2017-0559, Monica Anderson v. Estate of Mary D. Wood

alleging that Wood had caused her injury by negligently rear - ending he r (Wood). The plaintiff commenced suit by complaint dated March 25, 2016, involved in a motor vehicle accident with a vehicle driven by Mary D. Wood history is taken from the record before us. On April 5, 2013, the plaintiff was The following facts are taken from the trial court’s orders; the procedural

We reverse and remand. defendant, the Estate of Mary D. Wood, as time - barred by RSA 508:4 (2010). Superior Court (O’Neill, J.) dismissing her personal injury action against the HICKS, J. The plaintiff, Monica Anderson, appeals a decision of the

Walker on the brief and orally), for the defendant. O’Shaughnessy, Walker & Buchholz, P.A., of Manchester (James G.

and orally), for the plaintiff. Leahy & Leahy, PLLC, of Penacook (Linda B. Sullivan Leahy on the brief

No. 2 017 - 0559 Belknap

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

that the plaintiff’s claim is time - barred by RSA 508:4. after the three - year statute of limitations had ru n, the Court finds Because the present action was filed April 4, p. 2 2017, nearly one year the plaintiff was required to file the present action by April 5, 2016. the three - year statute of limitations period set forth in RSA 508:4, of action occurred on April 5, 2013. Therefore, in order to satisfy It is undisputed that the accident giving rise to the present cause

556:11 ( p. 2 2007). The court further ruled: a nd is thus subject to the limitations of RSA 508:4.” See RSA 508:4; RSA after [Wood’s] death[,] . . . said action falls within the purview of RSA 556:11, because the action “is one for personal injury, and it was not pending until The trial court granted the motion to dismiss. The court ruled that

arguing that the statute of limitatio ns had run on the claim. in the inst ant action on April 4, p. 2 2017. The defendant moved to dismiss, administrator of the Estate of Mary D. Wood. The plaintiff filed her complaint I n August 2016, a certificate of appointment was issued, naming an

556:7.” See RSA 556:7 ( p. 2 2007). would possess subject matter jurisdiction over this action pursuant to RSA can be properly substituted for the current defendant such that this Court court dismi ssed the action, ruling that “there is presently no legal entity that court] ever issued a grant of administration of said estate.” Accordingly, the plaintiff had not provided “any documentation demonstrating that the [circuit plaintiff’s allegation that she had sought to open an estate, but noted that the been opened immediately following her death. T he court acknowledge d the exists.” The parties did not dispute that Wood died intestate and no estate had “nothing in the record to suggest . . . that an Estate of Mary D. Wood presently but concluded that it could not grant her motion to amend because there was plaintiff’s concession that she had filed the action against the wrong defendant, sponte, that it did not have subject matter jurisdiction. The court noted the On June 30, 2016, the trial court dismissed the action, ruling, sua

the estate once the circuit court ruled on that petition. for the Estate of Mary D. Wood and that she would serve notice of the action on plaintiff’s motion alleged that she had filed a petition for estate administration substitute the Estate of Mary D. Wood for Mary D. Wood as the defen dant. The On April p. 2 29, 2016, the plaintiff moved to amend her complaint to

Wood ’ s estate nor had any legal relationship with, or legal duty to, the plaintiff. cause of action against the daughter, who was neither the administrator of that Wood had passed away on January p. 2 22, 2015, and the plaintiff had no also named Mary D. Wood. The daughter moved to dismiss on the grounds vehicle. The complaint was mistakenly served on Wood’s daughter, who was p. 3 3

statute and ascribe the plain and ordinary meanings to the words considered as a whole. We first examine the language of the legislative intent as expressed in the words of the statute In matters of statutory interpretation, we are the final arbiter of

and the applicable statutory provisions. The parties’ arguments require us to interpret both our prior case law

April 5, 2016 — three years after the cause of action accrued. RSA 508:4 controls. Thus, according to the defendant, the statute expired on here w as decided in Cheever, and that the three - year statute of limitations in contained in RSA 508:4.” The defendant contends that the issue presented RSA 556:11 “as being subservient to the general statute of limitations N ew H ampshire Regional Med ical C en t e r, 141 N.H. 5 8 9 (1997), we interpreted The defendant, on the other hand, argues that in Cheever v. Southern

six years had not passed since Wood ’ s death on January 22, 2015. on April 5, 201 p. 3 3; and (2) at the time he r complaint was filed on April 4, 2017, 22, 2015, three years had not passed since the accrual of her cause of action April 4, 2017 was timely because: (1) at the t i me of Wood’s death on January Wood ’s death to commence her action. She contends that her suit filed on the time of Wood’s death, RSA 556:11 allows her six years from the date of pla intiff asserts that because her c laim was not time - barred by RSA 508:4 at RSA 508.” RSA 556:11. Citing Coffey v. Bresnahan, 127 N.H. 687 (1986), the within 6 years after the death of the deceased party, subject to the provisions of an action is not then pending, one may be brought for such cause at any time misapplied RSA 556:11 in dismissing her complaint. That statute provides: “If On appeal, the plaintiff argues, among other things, that the trial court

novo. Id. statute of limitations had run i s a ruling of law. Accordingly, our review is de accrued and on which suit was brought, the trial court ’s conclusion that the As the re was no dispute regarding the dates on which the cause of action State v. Lake Winnipesaukee Resort, 159 N.H. 42, 45 (2009) (citations omitted).

burden of proving that it applies. limitations is an affirmative defense and the [defendant] b ear [s] the exclusively upon the statute of limitations. The statute of recovery. The [defendant], however, moved to dismiss based reasonably susceptible of a construction that would permit generally consider whether the [plaintiff’s] allegations are In reviewing a trial court’ s ruling on a motion to dismiss, we

We first set forth our standard of review.

This appeal followed. p. 4 4

plaintiff implicitly contends that this amendment did not abrogate our In 1983, the legislature amended RSA 556:11 to its present form. The

satisfied.” Id. at 692. defendant ’ s] death and, thus, the second requirement of RSA 556:11 has been concluded that the suit in Coffey “was clearly not barred at the time of [the 1978. Coffey, 127 N.H. at 689. Thus, g i ven our holding in Perutsakos, we alleged medical malpractice giving rise to the suit in Coffey had occurred in Perutsakos, 107 N.H. at 53 (quoting RSA 556:11) (citation omitted). The acts of

at the time of such death by the gen eral statute of limitations. period after the decedent’ s death on all claims not already barred In other words section 11 permits suits within a desig nated

of the death of the deceased party. barred” mean an action which has not become barred at the time We think that the words of [RSA 5 5 6: 11], “has not already become

controlling. Coffey, 127 N.H. at 692. In that case, we held: that issue, we found our decision in Perutsakos v. Tarmey, 107 N.H. 51 (1966), become barred by the statute of limitations in RSA 508: p. 4 4.” I d. at 691 - 92. On additional requirement in RSA 556:11; that is, the suit must not have already That conclusion, we noted, “d[id] not end the matter,. . . for there is an

under the six - year limitations period.” Id. at 691. commenced in 198 p. 4 4 against a defendant who had died in 1979, “was timely year limitation.” Id. Under that construction, the plaintiff’s action, when a six - year limitation s period is substituted for the u n constitutional two - 127 N.H. at 690. Instead, w e “conclude[d] that the statute [was] constitutional New Hampshire Constitution,” we did not apply the statute as written. Coffey, classification created by RSA 556:11 violated the equal protection clause of the holding in Gould v. Concord Hospital, 1 26 N.H. 405 (1985), that “the 556:11 (1974) (amended 1983); see Coffey, 127 N.H. at 690. In light of our two years after the death of the deceased party, and not afterwards.” RSA statute of limitations, one may be brought for such cause at any time within an action is not then pending, and has not already become barred by the In Coffey, we applied a prior version of RSA 556:11, which provided: “If

trial court’s interpretation of statutes de novo. Id. Balise v. Balise, 170 N.H. 521, 52 p. 4 4 (2017) (citations omitted). We review the

legislative history. find statutory language to be ambiguous, we will not examine language that the legislature did not see fit to include. Unless we and will not consider what the legislature might have said or add used. We interpret legislative intent from the statute as written p. 5 5

of Wood’s death, her claim was not b arred by RSA p. 5 508: 4 — Wood died on also agree with the plaintiff that she satisfied the requirement t hat, at the time See, e.g., Havens, 983 F. Supp. 2d at 1011; Pudmaroff, 951 P.2d at 337. We did not, abrogate our interpretation of that statute in Coffey and Perutsakos. conclude that the 1983 amendment to RSA 556:11 was not intended to, and consistent with the holdings of Coffey and Perutsakos. Accordingly, we provisions of RSA 50 8,” RSA 556:11. We interpret this amended language as statute of limitations,” RSA 556:11 (1974) (amended 1983), to “subject to the pertinent language was changed from “has not already become barred by the evinces an intent to abrogat e the holdings of Coffey and Perutsakos. The Here, nothing in the plain language of RSA 556:11, as amended, clearly

presumed to be consistent with previous interpretations.”). Legislature intended to overrule a particular interpretation, amendments are with judicial interpretations of statutes” and “[u] nless there is an indication the 33 p. 5 5, 337 (Wash. Ct. App. 1998) (“The Legislature is presumed to be familiar construction, it has effectively ‘ acquiesced ’ to it”); Pudmaroff v. Allen, 951 P.2d particular way and [amends it in a way that] fails to expressly reject that (noting that “when a legislature is aware that a statute is being interpreted in a Portfolio Inv. Exchange Inc., 983 F. Supp. 2d 1007, 1011 (N.D. Ind. 2013) other jurisdictions have applied similar rea soning. See, e.g., Havens v. plain and explicit terms.” Id. at 690 (quotation and ellipsis omitted). Courts in from a single doubtful expression but would have conferred the authority in probate court jurisdiction, it would not “have left [its] intention to be inferred legislature knew of our previous narrow construction of statutes involving to the point urged by the respondent because, given the presumption that the intended t o expand probate court jurisdiction nevertheless did not extend them N.H. at 690. There, we determined that amendments that were admittedly to pre - existing statutory construction. See Petition of CIGNA Healthcare, 146 third possibility: a substantial revision to a statute that, nevertheless, conforms In Petition of CIGNA Healthcare, 146 N.H. 683 (2001), we re cognized a

(quotations omitted). in legal rights.” Appeal of Manchester Transit Auth., 146 N.H. 4 p. 5 54, 458 (2001) of” a statute by amendment is “[o]rdinarily . . . presumed to indicate a change the other hand, we have also noted that “any material change in the language phraseology used or other competent evidence of a different purpose.” Id. On “to have adopted that construction, in the absence of any change in the court.” Waterman v. Lebanon, 78 N. H. 23, 24 (1915). It is further presumed presumed to [be] cognizant of the interpretation put upon the statute by the We have long held that when the l egislature amends a statute, it “is

at the time of Wood’s death. We agree. p. 5 5 5 p. 6 6:11’s requirement that her claim must not have been barred by RSA 508:4 decisions in Coffey and Perutsakos, as she asserts that she satisfied RSA 6

timed - barred by RSA 55 p. 6 6:11 unless brought within three years after the redundant words” (quotation and brackets omitted)). Thus, a claim will be statute and presume that the legislature did not enact superfluous or (noting that “when construing a statute, we must give effect to all words in the 556:11, out of the statute. See Hodges v. Johnson, 170 N.H. 470, 484 (2017) impermissibly write the phrase “after the death of the deceased party,” RSA the period starts on the date of death, as to hold otherwise would accrued, because both dates were the same. See id. at 590. We now hold that of death or, as the defendant contends, on the date the cause of action was not necessary to decide whether the limitations period started on the date conclusion that the three - year period expired on April 5, 2016. In Cheever, it disagree, however, with the defendant’s assertion that Cheever compels the year period applied. Accordingly, we follow Cheever ’s three - year holding. We event, the outcome in this case wo uld be the same whether a six - yea r or three years. Id. at 591. Neither party has asked us to overrule Cheever, and, in any applicable limitations period is six years: Cheever clearly holds that it is three In light of Cheever, we cannot agree with the plaintiff’s assertion that the

dismissal of the plaintiff’s action. Id. at 592. Id. at 591 (quoting RSA 55 p. 6 6:11) (citations omitted). We therefore affirmed the

of limitations period in this instance must be three years. statutes to effectuate their evident purpose, the applicable statute the provisions of RSA chapter 508. Thus, because we construe year period set forth in the statute is subservient to or governed by The plain meaning of the phrase “subject to” indicates that the s ix terms of the statute, “subject to the provisions of RSA 508.”. . . The six - year period referenced in RSA 55 p. 6 6:11 is, by the express

language: Id. (quoting RSA 55 p. 6 6:11). W e construed the statute according to its plain ‘subject to the provisions of RSA 508’ language to mandate a three - year limit.” year statute of limitations. Id. T he defendants, on the other hand, “read the dismissal of the suit as time - barred, arguing that RSA 556:11 provided a six th e date he died. Cheever, 141 N.H. at 590. The plaintiff appealed the 31, 1995, alleging negligence in the care given to the decedent on April 7, 1989, commenced a wrongful death action against a doctor and a hospital on March Cheever, the case relied upon by the defendant. In Cheever, the plaintiff period to three years. See Laws 1986, 227:12. Subsequently, we decided 508:4 was amended to, among other things, change the six - year limitations amendment of RSA 556:11 that impact that determination. First, in 1986, RSA the applicable limitations period. We first note two events subsequent to the We now must determine whether the plaintiff’s claim was brought within

cause of action on April 5, 2013. January 22, 2015, less than three years from the accrual of the plaintiff’s p. 7 7

concurred. LYNN, C.J., and BASSETT, HANTZ MARCONI, and DONOVAN, JJ.,

our holding on this issue, we need not address the remaining issues on appeal. defendant’s motion to dismiss and remand for further proceedings. In light of Wood’s death, the action is timely. Accordingly, we reverse the grant of the time of Wood’s death and the instant suit was brought within thr ee years of Because the plaintiff’s claim was not time - barred by RSA 508:4 at the

bring a claim in circumstances where an estate had not been established.” claims against estates would res ult in an unlimited horizon for a plaintiff to concern that “the plaintiff’s construction of the applicable statutes relating to decedent’s death. We note that this construction alle viates the defendant’s