Leo v. Hillman

LEO_V_HILLMAN.93-621; 164 Vt 95; 665 A.2d 572

[Opinion Filed 07-Jul-1995]

[Motion for Reargument Denied 9-Aug-1995]

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, 109 State Street, Montpelier, Vermont 05609-0801 of any errors in
order that corrections may be made before this opinion goes to press.     



                                 No. 93-621


Patricia B. Leo, et al                            Supreme Court

                                                  On Appeal from
    v.                                            Chittenden Superior Court

Donald F. Hillman, et al                          November Term, 1994


Matthew I. Katz, J.

Richard H. Munzing of Weber, Perra & Wilson, P.C., Brattleboro, for
 plaintiffs-appellants 

Robert S. DiPalma and April Shafer Johnson of Paul, Frank & Collins, Inc.,
 Burlington, for defendants-appellees 


PRESENT:  Allen, C.J., Dooley, Morse and Johnson, JJ.


     ALLEN, C.J.   Plaintiffs are family members of Judith Leo-Coneys, who
was murdered by Francis Malinosky in 1979.  They brought this action in 1992
against Dr. Donald F. Hillman and University Associates in Psychiatry, Inc.
(UAIP), seeking damages for wrongful death and infliction of emotional
distress, and for Judith Leo-Coneys's pain and suffering.  Plaintiffs appeal
from a summary judgment dismissing the wrongful death and emotional distress
claims. Defendants Hillman and UAIP cross-appeal from the court's order
denying summary judgment on the issues of a purported release in defendants'
favor and survival claims on behalf of the victim.  We affirm. 

     The complaint alleges that Judith Leo-Coneys had been involved in a
romantic relationship with Francis Malinosky, which she ended in the summer
of 1979.  Malinosky became distraught and sought psychological treatment with
defendant Hillman, a licensed psychologist employed by UAIP.  Malinosky met
with Hillman six times between September 4, 1979 and October 12, 1979, and in
furtherance of the treatment, on October 18, 1979, Hillman 

 

met with both Malinosky and Leo-Coneys.  That same evening Malinosky held
Leo-Coneys at gunpoint until she agreed to reconcile with him. Leo-Coneys
informed Hillman of the incident. On November 5, 1979, Leo-Coneys disappeared
and was never seen alive again.  Malinosky was considered a principal suspect
and about three weeks later, Malinosky also disappeared. 

     As trustee for the decedent, Patricia Leo filed suit against Malinosky
in April 1980, alleging, inter alia, that he inflicted "great pain and
suffering of body and mind, and on information and belief, the possible death
of Judith Leo-Coneys."  In September 1981, Leo, individually and as trustee
for Leo-Coneys and guardian for Leo-Coneys's son, entered into a release
agreement with Malinosky's legal representative, under which she agreed to
discharge Malinosky from all future claims. 

     In April 1990, Malinosky was apprehended in California then extradited
to Vermont to stand trial for the murder of Leo-Coneys. Later that year,
Malinosky entered into a plea agreement and led authorities to Leo-Coneys's
body.  Thereafter, Malinosky filed a written statement with the Chittenden
Superior Court stating that he had shot and killed Leo-Coneys on November 5,
1979. 

     Leo was appointed administrator for Leo-Coneys's estate in August 1992. 
Plaintiffs filed the present action against Hillman and UAIP in September
1992, alleging wrongful death, reckless and negligent infliction of emotional
distress, and a survival action for pain and suffering.  Plaintiffs asserted
that Hillman knew Malinosky posed a serious threat to Leo-Coneys but
discouraged her from reporting the gun incident of October 18, 1979 to the
authorities. Plaintiffs also alleged that Hillman knew or should have known
that Malinosky was dangerous, but did nothing to confront Malinosky or to
protect Leo-Coneys. 

     Defendants Hillman and UAIP moved for summary judgment.  The court
granted the motion as to the claims of wrongful death and for infliction of
emotional distress but denied it as to plaintiffs' survival claims.  The
present appeal and cross-appeal followed. 

 

                  I. Statute of Limitations Discovery Rule

     Plaintiffs argue that the wrongful death claim is not barred under 14
V.S.A.  1492(a), which states in relevant part that: "[s]uch action shall
be brought in the name of the personal representative of such deceased person
and commenced within two years from his decease . . . ."   The statute is
clear on its face and therefore requires no additional interpretation.
Burlington Elec. Dep't v. Vermont. Dep't of Taxes, 154 Vt. 332, 335-336, 576 A.2d 450, 452 (1990).  Section 1492(a) prescribes a limitation period that is
necessarily determinable where facts are known and indisputable.  14 V.S.A.
 1492(a).  Accordingly, a claim for wrongful death must be commenced within
two years of the date of decedent's death.  Despite the apparent clarity of
this reading, plaintiffs argue that the court should have read  1492(a) to
include a proviso that the cause of action does not accrue until discovery of
deceased person's death, similar to the discovery proviso in 12 V.S.A. 
512(4), which provides that actions for personal injury shall be commenced
within three years after the date of the discovery of the injury. 

     In Cavanaugh v. Abbott Laboratories, 145 Vt. 516, 526, 496 A.2d 154, 160
(1985), we overruled Murray v. Allen, 103 Vt. 373, 376, 154 A. 678, 679
(1931), which held that a cause of action in tort accrues at the time of the
last negligent act attributable to the defendant. Cavanaugh held that the
"term `accrue' should be given a uniform meaning, regardless of when any
particular cause of action actually arose," id. at 522, 496 A.2d  at 158, and
that a cause of action accrues on the date of discovery of the underlying
injury, id. at 526, 496 A.2d  at 160. In University of Vermont v. W.R. Grace &
Co., 152 Vt. 287, 290, 565 A.2d 1354, 1357 (1989), we applied the discovery
rule to the statute of limitation periods under 12 V.S.A.  511, which are
triggered by accrual of an action, but contain no explicit discovery
rule.(FN1)

 

     Plaintiffs incorrectly argue Cavanaugh and W.R. Grace require reading a
discovery rule into every limitations provision within Vermont law.  We did
not hold in either Cavanaugh or W.R. Grace that every limitations statute
must be construed in terms of when an action "accrues" -- implying the need
to ascertain a subsidiary fact in order to apply the limitations formula to a
given provision.  Cavanaugh said that the word "accrue" should be given a
uniform meaning wherever it appears.  Cavanaugh, 145 Vt. at 522, 496 A.2d  at
158.  Thus, the date of accrual could arise as an issue in any of the myriad
of statutes in which the limitations period runs from the accrual date.(FN2)

     The date of accrual in a wrongful death action under  1492(a) is a
determinable fact, and the statutory language, as in numerous other
limitations provisions,(FN3) does not invite further 

 

inquiry.  In sum, in construing a statute that bases the commencement of a
limitations period upon a determinable fact and does not state or imply the
need to determine accrual of an action extrinsically, we must apply its plain
language and resist the temptation to adjust the law on the basis of specific
cases.  As the court stated in Stiles v. Union Carbide Corp.: 

      In the absence of legislative definition and specification, the
      question when a cause of action accrues is a judicial one; courts
      are called upon to fashion general rules of accrual to effectuate the
      policy of repose underlying statutes of limitations without
      permitting unnecessary injustices. . . . Where, however, as in [the
      wrongful death statute of limitations], the Legislature has clearly
      and unequivocally prescribed that a cause of action accrues on the
      occurrence of a specified event, the courts are without power to
      fashion a different rule for determining when a cause of action
      accrues.

520 F. Supp. 865, 868 (S.D. Tex. 1981).  Applying the same standard, we hold
that  1492(a) is clear on its face and neither states nor implies a
discovery rule.  The trial court's holding on this question is affirmed and
we have no occasion to consider the court's determination that plaintiffs'
action was tardy even if a discovery rule were to be applied.  A great
majority of courts in other jurisdictions have interpreted wrongful death
statutes similar to Vermont's in a manner consistent with today's holding. 
See, e.g., Tennimon v. Bell Helicopter Textron Inc., 823 F.2d 68, 72-73 (5th
Cir. 1987) (applying Texas law); Shover v. Cordis Corp., 574 N.E.2d 457,
459-60 (Ohio 1991); Pobieglo v. Monsanto Co., 521 N.E.2d 728, 732-33 (Mass.
1988); Ness v. St. Aloisius Hospital, 301 N.W.2d 647, 652 (N.D. 1981). 

     Plaintiffs contend that none of the cases in which courts have declined
to apply a discovery rule to limitations provisions in wrongful death actions
involved decedent's bodies that were missing at the beginning of the stated
limitations period.  However appealing the argument for such an exception,
the General Assembly has never chosen to import an accrual analysis into the
limitations period applicable to wrongful death actions, though it has
clearly been aware of tolling issues.  See, e.g., 14 V.S.A.  1492(a)
(tolling the running of the statute while defendant is out of state); 12
V.S.A.  518(a) (latent development injury claim must be brought within 

 

three years "after the person suffering the injury has knowledge or ought
reasonably to have knowledge of having suffered the injury"). 

     Plaintiffs also assert that "the Vermont wrongful death act incorporates
the concept of accrual, because the word `accrues' appears three times in 14
V.S.A.  1492.  All such references, however, are to defendants who are out
of state when the wrongful death action accrues. Plaintiffs appear to give
the word "accrues" talismanic value -- if it appears in a statute, then a
discovery rule is affixed to the statute. Defendants do not contend that a
wrongful death action does not "accrue."  They argue, and we agree, that 
1492(a) fixes the accrual date so that discovery can never be an issue. 

     Finally, plaintiffs argue that the personal representative and the chief
beneficiary of the estate are, or should be, alter egos.  They claim that
under 12 V.S.A.  551, the running of the limitations period in  1492(a)
is tolled as to the chief beneficiary of Leo-Coneys' estate, her son, who was
and is still a minor.  There is no logical or policy support for such a
position. 

     Section 1492(a) is clear, however, that a wrongful death action be
brought by the personal representative, not by the beneficiary of the estate.
 As we have already made clear, death -- a determinable fact -- signals the
commencement of the limitations period under  1492. The minority of the
beneficiary of the estate does not bar the commencement of an action, nor
should it provide the administrator with any grounds for postponing action. 

     A majority of states that require that a wrongful death action be
brought in the name of the decedent's personal representative have held that
the infancy of a beneficiary does not toll the running of limitations
periods.  See, e.g., Sandusky v. First Elec. Coop., 587 S.W.2d 37, 38 (Ark.
1979); Arender v. Smith County Hosp., 431 So. 2d 491, 493-94 (Miss. 1983);
Wyatt v. Spartan Mill Co., 338 S.E.2d 341, 342 (S.C. 1985); Huntington v.
Samaritan Hosp., 680 P.2d 58, 59-50 (Wash. 1984). 

                      II. Emotional Distress Claims 

     Under Vermont law, the claims of the surviving plaintiffs for negligent
infliction of 

 

emotional distress are available only if the plaintiffs were within the "zone
of danger."  See Vaillancourt v. Medical Ctr. Hosp. of Vermont, 139 Vt. 138,
143, 425 A.2d 92, 95 (1980) (husband outside zone of danger could not recover
for emotional distress caused by allegedly negligent care of wife during
childbirth that resulted in death of fetus); Guilmette v. Alexander, 128 Vt.
117, 117-119, 259 A.2d 12, 13-14 (1969) (mother outside zone of danger could
not recover for pain and suffering caused when she witnessed motorist
negligently strike her daughter, causing severe injuries).  Plaintiffs
concede that they were neither physically present within such a zone nor in
fear for their own personal safety, but argue that Vermont should abandon the
"zone of danger" test in favor of a test based on foreseeability.  See, e.g.,
Heldreth v. Marrs, 425 S.E.2d 157, 167 (W.Va. 1992). 

     Plaintiffs misconstrue the holding in Heldreth and in other cases
supporting abandonment of the zone of danger test.(FN4)  In Heldreth,
plaintiff husband, who was at a safe distance, witnessed defendant's
automobile striking and seriously injuring plaintiff's wife.  Defendant fled
the scene and plaintiff giving chase on foot.  Although plaintiff husband was
never in the danger zone, the court stated that: 

      a plaintiff's right to recover for the negligent infliction of
      emotional distress, after witnessing a person closely related to the
      plaintiff suffer critical injury or death as a result of defendant's
      negligent conduct, is premised upon the traditional negligence test
      of foreseeability.  A plaintiff is required to prove under this test
      that his or her serious emotional distress was reasonably
      foreseeable, that the defendant's negligent conduct caused the
      victim to suffer critical injury or death, and that the plaintiff
      suffered serious emotional distress as a direct result of witnessing
      the victim's critical injury or death.

Id. at 169 (emphasis added).  Heldreth demonstrates that this tort is still
based on a plaintiff's actual witnessing of severe injury to a closely
related person.  At most, Heldreth and similar holdings eliminate the
requirement that the plaintiff must have been a potential victim of the same
negligent conduct that injured the closely related person.  Therefore,
Heldreth does not 

 

help plaintiffs, who are in essence requesting this Court to extend the tort
of negligent infliction of emotional distress to any tortious conduct,
witnessed or not, that causes emotional distress to a near relative of the
direct victim.  Such an action would arise as an ancillary claim in nearly
every tort resulting in death or serious injury.  We decline to adopt such a
rule. 

     Plaintiffs also contend that the court erred in ruling that Vermont law
requires that a plaintiff be present as a necessary element of reckless
infliction of emotional distress.  In cases where the alleged tortious
conduct is directed at the plaintiff, physical presence is not a requirement.
 See Thayer v. Herdt, 155 Vt. 448, 455, 586 A.2d 1122, 1126 (1990) (complaint
alleged that defendant chief of police, owing direct duty to plaintiff,
failed to respond appropriately to abduction of plaintiff's daughter, causing
emotional distress when daughter was raped and murdered); Sheltra v. Smith,
136 Vt. 472, 475-76, 392 A.2d 431, 433 (1978) (complaint asserted that
defendant inflicted mental distress by preventing communication between
plaintiff and plaintiff's daughter).  Where reckless conduct is directed at a
third person, presence is still required.  As the Restatement (Second) of
Torts  46(2) (1965): 

       Where [extreme and outrageous conduct] is directed at a third
       person, the actor is subject to liability if he intentionally or
       recklessly causes severe emotional distress

          (a) to a member of such person's immediate family who is
          present at the time, whether or not such distress results in
          bodily harm, or

          (b) to any other person who is present at the time, if such
          distress results in bodily harm.

(Emphasis added.)

     Here, plaintiffs concede that defendant Hillman inflicted reckless
conduct upon them, if at all, as third persons.  They also acknowledge that
they were not present at the time. Notwithstanding their absence, plaintiffs
argue that these circumstances warrant an exception to the rule.  They rely
on the Restatement authors' caveat, id., and comment (l) to  46(2), which
appear to "leave open the possibility of situations in which presence at the
time may not be 

 

required."  Id.  46(2) cmt. l.  We decline to expand the well-established
principles set forth in  46(2) by not requiring presence in these
circumstances.  Because plaintiffs were neither present at the time the
psychiatric services were rendered nor present at the time of Leo-Coneys's
abduction or murder, there was no cause of action for reckless infliction of
emotional distress. 

                         III. Survival Claims 

     On cross-appeal, defendants assert that the trial court erred in
declining to conclude that plaintiffs' survival claims were barred by the
applicable statute of limitations.  The court disagreed, concluding that the
matter was governed by 12 V.S.A.  557(a) (Death of a Party), which states: 

   If a person, by or against whom an action may be brought, dies before the
   expiration of the time within which such action may be commenced as
   provided by this chapter or dies within thirty days after the expiration of
   such times, the period of limitation as to such action shall cease to operate
   at the date of his death.  After the issuance of letters testamentary or of
   administration, such action, if the cause of action survives, may be
   commenced by or against the executor or administrator within two years,
   and not after.

The court found the case was timely filed under  557, because plaintiff Leo
was not appointed administratrix of Leo-Coney's estate until August
1992.(FN5)

     Defendants insist that Leo, who was appointed trustee of the estate
under 14 V.S.A.  2306 in 1980, was vested with the power to prosecute the
rights of the decedent, was bound to do so under 12 V.S.A.  512(4) within
three years.  But, there is no support for defendants' argument that the
trustee appointment or the fact that plaintiff should have discovered Leo-
Coneys's death, if true, should affect the result under 12 V.S.A.  557(a). 

     We have long held that the Legislature establishes statutes of
limitation, and neither equity nor certainty would be fostered by reading
exceptions into otherwise clear text in the 

 

name of desirable social policy.  As we said of 12 V.S.A.  558, in language
equally applicable to 12 V.S.A.  557(a), in Leno v. Meunier, 125 Vt. 30,
33, 209 A.2d 485, 489 (1965): 

     We cannot engraft upon the statute exceptions, conditions or
     requirements under which the saving proviso shall become
     forfeited or inoperative.  To do so would require something in the
     nature of a major operation upon the long standing work of the
     legislature.  The court would be making the law instead of
     administering it.  Thus, if a case falls within the letter of the
     statute, the court has no power to attach conditions to it.

See also Estate of Harris v. Eichel, 152 Vt. 180, 183, 565 A.2d 1281, 1283
(1989) ("While the policy to be espoused by such a reading might be laudable,
it is not our province to read it into a clearly delineated Vermont statute
reflecting a contrary policy"). 

     Defendants argue that because plaintiffs were aware of the death of the
decedent and of Malinosky's involvement long before the return of defendant
Malinosky to the State, that to plaintiffs might have brought the present
action long before letters of administration issued. Defendants demonstrate
only that plaintiffs had options under our law -- not that the power to sue
at an earlier date nullified the right to do so at a later date.  Moreover,
even on the present facts, there would be numerous reasons why commencement
of the action would have been more appropriate after Malinosky's return and
clarification of the events leading up to the death of the decedent.  But,
the central legal point is that  557(a) is written so that an executor or
administrator need not guess when an action might be brought.  That certainty
is an important element of the cause of action.  There was no error. 

                            IV. Release 

     In 1981, a legal representative of defendant Malinosky and plaintiff
Leo, individually and as trustee for Leo-Coneys and guardian for her son,
entered an agreement under which Leo agreed to discharge Malinosky from all
future claims.(FN6)  Defendants argue that this release bars all claims
against any defendants on the theory that a general release, without
limitation, of one 

 

tortfeasor acts as a release of other tortfeasors.  Coldwell v. Lang, 105 Vt.
359, 370, 166 A. 10, 14 (1933).  Plaintiffs respond that the release signed
by the parties was never intended to apply to Hillman and UAIP and does not
discharge claims against them. 

     Much has changed in release jurisprudence since this Court decided
Coldwell in 1933. Many states have abandoned the inflexible and often unjust
results flowing from similar holdings.  See, e.g., Posey v. Medical
Center-West, 354 S.E.2d 417, 417 (Ga. 1987); Ohio Casualty Ins. Co. v.
Ruschell, 834 S.W.2d 166, 168 (Ky. 1992); Morgan v. Cohen, 523 A.2d 1003,
1009 (Md. 1987).  The Restatement (Second) of Torts, reversing an earlier
position, now states: 

      A valid release of one tortfeasor from liability for a harm, given
      by the injured person, does not discharge others liable for the same
      harm, unless it is agreed that it will discharge them.

Restatement (Second) of Torts  885(1) (1977).  Under the revised
Restatement, a release is treated as a contract and is to be interpreted in
accordance with the intention of the parties.  Id.  885(1) cmt. c. 
Repudiation of the vestigial common law rule is consistent with the modern
view of releases generally in Vermont -- that a release is a contract and its
scope is determined by the "intention of the parties as expressed in the
terms of a particular instrument considered in the light of all facts and
circumstances." Economou v. Economou, 136 Vt. 611, 619, 399 A.2d 496, 500
(1979). 

     Based on the principles set forth in the Restatement, the trial court
concluded that the parties to the release never intended to release Hillman
from any potential liability and that the clear intention of the agreement
was to release only Malinosky from any civil liability arising from his
conduct.  The court ruled that plaintiffs' action against Hillman and UAIP is
not barred by the release.  The record strongly supports this conclusion. 
There was nothing in the understanding between Malinosky's representative and
plaintiff Leo which indicated even the slightest consciousness of Hillman's
interests or those of UAIP.  The motivation for the release, presumably
supported by adequate consideration, appears to have been strictly bilateral.
There 

 

is nothing in the record to suggest that either Hillman or UAIP were aware of
the negotiations between Malinosky's representative and Leo or that they
sought to protect their interests in connection with that settlement.  There
was no error. 

     Affirmed.
                              FOR THE COURT


                              _______________________________________
                              Chief Justice

-----------------------------------------------------------------------------
                             Footnotes



FN1.  12 V.S.A.  511 provides: "A civil action, except one brought upon the
judgment or decree of a court of record of the United States or of this or
some other state, and except as otherwise provided, shall be commenced within
six years after the cause of action accrues and not thereafter." 

FN2.   See, e.g., 7 V.S.A.  501(d) (action for damages resulting from
unlawful sale of liquor "shall be commenced within two years after the cause
of action accrues, and not after"); 12 V.S.A.  505 (action on covenants
other than warranty or seisin "shall be brought within eight years after the
cause of action accrues"); id.  507 (action on specialties "shall be
brought within eight years after cause of action accrues"); id.  508
(action on certain promissory notes "shall be commenced within fourteen years
after the cause of action accrues"); id.  513 (action for skiing injury
"shall be commenced within one year after the cause of action accrues"); id.
 517 (action to recover taxes paid under protest "shall be commenced within
one year after the cause of action accrues"); id.  520 (action to recover
wages "shall be brought within two years after the cause of action accrues").

FN3.  See, e.g., 12 V.S.A.  504 (action on covenant of warranty "shall be
brought only within eight years after a final decision against the title of
the covenantor"); id.  506 (actions on judgments "shall be brought within
eight years after the rendition of the judgment"); id.  515 (action for
neglect of town clerk "shall be brought only within six years after a final
decision based upon such neglect and adverse to the right, title or claim of
the party under such deed, execution or instrument"); 15 V.S.A.  302(b)
(action to establish parentage "shall not be brought later than three years
after the child reaches the age of majority"); id.  515 (suit to annul
marriage on ground of physical incapacity shall be brought within two years
from solemnization of the marriage); 21 V.S.A.  656 (proceeding for
workers' compensation shall not be maintained unless employer is given notice
of injury and "a claim for compensation with respect to an injury has been
made within six months of the date of injury; or in the case of death, then
within six months of the such death"); and 23 V.S.A.  1492 (damages to
highways recoverable by state or municipal corporation "provided the action
is brought within two years after such act is committed"). 

FN4.   See, e.g., Sinn v. Burd, 404 A.2d 672, 686 (Pa. 1979).

FN5.   The statutes under which the survival action was brought also
contemplate that the executor or administrator will be plaintiff in a
survival action.  See 14 V.S.A.  1452-1453. Because of our disposition of
the wrongful death and emotional distress claims, the release is only
relevant with respect to the survival action.