Sonner v. Cordano

• Decision Date: 11 December 1963
• Docket Number: Civ. No. 1622.
• Citation: 228 F. Supp. 435
• Parties: Margaret SONNER, Executrix of the Estate of Jose Porfirio Vazquez, Deceased, Plaintiff, v. John Pete CORDANO, Defendant.
• Court: U.S. District Court — District of Nevada

228 F. Supp. 435

Margaret SONNER, Executrix of the Estate of Jose Porfirio Vazquez, Deceased, Plaintiff, v. John Pete CORDANO, Defendant.

Civ. No. 1622.

United States District Court D. Nevada.

December 11, 1963.

Hepworth & Nungester, Buhl, Idaho, Joseph O. McDaniel, Elko, Nev., for plaintiff.

Vargas, Dillon & Bartlett, Reno, Nev., Moffatt, Thomas, Barrett & Blanton, Boise, Idaho, for defendant.

WOLLENBERG, District Judge.

This is a motion to dismiss an action brought for the alleged wrongful death of an Idaho resident killed in an automobile-truck collision in Nevada. Plaintiff, an Idaho resident and executrix of decedent's estate, is suing as the personal representative authorized to recover on behalf of decedent's heirs under the Nevada wrongful death statute. Defendant, a Nevada resident, moves to dismiss the action on the ground that a foreign executrix, who has not obtained an ancillary appointment from Nevada authorities, has no capacity to sue under the law of Nevada. Plaintiff argues in opposition that a wrongful death action brought by a foreign personal representative constitutes an exception to the general rule that a foreign representative has no capacity to sue outside the territorial jurisdiction of the court from which his appointment derives.

Jurisdiction of this court is invoked by the diversity of citizenship of the parties and the amount in controversy, both of which meet the requisites of 28 U.S.C.A. § 1332.

Fed.R.Civ.P. 17(b) makes it clear that the law of Nevada must control the disposition of this motion. Rule 17(b) provides, in part:

"The capacity of an individual, other than one acting in a representative capacity, to sue or be sued shall be determined by the law of his domicile. * * * In all other cases capacity to sue or be sued shall be determined by the law of the state in which the district court is held * * *."

The court must therefore determine how the law of Nevada affects plaintiff's capacity to bring this action.

The research of counsel and the court has not disclosed any case in which the Supreme Court of Nevada has ruled on the precise issue presently under consideration. Although both plaintiff and defendant have cited the early Nevada case of Rogers v. Hatch, 8 Nev. 35 (1872), as supporting their respective contentions, this case is of no assistance in determining how the Supreme Court of Nevada would decide the issue of plaintiff's capacity to sue. This being a matter of first impression in Nevada, the decision of this Court must attempt to forecast what the Supreme Court of Nevada would hold if confronted with the same issue.¹

The provisions of the Nevada Revised Statutes which are applicable to this action, read in pertinent part:

"12.090 Heirs, guardians, personal representatives may maintain action for death of adult. When the death of a person not a minor is caused by the wrongful act or neglect of another, his heirs, or his personal representatives for the benefit of his heirs, may maintain an action for damages against the person causing the death * * *."

"41.080 Liability for death by wrongful act. Whenever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then, and in every such case, the persons who or the corporation which would have been liable if death had not ensued shall be liable to an action for damages notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to a felony."

"41.090 Proceeds of judgment not liable for debt of deceased * * *.

"1. The proceeds of any judgment obtained in any action brought under the provisions of NRS 41.080 and this section shall not be liable for any debt of the deceased, provided he or she shall have left a husband, wife, child, father, mother, brother, sister, or child or children of a deceased child."

The reference to "personal representatives" in N.R.S. § 12.090 does not make clear whether the Nevada Legislature intended to make any distinction between domestic as opposed to foreign representatives. Statutory language of this type is discussed in an extensive annotation in 52 A.L.R.2d 1048 (1957), where it is stated at 1052:

"The authorities are in conflict as to whether under a death statute of the forum which designates the personal representative (or administrator) as the proper person to bring the suit, the term `personal representative' or its equivalent (administrator, executor) is broad enough to include a foreign personal representative."

The annotation contains numerous citations representative of both points of view, but summarizes this conflict of authority with the following statement:

"The better rule, sometimes referred to as `the modern liberal doctrine,' seems to be that a foreign personal representative has the capacity to bring an action under the wrongful death statute of the forum where he sues as a statutory trustee for the exclusive benefit of beneficiaries designated in the statute, the proceeds recovered not being subject to claims of the deceased's creditors, while he has no such capacity where he sues for the benefit of the deceased's general estate."²

It should be pointed out that, in the present action, plaintiff is not suing for the benefit of the deceased's general estate, but is instead suing to recover for the benefit of the deceased's heirs, namely, his wife and children. N.R.S. § 41.090 provides that any recovery obtained by plaintiff will not be subject to the claims of the deceased's creditors.

The rationale supporting the so called "modern liberal doctrine" is perhaps best articulated in the often cited case of Wiener v. Specific Pharmaceuticals, Inc., 298 N.Y. 346, 351, 83 N.E.2d 673, 675-76, where the court said:

"The rule barring foreign administrators from our courts is just and reasonable only if applied in cases, first, where there are domestic creditors, and second, where the foreign administrator sues to

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