Welcome v . Yezzi 08-CV-429-SM 06/09/09
UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Christopher D. Welcome,
Plaintiff
v. Civil N o . 08-cv-429-SM
Opinion N o . 2009 DNH 075
Domenick J. Yezzi,
Defendant
O R D E R
Christopher Welcome has sued Domenick Yezzi in two counts,
asserting a claim of negligence (Count I ) and seeking enhanced
compensatory damages (Count II) for injuries he sustained in a
traffic accident involving Yezzi. Before the court is Yezzi’s
motion for partial judgment on the pleadings. Specifically, he
seeks a judgment that Welcome is not entitled to enhanced
compensatory damages. Welcome objects. For the reasons given,
Yezzi’s motion is granted.
“A motion for judgment on the pleadings under Federal Rule
of Civil Procedure 12(c) is treated much like a Rule 12(b)(6)
motion to dismiss.” Estate of Bennett v . Wainwright, 548 F.3d
155, 163 (1st Cir. 2008) (citing Pérez-Acevedo v . Rivero-Cubano,
520 F.3d 2 6 , 29 (1st Cir. 2008)). When ruling on a motion for
judgment on the pleadings under Rule 12(c), the court takes the
facts in the light most favorable to the plaintiff and “draw[s]
all reasonably supported inferences in [her] favor.” Abraham v .
Woods Hole Ocean. Inst.,
553 F.3d 1 1 4 , 115 (1st Cir. 2009)
(citation omitted). “[T]o survive a Rule 12(b)(6) motion (and,
by extension, a Rule 12(c) motion) a complaint must contain
factual allegations that ‘raise a right to relief above the
speculative level.’” Gray v . Evercore Restructuring L.L.C.,
544
F.3d 3 2 0 , 324 (1st Cir. 2008) (citation omitted). In other
words, a Rule 12(c) motion should be granted “if the complaint
fails to state facts sufficient to establish a ‘claim to relief
that is plausible on its face.’”
Id. (quoting Trans-Spec Truck
Serv., Inc. v . Caterpillar Inc.,
524 F.3d 315, 320 (1st Cir.
2008)).
According to Welcome’s complaint, he was injured when Yezzi,
who was driving while intoxicated, made a U-turn in front of him
while both were traveling northbound on Elm Street in Manchester.
Welcome sued Yezzi in this court, under the court’s diversity
jurisdiction.
Yezzi moves for judgment on the pleadings on Count I I ,
arguing that under established New Hampshire Supreme Court
precedent, enhanced compensatory damages are not available to
plaintiffs who have been injured by intoxicated drivers. Welcome
counters that while the cases on which Yezzi relies have not been
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overruled by the New Hampshire Supreme Court, they are
nonetheless bad law, and should not be followed. In the
alternative, he asks this court to certify a question of law to
the New Hampshire Supreme Court concerning the continuing
validity of the cases on which Yezzi relies, or to stay its
ruling on Yezzi’s motion while he seeks a declaratory judgment in
the state courts.
In New Hampshire, “[n]o punitive damages shall be awarded in
any action, unless otherwise provided by statute.” N . H . REV.
STAT. A N N . § 507:16; see also Fay v . Parker, 53 N . H . 3 4 2 , 397
(1872). There is no statute that provides for punitive damages
under the circumstances presented by this case.1 However,
“[w]hen an act is wanton, malicious, or oppressive, the
aggravating circumstances may be reflected in an award of
1
For a brief time, there was such a statute in New
Hampshire:
In 1981, [the New Hampshire legislature] enacted a law
that authorized the awarding of double damages if the
accident [injuring the plaintiff in a civil case]
resulted in the defendant’s conviction for operating
under the influence and if the conviction was the
second or subsequent conviction in a seven-year period.
N . H . R E V . STAT. A N N . § 265:82 (1981). But, it repealed
the law two years later. Id. (repealed 1983). There
is no indication it has acted on the issue since the
1983 repeal.
McKinnon v . Harris, N o . Civ. 1:05-CV-93-JAW, 2005 W L 23335350, at
*6 n.10 ( D . N . H . Sept. 2 1 , 2005).
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enhanced compensatory damages.” Stewart v . Bader, 154 N.H. 7 5 ,
87 (2006) (quoting Figlioli v . R.J. Moreau Cos.,
151 N.H. 6 1 8 ,
621 (2005)).
The New Hampshire Supreme Court has twice addressed the
question of whether enhanced compensatory damages are available
to a plaintiff seeking to recover for injuries inflicted by an
intoxicated driver. Most recently, the court characterized its
previous decision in Johnsen v . Fernald, 120 N.H. 4 4 0 , 441-42
(1980), as follows: “We stated that the act of driving while
intoxicated did not constitute ‘wanton or malicious’ conduct as
defined at common law for purposes of enhancing damages.”
Gelinas v . Mackey,
123 N.H. 6 9 0 , 693 (1983)). According to Judge
Woodcock, in a case decided in this court, “Gelinas unequivocally
expressed the law of the state of New Hampshire: operating a
motor vehicle under the influence and causing injury is not
wanton conduct supporting a claim for enhanced compensatory
damages . . .” McKinnon v . Harris, N o . Civ. 1:05-CV-93-JAW,
2005
WL 2335350, at *7 (D.N.H. Sept. 2 1 , 2005).
Plaintiff attacks the validity of Gelinas in several ways.
First, relying on Justice Douglas’s concurrence in Johnsen, and
an order from the New Hampshire Superior Court Hanscom v .
O’Connell, N o . 03-C0338, 2003 WL 23305265 (N.H. Super. C t . Nov.
4
7 , 2003), plaintiff argues, in essence, that Gelinas is of
“questionable soundness” because it is based on a misreading of
Johnsen. Second, he argues that Gelinas is outdated because it
“runs counter to the clear nationwide trend enabling enhanced
damages in drunk driving cases.” In McKinnon, Judge Woodcock was
presented with the first issue and acknowledged the second, yet
concluded:
Gelinas remains the last word from the Supreme
Court of New Hampshire on the question of whether the
operation of a motor vehicle while under the influence
is wanton conduct sufficient in New Hampshire to
sustain a claim for enhanced damages. It is not.
McKinnon, 2005 WL 2335350, at * 8 . Judge Woodcock’s analysis is
on point, comprehensive, and persuasive. There is no need to
belabor the issue; defendant is entitled to dismissal of
plaintiff’s claim for enhanced compensatory damages. It is not
for this court to determine whether Gelinas was correctly
decided, or whether changing social mores have rendered that
decision outdated and warrant a substantial change in the common
law of New Hampshire.
In an attempt to salvage his claim for enhanced compensatory
damages, plaintiff asks the court to either certify a question to
the New Hampshire Supreme Court, or to stay its ruling on
defendant’s motion while he seeks a declaratory judgment in the
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state courts. Technically, those requests are not properly
before the court. See L . R . 7.1.(a)(1) (“Objections to pending
motions and affirmative motions for relief should not be combined
in one filing.”). But, because defendant has addressed
plaintiff’s requests, and, in the interest of judicial economy,
the court will resolve the issue.
Certification of a question of law to the New Hampshire
Supreme Court is appropriate when the certifying court has before
it a case in which “there are involved . . . questions of law of
this State which may be determinative of the case then pending in
the certifying court and as to which it appears to the certifying
court that there is no controlling precedent in the decisions of
[the New Hampshire Supreme] [C]ourt.” N . H . S U P . C T . R . 3 4 . This
is not such a case. There is controlling precedent. It is
Gelinas. And, “[w]hen state law is sufficiently clear . . . to
allow a federal court to predict its course, certification is
both inappropriate and an unwarranted burden on the state court.”
Gilmore v . Citigroup, Inc. (In re Citigroup, I n c . ) , 535 F.3d 4 5 ,
62 (1st Cir. 2008) (quoting Manchester Sch. Dist. v . Crisman,
306
F.3d 1 , 14 (1st Cir. 2002; citing Hugel v . Milberg, Weiss,
Bershad, Hynes & Lerach, L L P ,
175 F.3d 1 4 , 18 (1st Cir. 1999)).
If the New Hampshire Supreme Court had not decided Johnsen and
Gelinas, then perhaps a question might be appropriately
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certified. See U.S. Steel v . M . DeMatteo Constr. Co., 315 F.3d
4 3 , 54 (1st Cir. 2002) (“certification is particularly
appropriate where the question at issue is novel, and the law
unsettled”) (citing Lehman Bros. v . Schein,
416 U.S. 386, 391
(1974)). But, whether the New Hampshire Supreme Court stands by
Gelinas, or might overrule i t , is not a novel question of
unsettled law suitable for Rule 34 certification.
Finally, while the following observation is not dispositive,
the court notes that “one who chooses the federal courts in [a]
diversity action[ ] is in a peculiarly poor position to seek
certification.” Phoung Luc v . Wyndham Mgmt. Corp., 496 F.3d 8 5 ,
95 (1st Cir. 2007) (quoting Venezia v . Miller Brewing Co.,
626
F.2d 1 8 8 , 192 n.5 (1st Cir. 1980)). As the court of appeals for
this circuit explained in an opinion vacating an award of damages
for emotional distress made in the district court, in
contravention of established New Hampshire Supreme Court
precedents:
Although it is possible that the state supreme court
might be ready to adopt a different view [than that
expressed in two previous opinions], we cannot lightly
indulge such speculation. Where a directly pertinent
precedent of the state’s highest court obtains, a
federal court applying state law must be hesitant to
blaze a new (and contrary) trail. Absent more solid
evidence than is available here, see, e.g., Provencher
v . Berman, 699 F.2d 5 6 8 , 570 (1st Cir. 1983); Mason v .
American Emery Wheel Works, 241 F.2d 906, 909-10 (1st
Cir. [(1957)], a diversity court must take state law as
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it finds i t : “not as it might conceivably b e , some day;
nor even as it should be.” Plummer v . Abbott
Laboratories, 568 F. Supp. 9 2 0 , 927 (D.R.I. 1983); see
also Moores v . Greenberg, 834 F.2d 1105, 1107 n.3 (1st
Cir. 1987) (in diversity jurisdiction, task is to
determine state law, not fashion a rule which the
federal court, independently, might deem best). And
when state law has been authoritatively declared, the
federal tribunal should apply that law according to its
tenor. If plaintiff, fully chargeable with knowledge
of the decided New Hampshire cases, nonetheless chose
to reject a state-court forum in favor of a federal
forum, he is in a perilously poor position to grumble
when we follow existing state precedent. C f . Freeman
[v. Package Mach. C o . ] , 865 F.2d [1331,] 1349 [(1st
Cir. 1988)] (party removing case from state court “hard
put to complain if the federal court follows state
practice in regard to state-law claims”). A plaintiff
“who seek[s] out a federal forum in a diversity action
should anticipate no more.” Plummer, 568 F. Supp. at
927
Kassel v . Gannett Co., 875 F.2d 935, 949-50 (1st Cir. 1989)
(parallel citations omitted). In view of the foregoing, the
court can discern no basis for certifying a question of law to
the New Hampshire Supreme Court. Moreover, as plaintiff had the
opportunity, in the first instance, to bring this action in the
state courts, but chose not to do s o , his request for a stay is
also denied.
For the reasons given, defendant’s motion for judgment on
the pleadings (document n o . 9 ) is granted, and Count II is
dismissed.
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SO ORDERED.
Steven J. McAuliffe
Chief Judge
June 9, 2009
cc: Scott H. Harris, Esq.
Thomas W . Kelliher, Esq.
Cathryn E . Vaughn, Esq.
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