Porter v. Dartmouth College, Civil No. 07-cv-28-JL.

Decision Date12 January 2010
Docket NumberCivil No. 07-cv-28-JL.
Citation678 F. Supp.2d 15,2010 DNH 8
PartiesChristina M. PORTER, Deceased, by Brent M. Porter and Mary M. Salstrom, As Administrators of Her Estate and Individually v. DARTMOUTH COLLEGE, et al.
CourtU.S. District Court — District of New Hampshire

Charles J. Raubicheck, Julie Kurzrok, Kevin Murphy, Frommer Lawrence & Haug, LLP, New York, NY, K. William Clauson, Bradford T. Atwood, Clauson Atwood & Spaneas, Hanover, NH, for Plaintiffs.

Matthew R. Johnson, Thomas B.S. Quarles, Jr., Devine Millimet & Branch PA, Manchester, NH, for Dartmouth College.

OPINION AND ORDER

JOSEPH N. LAPLANTE, District Judge.

The question before the court is whether this wrongful death case must be dismissed because the plaintiffs, who brought suit three years ago claiming to be the administrators of their daughter's estate, were not actually appointed as administrators until six months ago, after the statute of limitations expired. The defendant, Dartmouth College, has moved to dismiss for lack of standing, see Fed.R.Civ.P. 12(b)(6), arguing that timely appointment is required for an administrator to maintain a wrongful death action under New Hampshire law. The plaintiffs argue that they cured their good-faith mistake by ultimately becoming administrators and that their case should not be dismissed on a "technicality."

This court has subject-matter jurisdiction under 28 U.S.C. § 1332(a)(1) (diversity). After oral argument, Dartmouth's motion is denied. Although the plaintiffs may not have strictly complied with the wrongful death and survival statute, see N.H.Rev.Stat. §§ 556:9 et seq., the New Hampshire Supreme Court has "given the statute a liberal interpretation, so as to fully protect the rights of those interested in the estate." Owen v. Owen, 109 N.H. 534, 536, 257 A.2d 24 (1969) (quoting Halle v. Cavanaugh, 79 N.H. 418, 420, 111 A. 76 (1920)). This court, applying New Hampshire law, must do the same. The relevant case law from the New Hampshire Supreme Court suggests that the plaintiffs should be allowed to proceed to trial now that they have been appointed as administrators of their daughter's estate.

I. Applicable legal standard

For purposes of ruling on Dartmouth's motion to dismiss, this court must accept the plaintiffs' well-pleaded facts as true and must draw all reasonable inferences in their favor. Phoung Luc v. Wyndham Mgmt. Corp., 496 F.3d 85, 88 (1st Cir. 2007). Because the motion challenges the plaintiffs' capacity to maintain suit on behalf of their daughter's estate, it is governed by "the law of the state where the court is located." Fed.R.Civ.P. 17(b)(3); see also Martel v. Stafford, 992 F.2d 1244 (1st Cir.1993) (applying forum state's law in determining administrator's capacity). In applying New Hampshire law, this court is "bound by the teachings of the state's highest court." Phoung Luc, 496 F.3d at 88. To the extent that the New Hampshire Supreme Court "has not definitively weighed in," this court "may consider analogous decisions, considered dicta," and other reliable sources in making an "informed prophecy" about how that court would resolve the issue. Janney Montgomery Scott LLC v. Tobin, 571 F.3d 162, 164 (1st Cir.2009).1

II. Background

Christina Porter, a sophomore at Dartmouth College, suffered catastrophic injuries while participating in the school's introductory ski class at the Dartmouth Skiway on February 3, 2004. After nearly a year of medical care, she ultimately died from the injuries on January 16, 2005. At the time of her death, she was 21 years old with no spouse, no children, no siblings, no will, and no tangible assets other than her portfolio of artwork from grade school to college. Her closest living relatives were her parents, plaintiffs Brent Porter and Mary Salstrom.

The plaintiffs filed this lawsuit against Dartmouth on February 2, 2007, just before the three-year anniversary of their daughter's accident. They asserted claims for wrongful death and negligence under New Hampshire law, both individually and as purported administrators of their daughter's estate. Dartmouth initially moved to dismiss the case as barred by the New Hampshire Ski Statute. See N.H.Rev. Stat. § 225-A:24 (giving ski area operators limited immunity against personal injury claims that result from the inherent risks of skiing). The court denied the motion, but noted that because their daughter was an adult, the plaintiffs could not maintain individual claims for loss of consortium. See Porter v. Dartmouth Coll., 2007 DNH 131, 7-8 n. 3, 2007 WL 3124623 (Barbadoro, D.J.).

Two years into the case, with discovery still underway, Dartmouth asked the plaintiffs for a copy of their estate administration papers, which it needed to obtain confidential medical records from their daughter's medical providers. In attempting to satisfy that request, plaintiffs' counsel learned in May 2009 that neither the plaintiffs nor anyone else had ever sought appointment as administrators of their daughter's estate. The plaintiffs mistakenly believed that, as surviving parents, they became administrators automatically when their daughter died without a will.2

Hoping to rectify this good-faith mistake, the plaintiffs immediately began the process of seeking appointment as administrators from the probate court in Kings County (Brooklyn), New York, where they and their daughter resided at the time of her death. In the meantime, Dartmouth moved to dismiss this case for lack of standing. Two weeks later, on July 21, 2009, the plaintiffs finally obtained letters of administration from the probate court.

As briefing continued on the motion to dismiss, the court denied Dartmouth's previously submitted motions for summary judgment, leaving the case on track for a February 2010 trial. See Porter v. Dartmouth Coll., 2009 DNH 145, 2009 WL 3227831 (Barbadoro, D.J.) (denying summary judgment motion relating to liability release agreement); margin order dated Aug. 19, 2009 (Barbadoro, D.J.) (denying summary judgment motion relating to standard of care). The case was then reassigned to this chambers after Judge Barbadoro recused himself.

III. Analysis

This court must decide whether the plaintiffs have standing to continue litigating their claims under New Hampshire's wrongful death and survival statute, N.H.Rev.Stat. §§ 556:9 et seq. Dartmouth argues that the plaintiffs lack standing because they were not appointed as administrators of their daughter's estate within the statute of limitations and they failed to satisfy the statutory requirements for someone other than an administrator to maintain such an action. The plaintiffs argue, in response, that they made a good-faith mistake, which has since been cured by their appointment as administrators, and that their case should not be dismissed on a "technicality." After analyzing (A) the statutory framework and (B) the relevant case law, this court (C) concludes that the plaintiffs have standing and may proceed to trial.

A. The statutory framework

New Hampshire's wrongful death and survival statute provides that "the administrator of the deceased party" may bring a wrongful death action as plaintiff on behalf of the estate. N.H.Rev.Stat. § 556:12. Like most personal actions under New Hampshire law, a wrongful death action "may be brought only within three years of the act or omission complained of." Cheever v. S. N.H. Reg'l Med. Ctr., 141 N.H. 589, 590, 688 A.2d 565 (1997) (quoting N.H.Rev.Stat. § 508:4, which applies to wrongful death cases by virtue of N.H.Rev.Stat. § 556:11).3 If not filed in a timely manner, the action is forever barred. See Heath v. Cleveland, 104 N.H. 451, 453, 189 A.2d 488 (1963) (citing Poff v. New Eng. Tel. & Tel. Co., 72 N.H. 164, 165, 55 A. 891 (1903)).

The statute also allows other interested persons to file a wrongful death action and then seek the administrator's approval:

Any person interested in the estate of a person deceased may begin an action as administrator, which shall not be abated nor the attachment lost because such person is not administrator, nor by his decease, if the administrator then or afterward appointed shall, at the first or second term of the court, indorse the writ and prosecute it as plaintiff.

N.H.Rev.Stat. § 556:19. Unchanged since 1842, this provision is an exception to the "general rule" that an "administrator is the only proper party to bring or defend actions relating to the personal estate of the deceased." Scamman v. Sondheim, 97 N.H. 280, 281, 86 A.2d 329 (1952).

The plaintiffs have not strictly complied with the statute in this case. They did bring suit within the three-year limitations period, claiming to be the administrators of their daughter's estate. At the time, however, they had not sought appointment as administrators and thus were not authorized to bring suit in that capacity. They were merely interested persons, authorized to "begin an action" under § 556:19 but then required to get the administrator's approval within "the first or second term of the court."4 They later became the administrators and endorsed the action, but not within two terms of court, nor within the statute of limitations.5

The New Hampshire Supreme Court, though, has not always required strict compliance with the statute. To the contrary, it has "given § 556:19 a liberal interpretation so as to fully protect the rights of those interested in the estate." Owen, 109 N.H. at 536, 257 A.2d 24 (quoting Halle, 79 N.H. at 420, 111 A. 76). Whether this court agrees or disagrees with that approach to statutory interpretation is irrelevant. On issues of New Hampshire law, this court's "task is to ascertain the rule the state court would most likely follow under the circumstances, even if this court's independent judgment on the question might differ." Rodriguez v. Suzuki Motor Corp., 570 F.3d 402, 406 (1st Cir.2009) (quotation omitted). As explained below, the case law indicates that the New Hampshire Supreme Court would...

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  • Doe v. Del. State Police
    • United States
    • U.S. District Court — Southern District of New York
    • 4 Abril 2013
    ...Nonetheless, the handful of federal cases addressing a similar posture suggest just such an answer. Cf. Porter v. Dartmouth Coll., 678 F.Supp.2d 15, 16–17 (D.N.H.2010) (applying New Hampshire law on the capacity of plaintiffs to bring a wrongful death action, which turned on whether plainti......
  • Taylor v. Vt. State Senior Trooper David Schaffer
    • United States
    • U.S. District Court — District of Vermont
    • 10 Febrero 2015
    ...cases to proceed when a plaintiff can establish administratrix status after filing her complaint. See, e.g., Porter v. Dartmouth Coll., 678 F. Supp. 2d 15 (D.N.H. 2010) (finding parents have standing to maintain their wrongful death suit when they filed within the statute of limitations but......

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