norton v. jarvis

0 CHIF EDEN CE
FILED IN CL

STATE OF VERMONT JUN 18 2002
CHITTENDEN COUNTY, SS. .
Bade PAN ME ae
MICHELLE NORTON, Individually, ) —
as next friend of minor Kyle Fitzgerald )
and as Administratrix of the )
Estate of Wayne Norton, )
Plaintiff, )
) Chittenden Superior Court
Vv. ) Docket No. $409-00 CnC
) |
KIMBERLY ANN JARVIS, )
ALLEN DAVIS, and MALLETTS BAY _)
DRIVE-IN, INC. )
Defendants. )

MEMORANDUM OF DECISION
Defendants’ Motion for Partial Summary Judgment filed October 11, 2001.

This matter is before the Court on Defendants’ Motion for Partial Summary Judgment
filed October 11, 2001. Plaintiffs response was filed on November 8, 2001. Defendants’ reply
to Plaintiffs response was filed on December 3, 2001. Plaintiff is represented by Thomas E.
McCormick, Esq. Defendants are represented by Robert G. Cain, Esq.

The following facts are undisputed and are stated in both the Plaintiffs and Defendants’
Statement of Facts, supporting affidavits and documents. On April 11, 1998, Wayne Norton was
fatally injured while operating his all-terrain vehicle (ATV) on real property formerly known as
the “Malletts Bay Drive-In,” in Colchester, Vermont. At the time of the accident, Wayne Norton
was married to Plaintiff Michelle Norton. The Nortons were married on February 14, 1998.

Plaintiff Michelle Norton is the biological mother of Kyle Fitzgerald, who was born on
December 31, 1988. Plaintiff and Kyle’s biological father, Brian Fitzgerald, were divorced in
June 1992, and Plaintiff has custody of Kyle. Over the years, Brian Fitzgerald has seen Kyle a
day or two amonth. Since 1992, Plaintiff, Kyle and Wayne Norton lived together. Wayne did
not have any legal or biological children. At the time of this death, he had not adopted Kyle.

Kyle and Wayne had a father-son relationship. Kyle called Wayne “Dad” and Wayne
cared for Kyle daily and on the weekends when Kyle was not with Brian Fitzgerald. They
participated in father-son activities such as playing baseball and riding bicycles. Wayne also
contributed to the care of Kyle with necessities such as food and rent. According to the Plaintiff,
“Wayne was a ‘father’ to Kyle in every sense of the word and the relationship that existed

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between them was love, trust, dependence and family.

After Wayne’s death, Plaintiff filed suit against the property owners and manager of the
Malletts Bay Drive In, Inc., on behalf of Wayne Norton’s estate, herself and her son Kyle.
Defendants now seek Partial Summary Judgment with respect to Plaintiffs claims on behalf of
Kyle Fitzgerald. According to the Defendants, damages are not recoverable on behalf of Kyle
because he is not Wayne Norton’s “next of kin” as defined by Vermont’s Wrongful Death Act
(hereinafter WDA), 14 V.S.A. §§ 1491-1492. Plaintiff responds with two arguments: 1) that the
statute is remedial in nature and should be construed liberally to include stepchildren such as
Kyle; and 2) the WDA is unconstitutional pursuant to the Common Benefits Clause of the
Vermont Constitution to the extent that it bars claims by stepchildren.

CONCLUSIONS

Plaintiff's first argument, that because Vermont’s WDA is remedial, it should be
construed to allow recovery by stepchildren, is not supported by current case law. As a
preliminary matter, the Plaintiff is correct that the WDA is itself remedial in nature. See e.g.,
Hartnett v. Union Mut Fire Ins. Co., 153 Vt. 152, 153 (1989) (“Vermont’s Wrongful Death Act is
a remedial statute.”); Vaillancourt v. Medical Center Hosp. Of Vt., 139 Vt. 138, 141 (1980)
(same). The WDA is “designed to alleviate the harsh common law rule of no liability because
the person injured had died.” Vaillancourt, 139 Vt. at 141. In this context, the WDA allows a
decedent’s spouse or next of kin to recover for liability in the death of their spouse or next of kin,
whereas the common law did not. In that sense, the WDA is remedial in that the Legislature has
created a remedy for specified persons not otherwise entitled to one under the common law.

Calling a statute remedial in nature does not automatically mean that its remedy is
available to persons other than those specified in the statute, which in this case include only the
spouse or next of kin.’ The statute is specific in that a “court or jury before whom the issue is

' This fact is undisputed. The statements of undisputed facts contain incomplete
information about the nature of the relationship between Kyle and his father Brian Fitzgerald.

2 Plaintiff cites Clymer v. Webster, 156 Vt. 614 (1991) at length for the proposition that
the remedial nature of the statute can be utilized to expand recovery for persons such as
stepchildren. Plaintiff indicates that “[e]very case must stand on its own facts and
circumstances” and that “the court or jury should consider the physical, emotional, and
psychological relationship between the parents and the child.” (Pl.’s Opp’n to Mot. for Summ. J.
at 6) (citing Clymer, 156 Vt. at 630). Plaintiffs reliance on Clymer for this proposition is
misplaced. Not only are the recited portions of Clymer dicta, but the Clymer Court’s analysis did
not concern the issue involved in this case, specifically, determining who is entitled to recover
under the WDA. The entire discussion in Clymer cited by the Plaintiff instead relates to whether
the loss of companionship of an adult child constitutes pecuniary injury under the statute.
Clymer, 156 Vt. at 630.

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tried may give such damages as are just . . . fo the wife and next of kin or husband and next of
kin, as the case may be.” 14 V.S.A. § 1492 (emphasis added). In interpreting the WDA, the
Vermont Supreme Court has relied on the remedial nature of the Act to interpret its coverage to
include different types of injury recoverable under the statute. See e.g., Clymer v. Webster, 156
Vt. 614, 629 (1991) (loss of companionship of adult child may constitute pecuniary injury under
the state); Hartnett, 153 Vt. at 156 (parental grief and mental anguish recoverable under the
statute); Mobbs v. Central Vermont Railway, 150 Vt. 311, 316 (1988) (pecuniary injury not
limited solely to economic loss). However, the Court has never sanctioned recovery for persons
not considered either the wife or husband or next of kin. Rather, the Court has consistently
adhered to the traditional definition of next of kin, that is, “those persons most nearly related to
the decedent by blood.” Whitchurch v. Perry, 137 Vt. 464, 472 (1979) (citing Black’s Law
Dictionary 1194 (rev. 4" ed. 1968)).

In this case, Kyle Fitzgerald does not fit the definition of next of kin. He is not related to
Wayne Norton by blood. The fact that the statute is remedial in the context of providing
recovery for the death of a spouse or next of kin does not change the plain language of the statute
limiting recovery to the spouse or next of kin. See e.g., Burlington Elec. Dept. v. Vermont Dep’t
of Taxes, 154 Vt. 332, 335-336 (1990) (quoting Hill v. Conway, 143 Vt. 91, 93 (1983) (when the
meaning of a statute is plain on its face, the Court will enforce the statute according to its terms
for “there is no need for construction; the legislative intent is to be ascertained from the act
itself”). Kyle is not considered next of kin under the statute and thus damages are not
recoverable on his behalf.

In her second argument, Plaintiff contends that the WDA is unconstitutional pursuant to
the Common Benefits Clause of the Vermont Constitution because it bars claims by stepchildren.
Relying on Baker v. State, 170 Vt. 195 (2000), Plaintiff argues that limiting recovery under the
WDA to those in a “traditional family” violates the “principle of inclusion” expressed in the
Common Benefits Clause and enshrines favoritism toward a particular form of family. In
addition, according to the Plaintiff, Kyle’s exclusion from statutory benefits under the WDA does
not bear a “reasonable and just relation to the governmental purpose” of the statute. Id. at 214.

In 1997, prior to the Baker decision, the Vermont Supreme Court addressed the propriety
of limited recovery under the WDA to one class of beneficiaries in the context of an equal-
protection challenge to the statute in Quesnel v. Town of Middlebury, 167 Vt. 252 (1997). At the
time of the Quesnel decision, the Court often used the equal-protection analysis under the
Fourteenth Amendment of the federal constitution as the standard for analysis under the
Common Benefits Clause of the Vermont Constitution. See e.g., Baker, 170 Vt. at 202-206 (and
cases cited therein). In Quesnel, the Plaintiffs claimed they were denied equal protection and due
process because they could not “recover for the wrongful death of their son whereas parents of an
adult child who die[d] without a surviving child [were] entitled to wrongful death recovery.”
Quesnel, 167 Vt. at 257. In examining whether the WDA served a legitimate purpose, the Court
noted:

Here, the Legislature has limited defendants’ liability to one class of
persons, the spouse and next of kin. It is conceivable that the
Legislature imposed this limit to prevent the possibility of diluting the
recovery. By limiting the tortfeasor’s liability to a single class of
persons, the Legislature has ensured the tortfeasor’s assets will be
preserved for the preferred class. This is particularly important where
funds available to satisfy any judgmentare limited. Although persons
other than the spouse and next of kin may suffer economic and
personal loss due to the death of an individual, the Legislature may
protect the preferred beneficiaries by limiting those who may recover.
.. . Allowing damages for loss to other persons creates more
opportunity for conflict between survivors, complicating and
prolonging the proceedings as well as adding to their cost. Because
we can conceive of several legitimate purposes that the statute may
serve, we cannot conclude that the statute is without rational basis.

Id. at 257-258 (emphasis added) (citations omitted).

Based on the Court’s analysis in Quesnel in 1997, it is apparent that under a Fourteenth
Amendment equal-protection analysis, the WDA serves a legitimate purpose in restricting the
class of beneficiaries to only the spouse and next of kin. Under Quesnel, Kyle Fitzgerald is not
entitled to recover for the wrongful death of Wayne Norton despite their apparent close
relationship. As the Court noted, although “[s]ome cases present strong arguments for expanding
this liability to losses suffered by other people close to the decedent .. . . such arguments should
be addressed to the Legislature, not the courts.” Id. at 259 (citations omitted). It was reasonable
for the Legislature to limit the class of beneficiaries using clear cut guidelines so as to avoid a
fact-based analysis of the personal relationship in every case and to avoid multiplying
exponentially the number of potential claimants under the WDA.

In the wake of Baker, a different analysis is called for in determining whether the WDA’s
limits on the class of claimants violates the “principle of inclusion” in the Common Benefits
Clause. Baker, 170 Vt. at 213-214. Cf. 170 Vt. at 235 and 170 Vt. at 252, 255.

When a statute is challenged under the Common Benefits Clause, the mode of analysis
begins with defining the “‘part of the community’ disadvantaged by the law.” Id. At 21 3. Next,
the analysis looks to the governmental purpose behind the classification that excludes members
of the community and examines the “nature of the classification to determine whether it is
reasonably necessary to accomplish the State’s claimed objectives.” Id, At 214. Finally, the
analysis asks whether the “omission of a part of the community . . .bears a reasonable and just
relation to the governmental purpose.” Id. Under the standard, if the classification is reasonably
necessary to accomplish the claimed objectives of the governmental purpose, and the exclusion
of part of the community bears a reasonable and just relation to that purpose, then the statute can
be enforced consistent with the Common Benefits Clause.

4.
Applying the standard enunciated in Baker, the court concludes that the exclusion under
the WDA of claims by stepchildren for the wrongful death of a stepparent is not unconstitutional
under the Common Benefits Clause.’

In this case, the community disadvantaged by the WDA includes those persons with an
economic or personal relationship to the decedent who are not either a spouse or next of kin.
More specifically, as claimed by Plaintiff, the community includes stepchildren who have a
parent-child relationship with their stepparents. It is important to note that recovery is available
to a stepchild for the wrongful death of both of his legal parents, and every person in Vermont
has an available remedy under the WDA for the wrongful death of a spouse or next of kin.

To the extent that the definition of the excluded community is limited to stepchildren,
there is a wide variety of stepparent/stepchild relationships. Some supplant in a comprehensive
way all economic and personal aspects of a child’s economic and personal relationship with a
legal parent; others provide a supplementary personal and/or economic relationship to an
otherwise intact and active parent-child relationship between the child and his or her
noncustodial legal parent. Other stepchild/stepparent relationships may be nonexistent, and
others may be hostile or harmful. For purposes of a Baker analysis, it is difficult to define an
excluded community, since determining whether, in a given case, a stepchild is deprived of a
meaningful remedy under the WDA requires a review of all the specific facts of that particular
relationship.

The fact that it is difficult as a practical matter to define the community disadvantaged by
the WDA without resort to the specific facts of every individual relationship highlights the
reasonableness of deferring to the choices made by the Legislature in defining the characteristics
of those eligible for the remedy, as long as the lines drawn by the Legislature have a reasonable
basis in policy.

The second part of the analysis calls for a definition of the governmental purpose of the
classification in the statute. As discussed by the Court in Quesnel, the governmental purpose
includes preventing the possibility of diluting the recovery available to the beneficiaries most in
need, ensuring that “the tortfeasor’s assets will be preserved for the preferred class,” and
preventing opportunities for conflict between survivors, as well as preventing conditions which
could complicate, prolong, and increase the cost of receiving benefits. Quesnel, 167 Vt. At 257-
258. These are reasonable objectives as a matter of social policy. They ensure that benefits go

>Under Baker and subsequent legislation, a partner in a civil union has the same right to
recover as a spouse under the WDA for the wrongful death of a partner. 15 V.S.A. §§1204(b)
(“[a] party to a civil union shall be included in any definition or use of the term ‘spouse’ [and]. . .
next of kin’... as those terms are used throughout the law”); 15 V.S.A. §1204(c)(2). A person
seeking a remedy under the WDA for the loss of a partner in a same sex relationship that was not
a recognized civil union under the civil union law would stand in the same position as Kyle in
this case.

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where they are most needed to replace a loss, and that they do so quickly and efficiently without
creating conflict and strife in family relationships.

Finally, the exclusion of beneficiaries under the WDA bears a just and reasonable relation
to the stated governmental purposes. If the remedy were available to anyone in a stepchild
relationship, those in the defined preferred class (generally spouse, legal children, and parents)
would have to compete for benefits with a potentially significantly increased number of
claimants (stepchildren and stepparents). Proceeds available to the spouse and next of kin would
be diluted, and the cost and complication of dealing with competing post-death claims could be
increased significantly. There could easily be increased interfamily and intrafamily friction.
Furthermore, if Kyle were permitted a remedy under the WDA for Wayne’s death, the same logic
would allow a stepparent to recover for a stepchild’s death, thereby creating a contest for finite
benefits between a legal parent and a step parent for the death of a child. Given the potentially
harmful collateral consequences, it is reasonable for the Legislature to have chosen to prevent
these ills, and the limitation on recovery under the WDA to a spouse and next of kin reasonably
does so.

Whether the issue is viewed under the Fourteenth Amendment equal protection clause
traditionally used for the Common Benefits Clause under the Vermont Constitution, or the
approach set forth in the opinion in Baker v. State, Plaintiff's claim, that the Wrongful Death Act
is unconstitutional-as applied to a stepchild seeking to recover for the loss of a stepparent, cannot
succeed.

ORDER
For the foregoing reasons:
Defendants’ Motion for Partial Summary Judgment is granted with respect to Plaintiff's

claims on behalf of Kyle Alexander.

Dated at Burlington this_(@_ of June, 2002.

Way Wyte Jecetat
Hon. Milky Miles Teachout
Superior Judge, presiding