STATE OF MAINE SUPERIOR COURT KENNEBEC, ss CIVIL ACTION D9CKET NO. CV-09[151 Nj\ 1 - 1<[ IV' - I/ ~/ :) V! D STEPHEN E. F. LANGSDORF, PERSONAL REPRESENTATIVE OF NAOMI J. BUZZELL,
Plaintiff
v. ORDER ON MOTION TO DISMISS
GREGORY N. BURCHSTEAD, PERSONAL REPRESENTATIVE OF THE ESTATE OF ALBERT J. VIOLETTE, JR.,
Defendant
Defendant Gregory N. Burchstead, personal representative of the estate of Albert
J. Violette, Jr. (Burchstead), moves to dismiss the complaint filed by Stephen E. F.
Langsdorf in his capacity as personal representative of Naomi J. Buzzell (Langsdorf), on
- the ground that the complaint is time-barred under the Probate Code.
"For purposes of evaluating a motion to dismiss, we accept the facts alleged in
the complaint as true." Iohnston v. Maine Energy Recovery Co., Ltd. P'ship, 2010 ME
52, <]I 2, 997 A.2d 741, 743 (citing Halco v. Davey, 2007 ME 48, P 6, 919 A.2d 626, 629).
On April 8, 2008, Albert Violette murdered the plaintiff's decedent, Naomi Buzzell.
(PI.'s CompI. <]I 4.) Mr. Violette then died on April 9, 2008. (Def.'s Ans. and M. Dismiss
3.) The defendant was issued letters of authority as the personal representative of Mr.
Violette on April 16, 2008. (PI.'s CompI. <]I 3.) Notice to creditors of Mr. Violette's estate
was published in the Lincoln County News for two consecutive weeks beginning May
15, 2008, indicating that claims against Mr. Violette's estate not brought within four months of the initial date of publication would be barred. (Def.'sAns. and M. Dismiss
3.) On or about September 9, 2008, the plaintiff was appointed the personal
representative of Ms. Buzzell's estate. (PI.'s CompI. <[ 2.) The plaintiff's wrongful death
action was filed May 15, 2009 in the Kennebec Superior Court. (Docket Record.)
The defendant argues that the plaintiff's suit is untimely under the Maine
Probate Code, specifically 18-A M.R.S. § 3-803 (2009), and therefore should be
dismissed. The plaintiff counters that wrongful death claims are governed by 18-A
M.R.S. 2-804 (2009), which provides a two-year statute of limitations for such actions,
and asserts that this action is therefore not time-barred. For the following reasons, the
motion to dismiss is denied.
Liabilities incurred by a person who subsequently dies, "whether arising in
contract, in tort or otherwise," become "claims" against the decedent's estate. 18-A
M.R.S. § 1-201 (4) (2009). Such claims then fall within the province of the Maine Probate
Code. See, ~ 18-A M.R.S. §§ 1-302, 3-105 (2009). To further the purposes of the Maine
Probate Code, including "'to simplify and clarify the law concerning the affairs of
decedents' and allow for the 'speedy and efficient' settlement of estates," Vincent v.
Simard, 2002 ME 109,
(1998)), the 1vlaine Probate Code provides in part:
A) All claims against a decedent's estate which arose before the death of the decedent ... whether due or to become due, absolute or contingent, liquidated or unliquidated, founded on contract, tort, or other legal basis, if not barred earlier by another statute of limitations or nonclaim statute, are barred against the estate, the personal representative, and the heirs and devisees of the decedent, unless presented within the earlier of the following:
1) The time provided by section 3-801, subsection (b)! for creditors
1 18-A M.R.S. § 3-801 (b) provides: "A personal representative may give written notice by mail or other delivery to a creditor, notifying the creditor to present the creditor's claim within 4 months after the published notice, if given as
2 who are given actual notice, and the time provided in section 3-801, subsection (a? for all creditors barred by publication; or
2) Nine months of the decedent's death. 18-A M.R.S. § 3-803 (a) (2009). The Code further provides that "[t]he running of any
statute of limitations measured from some other event than death or the giving of notice
to creditors is suspended for 4 months after the decedent's death, but resumes
thereafter as to claims not barred by other sections.// 18-A M.R.S. § 3-802 (b) (2009).
The statute creating the cause of action for wrongful death provides: Whenever the death of a person shall be caused by a wrongful act, neglect or default, and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then the person or the corporation that would have been liable if death had not ensued shall be liable for damages as provided in this section, notwithstanding the death of the person injured and although the death shall have been caused under such circumstances as shall amount to a felony. 18-A M.R.S. § 2-804 (a) (2009). //An action under [the wrongful death statutory] section
must be commenced within 2 years after the decedent's death.// 18-A M.R.S. § 2-804 (b)
(2009).
liThe fundamental objective in interpreting statutes is to determine the intent of
the Legislature in enacting them and to give effect to that intent. II Pinkham v. Morrill,
622 A.2d 90, 95 (Me. 1993). //[T]he court should not read a statute to conflict with
another statute when an alternative, reasonable interpretation yields harmony.// Id.
Wrongful death actions are different from other tort actions in that they are
created and bounded by statute. See Estate of Tohnson, 2001 ME 39,
595 (interpreting Florida law) (liThe right of action and remedy on account of death by
provided in subsection (a), or within 60 days after the mailing or other delivery of the notice, whichever is later, or be forever barred. Written notice must be the notice described in subsection (a) or a similar notice." 2 18-A M.R.S. § 3-801 (a) provides: "A personal representative upon application for appointment shall pay a fee to the court to permit the register to publish a notice to creditors once a week for 2 successive weeks in a newspaper of general circulation in the county announcing the appointment and the personal representative's address and notifying creditors of the estate to present their claims within 4 months after the date of the first publication of the notice or be forever barred."
3 wrongful act did not exist at common law, but is purely statutory.... The right of
action is limited by and should not be extended beyond the meaning of the terms of the
statute creating such cause of action.); Danforth v. Emmons, 124 Me. 156, 158-59, 126 A.
821, 822 (1924). While both parties recognize the "principle of statutory construction
that a statute dealing with a subject specifically prevails over another statute dealing
with the same subject generally," Butler v. Killoran, 1998 ME 147, err 11, 714 A.2d 129,
133 (citation omitted), they disagree as to which is the specific statute and which is the
general statute. (PI. Obj. to Mot. Dismiss at 3; Def. Reply Memo. to PI. Obj. to Mot.
Dismiss at 3.)
The plaintiff argues persuasively that the statute creating the tort of wrongful
death, even as applied against an estate, is more specific than the statute specifying the
time window during which any sort of claim may be brought against an estate. The
court disagrees with the defendant's premise that the statute, which provides time
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STATE OF MAINE SUPERIOR COURT KENNEBEC, ss CIVIL ACTION D9CKET NO. CV-09[151 Nj\ 1 - 1<[ IV' - I/ ~/ :) V! D STEPHEN E. F. LANGSDORF, PERSONAL REPRESENTATIVE OF NAOMI J. BUZZELL,
Plaintiff
v. ORDER ON MOTION TO DISMISS
GREGORY N. BURCHSTEAD, PERSONAL REPRESENTATIVE OF THE ESTATE OF ALBERT J. VIOLETTE, JR.,
Defendant
Defendant Gregory N. Burchstead, personal representative of the estate of Albert
J. Violette, Jr. (Burchstead), moves to dismiss the complaint filed by Stephen E. F.
Langsdorf in his capacity as personal representative of Naomi J. Buzzell (Langsdorf), on
- the ground that the complaint is time-barred under the Probate Code.
"For purposes of evaluating a motion to dismiss, we accept the facts alleged in
the complaint as true." Iohnston v. Maine Energy Recovery Co., Ltd. P'ship, 2010 ME
52, <]I 2, 997 A.2d 741, 743 (citing Halco v. Davey, 2007 ME 48, P 6, 919 A.2d 626, 629).
On April 8, 2008, Albert Violette murdered the plaintiff's decedent, Naomi Buzzell.
(PI.'s CompI. <]I 4.) Mr. Violette then died on April 9, 2008. (Def.'s Ans. and M. Dismiss
3.) The defendant was issued letters of authority as the personal representative of Mr.
Violette on April 16, 2008. (PI.'s CompI. <]I 3.) Notice to creditors of Mr. Violette's estate
was published in the Lincoln County News for two consecutive weeks beginning May
15, 2008, indicating that claims against Mr. Violette's estate not brought within four months of the initial date of publication would be barred. (Def.'sAns. and M. Dismiss
3.) On or about September 9, 2008, the plaintiff was appointed the personal
representative of Ms. Buzzell's estate. (PI.'s CompI. <[ 2.) The plaintiff's wrongful death
action was filed May 15, 2009 in the Kennebec Superior Court. (Docket Record.)
The defendant argues that the plaintiff's suit is untimely under the Maine
Probate Code, specifically 18-A M.R.S. § 3-803 (2009), and therefore should be
dismissed. The plaintiff counters that wrongful death claims are governed by 18-A
M.R.S. 2-804 (2009), which provides a two-year statute of limitations for such actions,
and asserts that this action is therefore not time-barred. For the following reasons, the
motion to dismiss is denied.
Liabilities incurred by a person who subsequently dies, "whether arising in
contract, in tort or otherwise," become "claims" against the decedent's estate. 18-A
M.R.S. § 1-201 (4) (2009). Such claims then fall within the province of the Maine Probate
Code. See, ~ 18-A M.R.S. §§ 1-302, 3-105 (2009). To further the purposes of the Maine
Probate Code, including "'to simplify and clarify the law concerning the affairs of
decedents' and allow for the 'speedy and efficient' settlement of estates," Vincent v.
Simard, 2002 ME 109,
(1998)), the 1vlaine Probate Code provides in part:
A) All claims against a decedent's estate which arose before the death of the decedent ... whether due or to become due, absolute or contingent, liquidated or unliquidated, founded on contract, tort, or other legal basis, if not barred earlier by another statute of limitations or nonclaim statute, are barred against the estate, the personal representative, and the heirs and devisees of the decedent, unless presented within the earlier of the following:
1) The time provided by section 3-801, subsection (b)! for creditors
1 18-A M.R.S. § 3-801 (b) provides: "A personal representative may give written notice by mail or other delivery to a creditor, notifying the creditor to present the creditor's claim within 4 months after the published notice, if given as
2 who are given actual notice, and the time provided in section 3-801, subsection (a? for all creditors barred by publication; or
2) Nine months of the decedent's death. 18-A M.R.S. § 3-803 (a) (2009). The Code further provides that "[t]he running of any
statute of limitations measured from some other event than death or the giving of notice
to creditors is suspended for 4 months after the decedent's death, but resumes
thereafter as to claims not barred by other sections.// 18-A M.R.S. § 3-802 (b) (2009).
The statute creating the cause of action for wrongful death provides: Whenever the death of a person shall be caused by a wrongful act, neglect or default, and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then the person or the corporation that would have been liable if death had not ensued shall be liable for damages as provided in this section, notwithstanding the death of the person injured and although the death shall have been caused under such circumstances as shall amount to a felony. 18-A M.R.S. § 2-804 (a) (2009). //An action under [the wrongful death statutory] section
must be commenced within 2 years after the decedent's death.// 18-A M.R.S. § 2-804 (b)
(2009).
liThe fundamental objective in interpreting statutes is to determine the intent of
the Legislature in enacting them and to give effect to that intent. II Pinkham v. Morrill,
622 A.2d 90, 95 (Me. 1993). //[T]he court should not read a statute to conflict with
another statute when an alternative, reasonable interpretation yields harmony.// Id.
Wrongful death actions are different from other tort actions in that they are
created and bounded by statute. See Estate of Tohnson, 2001 ME 39,
595 (interpreting Florida law) (liThe right of action and remedy on account of death by
provided in subsection (a), or within 60 days after the mailing or other delivery of the notice, whichever is later, or be forever barred. Written notice must be the notice described in subsection (a) or a similar notice." 2 18-A M.R.S. § 3-801 (a) provides: "A personal representative upon application for appointment shall pay a fee to the court to permit the register to publish a notice to creditors once a week for 2 successive weeks in a newspaper of general circulation in the county announcing the appointment and the personal representative's address and notifying creditors of the estate to present their claims within 4 months after the date of the first publication of the notice or be forever barred."
3 wrongful act did not exist at common law, but is purely statutory.... The right of
action is limited by and should not be extended beyond the meaning of the terms of the
statute creating such cause of action.); Danforth v. Emmons, 124 Me. 156, 158-59, 126 A.
821, 822 (1924). While both parties recognize the "principle of statutory construction
that a statute dealing with a subject specifically prevails over another statute dealing
with the same subject generally," Butler v. Killoran, 1998 ME 147, err 11, 714 A.2d 129,
133 (citation omitted), they disagree as to which is the specific statute and which is the
general statute. (PI. Obj. to Mot. Dismiss at 3; Def. Reply Memo. to PI. Obj. to Mot.
Dismiss at 3.)
The plaintiff argues persuasively that the statute creating the tort of wrongful
death, even as applied against an estate, is more specific than the statute specifying the
time window during which any sort of claim may be brought against an estate. The
court disagrees with the defendant's premise that the statute, which provides time
periods during which a broad category of claims is timely, is a specific statute. The time
limitation applying to tort claims generally, incurred before the death of the decedent,
excludes claims for wrongful death. For this reason, Bernardi v. Shapiro, 1995 Me.
Super. LEXIS 456 (Dec. 22, 1995), cited by the defendant, is inapplicable.
Moreover, dismissal of the plaintiff's wrongful death claim is inconsistent with
the statutory scheme. The Maine Probate Code specifically provides, "This Code shall
be liberally construed and applied to promote its underlying purposes and policies."
18-A M.R.S. § 1-102 (a) (2009); see also, ~ Pinkham, 622 A.2d 94-95 (quoting 24-A
M.R.S.A. § 4434 (1990)) (noting that a statute providing that it "shall be liberally
construed to effect the purpose stated under" the pertinent chapter is inconsistent with
strict statutory construction). The Code's purpose and policy against homicide is clear
from 18-A M.R.S. § 2-803, titled, "Effect of homicide on intestate succession, wills, joint
4 assets, life insurance and beneficiary designations," which prevents a beneficiary from
realizing his or her expectancy in the decedent's estate if the beneficiary "feloniously
and intentionally kills" the decedent. 18-A M.R.S. § 2-803 (a), (b), (c) (2009). The
provision does not limit this legislative policy to expected beneficiaries, as it includes a
catch-all provision to ensure that a murderer does not profit from his crime through the
disposition of the decedent's estate: "Any other acquisition of property or interest by
the killer shall be treated in accordance with the principles of this section." 18-A M.R.S.
§ 2-803 (d) (2009). Foreclosure of the plaintiff's recovery in wrongful death would be a
gain to the estate of the defendant. Further, an interpretation of the timeliness
provisions of 18-A M.R.S. § 3-803 (a) (2009) as a bar to the plaintiff's wrongful death
claim would be inconsistent with the statutory scheme requiring liberal construction
and disfavoring gains resulting from homicide.
The final consideration underlying the court's conclusion that legislative intent
supports denial of the motion to dismiss concerns fundamental fairness, notice, and
opportunity to be heard. As discussed above, wrongful death is a statutorily created
tort that did not exist at common law. See Estate of Tohnson, 2001 NIB 39,
at 595; Danforth v. Emmons, 124 Me. at 158-59. As discussed, statutory recovery in
wrongful death represents the only method of civil recovery for this type of harm. "It is
also significant that the legislature in the wrongful death statute has provided that
every action thereunder shall be brought by the personal representative of the deceased,
thereby preventing any tolling of the statute of limitations under 14 M.R.S.A. § 853
(Supp. 1986) . . . ." Durepo v. Fishman, 533 A.2d 264, 266 n.3 (Me. 1987). The
publication of the notice to creditors of Mr. Violette's estate, required by 18-A M.R.S. §
3-801 (a) (2009) to begin the statutory four-month claim period, took place over two
5 weeks beginning May 15, 2008 (Def.'sAns. and M. Dismiss 3); the plaintiff was not
appointed the personal representative of Ms. Buzzell's estate until September 9, 2008,
nearly four months later. (PI.'s Compi.
representative of Ms. Buzzell's estate, the plaintiff became an "interested person" for
purposes of the Maine Probate Code:
"Interested person" includes heirs, devisees, children, spouses, domestic partners, creditors, beneficiaries and any others having a property right in or claim against ... the estate of a decedent ... that may be affected by the proceeding. It also includes persons having priority for appointment as personal representative, and other fiduciaries representing interested persons. 18-A M.R.S. § 1-201 (20) (2009). As an "interested person," the plaintiff should have
received notice from Mr. Violette's estate pursuant to 18-A M.R.S. §§ 1-401 and 1-403
(2009). To foreclose the cause of action when the plaintiff was not made aware of the
notice to creditors at the time of its issuance, nor alerted upon his becoming an
"interested person" of the defendant's belief that the window for creditors' claims was
about to close, would be inconsistent with the statutory scheme's notice provisions, as
well as with fundamental fairness.
The entry is The Defendant Burchstead's Motion Dismiss is DENIED.
A~I. /~ ~ Date: September 17, 2010 Nancy Mills Justice, Superior Court