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Josephine Phaneuf v. Michael Ortlieb et al.

May 15, 2013

JOSEPHINE PHANEUF
v.
MICHAEL ORTLIEB ET AL.



The opinion of the court was delivered by: Joseph N. Laplante United States District Judge

Opinion No. 2013 DNH 076

MEMORANDUM ORDER

This case presents several questions, including the identity of the proper party to defend an estate in a civil action, this court's jurisdiction over probate matters, and the adequate pleading of respondeat superior liability. The plaintiff, Josephine Phaneuf, suffered severe and permanent injuries in a collision between her motor vehicle and one driven by Daniel Hammerstad--who, Phanuef alleges, was intoxicated at the time. Phaneuf's efforts to obtain compensation for her injuries, however, have been complicated by Hammerstad's own death in the collision. No estate has been opened. Instead, acting on Phaneuf's petition, the Rockingham County Superior Court has appointed Michael Ortlieb, an attorney, as Hammerstad's guardian ad litem under N.H. Rev. Stat. Ann. § 260:68.

Phaneuf then commenced this action here against Ortlieb, in his capacity as Hammerstad's guardian ad litem, and three other defendants, seeking to recover the damages she suffered in the collision. Two of the other defendants are restaurants that allegedly served alcohol to Hammerstad on the night of the collision even though, Phaneuf claims, they knew or should have known of his intoxication. The third additional defendant is Diane Maurais; Phaneuf alleges that Maurais is vicariously liable for Hammerstad's negligence because he "was operating his vehicle while performing errands on behalf of and/or acting for the benefit" of Maurais. This court has jurisdiction under 28 U.S.C. § 1332(a)(1) (diversity), because Phaneuf is a citizen of Massachusetts, and the defendants are citizens of New Hampshire.

Phaneuf has since moved for an order declaring that Ortlieb, by virtue of his appointment as guardian ad litem, has the power to represent Hammerstad's interests in this matter. This motion also seeks leave to file an amended complaint, see Fed. R. Civ. P. 15(a)(2),*fn1 naming as an additional defendant either United States Automobile Association (which insured the vehicle that Hammerstad was driving at the time of the collision) or Rita Hammerstad (who is named, in Hammerstad's will, as the executor of his estate). Ortlieb, however, opposes this relief, and moves to dismiss the complaint for failure to state a claim against him. See Fed. R. Civ. P. 12(b)(6). Ortlieb argues that his authority as Hammerstad's guardian ad litem under § 260:68 is limited to accepting service of process, and that only an administrator appointed by the Probate Division of the Circuit Court can represent Hammerstad's estate here. While acknowledging that his counsel in this action "has been asked by USAA to represent the interests" of Hammerstad's estate here, Ortlieb further argues that USAA is not a proper defendant, nor, for that matter, is Rita Hammerstad, who appears to have abandoned her initial efforts to secure appointment as the administrator of the estate. Finally, Maurais has also moved to dismiss, arguing that the complaint fails to state a plausible claim of respondeat superior against her.

For the reasons fully explained below, the court denies Phaneuf's motion to declare that Ortlieb represents Hammerstad's interests in this matter, and to amend the complaint, and grants Ortlieb's and Maurais's motions to dismiss. While the court is sympathetic to Phaneuf's situation, it harbors significant doubts about its jurisdiction to grant Ortlieb the authority that she wants him to have, and, in any event, doing so would violate well-established New Hampshire law that "an executor or an administrator is the only proper party to bring or defend actions relating to the personal estate of the deceased."*fn1 Scamman v. Sondheim, 97 N.H. 280, 281 (1952). There is likewise no legitimate basis for naming either USAA or Rita Hammerstad as a defendant. Finally, the complaint's conclusory assertion that Hammerstad "was operating his vehicle while performing errands on behalf of and/or acting for the benefit" of Maurais fails to state a plausible claim for respondeat superior against her.

I. Background

For purposes of the present motions, this court has accepted as true all well-pleaded facts set forth in the complaint, see, e.g., Martino v. Forward Air, Inc., 609 F.3d 1, 2 (1st Cir. 2010), but has disregarded "statements in the complaint that merely offer legal conclusions couched as fact or threadbare recitals of the elements of a cause of action," Ocasio-Hernandez v. Fortuno-Benet, 640 F.3d 1, 12 (1st Cir. 2011) (quotation marks, bracketing, and ellipse omitted). The court has also relied on documents filed with the Superior Court and the Probate Division of New Hampshire's 10th Circuit Court. See Giragosian v. Ryan, 547 F.3d 59, 66 (1st Cir. 2008).

At around 9:10 p.m. on Friday, December 30, 2011, Hammerstad was driving his vehicle "at a dangerous, excessive, high rate of speed" on a public road in Derry, New Hampshire, when he "lost control of his car, and smashed head-on into a car" driven by Phaneuf. The collision killed Hammerstad, and left Phaneuf with severe and permanent injuries, including a broken hand, wrist, ankle, and foot, and a lacerated liver. Hammerstad was intoxicated at the time of the collision, with a blood alcohol concentration of .24.

Phaneuf alleges that, at the time of the collision, Hammerstad "lived with" Maurais, and "was operating his vehicle while performing errands on behalf of and/or acting for the benefit of" her. The complaint contains no other allegations concerning Maurais.

In May 2012, counsel for Phaneuf sent letters announcing her intention to bring suit to two persons, identified as Hammerstad's sons, who were living with their mother, Rita Hammerstad, in Jacksonville (Duval County) Florida. At some point, Rita Hammerstad was Hammerstad's wife (though the record does not reflect their marital status at the time of his death), and was named as the executor of his estate in a will that Hammerstad signed in November 1992. In these letters, counsel for Phaneuf asked to be contacted by any administrator appointed for Hammerstad's estate. Phaneuf's counsel has yet to hear from any such person, and, as of September 2013, has found none identified in on-line listings for either Duval County, Florida or Rockingham County, New Hampshire.

On May 21, 2012, however, Rita Hammerstad, acting through New Hampshire counsel, filed a petition for estate administration in the Brentwood Probate Division of New Hampshire's 10th Circuit Court. Est. of Hammerstad, No. 318-2012-ET-669 (N.H. Prob. Div. May 21, 2012). In the petition, which attached Hammerstad's November 1992 will, Rita Hammerstad sought her appointment as administrator, and listed the total value of the estate as nil. In response, the Clerk of the Probate Division wrote to counsel for Rita Hammerstad, listing several additional required filings. The Clerk sent another letter to Rita Hammerstad's counsel a month or so later, directing him to make the filings within 14 days "to avoid dismissal." Counsel for Phaenuf represents that the documents have yet to be filed, and the Probate Division has yet to take any action on Rita Hammerstad's petition for administration.

In the meantime, counsel for Phaneuf, who was unaware of the petition pending in the Probate Division, filed his own petition in the Rockingham County Superior Court for the appointment of a guardian ad litem for Hammerstad under § 260:68. Granting the petition, the Superior Court appointed Ortlieb, a New Hampshire attorney, in early October 2012. Phaneuf then commenced this action in this court in December 2012, naming Ortieb "as court-appointed guardian ad litem for" Hammerstad, against whom the complaint asserts a single negligence claim.

The complaint also names Maurais and the owners of two restaurants that allegedly served alcohol to Hammerstad on the night of the accident, Chen's Chinese Restaurant and La Carreta Mexican Restaurant. The complaint alleges that Hammerstad was served alcohol at Chen's "for several hours" on December 30, 2011, when "employees knew he was intoxicated and/or when they should have known he was intoxicated." The complaint further alleges that La Carreta employees not only served alcohol to Hammerstad while they knew (or should have ...


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