Buchanan v. Westinghouse Electric

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

David Buchanan died when a boiler exploded at the power

plant where he worked. The administratrix of his estate has sued

Zurn Industries, Inc. ("Zurn") and several other defendants

seeking compensatory damages for negligence, breach of warranty,

products liability, breach of contract, and failure to warn.

Plaintiff is also seeking enhanced damages against Zurn. Zurn

has moved to dismiss plaintiff's claim for enhanced damages

because it contends that such damages are only recoverable for

intentional torts.1

1Zurn has moved in the alternative for dismissal or summary judgment. Plaintiff alleged at the final pretrial conference that she has yet to depose several witnesses who she contends may have additional information that may affect her enhanced damages claim. She does not argue, however, that the testimony of these witnesses would cause her to attempt to amend her pleadings. Giving the plaintiff the benefit of the doubt as to what the testimony of the yet-to-be deposed witnesses might establish, I judge Zurn's motion by the standard applicable to a motion for To recover enhanced damages, a plaintiff must plead and

prove that the defendant's tortious actions were "wanton,

malicious, or oppressive . . . Vratsenes v. N.H. Auto, Inc.,

112 N.H. 71, 72 (1972); see also Crowley v. Global Realty, Inc.,

124 N.H. 814, 818 (1984). In DCPB, Inc. v. City of Lebanon, 957

F.2d 913, 915 (1st Cir. 1992), the First Circuit Court of Appeals

recently rejected a claim that a plaintiff is entitled to recover

enhanced damages for breach of contract by stating: "To date,

the New Hampshire cases have limited enhanced damages to

particular causes of action sounding in tort -- and even then,

the remedy has been reserved for intentional torts committed

under exceptionally unsavory circumstances." JCd. at 915.

Although the portion of this statement referring to intentional

torts is dicta, I nevertheless accord substantial deference to

the considered dicta of the Court of Appeals. See McCoy v.

Massachusetts Inst, of Technology, 950 F.2d 13, 19 (1st Cir.

1991) (Supreme Court dicta is to be accorded substantial

deference because it will not be assumed that the Court

"proclaims the law lightly"), cert, denied, 112 S. C t . 1939

(19 92); accord Manchester Mfg. Acquisitions, Inc. v. Sears

judgment on the pleadings. See Santiago de Castro v. Morales Medina, 943 F.2d 129, 130 (1st Cir. 1991); Levesque v. Miles Inc.. 816 F. Supp. 61, 71 (D.N.H. 1993).

2 Roebuck & C o ., 802 F. Supp. 595, 606 (D.N.H. 1992) (applying DCPD

to disallow claim for enhanced damages for a negligence tort).

Even if I felt free to disregard the dicta in DCPB, I would

not reach a different conclusion. The only New Hampshire Supreme

Court decision suggesting that enhanced damages may be

recoverable for negligence torts is more than 80 years old. See

McBride v. Huckins, 76 N.H. 206, 215 (1911). Moreover, the New

Hampshire Supreme court more recently declined to recognize a

claim for enhanced damages in another case in which a plaintiff

claimed a right to recover such damages in a negligence case.

Johnsen v. Fernald, 120 N.H. 440, 441-42 (1980).

Plaintiff attempts to distinguish Johnsen by arguing that

the Court's action -- dismissing the claim because plaintiff

could not prove her allegation of malice -- did not address the

issue of wanton conduct. I disagree.

In Johnsen, a victim of an automobile accident sought to

recover enhanced damages against an allegedly negligent driver.

At the outset, the Court, guoting Vratsenes, stated the general

rule that "no damages other than compensatory are to be awarded"

unless the act involved "is wanton, malicious, or oppressive

. . . ." I_d. at 441. The Johnsen plaintiff failed to allege

such conduct in her writ. J-d. However, on appeal, she argued

3 that the act of driving under the influence alone constitutes an

allegation of "wanton or malicious conduct." I_d. The Court

disagreed: "In the context of measuring damages . . ., we do not

eguate the act of driving while under the influence with the term

'malice.'" I_ci. Although the Johnsen Court focused on the malice

component of the Vratsenes formulation, by affirming the lower

court's ruling it implicitly found that plaintiff also failed to

allege and prove oppressive and wanton conduct. This reading of

Johnsen was adopted by the Court in Gelinas v. Mackev, 123 N.H.

690, 693 (1983). Accordingly, I cannot accept plaintiff's

argument.

I derive additional support for my position from a more

recent New Hampshire Supreme Court case, Panas v. Harakis, 129

N.H. 591 (1987). An issue in Panas was the measure of damages

following a jury verdict finding the defendants liable for a

variety of negligent and intentional torts. In remanding the

case for a new trial solely on damages, the Court stated that the

plaintiffs were entitled to present their claims for enhanced

damages on the intentional tort counts. 129 N.H. at 608. The

fact that the Court chose not to specify that enhanced damages

could also be sought on the negligence counts strongly suggests

4 that the Court is unwilling to extend the right to claim enhanced

damages to negligence claims.

In summary, the New Hampshire Supreme Court has shown no

inclination to extend a plaintiff's right to claim enhanced

damages to negligence torts. The Court of Appeals has repeatedly

instructed the District Courts not to "open new state- law

frontiers" to aid diversity plaintiffs who have chosen the

federal forum. DCPB, 957 F.2d at 916; Carleton v. Worcester Ins.

C o ., 923 F.2d 1, 3 (1st Cir. 1991). Thus, I follow the dicta in

DCPB, and conclude that plaintiff is not entitled to recover

enhanced damages as a result of Zurn's allegedly negligent

conduct.

CONCLUSION

Zurn's Motion to Dismiss (document no. 36) is granted.

Judgment is granted to Zurn on the pleadings with respect to

plaintiff's claim for enhanced damages. Plaintiff is ordered not

to attempt to introduce evidence or engage in argument directed

to the issue of enhanced damages.

5 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.