ESTATE OF MICHAEL W BAUMIESTER v. PETER E. CAVANAUGH

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5743-09T2

ESTATE OF MICHAEL W. BAUMIESTER,

by BARBARA BODNAR, as

Administratrix Ad Prosequendum

and BARBARA BODNAR, Individually,

Plaintiffs-Appellants,

v.

PETER E. CAVANAUGH, DANNY MORALES,

and MARIE CONTAINER SERVICES, INC.,

Defendants.

______________________________________

MEGAN WARD, as Administratrix for

the heirs-at-law of MICHAEL

WILLIAM BAUMIESTER, Deceased,

and MEGAN WARD, as Administratrix ad

Prosequendum of the Estate of

MICHAEL WILLIAM BAUMIESTER,

Deceased and CHLOE WARD, a minor

by her Mother and Natural Guardian

MEGAN WARD,

Plaintiffs-Respondents,

v.

PETER E. CAVANAUGH, DANNY MORALES,

and MARIE CONTAINER SERVICES, INC.,

Defendants.

_______________________________________

MEGHAN STEELE,

Plaintiff,

v.

PETER CAVANAUGH, DANNY MORALES,

and MARIE CONTAINER SERVICES, INC.,

Defendants.

____________________________________

DANNY MORALES,

Plaintiff,

v.

PETER E. CAVANAUGH,

Defendant.

______________________________________

 

 

Argued April 13, 2011 Decided May 3, 2011

 

Before Judges Axelrad and J. N. Harris.

 

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-2200-07.

 

Michael J. Hanus argued the cause for appellants (Gill & Chamas, LLC, attorneys; Mr. Hanus, on the brief).

 

Frances M. Bova argued the cause for respondents (Finkelstein & Partners, attorneys; Ms. Bova, of counsel and on the brief).

 

 

PER CURIAM

By leave granted, we review the interlocutory order entered on May 28, 2010, which dismissed the consolidated wrongful death complaint brought by the Maryland-appointed Administratrix Ad Prosequendum of the Estate of Michael W. Baumiester in favor of the similarly-pled consolidated wrongful death complaint filed by the New Jersey-appointed Administratrix Ad Prosequendum of the Estate of Michael William Baumiester. We reverse.

I.

This case has its genesis in the tragic death of Michael Baumiester on the New Jersey Turnpike, in Newark, on Valentine's Day, 2007. Ironically, the fatal accident happened as Baumiester was driving to White Plains, New York, from his home in Baltimore, Maryland, to participate in paternity proceedings that he commenced. On that same date, the Family Court of the State of New York declared Baumiester to be the father of Chloe Nicole Ward (Chloe), born out of wedlock to Megan S. Ward (Ward) ten months earlier.1 The details of the three-vehicle accident that occurred in the vicinity of Newark Airport are less important than the litigational activities of the parties to this appeal, and we will concentrate on the latter.

Barbara Bodnar (Bodnar), a New Jersey resident, was the mother of Baumiester. At his death, Baumiester was unmarried and had not executed a will. Although Baumiester lost his life in New Jersey, and Bodnar lived here, Bodnar applied in her son's home state of Maryland for Letters of Administration of a Small Estate, which were granted by the Baltimore City Register of Wills on March 17, 2007. See Md. Code Ann., Estates and Trusts 5-601 to 5-608 (2011). The instrument memorializing Bodnar's status indicated that the letters of administration were granted for "litigation only." Armed with this Maryland authority, Bodnar filed the first wrongful death action (Docket No. L-2200-07)2 on May 2, 2007, in the Monmouth vicinage.

Meanwhile, Ward, a resident of New York, applied for Letters of Guardianship for Chloe, which were issued by the Surrogate of Westchester County, New York, on April 18, 2007. Thereafter, Ward applied for Letters Administration Ad Prosequendum in New Jersey, which were issued by the Essex County Surrogate on July 10, 2007, approximately 146 days after Baumiester died. Finally, Ward filed the second wrongful death action (Docket No. L-9200-07)3 on November 9, 2007, in the Essex vicinage, where the accident occurred.

The two wrongful death actions together with two other related personal injury cases were consolidated for trial purposes in the Monmouth vicinage by order dated May 28, 2008. Discovery ensued, and the consolidated action proceeded towards a final disposition.

The first salvo launched against one of the wrongful death actions was initiated by Bodnar, but not in the Monmouth vicinage. Instead, Bodnar sought in the Chancery Division, Probate Part, Essex Vicinage to oust Ward from her status as the New Jersey Administratrix Ad Prosequendum of the Estate of Michael William Baumiester. In rendering a decision denying Bodnar's application, the Chancery Division judge accurately predicted, in part, what was to come:

I certainly have to give, in the first instance, the full faith and credit to the Maryland judgment. I just don't know what it means with respect to Maryland law and it seems to me if it has to be attacked or it must be if the if there [are] questions or issues with respect to what it means, then there might have to be made an application made in Maryland with respect to that Miss [Bodnar's] appointment, but I can so I can't vacate, do not vacate the Maryland letters. I don't make any I can't grant the relief which, at least in the papers, [counsel] asks for me to dismiss the appointment of Miss [Bodnar] as administrator under the Maryland cases. What I do . . . or can do is say that Miss Ward is entitled to letters of administration ad prosequendum and she is entitled to prosecute this lawsuit because she is qualified pursuant to the statute, had the right to serve pursuant to the statute and pursuant to the rules because her daughter is the only heir who was entitled to serve in that capacity, so I do make that ruling today, and to the extent that resolves the conflict between the two sides, it may. To the extent it doesn't, there may have to be an application in the Monmouth County cases or there may have to be an application in the in Maryland, I don't know [what] else [the] parties may have to do under the circumstances.

On February 11, 2010, an order was entered in the Chancery Division that memorialized the judge's decision. No appeal was pursued from that final determination.

As foretold, the two warring personal representatives filed motions to dismiss each other's complaint in the consolidated proceeding in the Monmouth vicinage. The Law Division judge thoughtfully considered the competing claims, and in a detailed written opinion declared that because Bodnar was "not [d]ecedent's next of kin, nor does [p]laintiff, Bodnar, have an interest in the [d]ecedent's estate," only Ward was entitled to pursue the wrongful death claim pursuant to N.J.S.A. 3B:10-2 and -11. This appeal ensued, with Bodnar filing both a notice of appeal, and a motion for leave to appeal, which we granted on July 30, 2010.

II.

Because the facts that undergird the determination of who is entitled to pursue wrongful death remedies for the demise of Baumiester are largely undisputed, our role is limited to an analysis of the Law Division's application of principles of law to those facts. Also, since our determination largely revolves around legislative enactments, we observe that "[s]tatutory interpretation is a question of law for the court, subject to independent review." Cnty. of Bergen Emp. Benefit Plan v. Horizon Blue Cross Blue Shield of N.J., 412 N.J. Super. 126, 131 (App. Div. 2010) (citing In re Liquidation of Integrity Ins. Co., 193 N.J. 86, 94 (2007)). In our review, we owe no deference to the motion court's interpretation of the statutory language, or to its assessment of "the legal consequences that flow from established facts." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

We start with a brief analysis of the locus of the general administration of Baumiester's estate. It is undisputed that Baumiester's link to New Jersey was solely the happenstance of his untimely death on the New Jersey Turnpike. He was domiciled in Maryland and was merely driving through this state on a personal mission. Accordingly, pursuant to N.J.S.A. 3B:1-2, Baumiester is a "nonresident decedent."

We regard it as self-evident that New Jersey's intestacy laws play no role in determining a non-domiciliary decedent's line of succession or the distribution of the net (non-real estate) assets, if any, of such an estate. Griswold v. Kelly-Springfield Tire Co., 94 N.J. Eq. 308, 316 (Ch. 1916) ("The law is well settled that in case of intestacy, personal property in a foreign jurisdiction will devolve according to the laws of the domicile."). Thus, because the claims asserted on behalf of Baumiester's estate in the wrongful death actions are personalty, the net proceeds, if any, will abide by Maryland's, not New Jersey's, intestacy laws. Furthermore, the only proper administration of Baumiester's estate in New Jersey could be pursuant to N.J.S.A. 3B:10-7, which provides for ancillary administration.

The foregoing analysis, however, does not answer the question of who is entitled to pursue remedies on behalf of Baumiester's estate. However, to the extent that the Law Division relied upon New Jersey's intestacy laws for its determination, such was in error. On the other hand, Maryland's intestacy law achieves the same result as New Jersey's, that is, the net estate (because there is no surviving spouse) "shall be divided equally among the surviving issue, by representation." Compare Md. Code Ann., Estates and Trusts 1-210, 3-103 (2011) with N.J.S.A. 3B:5-4(a).

We thus turn to the primary issue in this appeal, the proper application of the pertinent part of the Wrongful Death Act, N.J.S.A. 2A:31-2, which provides:

Every action commenced under this chapter shall be brought in the name of an administrator ad prosequendum of the decedent for whose death damages are sought, except where decedent dies testate and his will is probated, in which event the executor named in the will and qualifying, or the administrator with the will annexed, as the case may be, shall bring the action.

 

[Id. (emphasis added).]

From the statute's plain language, Bodnar and Ward equally satisfy the standing requirement as both are administratrixes ad prosequendum.

For more than ninety years it has been understood that there is no requirement under the law that such standing be conferred by the issuance of letters of administration in this State, as long as the appointment in the foreign jurisdiction is the functional equivalent to our administrator ad prosequendum. Pub. Serv. Elec. Co. v. Post, 257 F. 933 (3d Cir. 1919). We are satisfied that Bodnar's Maryland appointment to administer the estate litigation of her son comports with this equivalency. See Md. Code Ann., Estates and Trusts 5-601 to -608 (2011).

We also observe that Ward has not challenged Bodnar's appointment as the domiciliary personal representative for litigation in Maryland. Thus, because 1) Bodnar is the only Maryland personal representative on the scene, 2) Baumeister's net estate must be administered pursuant to Maryland's laws, and 3) Bodnar was the first to file4 a wrongful death action in New Jersey, only she is entitled to pursue remedies in the Law Division. The fact that Chloe will be the only taker of the net assets of the estate does not alter our conclusion, mainly because Maryland law will ultimately admeasure the net assets that will be paid to Baumiester's heir. Accordingly, we see no prejudice to Chloe, and little advantage to Bodnar. Bodnar's complaint shall be reinstated; Ward's complaint shall be dismissed with prejudice.

Reversed and remanded for further proceedings in accordance with this opinion.

1 The New York order of filiation indicated that a paternity hearing was conducted on February 14; the order was "dated" on February 15; and the "notice of entry" of the order was February 16, 2007.

2 Bodnar's complaint asserted claims for Baumiester's estate under the Wrongful Death Act, N.J.S.A. 2A:31-1, and the Survivor's Act, N.J.S.A. 2A:15-3. She also asserted a personal claim for Bodnar's alleged loss of Baumiester's "services, society, and consortium" as his mother.

 

3 Ward's complaint asserted claims for Baumiester's "heirs-at-law" and estate under the Wrongful Death Act, N.J.S.A. 2A:31-1, and the Survivor's Act, N.J.S.A. 2A:15-3. The complaint also claimed that Chloe suffered the loss of Baumiester's "pecuniary support, services, assistance, care, companionship, advice, and guidance" as his daughter.

4 See Felicioni v. Admin. Office of the Courts, 404 N.J. Super. 382 (App. Div. 2008), which discussed and validated a first in time, first in right policy relating to how restitution payments are processed and distributed to crime victims by the State, certif. denied, 203 N.J. 440 (2010).