2007-039, MICHELLE ALONZI, ADMINISTRATRIX OF THE ESTATE OF GLENN HOPKINS v. NORTHEAST GENERATION SERVICES COMPANY & a.

No. 2007-039

Carroll

McLane, Graf, Raulerson & Middleton, P.A.

Sulloway & Hollis, P.L.L.C.

amicus curiae. Taylor on the brief), for the New Hampshire Trial Lawyers Association, as

brief, and James E. Owers orally), for defendant Northeast Generation Services

the brief, and Sarah E. Cox orally), for the plaintiff.

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 to press. Errors may be reported by E-mail at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as according to Park v. Rockwell p. 2 of RSA 281-A:8 and RSA 281-A:26, IV are unconstitutional

action against the employer, on the basis that the provisions

died without dependents may maintain a wrongful death

In Park

Dismiss, and in ruling that the estate of an employee who 2

decedents who are killed outside of work. Under the former version of the decedents who are killed at work as compared to the estates of dependentless the difference in the statutory remedies afforded to estates of dependentless

, we considered facts similar to those before us, and addressed

death benefit available to the plaintiff under the Workers’ Compensation Law. cases, we should overrule it and uphold as constitutional the exclusivity of the contends that because the rationale of Park has been eroded in subsequent afforded under our State Constitution. Park Did the Superior Court err in denying NGS’ Motion to, 121 N.H. at 900. NGS, however, dependents in the course of their employment violated equal protection under the Workers’ Compensation Law for employees who die without decision, which held that the exclusive nature of the death benefit available The plaintiff argues that the trial court properly followed the Park

question for interlocutory appeal: upon our holding in Park. Subsequently, the trial court approved the following A:26, IV. The plaintiff objected, and the trial court denied the motion, relying provision, RSA 281-A:8 (Supp. 2007), and death benefit provision, RSA 281immunity from tort liability under the workers’ compensation exclusivity Inc.; and NGS. NGS moved to dismiss the claims against it, asserting defendants: Waste Management of NH, Inc. T.R.E.E.; Transformer Services, of his estate, asserting negligence and wrongful death claims against three electrocution. He left no dependents. The plaintiff brought an action on behalf within the scope of his employment, Hopkins accidentally died from decedent, Glenn Hopkins, was employed by NGS in June 2003. While acting We draw upon the interlocutory appeal statement for the facts. The

IV (1999), we reverse and remand. death benefit provision of the Workers’ Compensation Law, see RSA 281-A:26, upon by the trial court, and uphold the constitutionality of the challenged Rockwell International Corp., 121 N.H. 894 (1981), the touchstone case relied Northeast Generation Services Company (NGS). Because we overrule Park v. Alonzi, as administratrix of the estate of Glenn Hopkins, against defendant dismiss negligence and wrongful death actions filed by the plaintiff, Michelle from a ruling by the Superior Court (Mohl, J.), see Sup. Ct. R. 8, declining to BRODERICK, C.J. This case comes before us on interlocutory appeal p. 3 Id

the employer. otherwise warrant it, to maintain a wrongful death action against

in nature, to foreclose the right of his estate, where the facts

terms of that statute he will never receive and which are nominal

p. 3 Id

decedent for workmen’s compensation benefits which under the . . . It would not be just, under the pretext of qualifying the

leaving no one dependent upon them at the time

forego the benefits otherwise provided under RSA ch. 281. wrongful death against his decedent’s employer if he elects to plaintiff in this case is entitled to proceed with an action for 3

. at 899-900. have to determine that the lives of the deceased employees, workmen’s compensation law are constitutional, we would In order to hold that [the challenged] provisions of our

are killed in the course of their employment . . . and the

status,” id cannot do. persons who die without dependents . . . [due to] the employer-employee work-related deaths, are essentially “worthless.” This we of their

Compensation Law and reasoned: statute and the limited burial expense benefit under the Workers’ disparity between the potential $50,000 recovery under the wrongful death to the extent it applies to employees without dependents who the death benefit provision, id. at 900. In so doing, we focused solely upon the

. at 898 (citations omitted), we struck down the exclusive nature of

dependentless employees may be treated differently than other deceased State Constitution. Park two classes of estates violated equal protection under Part I, Article 12 of our. at 900. While noting that “[o]bviously, in cases involving wrongful death, Using middle-tier scrutiny, we held that the different treatment of these

unconstitutional the death benefit provision under the Workers’ Compensation Law to be

death claim and recover up to $50,000 in damages. See RSA 556:13 (2007). decedent who was killed outside of work, however, could pursue a wrongful expenses is now $5,000. See RSA 281-A:26, IV. The estate of a dependentless The statute remains the same, except that the maximum cap for burial work could recover no more than $1,200 in burial expenses. See id. at 897. Workers’ Compensation Law, the estate of a dependentless decedent killed at p. 3 p. 4 Id

justification. have robbed the old rule of significant application or

have so changed, or come to be seen so differently, as to than a remnant of abandoned doctrine; and (4) whether facts

law have so far developed as to have left the old rule no more

consequences of overruling; (3) whether related principles of

of reliance that would lend a special hardship to the practical workability; (2) whether the rule is subject to a kind

Four years after Park

the rule has proven to be intolerable simply in defying 4

employee. Estabrook, 127 N.H. at 166. While the provisions were challenged employee’s right to maintain non-intentional tort actions against a coamendment to the Workers’ Compensation Law that barred an injured

such a degree as to require us to overrule Park. these various factors, we conclude that the legal landscape has changed to unworkable or outside the development of the law. See id. After considering the law in other jurisdictions to examine whether the challenged holding is . at 505 (quotations and citations omitted). We have considered the status of Several factors inform our judgment, including: (1) whether

with arbitrary and unpredictable results.” Jacobs v. Director, N.H. Div. of revision in every case, deciding cases becomes a mere exercise of judicial will governed by the rule of law, for when governing legal standards are open to twenty-five years. “The doctrine of stare decisis demands respect in a society

was for that very reason doomed.” p. 4 Id. at 504-05 (quotation omitted). “whether the ruling has come to be seen so clearly as error that its enforcement overrule a prior holding, we do not look at the issues de novo; rather, we review Motor Vehicles, 149 N.H. 502, 504 (2003) (quotations omitted). When asked to

We do not lightly overrule a case that has been precedent for over

outmoded and no longer viable. provision in isolation to that available under the wrongful death statute is analysis in which we compared the recovery available under the death benefit provided by the Workers’ Compensation Law. Thus, it contends, the Park death benefit provision in light of the comprehensive scheme of benefits cases, establish that the proper constitutional framework requires review of the Forest, 136 N.H. 21 p. 5 5 (1992). It argues that these cases, as well as foreign (1987); Thone v. Liberty Mutual Ins. Co., 130 N.H. 702 (1988); Thompson v. N.H. 162 (1985), overruled by Young v. Prevue Products, Inc., 130 N.H. 84 our analysis in Park. See Estabrook v. American Hoist & Derrick, Inc., 127 NGS contends that a subsequent line of New Hampshire cases discredits 5

compensation law when an employee is fatally injured on the job and leaves no challenge to the restrictive death benefits available under a workers’ those before us, numerous jurisdictions have rejected an equal protection foreign case that follows Park. Moreover, in circumstances nearly identical to twenty years ago, NGS cites them in its brief and the plaintiff identifies no Significantly, the Park found to be unconstitutional.”). While Taylor and Nosser were decided about court noted, “Appellants cite only one case[, Park,] wherein a like provision was Nosser, p. 5 511 So. 2d at 142 (after reviewing status of law in other jurisdictions, has upheld the exclusive remedy provision as it relates to non-dependents.”); contrary. Every other jurisdiction that has addressed this constitutional issue P.2d at 1162 (“The overwhelming weight of authority, however, is to the that Park stood alone in the face of the majority of jurisdictions. Taylor, 694 2d 141, 142, 143-44 (Miss. 1987). Indeed, the Taylor and Nosser courts noted 1161-62 (Alaska 1985); Nosser Dependents v. Natchez Jitney Jungle, 511 So. other states. See Taylor v. Southeast-Harrison Western Corp., 694 P.2d 1160,

in Park. undermines the continued viability of the narrow analytical framework we used narrow approach we used in Estabrook Just two years later, we overruled Estabrook and Park. This subsequent history equal protection, the cases are instructive because, in them, we rejected the N.H. at 218-19. While Thone and Young were grounded upon due process, not entirety.” Thone, 130 N.H. at 70 p. 5 5 (emphasis added); see also Thompson, 136 appropriate analysis . . . is to look at the workers’ compensation law in its upon due process rights under Part I, Article 14 of our State Constitution, “the ensure that a particular workers’ compensation provision does not infringe year, we further clarified that when conducting a quid pro quo analysis to enacted provision for a new benefit.” Young, 130 N.H. at 88. The following workers’ compensation law must be supported by a contemporaneously holding . . . may be interpreted as requiring that a restrictive amendment to the

186 (Souter, J., dissenting). entire spectrum of benefits provided to employees under that law. See id. at a limitation imposed by the Workers’ Compensation Law requires review of the dissenting). Justice Souter opined that the correct equal protection analysis of the reasons he stated in his dissent, we agree. Id. at 181 (Souter, J., majority’s opinion as deciding the matter on equal protection grounds, and for Justice Souter dissented. Id. at 181-87 (Souter, J., dissenting). He read the because the amendment itself provided no substitute remedy. Id. at 178. analytical framework in Park, we struck down the challenged provisions action it otherwise extinguished. Id. at 172. Relying upon our narrow provided a quid pro quo, or an adequate substitute remedy, for the rights of grounds separately. Rather, we examined whether the 1978 amendment on both due process and equal protection grounds, we did not analyze these persons similarly situated should be treated alike.” In re Sandra H. p. 6 “[T]he equal protection guarantee is essentially a direction that all

approach we used in Park 6

standards are commonly known as strict scrutiny, intermediate or middle tier individual rights affected.” Id. (quotation omitted). The various possible review by examining the purpose and scope of the State-created classification and the State Constitution, we must first determine the appropriate standard of review (quotation omitted). “In considering an equal protection challenge under our must reasonably promote some proper object of public welfare or interest.” Id review de. 634, 637 (2004) (quotation omitted). A classification cannot be arbitrary, “but “The constitutionality of a statute involves a question of law, which we , 150 N.H. We conclude that the legal landscape demonstrates that the piecemeal III

12 of our State Constitution. not raised in this case. Workers’ Compensation Law violates equal protection afforded by Part I, Article challenge under the Equal Protection Clause of the Federal Constitution was available to the estates of dependentless decedents killed at work under the protection under Part I, Article 12 of our State Constitution. We note that a particular inquiry before us is whether the exclusivity of the death benefit will not declare [one] invalid except upon inescapable grounds.” Id. The (quotation omitted). Further, we presume statutes “to be constitutional and we

novo.” Gonya v. Comm’r, N.H. Ins. Dep’t, 153 N.H. 521, 524 (2006)

dependentless decedents who are killed outside of work violates equal estates of dependentless decedents who are killed at work and the estates of we overrule Park and turn next to assess anew whether treating differently the the development of the law. See Jacobs, 149 N.H. at 504, 505. Accordingly, provision is a remnant of abandoned doctrine and otherwise is out of step with

outside the development of the law. applied. Review of these other jurisdictions further amplifies that Park is comprehensive lens is either proper or not regardless of the level of scrutiny constitutionality of a workers’ compensation provision, a myopic versus a rather than intermediate scrutiny, is of no moment. When reviewing the workers’ compensation statute at issue. That these courts used rational basis, in isolation, but rather in the context of the other benefits provided by the 1985). Courts in these jurisdictions did not review the death benefit provision 1990); Sanchez v. M.M. Sundt Const. Co., 706 P.2d 158, 160-61 (N.M. Ct. App. (1973); Estate of Coates v. Pacific Engineering, 791 P.2d 1257, 1260-61 (Haw. Mills, Inc., 268 So. 2d 363, 364-66 (Fla. 1972), appeal dismissed, 411 U.S. 944 51 (Ala. 1990), cert. denied, 500 U.S. 942 (1991); Mullarkey v. Florida Feed eligible dependents. See, e.g., Yarchak v. Munford, Inc., 570 So. 2d 648, 650personal injuries. See p. 7 benefits and did not involve the abolition of the right to recover for one’s NGS relies upon Petition of Abbott however, only implicated the legislative balance of economic burdens and 7

Our decision in Trovato v. DeVeau of estates. attention to the constitutionality of the disparate treatment between the classes defendant’s entreaty to apply the rational basis test. Accordingly, we turn our the deprivation of such a right requires middle tier scrutiny, we reject the under the wrongful death statute. Because we have previously decided that protection challenge before us directly implicates the plaintiff’s right to recover

protection challenges to these Workers’ Compensation Law provisions, their thumbs violated equal protection. Arsenault, 122 N.H. at 522. The equal their entire hand and disallowing such recovery to workers who injured only workers who injured two or more fingers to recover for the loss of function of Petition of Abbott, 139 N.H. at 417. Arsenault involved whether allowing granted additional benefits only to workers who suffered certain spinal injuries. Petition of Abbott concerned an equal protection challenge to a provision that distinguishable, however, as neither involved abolishing a right to recover. apply the rational basis test. Petition of Abbott and Arsenault are v. Abbott Furniture Corp., 122 N.H. 521 (1982), to contend that we should

dictates that we apply middle tier scrutiny. certain estates from bringing claims under the wrongful death statute, Trovato 126 N.H. 405, 408-09 (1985). Because the present dispute involves precluding provisions. recover under the wrongful death statute.” Id.; see Gould v. Concord Hospital, basis test when reviewing the constitutionality of Workers’ Compensation Law “previously . . . elected to apply a middle tier standard to an estate’s right to satisfy equal protection. NGS contends, however, that we apply the rational recovery for a statutorily created action. Id. at 526. We noted that we had important substantive right, the provision must pass intermediate scrutiny to constitutionality of the classifications because the legislature merely limited rejected the argument that rational basis should apply to assess the because the death benefit provision limits the right to recover, which is an outside of the wrongful death statute. Trovato test is the correct standard of review in this case. The plaintiff argues that, 143 N.H. at 524-25, 526. We constitutionality of different treatment of certain classifications within and The parties dispute whether intermediate scrutiny or the rational basis classes of estates. In Trovato, we applied middle tier scrutiny to assess the apply intermediate scrutiny to assess the disparate treatment between the

Justice v. City of Manchester, 154 N.H. 748, 762 (2007). scrutiny, and the rational basis test. See id. at 637, 638; Cmty. Res. for more properly upon whom it belonged. Id p. 8 unsatisfactory system of common law recovery and place the risk of injury employer-employee relationship. See evils underlying the common law tort recovery system particular to the The Workers’ Compensation Law was a radical legislative response to the

The Workers’ Compensation Law was designed to supplant this N.H. 722, 725 (1999) (quotation, brackets and ellipses omitted). The primary once simple and inexpensive.” McKay v. N.H. Compensation Appeals Bd., 143 certain fixed rules without a law-suit and without friction by a procedure at to secure to the injured employee compensation by direct payments under work, must be considered in light of the overall purpose of the law as a whole. to the consumer.” Id work and the estates of dependentless decedents who are killed outside of. Indeed, “[o]ne of the more important aims of the act was distinguishes between the estates of dependentless decedents who are killed at determining the cost and the price of his product, thus transferring the burden interest in enacting the death benefit provision, which consequently administering the law, to the over-head charges of his business as a basis for differently from other tort victims. Thus, the “importance” of the government’s himself by adding the premium paid for insurance, and the cost of Workers’ Compensation Law. This law, as a whole, treats employees as a class in the first instance by [the] employer[,] and . . . the employer [could] protect part of the comprehensive system of benefits afforded to employees under the. Namely, the risk would “be borne based upon an “important” government interest. The death benefit provision is We first consider whether the exclusivity of the death benefit provision is

of falling victim to unjust or excessive claims. Id. at 197. (quotation and ellipsis omitted). Employers also incurred the particular burden helpless people as dependents upon the charity of friends or the public.” Id. resulted in great economic waste, and . . . turned out an army of maimed and of perjury; . . . engendered bitterness between employer and employee; . . . 196. The courts were “filled with litigation; [which] became the fruitful source personal injury lawsuits filed by employees against their employers. See id. at (1921). The industrial revolution created, as a byproduct, a surplus of

We have recently clarified our middle tier standard. See

(quotations omitted). generalizations” are insufficient to uphold challenged legislation. Id. hypothesized[,] . . . invented post hoc in response to litigation,” or “overbroad party seeking to uphold the statute].” Id. Reliance upon “justifications that are that the challenged legislation meets this test rests with the government [or the an important government objective.” Id. at 762. “The burden to demonstrate Constitution requires that the challenged legislation be substantially related to Justice, 154 N.H. at 760-63. “[I]ntermediate scrutiny under the State

liability.

tort-like damages or compensation for a legal wrong. See workplace incident. The act, however, was not designed or intended to provide injured, partially or completely disabled, or even killed as a result of a Compensation Law, whether the employee is temporarily or permanently Employees have a full panoply of benefits available under the Workers’ defenses, the workers’ compensation law limits the extent of

employees’ injuries without the benefit of common law

Compensation Law. uncertainty. While the employer must assume the risk of the context of the comprehensive rubric of benefits created by the Workers’ between the death benefit provision and the important government interest in available under the wrongful death statute. Rather, we review the relationship do not solely compare the limited nature of the death benefit to the recovery achieve this interest is “substantially related” to it. In making this inquiry, we

employee no longer bears the cost of litigation, delays and

We next consider whether the means employed by the legislature to

for limited compensation, the employee or the estate of the

Rather, the act elements of common law damages.” Id. (quotation and brackets omitted). act for pain and suffering, disfigurement as such, loss of consortium, and other limitations between the employer and employee. In return 727. “Unlike tort actions, no damages or compensation are awarded under the

scheme, is based upon an important government interest. death benefit provision, within the rubric of the entire workers’ compensation diminished or lost due to a workplace injury. Therefore, we conclude that the important interest in providing benefits when an employee’s earning power is employees who leave no dependents is simply an extension of the government’s important government interest. Limiting the benefits provided to decedent is well-documented in our case law. We have no doubt that this is an compensation law creates a balance of benefits and The government’s interest in creating the workers’ compensation system

[i]n place of the common law remedies, the workers’ , 130 N.H. at 706; see also RSA 281-A:8.

101-02 (1976). Thus, relied upon the now lost wages. See id.; Tarr v. Republic Corp., 116 N.H. 99, legal fault, thereby protecting the employee and any dependents who actually focus was, and is, to address the employee’s loss of earning power regardless of and to the estate of the deceased. Tarr p. 10 (Emphasis added.) Wrongful death damages address the injury to the person

Abbott

of in the action, the mental and physical pain suffered by the

deceased had survived.

body parts listed [in the statute.]

the death of such party was caused by the injury complained wrongful death action from compensation available to injured employees. If the administrator of the deceased party is plaintiff, and is sufficiently apt to distinguish the design and scope of damages available in a common law compensatory damages are identical for all purposes, the analogy N.H. 231, 243 (1986). Though we do not decide whether wrongful death and other elements allowed by law, in the same manner as if the would have been in if the wrong had not been committed,” Smith v. Cote, 128 (2000), restoring the person wronged “as nearly as possible to the position he “to make the plaintiff whole again,” Bennett v. Lembo for the permanent impairment or loss of use of one or more, 145 N.H. 276, 280 action are similar to compensatory damages in which the underlying purpose is loss of life recoverable in wrongful death action). Damages available in such an Timberlane/Hampstead School Dist., 143 N.H. 331, 345 (1999) (damages for

like damages. Under RSA 556:12, I (2007): By contrast, an estate in a wrongful death action seeks to recover tortmay be considered as elements of damage in connection with money during the deceased party's probable working life, remarrying or children reaching the age of majority, see duration of life but for the injury, and the capacity to earn known as scheduled awards, compensate an injured worker expenses occasioned to the estate by the injury, the probable deceased in consequence of the injury, the reasonable wages, while permanent impairment awards, otherwise compensate an injured worker for medical care and lost

(1999).

until certain disqualifying events occur, such as the surviving spouse event of death, the act provides compensation for the decedent’s dependents A:28 - :31 (1999); and medical care, see RSA 281-A:23 (Supp. 2007). In the of attorney’s fees, see and permanent impairment awards. Disability benefits RSA 281-A:44 (Supp. 2007); wage benefits, see RSA 281delayed compensation, see RSA 281-A:42, :43 (Supp. 2007); mandatory award reinstatement, see RSA 281-A:25-a (1999); entitlement to civil penalties for vocational rehabilitation services, see RSA 281-A:25 (Supp. 2007); job , 139 N.H. at 414. The expansive range of benefits includes in part:

essentially provides two types of benefits, disability benefits p. 11 In summary, we overrule our holding in Park

guarantee of our State Constitution. Therefore, the death benefit provision does not violate the equal protection treatment is substantially related to an important government objective. dependentless decedents who are killed outside of work, this different dependentless decedents who are killed at work differently from the estates of provision under the Workers’ Compensation Law treats the estates of We conclude that to the extent that the exclusivity of the death benefit

DALIANIS, DUGGAN, GALWAY and HICKS, JJ., concurred.

Reversed and remanded

employee’s wages, which were diminished or lost due to a workplace injury.

remand for further proceedings consistent with this opinion. Accordingly, we reverse the trial court’s denial of NGS’ motion to dismiss and Law does not offend the equal protection guarantee of our State Constitution. that the exclusivity of the death benefit provision of the Workers’ Compensation comprehensive scheme to protect those who were dependent upon an, 121 N.H. 894, and declare decedent for the decedent’s lost wages is in keeping with the purpose of the Compensation Law’s failure to provide benefits to the estate of a dependentless legislature when it enacted the Workers’ Compensation Law. The Workers’ the wrongful death statute. This was part of the balance struck by the when compared to the recovery available at common law or under statutes like the recovery available to each under the Workers’ Compensation Law is limited employee who is permanently disabled by a work-related incident. Necessarily, except himself from the consequences of this legislative balance than can an benefiting others. A decedent employee who leaves no dependents can no more make choices which, when isolated in particular situations, burden some while employee’s lost wages. This balance necessarily required the legislature to employee’s lost earning power and protect those who depended upon the balance the competing needs of employers and employees, address the injured By enacting the Workers’ Compensation Law, the legislature sought to