Stewart v. Farrel

• Decision Date: 06 March 1989
• Docket Number: No. 87-438,87-438
• Citation: 131 N.H. 458,554 A.2d 1286
• Parties: Brenda STEWART et al. v. Joan K. FARREL, Executrix of the Estate of Robert E. Farrel.
• Court: New Hampshire Supreme Court

Page 1286

554 A.2d 1286

131 N.H. 458

Brenda STEWART et al. v. Joan K. FARREL, Executrix of the Estate of Robert E. Farrel.

No. 87-438.

Supreme Court of New Hampshire.

March 6, 1989.

Seufert & Thompson P.C., Concord (Robert L. Thompson orally and on the brief and Christopher J. Seufert on the brief), for plaintiffs.

Branch & Greenhalge P.A., Concord (Robert D. Branch on the brief and orally), for defendant.

JOHNSON, Justice.

The plaintiffs, Brenda and Mark Stewart (the Stewarts), appeal a decision by the Superior Court (Cann, J.) denying their petition, pursuant to RSA 556:28, to extend the time for filing notice of claim against the Estate of Robert E. Farrel (the estate) with the defendant executrix, Joan K. Farrel. The Stewarts argue that, because justice and equity required an extension and their failure to file timely was not the result of culpable neglect, the superior court erred in refusing to grant their petition. For reasons that follow, we reverse and remand.

Robert E. Farrel, a resident of Sugar Hill, died in Concord on July 22, 1986. His wife, Joan K. Farrel, was appointed executrix of his estate in October 1986. On September 4, 1987, the Stewarts filed a two count libel against the estate in Merrimack County Superior Court, alleging that on or about December 29, 1984, while Mr. Farrel was a patient at the New Hampshire State Hospital in Concord, he physically assaulted Mrs. Stewart, who was then a nurse at the hospital. Count I sought recovery for, inter alia, Mrs. Stewart's physical injuries, pain and suffering, and loss of employment. Count II was Mr. Stewart's claim for loss of consortium.

Although the Stewarts brought suit against the estate within one year of the executrix's original grant of administration, as RSA 556:5 requires, they did not provide the executrix notice of claim within six months as RSA 556:3 requires. In mid September 1987, they therefore filed a petition in the superior court, pursuant to RSA 556:28, requesting an extension of time in which to provide the necessary notice. In addition to the above facts, the Stewarts' petition stated that: (1) the only notice of administration of the estate was published during October 1986 in the Littleton Courier, a weekly newspaper published in Littleton; (2) Concord, where they live, is outside the paper's distribution area; (3) they have no contacts in the Littleton area; and (4) they had no actual knowledge of Mr. Farrel's death and the administration of his estate until counsel, whom they retained on September 2, 1987, contacted the State's probate courts and discovered Mr. Farrel had died. The petition also stated that, as a result of her injuries, Mrs. Stewart had been unable to work since the incident.

After receiving their petition and hearing offers of proof of the facts alleged, the superior court determined that the Stewarts were chargeable with culpable neglect because it was "clear that from the date of the injury in December 1984 until September 1987 neither Robert E. Ferrel [sic], his guardian nor the executrix of his estate had any notice whatsoever of any claims which plaintiffs were making." The superior court denied the Stewarts' petition for an extension. This appeal followed.

Like most States, New Hampshire has a creditor non-claim statute establishing filing deadlines for claims against an estate. RSA ch. 556; see Falender, Notice to Creditors in Estate Proceedings: What Process is Due?, 63 N.C.L.Rev. 659, 667-68 (1985). Our statute contains both short and long-term filing provisions, the former tied to administration of the estate, RSA 556:1-: 5, and the latter to the date of the decedent's death, RSA 556:29. The short- term provisions, relevant here, require creditors to file notice of claim with the estate's executor or administrator within six months of the original grant of administration. RSA 556:2, :3. Creditors then must bring suit within one year of the grant of administration, RSA 556:5, but may not bring suit within the first six months. RSA 556:1. Suits against an estate may be sustained only if notice of claim is properly exhibited. RSA 556:1. RSA 556:28 provides the only exception to these requirements. It allows those who fail to bring suit within the allotted time to petition the superior court for an extension. Petitions must set forth all facts necessary to the court's decision. Emerson's Sons v. Cloutman, 88 N.H. 59, 62, 184 A. 609, 611 (1936). The superior court may grant the extension if it is "of the opinion that justice and equity require it, and that the claimant is not chargeable with culpable neglect in not bringing his suit within the time limited by law...." RSA 556:28. We have held that the provisions of RSA 556:28 apply to the failure to provide timely notice of claim as well as to the failure to bring timely suit. Id. at 61, 184 A. at 610.

On appeal, the Stewarts argue that the superior court erred as a matter of law in refusing to grant them an extension under RSA 556:28. They maintain their failure to provide notice of claim was due entirely to their ignorance of Mr. Farrel's death and this ignorance was in no way the result of culpable neglect. They add that it would be in the interest of justice and equity to allow their petition, since we have recognized the importance of protecting plaintiffs' rights to maintain actions in tort. Finally, they argue that the superior court erred in refusing to allow an evidentiary hearing on their petition. The executrix argues that the Stewarts failed to allege facts in their petition sufficient to prove the absence of culpable neglect and that, since the statute requires petitions to set forth all relevant facts, the superior court properly denied the Stewarts the opportunity to present additional facts at an evidentiary hearing.

As noted above, in order to receive relief under RSA 556:28, a plaintiff must submit a petition to the superior court setting forth facts sufficient to demonstrate both that "justice and equity" require an extension and that delay was not the result of the plaintiff's own "culpable neglect." RSA 556:28. Whether justice and equity do require an extension in a particular case and whether the plaintiff was chargeable with culpable neglect are questions of fact for the superior court. See, e.g., Sullivan v. Bank, 99 N.H. 226, 228, 108 A.2d 553, 555 (1954); Emerson's Sons, 88 N.H. at 62, 184 A. at 611. In determining what justice and equity require, the superior court should take into account both that " 'the right to recover for personal injuries is ... an important substantive right,' " Coffey v. Bresnahan, 127 N.H. 687, 693, 506 A.2d 310, 314 (1986) (quoting Carson v. Maurer, 120 N.H. 925, 931-32, 424 A.2d 825, 830 (1980)), and that the purpose underlying relevant sections of RSA chapter 556 "is to secure the speedy settlement of estates." Coffey supra. In interpreting the term "culpable neglect," we have stated:

" ' "It is less than gross carelessness, but more than the failure to use ordinary care, it is culpable want of watchfulness and diligence, the unreasonable inattention and inactivity of 'creditors who slumber on their rights.' " ' It exists 'if no good reason, according to the standards of ordinary conduct, for the dormancy of the claim is found.' "

Coffey, 127 N.H. at 693, 506 A.2d at 314.

Given our prior interpretation of the term, the superior court's determination that the Stewarts were chargeable with culpable neglect in allowing approximately two and one-half years to pass between the alleged attack and the time they filed suit was error since a plaintiff who has been injured through tortious conduct is under no duty to notify the tortfeasor of her intention to bring suit within the time allowed by the statute of limitations. The very purpose of RSA 556:28 is to allow certain claims despite a party's failure to meet other statutory requirements. Untimely notice of a tort claim was not itself a factor for the court to consider in determining culpable neglect. The applicable statute of limitations for claims in tort was six years, RSA 508:4, and claimants were not thereby required to provide notice of their claims to anyone during the statutory period. Moreover, the Stewarts' decision not to sue immediately is understandable. It is not unusual for plaintiffs to wait to bring claims until they can determine the full extent of their injuries.

The superior court's error typically would warrant remand for its consideration of relevant facts alleged in the Stewarts' petition. However, petitions for relief pursuant to RSA 556:28 must set forth facts demonstrating not only the absence of culpable neglect, but that justice and equity demand an extension. Although the superior court did not reach the question, it is clear the plaintiffs' petition did not allege facts sufficient to support a determination that justice and equity required relief.

As noted earlier, in determining what justice and equity require in cases such as this, the superior court should consider both the plaintiff's important substantive right to pursue recovery in tort and the interest in speedy settlement of estates underlying RSA chapter 556. Coffey, 127 N.H. at 693, 506 A.2d at 314. The Stewarts' petition alleged Mrs. Stewart had been badly injured and was unable to return to work, thus suggesting that she had a viable claim in tort. However, it was devoid of facts relevant to the interest in swiftly settling estates. It did not state whether the estate had closed, whether there was insurance available to cover claims, or any other fact from which the court might have ascertained the effect of late filing on settlement of the estate. See id. Whether the estate had closed and whether insurance was available are not the only facts relevant in determining the effect of late filing, nor are they necessary as a matter of law to this determination. However, the failure to present any facts bearing on one of the dual...