Lacaillade v. Loignon Champ-Carr

2011 DNH 165

• Court: District Court, D. New Hampshire
• Decided: October 7, 2011
• Docket: 10-CV-68-JD
• Status: Published

Opinion

Lacaillade v. Loignon Champ-Carr 10-CV-68-JD 10/07/11 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Michele Lacaillade, Tavlor Lacaillade, and Andrew Lacaillade

v. Civil No. 10-cv-68-JD Opinion No. 2011 DNH 165 Loignon Champ-Carr, Inc.

O R D E R

Following the death of Jon Paul Lacaillade II, his wife and

children sued Loignon Champ-Carr, Inc. ("Loignon"), alleging

claims for, inter alia, negligence, wrongful death, negligence

per se, and loss of consortium.1 The court asked the parties to

brief the issue of which state's law applies to this matter. The

parties agree that Maine law applies to the issue of liability.

Loignon moves for a determination that New Hampshire law applies

to the issue of damages. The plaintiffs object and contend that

Maine law governs both the issue of liability and the issue of

damages.

1In a separate order issued today, the court granted Loignon's motion to dismiss the plaintiffs' claim for negligence per se. Background2

On August 25, 2008, Jon Paul Lacaillade, a New Hampshire

resident, was riding his bicycle on the side of the road

traveling east on Route 25 in Porter, Maine. A tractor-trailer,

owned and operated by Loignon, a Canadian business with a "U.S.

presence in Maine," and driven by Renald Morin, a Loignon

employee, was also traveling east on Route 25. As the truck

approached Mr. Lacaillade to pass, he lost control of his

bicycle, fell back into the roadway, and landed under the

tractor-trailer's tires. He died instantly.

Michele Lacaillade, the decedent's wife, is the duly

appointed administratrix of the decedent's estate. She sues on

her own behalf and on behalf of the estate. She is joined in the

suit by the decedent's two children, his daughter, Taylor, and

his son, Andrew. The plaintiffs assert six counts: Count I

alleges negligence; Count II alleges wrongful death; Count III

alleges negligence per se; and Counts IV through VI allege loss

of consortium.

2The background information is taken from the plaintiffs' first amended complaint, Loignon's motion, and the plaintiffs' obj ection.

2 Discussion

The parties agree that the liability aspect of each of the

plaintiffs' claims should be governed by Maine law. Loignon

argues that, under applicable New Hampshire choice of law

considerations. New Hampshire law should govern the issue of

damages. The plaintiffs contend that, under the same choice of

law principles, the court should apply Maine's damages law. The

laws of Maine and New Hampshire conflict because of differences

in the limitation on the amount of damages.

A. Deoecaqe

"Choice of law questions . . . must be answered on an issue-

by-issue basis." Guardian Angel Credit Union v. MetaBank, 2010

WL 1794713, at *5 (D.N.H. May 5, 2010) (internal citation

omitted). "Under the doctrine of depecage, different substantive

issues in a tort case may be resolved under the law of different

states where the choices influencing decisions differ." See,

e.g.. La Plante v. Am. Honda Motor Co., Inc., 27 F.3d 731, 741

(1st Cir. 1994). The use of depecage is not uncommon, and courts

in this state have invoked the principle to decide liability and

damages issues according to the laws of different jurisdictions.

See Barrett v. Ambient Pressure Diving, Ltd., 2008 WL 4934021, at

*2 (D.N.H. Nov. 17, 2008); see also Lessard v. Clark, 143 N.H.

555, 558 (1999). Therefore, application of Maine's law with

3 respect to liability does not foreclose application of New

Hampshire's law to the plaintiffs' claim for damages, and the

court will undertake a choice of law analysis without reference

to the law governing liability.

B. Choice of Law

In making a choice of law determination. New Hampshire

courts look at "five choice-influencing considerations: (1) the

predictability of results; (2) the maintenance of reasonable

orderliness and good relationships among the States in the

federal system; (3) simplification of the judicial task; (4)

advancement of the governmental interest of the forum; and (5)

the court's preference for what it regards as the sounder rule of

law." Benoit v. Test Svs., Inc., 142 N.H. 47, 52 (1997)

(internal quotation marks and citation omitted). "The relative

importance of each factor varies depending on the type of case."

Stonvfield Farm, Inc. v. Aqro-Farma, Inc., 2009 WL 3255218, at *6

(D.N.H. Oct. 7, 2009) (citing Ferren v. Gen. Motors Corp. Delco

Battery D i v ., 137 N.H. 423, 425 (1993)).

1. Predictability of Results

The first consideration, predictability of results, "relates

primarily to consensual transactions, in which it is important

that parties be able to know in advance what law will govern a

4 transaction so that they can plan it accordingly." Lessard, 143

N.H. at 556-57 (internal quotation marks and citation omitted).

But "[t]his consideration has little relevance in accident cases

because they are not planned." I d . at 557; see also In re Wood,

122 N.H. 956, 957-58 (1982).

The parties agree that the first consideration has little

relevance. Loignon asserts that to the extent this consideration

is relevant, however, it favors application of New Hampshire law.

Loignon argues that because the accident occurred near the border

between Maine and New Hampshire, and because the decedent was a

resident of New Hampshire, the plaintiffs would have anticipated

that New Hampshire law would apply to a wrongful death action

involving the decedent.

In contrast, the plaintiffs contend that if the court

considers the first factor, it should find that it favors

application of Maine law. The plaintiffs argue that because the

accident report refers to a violation of Maine law, and because

the parties had been proceeding with the case as if it would be

governed by Maine law, the parties have anticipated that Maine

law would govern the lawsuit.

Neither argument is availing. As with any automobile

accident, the place of the accident is "fortuitous." Maguire v.

Exeter & Hampton Electric Co., 114 N.H. 589, 591 (1974) . It is

highly doubtful that, prior to traveling, the parties considered

5 or expected the application of either jurisdiction's law. See

Lessard, 143 N.H. at 557. Therefore, the court will give no

weight to the first factor.

2. Maintenance of Orderliness and Good Relations

"[T]he maintenance of reasonable orderliness and good

relationship among the States in our federal system[] requires no

more than that a court apply the law of no state which does not

have substantial connection with the total facts and with the

particular issue being litigated." Lessard, 143 N.H. at 557

(internal quotation marks and citation omitted). Both New

Hampshire and Maine have a substantial connection with the facts

of the case. The decedent was a New Hampshire resident and his

estate is situated in New Hampshire. On the other hand, the

parties agree that Loignon has a "U.S. presence in Maine," and

the accident occurred in Maine. Therefore, both New Hampshire

and Maine are sufficiently connected to the facts to satisfy this

prong.3 See LaBountv v. Tim. Ins. Co., 122 N.H. 738, 743 (1982)

("We find that Massachusetts, Maine and New Hampshire are all

3Although the plaintiffs argue that Maine has a more substantial connection because the relevant evidence and witnesses are located in the state, "[t]hese facts go to the issue of liability, not damages." Lessard, 143 N.H. at 557. Regardless, the New Hampshire Supreme Court has rejected the argument that this factor favors the state of "greatest" significance. Keeton v. Hustler Magazine, Inc., 131 N.H. 6, 17 (1988) .

6 sufficiently connected with the facts and legal issues to warrant

further scrutiny.").

3. Simplification of Judicial Task

The parties agree that the third factor, simplification of

the judicial task, is not particularly relevant here. Loignon

argues, however, that application of New Hampshire's wrongful

death statute in this instance would be slightly easier for the

court, given that it is the law of the forum.

Although it may be easier for a court to apply the forum

state's substantive law, it certainly cannot be argued that

Maine's law regarding the relevant issue is so complex as to

outweigh other competing considerations. This is not a case with

multiple defendants or counterclaims. C f . Stonvfield, 2009 WL

3255218, at *7 ("Applying a different state's laws to the claims

against Schreiber, or even to some of the claims against

Stonyfield . . . would make this case unnecessarily confusing and

could lead to seemingly inconsistent results."). The only

relevant issue is the difference in the limits imposed under

Maine's and New Hampshire's law as to how much the plaintiffs may

recover in wrongful death damages.

There is no risk that application of Maine's law would make

this case unnecessarily confusing. "Because the only contested

issue is the availability of various types of damages, and

7 because the relevant law is readily available, this factor adds

little weight in favor of either forum." Barrett, 2008 WL

4934021, at *4 (internal citation omitted).

4. Governmental Interests of Forum

The fourth consideration is the advancement by the court of

New Hampshire's governmental interests rather than those of

another state. Loignon argues that the court has a duty to

further New Hampshire's law regarding recovery of estates and

beneficiaries. The plaintiffs counter that both New Hampshire

and Maine share similar interests in ensuring that individuals

who are injured by third parties receive compensation for any

losses.

Once again, this factor is of limited importance in this

case. Neither party has identified any specific policy concerns

underlying either state's wrongful death damages law which the

other state's law fails to achieve. See Lessard, 143 N.H. at

558. Both states' laws provide compensation to the plaintiffs

for their injuries. As in most cases, "the only real

governmental interest that the forum has is in the fair and

efficient administration of justice." Clark v. Clark, 107 N.H.

351, 355 (1966). There is no reason why the application of

either state's law would be more fair or efficient than the other. Therefore, this factor does not weigh in favor of either

New Hampshire's or Maine's law.4

5. Sounder Rule of Law

A final consideration is "the court's preference for what it

regards as the sounder rule of law, as between the two competing

ones." Clark, 107 N.H. at 355. This consideration is generally

considered a tie-breaker in close cases. See Stonvfield,

3255218, at *8. In light of the inapplicability of the other

choice of law factors, the court finds that this is such a "close

case," and a tie-breaker is necessary.

The relevant difference between New Hampshire's and Maine's

wrongful death statute is the limit on damages. New Hampshire's

wrongful death statute sets a cap on damages for loss of

consortium of $150,000 for the decedent's wife and $50,000 each

4To the extent this factor was pertinent, however, it would likely weigh in favor of the application of Maine's law. Because Loignon is not a New Hampshire defendant. New Hampshire does not have as strong an interest in making available its lower recovery limitation as it would if the defendant were a New Hampshire citizen. See Turcotte v. Ford Motor Co., 494 F.2d 173, 178 (1st Cir. 1974) (Massachusetts had little interest in shielding a foreign corporation from liability under statute limiting wrongful death recovery.). Nevertheless, the court does not give this factor any weight.

9 for his two children.5 Maine's wrongful death statute sets a

higher cap of $500,000 for loss of consortium damages.6

Loignon argues that neither state's rule is sounder than the

other and that the court should not give this factor significant

weight. The plaintiffs agree that neither state's law is

fundamentally unsound, but argue that New Hampshire's lower

damages cap for wrongful death claims is "outmoded," and that the

cap "does not represent the current state of modern times in

wrongful death cases."

A brief survey of other states' wrongful death statutes

shows that the plaintiffs' argument is well-founded. For

example, neither of the other two states in the First Circuit,

Massachusetts7 and Rhode Island,8 imposes any limitation on

damages in a wrongful death action. Nor do Vermont,9

Connecticut,10 or New York.11 Moreover, the handful of states

5N.H.R.S.A. § 556:12.

618-A M.R.S.A. § 2-804 .

7M.G.L.A. 229 § 2.

8R.I.G.L. 1956 § 10-7-2. Rhode Island's wrongful death statute actually sets a minimum recovery, $250,000, which is higher than New Hampshire's maximum recovery for loss of consortium damages. See i d .

914 V.S.A. § 1492.

10C.G.S.A. § 52-555.

n N.Y. Const. Art. I, § 16.

10 around the country that do impose a limitation on damages for

wrongful death generally set a higher cap than does New

Hampshire.12

This is not the first time that New Hampshire's limitation

on damages in a wrongful death action has been considered by the

courts in a choice of law analysis. In Maguire, the New

Hampshire Supreme Court analyzed whether the issue of damages in

a wrongful death action was controlled by Maine law or New

Hampshire law. Although the court ultimately determined that New

Hampshire law applied because of the state's overwhelming

interest in the case, the court noted that New Hampshire's

"limitation death statute lies in the backwater of the modern

stream," because of its $20,000 cap on damages and because it was

at the time "one of only seven States remaining with an outright

limit on recovery." Maguire, 114 N.H. at 592.

Although the Maguire court considered a different damages

limitation in New Hampshire's wrongful death statute than the one

at issue in this case, the same conclusion holds true.13 Though

not dispositive, the actions of other states weigh heavily on

12See, e.g., O.R.S. § 31.710 (Oregon, $500,000 total cap on noneconomic damages); W.S.A. § 895.04 (Wisconsin, $350,000 cap on recovery for loss of consortium damages).

13The Maguire court considered the limitation in N.H.R.S.A. § 556:13, which limited damages in a wrongful death action where the decedent did not leave any dependents.

11 this factor. See Stonvfield, 2009 WL 3255218, at *8. Given that

the overwhelming majority of states impose no cap on damages in a

wrongful death action, and those that do have generally set a

higher cap than New Hampshire, the court finds that Maine's

wrongful death damages law is "better calculated to serve the

total ends of justice" than the competing law of New Hampshire.

Benoit, 142 N.H. at 53 (internal quotation marks omitted).

In sum, none of the first four factors weighs in favor of

applying either state's law. The fifth factor weighs in favor of

applying Maine's law. Therefore, the court will apply the law of

Maine to the issue of damages.

Conclusion

For the foregoing reasons, Loignon's motion for a

determination that New Hampshire law applies to the issue of

damages (document no. 29) is denied.

SO ORDERED.

Joseph JitCltUto.frt Jos’eph A. DiClerico, Jr. United States District Judge

October 7, 2011

cc: Andrew Ranks, Esq. Mark W. Shaughnessy, Esq. William J. Thompson, Esq.