Austin v. Garceau

                                 ENTRY ORDER

                       SUPREME COURT DOCKET NO. 91-484

                               JUNE TERM, 1992


 Anthony A. Austin                   }        APPEALED FROM:
                                     }
                                     }
      v.                             }        Franklin Superior Court
                                     }
                                     }
 Marlene J. Garceau as Administratrix}
 of the Estate of Robie A. Garceau   }        DOCKET NO. S297-90Fc


              In the above entitled cause the Clerk will enter:

      Plaintiff appeals from a Superior Court decision dismissing his
 negligence action against the administratrix of the estate of Robie A.
 Garceau for failure to file within the statute of limitations.  We affirm.

      Plaintiff was a passenger in a car driven by defendant's decedent and
 was injured in a one-car accident on September 13, 1987.  Defendant was
 appointed administratrix of the Garceau estate on July 12, 1988, and the
 present negligence action was begun on September 7, 1990.  Defendant moved
 to dismiss pursuant to V.R.C.P. 12(c) on grounds that the action had not
 been filed within two years of her appointment as administratrix, as
 required by 12 V.S.A. { 557(a).  Plaintiff responded that while the com-
 plaint itself was not filed within the limitations period, two other docu-
 ments had been submitted within the two-year period that constituted a
 "proper presentation of a claim" within the meaning of the last clause of 14
 V.S.A. { 1202, which states as follows:

           For purposes of any statute of limitations, the proper
           presentation of a claim under section 1204 of this title
           is equivalent to commencement of a proceeding on the
           claim.

 14 V.S.A. { 1204(1) states in relevant part as follows:

             (1) The claimant shall deliver to the executor or
           administrator a written statement of the claim indi-
           cating its basis, the name and address of the claimant,
           and the amount claimed, and shall file a copy of the
           claim with the probate court.  The claim is deemed
           presented on the first to occur of receipt of the
           written statement of claim by the executor or admin-
           istrator, or the filing of the copy of the claim with
           the court.  If a claim is not yet due, the date when it
           will become due shall be stated. . . .

 The trial court found that "the proper presentation of a claim under section
 1204" was never made and concluded that the action was barred by the two-
 year statute of limitations.  The present appeal followed.

      Plaintiff first argues that the trial court erred in considering the
 statute of limitations issue on defendant's V.R.C.P. 12(c) motion.  On the
 contrary, Rule 12(c) is well suited to such questions.  It states that "[i]f
 . . . matters outside the pleadings are presented to and not excluded by the
 court, the motion shall be treated as one for summary judgment and disposed
 of as provided in Rule 56."  Thus, the court had a broad mandate to examine
 the chronology of events relevant to the limitations issue.  See 5 C. Wright
 & A. Miller, Federal Practice & Procedure { 1277 (1986).

      On the merits, plaintiff argues first that two letters, taken together,
 constitute compliance with the requirements of { 1204. (FN1) The first of these
 was written on January 17, 1990, by Michael Gawne, a member of the law firm
 representing plaintiff, to the administratrix, stating, inter alia, that his
 partner, David Miller, "was approached by Anthony Austin about a personal
 injury claim Anthony wishes to file against the insurance company insuring
 Robie."  But the principal purpose of this letter was to advise the adminis-
 tratrix of a possible conflict within the firm, since Gawne represented the
 estate.  The second letter was written on February 12, 1990, by attorney
 Miller to the adjuster for decedent's insurance company, noting the
 adjuster's settlement offer, describing plaintiff's injuries, setting forth
 his demand, and closing with the request "to discuss the matter with you to
 determine how close we are to settling, before filing the complaint."

      Neither letter satisfies the requirements of { 1204, nor do the
 letters, taken together, meet those requirements.  The Gawne letter of
 January 17, 1990 was sent to the administratrix, but related to a possible
 conflict of interest, rather than to a statement of a claim, and clearly
 omitted the basic facts about the claim required under { 1204(1).  It states
 that Austin's claim, if any, would be against the insurance company and only
 that "suit against the estate may be necessary."  (Emphasis supplied.)  The
 Miller letter to the insurance adjuster was not delivered "to the executor
 or administrator," at all, nor was it filed with the probate court.  Plain-
 tiff argues that strict compliance with { 1204 is not required. While that
 proposition may be true in some circumstances, (FN2) the two letters relied on
 by plaintiff are so deficient in detail that they do not warrant descrip-
 tion as statements of claim at all.  Each contains some information about
 the facts of this case, but neither communication would have put the admin-
 istratrix on notice that a claim was being filed against the estate.

      Finally plaintiff argues that the statute of limitations should be
 deemed tolled because of the four-month tolling provision of 14 V.S.A. {
 1202.  This argument was not presented at trial and will not be considered
 here for the first time.  Brody v. Barasch, 155 Vt. 103, 111-12, 582 A.2d 132, 137 (1990).

      Affirmed.






                                    BY THE COURT:



                                    Frederic W. Allen, Chief Justice


                                    Ernest W. Gibson III, Associate Justice


 [ ]  Publish                       John A. Dooley, Associate Justice

 [ ]  Do Not Publish
                                    James L. Morse, Associate Justice


                                    Denise R. Johnson, Associate Justice


FN1.       Defendant argues that the option of presenting a claim under 14
 V.S.A. { 1202 does not apply to plaintiff in any case, since this section
 only applies where { 1203 is applicable, citing Martel v. Stafford, 2
 Vt. L.W. 488 (1991), and plaintiff concedes that { 1203 does not apply to
 the present case.  Since we conclude that plaintiff did not present a claim
 under {{ 1202 and 1204, we need not reach the issue of the applicability of
 these provisions to this case.

FN2.    The last clause of { 1204(1), e.g., does not bar claims because of
 errors in the description of security underlying a secured claim, the
 uncertainty about a contingent claim, or the due date of a claim not yet due.