Krier-Hawthorne v. Beam

• Citation: 728 F.2d 658
• Decision Date: 02 March 1984
• Docket Number: KRIER-HAWTHORN,A,No. 83-1363,83-1363
• Parties: Margaret M.ppellant, v. Thomas L. BEAM and L. Wallace Sink, Administrator of the Estate of Joseph Krier, deceased, Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

Page 658

728 F.2d 658

Margaret M. KRIER-HAWTHORNE, Appellant, v. Thomas L. BEAM and L. Wallace Sink, Administrator of the

Estate of Joseph Krier, deceased, Appellees.

No. 83-1363.

United States Court of Appeals, Fourth Circuit.

Submitted Oct. 6, 1983.

Decided March 2, 1984.

Girard C. Larkin, Jr., Sacks, Sacks & Larkin, Norfolk, Va., for appellant.

Joseph M. Young, Reynolds, Smith & Winters, Norfolk, Va., for appellee Sink.

Peter C. Manson, Jr., Pender & Coward, Norfolk, Va., for appellee Beam.

Before MURNAGHAN and ERVIN, Circuit Judges, and BUTZNER, Senior Circuit Judge.

BUTZNER, Senior Circuit Judge:

Margaret M. Krier-Hawthorne appeals from the district court's order dismissing her personal injury action for lack of jurisdiction, 558 F.Supp. 694. We vacate the judgment and remand the case for further proceedings.

I

Mrs. Krier-Hawthorne was injured in an accident in York County, Virginia, when the automobile her husband was driving collided with one driven by Thomas L. Beam. Her husband, Joseph Krier, later died as a result of the injuries he sustained in the collision.

Virginia has abolished interspousal immunity in automobile accident litigation. Surratt v. Thompson, 212 Va. 191, 183 S.E.2d 200 (1971). When the surviving spouse contemplates bringing a personal injury action against the estate of a deceased spouse, who was a nonresident of the state, Virginia law requires the appointment of a resident administrator "solely for the purpose of prosecution of said suit ...." Virginia Code Secs. 64.1-75.1 (1980) and 26-59 (Supp.1983). Consequently, because Joseph Krier had been a citizen of New York, his widow, through her attorney, secured the appointment of L. Wallace Sink, a Virginia resident, as administrator of her husband's estate.

The widow then filed a negligence action against Beam and Sink, the administrator. Jurisdiction was based on diversity of citizenship under 28 U.S.C. Sec. 1332(a)(1). The widow was a citizen of New York, Beam was a citizen of Indiana, and Sink was a citizen of Virginia. Sink, through his attorney, filed an answer and moved to dismiss for lack of diversity jurisdiction.

The district court found that Sink was neither related to nor acquainted with the decedent. He is an attorney, a friend of the widow's attorney, and he agreed to serve as administrator so the widow could prosecute this suit. The court found that the estate had no assets "in Virginia or any other locality." It also found that if the widow prevailed, her damages would be paid by an insurance company and not from the decedent's estate.

The district court concluded that it lacked jurisdiction for two reasons. First, the New York citizenship of the decedent's heirs, and not the citizenship of the administrator, is decisive because the court found that the administrator had no assets to administer, no duties to perform, and no stake in the controversy. Second, the court perceived no "adversarial relationship" between the widow and the administrator and, consequently, no controversy in excess of $10,000 to be adjudicated.

II

The second reason for dismissal requires but brief discussion. Although the widow, through her attorney, nominated the administrator to comply with Virginia law, the record discloses that there is a controversy between the widow and the administrator. The widow alleged that the decedent was negligent; the administrator denied this allegation and pleaded contributory negligence and assumption of risk. The widow alleged the district court had jurisdiction; the administrator moved to dismiss for lack of jurisdiction. The fact that a lawyer retained by the decedent's insurance carrier represents the administrator does not render the widow's claim against the administrator noncontroversial. Generally, in automobile negligence litigation, the insurance company, and not the insured or the personal representative of the insured, chooses counsel, asserts a defense, and conducts settlement negotiations. Moreover, Virginia law, which governs this case, expressly recognizes that an adversary relationship and an adjudicative controversy exist between spouses, or the administrator of a deceased spouse, in automobile negligence litigation. Indeed, this is a premise for the abolition of interspousal immunity in this type of case. See Surratt, 212 Va. 191, 183 S.E.2d 200.

The record discloses that the decedent was insured by an automobile liability policy. Contrary to the district court's finding of no assets, the contractual obligation created by the policy is an asset of the estate. Sink administered this asset by promptly notifying counsel for the insurance company of this action. The company responded by undertaking the defense.

Finally, there is no suggestion in the record that the widow's damages are not in excess of $10,000. The fact that the estate does not have assets other than the insurance contract to satisfy these damages does not mean that the estate is without resources to pay the damages. It has a contractual claim for indemnification. Indeed, the Virginia Supreme Court expressly recognized in Surratt that insurance generally would be the source of a spouse's recovery.

The district court's reasoning appears to have been unduly influenced by the fact that the widow was suing her husband's administrator, whose appointment she obtained. But Virginia confirmed the propriety of her conduct by requiring the appointment of a resident administrator and abolishing interspousal immunity in this type of litigation. Surely no one would question Beam's right to nominate an administrator and sue in federal court in Virginia to recover damages in excess of $10,000 if he believed Krier was at fault. With respect to the adversarial nature of her claim and the source of compensation if she prevails, the widow, under Virginia law, is in a position similar to Beam's.

III

The critical question is whether the parties are diverse. The answer depends on whether the administrator's Virginia citizenship is accepted for the purpose of determining diversity.

We start with Mecom v. Fitzsimmons Drilling Co., 284 U.S. 183, 186, 52 S.Ct. 84, 85, 76 L.Ed. 233 (1931), a wrongful death case, where the Court said:

It is settled that the federal courts have jurisdiction of suits by and against executors and administrators if their citizenship be diverse from that of the opposing party, although their testators or intestates might not have been entitled to sue or been liable to suit in those courts for want of diversity of citizenship.

But the rule stated in Mecom is tempered by 28 U.S.C. Sec. 1359, which denies jurisdiction if a party "has been improperly or collusively made or joined to invoke" jurisdiction. See Bishop v. Hendricks, 495 F.2d 289 (4th Cir.1974); Lester v. McFaddon, 415 F.2d 1101 (4th Cir.1969).

Our determination of diversity jurisdiction in wrongful death cases has been based on two factors. First, although not formally named as plaintiffs, the real parties in interest are the statutory beneficiaries who are entitled to recover damages if the defendant is liable for the death of their decedent. Second, although formally named as plaintiff, the administrator of the decedent's estate has no assets to administer in connection with the litigation and no stake in the outcome of the controversy.

These factors have led us to conclude that when the statutory beneficiaries and the defendant are citizens of different states, the district court has jurisdiction regardless of the common citizenship of the plaintiff administrator and the defendant. See Messer v. American Gems, Inc., 612 F.2d 1367 (4th Cir.1980); Miller v. Perry, 456 F.2d 63 (4th Cir.1972). Conversely, the court lacks jurisdiction when the statutory beneficiaries and the defendant have identical citizenship even though the plaintiff administrator and the defendant are citizens of different states. See Mullins v. Seals, 562 F.2d 326 (4th Cir.1977); Vaughan v. Southern Ry. Co., 542 F.2d 641 (4th Cir.1976); Bishop, 495 F.2d 289; Lester, 415 F.2d 1101.

Nevertheless, we have not departed altogether from the jurisdictional precept of Mecom. We have held that when the citizenship of an executrix differs from that of the defendant, the court has jurisdiction even though the decedent, the beneficiaries, and the defendant share a common citizenship. Sadler v. New Hanover Memorial Hospital, Inc., 588 F.2d 914 (4th Cir.1978). Relying on Mecom and the Court's reservation of the jurisdictional issue pertaining to the citizenship of a personal representative in Kramer v. Caribbean Mills, Inc., 394 U.S. 823, 828 n. 9, 89 S.Ct. 1487, 1490 n. 9, 23 L.Ed.2d 9 (1969), we reasoned that the citizenship of the executrix was controlling because she had duties other than serving as a nominal plaintiff, and there was little likelihood of collusion when the appointment was made before the events causing the testator's death.

IV

Significantly, all of the cases mentioned above involved actions for wrongful death where the personal representative was named as plaintiff. This case presents the first occasion for considering the issue in a personal injury action where the administrator is named as defendant to comply with the law of the forum state. Should we abide by the general rule set forth in Mecom and applied in Sadler, as urged by the widow, or should we resort to the exception that we have created to Mecom in all of our recent wrongful death decisions, other than Sadler, and look to the citizenship of the decedent's heirs, as urged by the administrator?

For the following reasons, we conclude that we should follow Mecom and Sadler in personal injury actions brought in a state that dictates appointment of a resident administrator as a defendant. Unlike a wrongful death action, there are no statutory beneficiaries. Moreover, the decedent's heirs have no stake in the outcome of this case. They will be neither enriched nor impoverished by its outcome. They are not...