Thayer v. Herdt

NOTICE:  This opinion is subject to motions for reargument under V.R.A.P. 40
as well as formal revision before publication in the Vermont Reports.
Readers are requested to notify the Reporter of Decisions, Vermont Supreme
Court, 111 State Street, Montpelier, Vermont 05602 of any errors in order
that corrections may be made before this opinion goes to press.


                                No. 89-243


Rose Alyce Thayer, Individually and          Supreme Court
as Administratrix of the Estate of
Katherine Richards                           On Appeal from
                                             Windsor Superior Court
              v.

Peter Herdt, Individually and as Chief       May Term, 1990
of Police of the Springfield Police
Department and the Town of Springfield,
Vermont


Alden T. Bryan, J.

Robert Reis and Phyllis R. McCoy of Hull, Webber, Reis & Canney, Rutland,
  for plaintiff-appellant

Allan R. Keyes of Ryan Smith & Carbine, Ltd., Rutland, for defendants-
  appellees


PRESENT:  Allen, C.J., Peck, Gibson, Dooley and Morse, JJ.


     ALLEN, C.J.   Plaintiff instituted this action as administratrix of
her daughter's estate seeking damages for wrongful death of her daughter and
individually for emotional distress and economic loss.  The trial court
granted defendant's motion for summary judgment on the wrongful death claim
and dismissed plaintiff's emotional distress and economic loss claim on the
pleadings.  We affirm in part and reverse in part.
                                    I.
     Defendant (FN1) moved for summary judgment on the wrongful death claim on
the ground that the statute of limitations had run.  Plaintiff concedes that
she originally instituted the action more than two years after the death of
her daughter; thus, the first issue before the Court is whether the tolling
provision in the wrongful death statute applies on the facts alleged. (FN2)
Defendant Herdt moved from Vermont to Ohio shortly after the acts
complained of and has resided there since with no known property within the
state of Vermont.
     Plaintiff argues that the statute is clear and unambiguous and that its
plain meaning controls.  On two earlier occasions, however, this Court has
considered the tolling provisions of 14 V.S.A. { 1492 and concluded that
they apply only to defendants who are not amenable to service of process
under the authority of this state within the two-year period.  Law's
Administrator v. Culver, 121 Vt. 285, 289, 155 A.2d 855, 858 (1959); Reed v.
Rosenfield, 115 Vt. 76, 79, 51 A.2d 189, 191 (1947).  As this Court noted in
Reed, the purpose of a statute of limitations is to require "the bringing of
an action within a reasonable time and thus prevent fraudulent and stale
claims from being brought at a time when witnesses have died or disappeared
and documentary evidence has been lost or destroyed."  115 Vt. at 79, 51 A.2d  at 191.  The purpose of the tolling provision is to preserve the
plaintiff's right of action during the time when it is impossible to serve
process personally on a defendant or attach his property within this state.
In both cases, we held that the period of limitations was not suspended by
reason of a defendant's absence from the state where a plaintiff could
effect substitute service on the Commissioner of Motor Vehicles in actions
arising out of motor vehicle accidents.  See 12 V.S.A. {{ 891, 892.
     Plaintiff correctly points out that, in obvious response to the holding
in Law's Administrator, the Legislature amended 12 V.S.A. { 892 in 1961 to
provide that service on the Commissioner of Motor Vehicles shall not render
inoperative the tolling provisions of 12 V.S.A. { 552 -- which are virtually
identical to those found in 14 V.S.A. { 1492.  The Legislature thus made
clear that the tolling provisions of 12 V.S.A. { 552 would apply in motor
vehicle accident cases even though a defendant was amenable to service of
process by service upon the Commissioner of Motor Vehicles.  Were the
analysis to end at this point, we would be inclined to agree with plaintiff.
     Here, however, defendant was served pursuant to V.R.C.P. 4(e) (FN3) and 12
V.S.A. {{ 913(a) and (b). (FN4)  The latter was enacted subsequent to the 1961
amendment to 12 V.S.A. { 892 and was intended to extend jurisdiction over
individual parties to the extent permitted by the due process clause.
Messier v. Whitestone Packing Corp., 544 F. Supp. 8, 10 (D. Vt. 1982).  12
V.S.A. { 913(c) provides that the provisions of { 913(b) are in addition to
all existing manner of service and that the availability of a personal
judgment pursuant to { 913(b) shall make "alternative and not inoperative"
the provisions of {{ 855 and 856 of Title 12 relating to service on the
Secretary of State for corporations doing business in the state, and {{ 891
and 892 of Title 12 relating to service on the Commissioner of Motor
Vehicles.  Notably, the Legislature did not make the tolling provisions of
12 V.S.A. { 552 or 14 V.S.A. { 1492(a) inoperative when jurisdiction is
acquired pursuant to 12 V.S.A. { 913.  We must presume that the Legislature
made changes in the law in light of the relevant decisions of this Court
and with knowledge of prior legislation on the same subject.  State v.
Anair, 123 Vt. 80, 81, 181 A.2d 61, 63 (1962); Donaghue v. Smith, 119 Vt.
259, 263-64, 126 A.2d 93, 96 (1956).  When the Legislature enacted { 913, it
was aware that { 892 did not make the tolling provisions of { 552
inoperative because specific reference to { 892 is made in { 913.  We must,
therefore, conclude that the Legislature did not intend to foreclose the
application of the rationale of our holdings in Law's Administrator and Reed
where service is made pursuant to 12 V.S.A. { 913 and V.R.C.P. 4(e), and
that where a defendant is amenable to service of process pursuant to that
statute and rule, the statute of limitations is not tolled.
     The plaintiff also argues that Law's Administrator and Reed do not
control because there is no process agent within the state upon whom
service can be made.  The question, however, is whether defendant is
amenable to process, not whether there is a person within the state that can
be served.  Where personal jurisdiction can be obtained over the defendant,
the rationale of Law's Administrator and Reed still apply and the tolling
provisions do not, unless otherwise provided by statute.
                                    II.
     In an effort to avoid the two-year limitation contained in the wrongful
death statute, plaintiff urges that we recognize a common-law action for
wrongful death.  Plaintiff concedes the existence of some early Vermont
case law denying common-law recovery, but argues that the question is an
open one in this jurisdiction and should be recognized.  We think her
concession understates the earlier holdings of this Court.  Beginning with
Sherman v. Johnson, 58 Vt. 40, 2 A. 707 (1886), this Court has consistently
held that a common-law right of action for wrongful death does not exist.
We held in Sherman that it was error to allow a father to recover for the
loss of his son's service until he would have been of age, stating that
"the authorities are numerous and well-nigh uniform, that at common law the
death of a human being, though clearly involving pecuniary loss, affords no
ground for an action for damages."  Id. at 44, 2 A.  at 709.  While the
wisdom of the rule was questioned in cases where death resulted from a
negligent act, it was nevertheless followed. See Trow v. Thomas, 70 Vt. 580,
587, 41 A. 652, 654 (1898) (the rule "has been the unvarying law in England
from time immemorial . . . [and] has been the settled doctrine in this
country").
     Plaintiff argues that language found in Vaillancourt v. Medical Center
Hosp. of Vermont, 139 Vt. 138, 425 A.2d 92 (1980), supports her position
that the question is still an open one in this jurisdiction.  The plaintiffs
in that action sought damages under the wrongful death statute as well as
under the common law for the death of a fetus.  This Court noted that the
trial court did not reach the issue of "whether recovery for the wrongful
death involved here has a basis in common law," and also declined to reach
the question, because it allowed recovery under the statute.  Id. at 141,
425 A.2d  at 94.  It noted the statute was remedial in nature and was
designed to alleviate the harsh common-law rule of no liability where the
victim had died.  Id.  Vaillancourt did not reverse or modify the rule.  We
recently acknowledged the existence of the rule in State v. Oliver, 151 Vt.
626, 629, 563 A.2d 1002, 1004 (1989).
     This Court will not recognize a new cause of action or enlarge an
existing one without first determining whether there is a compelling public
policy reason for the change.  Langle v. Kurkle, 146 Vt. 513, 520, 510 A.2d 1301, 1305-06 (1986).  Plaintiff does not suggest, and we do not perceive,
such a reason here.  The Legislature has provided remedies for death caused
by a wrongful act.  Recovery may be had for the damages suffered by the
decedent prior to death.  14 V.S.A. { 1453.  In addition, recovery may be
had for the pecuniary injuries sustained by the decedent's spouse and next
of kin.  14 V.S.A. {{ 1491, 1492.  Plaintiff does not argue that the remedy
is inadequate.  Rather, she seeks only to avoid the two-year period of
limitation in the statute.  The Legislature has fashioned a remedy for
those injured by the wrongful acts of another when death results.  When "a
statute confers a remedy unknown to the common law, and prescribes the mode
of enforcing it, that mode alone can be resorted to."  Winney v. Ransom &
Hastings, Inc., 149 Vt. 213, 214, 542 A.2d 269, 270 (1988) (quoting Thayer
v. Partridge, 47 Vt. 423, 428 (1875)).
                                   III.
     Plaintiff also argues that the trial court erred in dismissing her
claim for intentional infliction of emotional distress. (FN5)  In her complaint,
she alleged that defendant was informed that plaintiff's daughter had been
abducted, that he failed to initiate a search for her, that defendant
prevented plaintiff and her husband from conducting a search, that defendant
was aware of the abductor's identity, and that the failure to respond to the
abduction report resulted in the rape and death of the daughter and,
thereby, resulted in great emotional distress to plaintiff.  Defendant moved
for judgment on the pleadings pursuant to V.R.C.P. 12(c), claiming that
plaintiff's exclusive remedy was under the wrongful death act and that she
could not maintain an independent cause of action for emotional distress.
The trial court, however, relying upon Vaillancourt, dismissed the emotional
distress claim on the ground that there was no allegation that plaintiff was
in the zone of danger or that physical impact had occurred.
     The trial court erred in requiring plaintiff's presence in the zone of
danger where the claim is for intentional or reckless infliction of
emotional distress.  The presence requirement applies to negligently caused
emotional distress.  Vaillancourt, 139 Vt. at 143, 425 A.2d  at 95.  The
elements of the tort of intentional infliction of mental distress are:  (1)
conduct that is extreme and outrageous, (2) conduct that is intentional or
reckless, and (3) conduct that causes severe emotional distress.  Sheltra
v. Smith, 136 Vt. 472, 476, 392 A.2d 431, 433 (1978).  There is no
requirement for physical impact or that plaintiff be within a zone of danger
from physical impact in order to recover.
     On a V.R.C.P. 12(c) motion for judgment on the pleadings, the issue is
whether the movant is entitled to judgment as a matter of law on the basis
of the pleadings.  "For the purposes of the motion all well pleaded factual
allegations in the nonmovant's pleadings and all reasonable inferences that
can be drawn therefrom are assumed to be true and all contravening
assertions in the movant's pleadings are taken to be false."  Bressler v.
Keller, 139 Vt. 401, 403, 429 A.2d 1306, 1307 (1981).  Where a plaintiff's
pleadings contain allegations that, if proved, would permit recovery, a
defendant may not secure a judgment on the pleadings.  5A C. Wright & A.
Miller, Federal Practice and Procedure { 1368, at 527-28 (1990).  Defendant
contends that plaintiff has failed to allege extreme and outrageous conduct
sufficient to permit recovery for intentional infliction of emotional
distress.  As defendant notes, it is for the court to determine in the first
instance whether the conduct is so extreme and outrageous as to permit
recovery.  Restatement (Second) of Torts { 46 comment h (1965).  While we
express no opinion on the merits, it cannot be said as a matter of law that
the acts here alleged do not rise to the level of extreme and outrageous
conduct which would allow recovery.
     Defendant also argues that any damages for plaintiff's emotional
distress are recoverable in her representative capacity only under the
wrongful death statute and are, therefore, barred by the statute of
limitations.  We disagree.  The wrongful death statute provides a remedy for
loss by a spouse and next of kin resulting from a wrongful act, neglect, or
default against the decedent.  It does not address, nor is it meant to
preclude, recovery by a spouse and next of kin for wrongful acts committed
against the spouse and next of kin themselves.  See DeCicco v. Trinidad Area
Health Ass'n, 40 Colo. App. 63, 66, 573 P.2d 559, 561-62 (1977)
(distinguishing derivative nature of wrongful death recovery from direct
nature of outrageous conduct recovery).  This point was implicit in
Vaillancourt, where we upheld the existence of both a statutory cause of
action for a stillborn viable fetus's wrongful death and the mother's own
cause of action for negligent infliction of emotional distress.
Vaillancourt, 139 Vt. at 143-44, 425 A.2d  at 95.  Plaintiff's intentional
infliction of emotional distress claim seeks to recover for a tort committed
directly against her, and as such it is not precluded by the wrongful death
statute.  It may well be that in the case at hand, plaintiff will encounter
problems of proof, but should liability be found, we believe that proper
instructions could guide a jury to award for only the acts or omissions
resulting in emotional distress.
     The grant of summary judgment on the wrongful death claim is affirmed.
The dismissal of the claim for economic loss is affirmed.  The grant of
judgment on the pleadings for the claim of severe emotional distress is
reversed and the matter is remanded.

                                        FOR THE COURT:




                                        Chief Justice





FN1.    The action against the Town of Springfield was dismissed and
plaintiff does not argue on appeal that this was error.

FN2.    14 V.S.A. { 1492(a) provides:
  (a)  Such action shall be brought in the name of the
personal representative of such deceased person and
commenced within two years from his decease, but if the
person against whom such action accrues is out of the
state, the action may be commenced within two years
after such person comes into the state.  After such
cause of action accrues and before such two years have
run, if the person against whom it accrues is absent
from and resides out of the state and has no known
property within the state which can by common process of
law be attached, the time of his absence shall not be
taken as part of the time limit for the commencement of
the action.

FN3.    V.R.C.P. 4(e) provides:
  (e)  Personal Service Outside the State.  A person
whose contact or activity in the state or such contact
or activity imputable to that person is sufficient to
support a personal judgment against that person may be
served with the summons and the complaint outside the
state, in the same manner as if such service were made
within the state, by any person authorized to serve
civil process by the laws of the place of service or by
a person specially appointed to serve it.

FN4.    12 V.S.A. { 913(a) and (b) provide:
  (a)  When process is served upon a party outside the
state in such manner as the supreme court may by rule
provide, the same proceedings may be had, so far as to
affect the title or right to the possession of goods,
chattels, rights, credits, land, tenements or heredi-
taments in the state as if the process had been served
on a party in the state.
  (b)  Upon the service, and if it appears that the
contact with the state by the party or the activity in
the state by the party or the contact or activity
imputable to him is sufficient to support a personal
judgment against him, the same proceedings may be had
for a personal judgment against him as if the process or
pleading had been served on him in the state.

FN5.    Plaintiff does not argue on appeal that the trial court erred in
dismissing her claim for economic loss.