Saurman v. Liberty, 7028

• Decision Date: 27 February 1976
• Docket Number: No. 7028,7028
• Citation: 116 N.H. 73,354 A.2d 132
• Parties: Mary T. SAURMAN v. Denise LIBERTY, Administratrix, Estate of Roger Schwalm.
• Court: New Hampshire Supreme Court

Page 132

354 A.2d 132

116 N.H. 73

Mary T. SAURMAN v. Denise LIBERTY, Administratrix, Estate of Roger Schwalm.

No. 7028.

Supreme Court of New Hampshire.

Feb. 27, 1976.

Flynn, Powell, McGuirk & Blanchard, Portsmouth and John P. McGee Jr., for plaintiff.

Charles F. Hartnett, Dover, by brief and orally, for defendant.

GRIMES, Justice.

This transfer involves an action of case for personal injuries. The main issues are: (1) whether a suit for personal injuries may be maintained against the estate of a deceased motor vehicle operator when it is begun within six months of the grant of administration but when the demand period has been waived and consent to sue to the extent of the insurance coverage was given by the administratrix appointed on a creditor's petition who was the secretary of plaintiff's then attorney; (2) whether the administratrix should be removed for conflict of interest on the petition of the deceased's mother who is represented by counsel for the insurer; and (3) whether the trial court erred in limiting cross-examination of the administratrix.

The defendant's plea in bar was denied by Morris, J., who transferred defendant's exceptions. The mother of the deceased petitioned the probate court to remove the administratrix and appoint a new one. After hearing, the petition was denied by the probate court and on appeal all questions of law were transferred from Superior Court by Cann, J., pursuant to RSA 547:30.

On November 22, 1971, plaintiff was injured when the car in which she was riding was in a collision with a car driven by Roger Schwalm, who was killed in that accident. By writ dated June 13, 1973, plaintiff's attorney brought suit naming Roger Schwalm. On August 6, 1973, counsel for Lumberman's Mutual Casualty Company, the insurer of the Schwalm vehicle, entered a special appearance and pleaded in bar to the plaintiff's cause of action that the defendant had died. It was only at this point that plaintiff's counsel learned of Schwalm's death. No administration had been taken out on decedent's estate, and plaintiff withdrew the writ.

Plaintiff next filed a creditor's petition for appointment of Denise Liberty as the administratrix of Roger Schwalm's estate. RSA 553:2 III (1974). The petition was allowed on September 25, 1973. Denise Liberty was at that time employed as secretary for plaintiff's then attorney. On October 8, 1973, the administratrix sent a signed letter to plaintiff's associate counsel which stated, 'I, Denise Liberty, Administratrix of the Estate of Roger Schwalm, do hereby waive the demand period and consent to writs being brought provided recovery will not exceed the insurance coverage.' After waiver of the requirements of RSA 556:1, formal demand was made on the administratrix on October 12, 1973, for payment of plaintiff's claim. On October 15, 1973, the administratrix was served with plaintiff's writ.

RSA 556:11 states that in an action of tort for physical injuries where the action is not pending at the time of the decease of one of the parties and has not already become barred by the statute of limitations, the action 'may be brought for such cause at any time within two years after the death of the deceased party, and not afterwards.' This statutory provision, however, is qualified by RSA 556:1 which states: 'No action shall be sustained against an administrator if begun within six months after the original grant of administration, nor unless the demand has been exhibited to the administrator and payment has been demanded.' Section 3 provides that 'no such action shall be sustained unless the demand was exhibited to the administrator within six months after the original grant of administration, exclusive of the time such administration may have been suspended.' The death of Roger Schwalm occurred on the date of the accident, November 22, 1971. RSA 556:11 (1974) would thereby require that plaintiff's action for personal injuries be commenced before November 22, 1973, or be barred. However, the administratrix of the Roger Schwalm estate was not appointed until September 25, 1973. As RSA 556:1 requires that no action be brought within six months after the grant of administration, plaintiff would be unable to commence her action until March 25, 1974, approximately four months after the two-year statute of limitation period of RSA 556:11 would have extinguished her claim. If plaintiff's claim was to survive the two-year statute of limitations the six-month provision of RSA 556:1 (1974) would have to have been waived. See Heath v. Cleveland, 104 N.H. 451, 453, 189 A.2d 488, 490 (1963); Hall v. Brusseau, 100 N.H. 87, 89, 119 A.2d 703, 704 (1956).

The defendant's insurer initially contends that the action must be barred by the provisions of RSA ch. 556, and cites Health v. Cleveland, supra as controlling precedent. In that case, we held that an action for physical injuries will be forever barred if not brought within two years of the date of the decedent's death. Heath v. Cleveland, supra at 453, 189 A.2d at 490. In the instant case, the action was commenced within the two-year period required by RSA 556:11. It is only the six-month provision of RSA 556:1 which would bar the action. Defendant argues that this provision cannot be waived, again relying on Health v. Cleveland for support. In Health it was stated, '(I)n order for the plaintiff's cause of action to survive against the defendant, it was necessary that an action be commenced within two years after the date of death of Perley A. Spalding, or before December 28, 1960. The original petition filed on December 4, 1960, was brought within this time limit. However no action brought on that date, or any date between the date of original grant of administration (December 20, 1960) and December...