Buchanan v. Westinghouse Electric

• Court: District Court, D. New Hampshire
• Decided: August 17, 1993
• Docket: CV-90-370-B
• Status: Published

Opinion

Buchanan v. Westinghouse Electric CV-90-370-B 08/17/93 UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

June Buchanan, Administratrix of the Estate of David Buchanan

v. Civil No. 90-370-B

Westinghouse Electric Corp., et al.

O R D E R

Zurn Industries, Inc. ("Zurn") has moved to dismiss

plaintiff's claim for hedonic damages.

In denying this motion, I am persuaded by my colleague's

reasoning in Lebeau v. Dartmouth College, et al.. Civ. No. 91-

169-JD, slip op. at 2-6 (D.N.H. Apr. 22, 1993) (DiClerico, J.) . I

have little to add to the debate on this subject except to say

that I rely to a great extent on the accepted New Hampshire rule

of statutory construction that statutes should be construed

wherever possible to avoid redundancy. Snyder v. New Hampshire

Sav. Bank, 134 N.H. 32, 39 (1991); State v. Powell, 132 N.H. 562,

568 (1989). To accept Zurn's interpretation of N.H. Rev. Stat.

Ann. ("RSA") § 556:12 (1974), the wrongful death statute, I would

have to determine that the legislature intended the phrase "the

probable duration of his life but for the injury" to redundantly modify the phrase "and his capacity to earn money during his

probable working life." I decline to do so because the

plaintiff's alternative interpretation reasonably gives meaning

to the entire statute.

Zurn argues that its interpretation is mandated by the New

Hampshire Supreme Court's recent decision in Thibeault v.

Campbell, 136 N.H. 698, 704 (1993). In Thibeault, the court

ruled that a new trial was reguired to determine the amount of

damages to be awarded on plaintiff's wrongful death claim. In

determining that the damages found by the jury were excessive,

the court addressed two of the plaintiff's specific arguments

without mentioning the subject of hedonic damages. Given the

heated debate that has accompanied this important issue and the

number of divergent lower court opinions on the subject, it is

unlikely that the court would have disposed of this issue sub

silentio. Accordingly, I decline to read the decision as broadly

as Zurn suggests.

Zurn's Motion to Dismiss Plaintiff's Claim for Hedonic

Damages (document no. 39) is denied.

2 SO ORDERED.

Paul Barbadoro United States District Judge August 17, 1993

cc: Jeffrey S. Cohen, Esg. Timothy Smith Reiniger, Esg. David L. Nixon, Esg. Matthew Schafner, Esg.