintained in the forum. See Pringle v. Gibson, supra; Lamberton v. Grant, 94 Me. 508, 48 A. 127 (1901).

The plaintiff's suit seeking damages for pain and suffering was not predicated upon foreign statutory enactment without which no action could have been maintained. ² Unlike an action for wrongful death which is purely statutory, Hammond v. Lewiston, Augusta and Waterville Street Railway, 106 Me. 209, 76 A. 672 (1909), the instant suit rests upon common-law principles. We are aware of the traditional rule that a foreign administrator or executor can neither sue nor be sued in the courts of another state. Fort Fairfield Nash Co. v. Noltemier, 135 Me. 84, 189 A. 415 (1937). However, whatever authority is needed to abrogate this common-law principle is found in our long-arm statute, 14 M.R.S.A. § 704-A, ³ and our non-resident motorist statute, 29 M.R.S.A. § 1911, ⁴ the constitutionality of which the defendant does not challenge.

The question now arises whether Beaulieu v. Beaulieu, supra, wrought any significant change to the hitherto well-established principle and exceptions concerning the statute of limitations. We think not.

Beaulieu v. Beaulieu eschews any mechanical approach to choice-of-law questions. The more flexible methodology under Beaulieu stresses a comparison of the relative contacts of the forum and other interested states to "(give) controlling effect to the law of the state which has the greatest contact or concern with, or interest in, the specific issue creating the choice-of-law problem before the court . . .." Id. at 617.

The primary purpose of the statute of limitations is to keep stale claims out of court. Williams v. Ford Motor Co., Me., 342 A.2d 712 (1975). It is an integral part of the genuinely "procedural" rules relating to the commencement, maintenance, and prosecution of a suit. Restatement (Second) of Conflict of Laws § 122, Comment a (1971). The forum's interest in applying such local rules relates primarily to practicality, convenience, and the proper administration of justice. These reasons generally, although not invariably, outweigh any sister-state interest in the matter even where, as here, the outcome hangs in the balance. Id. Accordingly, the Restatement (Second), Supra at §§ 142-43, adopts as a general proposition the pre-Beaulieu conflict rules concerning the statute of limitations.

We recognize that anytime suit is permitted against a foreign administrator or executor, there is a potential for interference with the administration of an estate. Massachusetts has a not insubstantial interest in having its estates distributed in a prompt and orderly fashion. Doyle v. Moylan, 141 F.Supp. 95 (D.Mass.1956). By confining recovery to the limits of the liability insurance, an asset of the decedent not subject to distribution, the presiding Justice ensured that the administration of the decedent's estate would not be unduly disturbed. See Brooks v. National Bank of Topeka, supra.

We hold that under these circumstances Maine's statute of limitations controls the suit.

The defendant has conceded that if Maine's statute of limitations applies then the appropriate period is the six-year statute, 14 M.R.S.A. § 752, rather than the one-year statute, 18 M.R.S.A. § 2651. Proceeding upon this not unreasonable assumption, See Svenska Handelsbanken v. Carlson, 258 F.Supp. 448, 451 (D.Mass.1966), we find the plaintiff's suit timely brought.

II. Collateral Estoppel

Prior to trial, the plaintiff, relying upon collateral estoppel, moved for summary judgment under M.R.Civ.P. 56(d). Because the defendant's liability had previously been established, the...