Quesnel v. Town of Middlebury

Quesnel v. Town of Middlebury  (96-553); 167 Vt. 252; 706 A.2d 436

[Filed 14-Nov-1997]

       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. 96-553


Thomas and Elizabeth Quesnel and             Supreme Court
Thomas Quesnel, as Co-Administrator
of the Estate of Matthew J. Quesnel          On Appeal from
                                             Addison Superior Court
    v.
                                             April Term, 1997
Town of Middlebury, et al.


Matthew I. Katz, J.

James A. Dumont and Sandra M. Lee of Keiner & Dumont, P.C., Middlebury, for
  plaintiffs-appellants

Janet C. Murnane of McNeil, Leddy & Sheahan, Burlington, for 
  defendant-appellee Town of Middlebury


PRESENT:  Amestoy, C.J., Gibson, Dooley, Morse and Johnson, JJ.


       AMESTOY, C.J.   Plaintiffs Thomas and Elizabeth Quesnel, parents of
  the decedent Matthew J. Quesnel, and Thomas Quesnel, as co-administrator of
  decedent's estate, appeal from a decision dismissing their wrongful death
  action for failure to state a claim for which relief may be granted. 
  Plaintiffs claim the court erred by ruling that (1) decedent's wife and
  child may not disclaim their statutory status as next of kin, allowing
  recovery for the loss suffered by decedent's parents, (2) decedent's
  parents have no common-law cause of action for wrongful death, and (3)
  providing wrongful death recovery to parents for loss of an adult child
  only when the adult child is not survived by a spouse and child does not
  violate the parents' equal protection or due process rights.  We affirm.

       Decedent died of asphyxiation in a manhole located in the Town of
  Middlebury, Vermont.  He is survived by his wife, his child and his
  parents, Thomas and Elizabeth Quesnel.

 

  The father, as co-administrator of decedent's estate, filed suit against
  defendants (FN1) under the Wrongful Death Act, see 14 V.S.A. §§ 1491-1492,
  alleging that decedent's wife and child had disclaimed their status as next
  of kin under the Act, and thus, the parents had become the statutory next
  of kin entitled to damages for their loss.  The parents brought a second
  claim in their individual capacities, alleging a common-law cause of action
  for wrongful death and seeking damages for their loss.  Finally, the
  parents claimed that, if they were denied both statutory and common-law
  recovery, they would be denied equal protection of the laws under the
  federal constitution and a remedy for their injuries under the Vermont
  Constitution. Defendants moved for judgment on the pleadings.  The court
  granted the motion, and plaintiffs appeal.

       In reviewing 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
  based on the pleadings.  Thayer v. Herdt, 155 Vt. 448, 456, 586 A.2d 1122,
  1126 (1990).  If plaintiffs' pleadings contain allegations that, if proved,
  permit recovery, defendants are not entitled to a dismissal.  Id.

                                I.

       The first issue is whether the statutory beneficiaries under the
  Wrongful Death Act (WDA) may disclaim their status as next of kin by
  executing a disclaimer pursuant to the Uniform Disclaimer of Property
  Interest Act.  See 14 V.S.A. §§ 1951-1959.  The WDA provides that a person
  or corporation causing the death of another person by wrongful act, neglect
  or default is liable for damages, provided the injured person would have
  been entitled

 

  to maintain an action for damages if death had not ensued.  14 V.S.A. §
  1491.  The procedure for such an action is set forth in 14 V.S.A. § 1492,
  which states:

     (a) Such action shall be brought in the name of the personal
     representative of such deceased person . . .

     (b) The court or jury before whom the issue is tried may give such
     damages as are just, with reference to the pecuniary injuries
     resulting from such death, to the wife and next of kin or husband
     and next of kin . . .

     (c) The amount recovered shall be for the benefit of such wife and
     next of kin or husband and next or kin, as the case may be and
     shall be distributed by such personal representative . . . .

  (Emphasis added.)  Thus, a wrongful death action must be brought by the
  decedent's personal representative.  Damages are awarded based on the
  pecuniary injuries of the spouse and next of kin that resulted from the
  death, and the beneficiaries are the spouse and next of kin.  The parties
  agree that decedent's child is decedent's next of kin.

       The Uniform Disclaimer of Property Interest Act states that a person,
  "to whom any property or interest therein devolves, by whatever means, may
  disclaim it in whole or in part by delivering a written disclaimer under
  this chapter."  14 V.S.A. § 1951.  If the property or interest is
  disclaimed, "it devolves as if the disclaimant had predeceased the
  decedent."  Id. § 1954(a).  The parties agree that if the child had
  predeceased the decedent, the parents would have been next of kin.  The
  Uniform Disclaimer Acts are intended to provide a general right to refuse a
  gift or benefit because common law did not adequately allow such
  disclaimer.  See Uniform Disclaimer of Transfers by Will, Intestacy or
  Appointment Act § 1, cmt., 8A ULA 162 (gifts under wills could be renounced
  but heirs could not reject intestate share; also partial disclaimers
  permitted only in limited circumstances).  Plaintiffs here maintain that
  the policy underlying the Act -- that no person should be forced to accept
  a gift -- should apply to allow the surviving wife and child to disclaim
  their right to wrongful death recovery.

       Plaintiffs rely on In re Estate of Dominguez, 541 N.Y.S.2d 934 (Surr.
  Ct. 1989), wherein the court allowed the decedent's spouse to renounce her
  share of the proceeds from a

 

  wrongful death action in favor of the decedent's two children.  Dominguez
  is distinguishable, however, because the waiver in that case involved only
  the distribution of the wrongful death recovery.  The waiver did not affect
  the measure of damages.  Thus, the waiver served the policy that the
  decedent's spouse should not be forced to accept any benefit.  Id. at 937.

       Plaintiffs here allege that the spouse's waiver changes the measure of
  damages so that defendants must pay damages for the parents' loss as
  opposed to the loss of the spouse and child. Unlike Dominguez, plaintiffs
  here do not want to change the distribution of the wrongful death recovery;
  they want to change the damages for which defendants are liable. 
  Plaintiffs cite no case, nor have we found any case, in which a court has
  allowed a disclaimer to have this effect. Nor does such a disclaimer serve
  the purpose of the Disclaimer Act to prevent beneficiaries from being
  forced to accept a gift.

       We do not decide the issue in Dominguez, whether the surviving wife
  could disclaim the right to her share of the recovery after it has been
  determined based on damages for her loss and the child's loss.  Nor do we
  decide whether the surviving wife has the authority to disclaim the child's
  next-of-kin share of a wrongful death recovery.  Cf. 14 V.S.A. § 2643
  (judge must approve parent's release executed for child's claim of less
  than $1500; release of claim for more than $1500 requires approval of
  court-appointed guardian).  We decide only that the surviving wife's
  disclaimer cannot create liability in defendants for the parents' loss. 
  Under the WDA, damages are based on the loss suffered by the spouse and the
  next of kin, the child in this case. See 14 V.S.A. § 1492(b). 
  Beneficiaries, designated by § 1492(c), cannot by disclaimer change the
  loss for which defendants are liable under § 1492(b).

                                II.

       Plaintiffs argue that the court erred by refusing to recognize a
  common-law claim for wrongful death to provide relief to parents who are
  not next of kin under the WDA.  "[T]his Court has consistently held that a
  common-law right of action for wrongful death does not exist."  Thayer, 155
  Vt. at 453-54, 586 A.2d  at 1125.  We decline to reconsider this holding.

 

                               III.

       Finally, plaintiffs maintain that they are denied equal protection and
  due process of the law because they cannot recover for the wrongful death
  of their son whereas parents of an adult child who dies without a surviving
  child are entitled to wrongful death recovery.  See Clymer v. Webster, 156
  Vt. 614, 629, 596 A.2d 905, 914 (1991) (holding that parents of adult child
  may recover for loss of comfort and companionship of adult child where they
  were next of kin under WDA).  They argue that parental status of an adult
  child bears no relationship to the comfort and companionship the child
  provides the parents and has no effect on the child's statutory duty to
  support the parents.  See 15 V.S.A. § 202 (penalty for desertion or
  nonsupport).  Accordingly, they contend that there is no rational basis for
  the legislation.

       To resolve an equal protection challenge, we must first determine the
  appropriate level of review.  Where as here the statute involves no
  fundamental right or suspect class, the test is whether the statute is
  reasonably related to a valid public purpose.  Lorrain v. Ryan, 160 Vt.
  202, 212, 628 A.2d 543, 550 (1993).  Under this rational-basis test, we
  will uphold the statute if it serves any legitimate purpose that is
  conceivably behind the statute.  State v. Stewart, 140 Vt. 389, 402, 438 A.2d 671, 677 (1981).

       Here, the Legislature has limited defendants' liability to one class
  of persons, the spouse and next of kin.  It is conceivable that the
  Legislature imposed this limit to prevent the possibility of diluting the
  recovery.  By limiting the tortfeasor's liability to a single class of
  persons, the Legislature has ensured that the tortfeasor's assets will be
  preserved for the preferred class.  This is particularly important where
  funds available to satisfy any judgment are limited.  Nebeker v. Piper
  Aircraft Corp., 747 P.2d 18, 25 (Idaho 1987).  Although persons other than
  the spouse and next of kin may suffer economic and personal loss due to the
  death of an individual, the Legislature may protect the preferred
  beneficiaries by limiting those who may recover.

       Limiting damages in wrongful death cases to spouses and next of kin
  also correlates the

 

  wrongful death action to the probate proceedings.  See id. at 24 (wrongful
  death statute dovetails with probate, community property and child support
  laws).  "Next of kin" in the wrongful death statute carries the same
  meaning as it does in the laws of descent.  Mobbs v. Central Vt. Ry., 150
  Vt. 311, 315, 553 A.2d 1092, 1095 (1988).  Allowing damages for loss to
  other persons creates more opportunity for conflict between survivors,
  complicating and prolonging the proceedings as well as adding to their
  cost.  Because we can conceive of several legitimate purposes that the
  statute may serve, we cannot conclude that the statute is without rational
  basis.

       Courts that have considered similar statutory limits to liability have
  reached the same conclusion.  See, e.g., Bridges v. Phillips Petroleum Co.,
  733 F.2d 1153, 1156 (5th Cir. 1984) (workers' compensation statute
  providing surviving spouses and children of deceased worker, but not
  parents, right of action for exemplary damages does not deny equal
  protection); McGill v. General Motors Corp., 484 P.2d 790, 792 (Colo. 1971)
  (no denial of equal protection where wrongful death statute provides right
  of action for parents of adult child only if child is not married); Everett
  v. Trunnell, 673 P.2d 387, 390 (Idaho 1983) (wrongful death statute
  providing that parents of decedent are not entitled to recovery where
  decedent leaves spouse and child does not violate equal protection rights
  of parents); Porter v. Klein Constr. Co., 515 N.E.2d 821, 823 (Ill. App.
  Ct. 1987) (wrongful death statute benefitting parents of decedent only if
  decedent has no children does not violate equal protection).

       Plaintiffs also contend that denying them damages for loss of their
  child denies them a remedy for their injuries in violation of Chapter I,
  Article 4 of the Vermont Constitution.  We disagree.  Article 4 provides
  that "[e]very person within this state ought to find a certain remedy, by
  having recourse to the laws, for all injuries or wrongs which one may
  receive in person, property or character."  Vt. Const. ch. I, art. 4.  We
  have considered Article 4 the equivalent to the federal Due Process Clause. 
  Levinsky v. Diamond, 151 Vt. 178, 197, 559 A.2d 1073, 1086 (1989).  It does
  not create substantive rights, however; it merely provides access to the
  courts.  Shields v. Gerhardt, 163 Vt. 219, 223, 658 A.2d 924, 928 (1995).  
  There

 

  being no statutory or common-law cause of action for plaintiffs' injuries
  resulting from their son's death, plaintiffs have not been denied due
  process of law or their rights under Article 4.

       "Wrongful death actions are creatures of statute and the right to
  maintain such an action is afforded only by the Legislature."  Lewis v.
  Regional Ctr. of East Bay, 220 Cal. Rptr. 89, 92 (Cal. Ct. App. 1985).  "It
  cannot seriously be argued that a statutory entitlement to sue for the
  wrongful death of another is itself a `fundamental' or constitutional
  right."  Parham v. Hughes, 441 U.S. 347, 359 n.12 (1979).  Our Legislature
  has determined that wrongful death defendants are liable only for the
  losses suffered by the spouse and next of kin.  Some cases present strong
  arguments for expanding this liability to losses suffered by other people
  close to the decedent.  See, e.g., Lewis, 220 Cal. Rptr.  at 92
  (grandparents and legal guardians of decedent, a thirteen-year-old child,
  denied right to bring wrongful death action although parents and
  half-brother filed disclaimers).  Nonetheless, such arguments should be
  addressed to the Legislature, not the courts.  Id.

       Affirmed.


                              FOR THE COURT:



                              _______________________________________
                              Chief Justice




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                                  Footnotes



FN1.    Plaintiffs filed suit against the Town of Middlebury, the
  Middlebury Board of Sewage System Commissioners, the Middlebury Board of
  Sewage Disposal Commissioners, the Middlebury Board of Selectmen,
  decedent's employer Dundon Heating and Plumbing, Inc. and decedent's
  supervisor Christopher Dundon.  Dundon Heating and Plumbing, Inc. and
  Christopher Dundon filed a third-party complaint against Hanover Insurance
  Company and Massachusetts Bay Insurance Company.  Plaintiffs' claims
  against the employer and the supervisor and the third-party complaint
  against the insurance companies were dismissed pursuant to a stipulation of
  the parties.  The Town and the three Town boards remain defendants in this
  appeal.