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Grano v. Weese

United States District Court, D. New Mexico

June 27, 2017

MARC GRANO, Plaintiff,
v.
MELVIN J. WEESE and SWIFT TRANSPORTATION COMPANY, Defendants.

          MEMORANDUM OPINION AND ORDER

          STEPHAN M. VIDMAR UNITED STATES MAGISTRATE JUDGE

         THIS MATTER is before the Court on the Motion of Larry and Diana Lucero to Intervene in Wrongful Death Action, filed March 29, 2017. [Doc. 10]. Plaintiff responded on April 10, 2017. [Doc. 13]. Defendants responded on April 12, 2017. [Doc. 14]. The Luceros (“Movants”) replied on May 15, 2017. [Doc. 28]. Having considered the record, briefing, and relevant law, and being otherwise fully advised in the premises, the Court will GRANT IN PART and DENY IN PART the Motion to Intervene in Wrongful Death Action. Movants may intervene to bring individual claims for loss of consortium against Defendants. They may not intervene to challenge Plaintiff's role as personal representative.

         Background

         On October 25, 2016, Tristan Lucero was struck by a truck while walking along Interstate 40 in Guadalupe County, New Mexico. [Doc. 31] at 2. He died as a result of the accident. Id.On November 14, 2016, Plaintiff Marc Grano was appointed personal representative of the decedent's estate “for any claims arising out of the wrongful death of the Decedent.” [Doc. 10-1] at 4. Shortly thereafter, Plaintiff filed a wrongful death action in state court against Melvin Weese, the driver of the truck, and Swift Transportation Company, with whom Mr. Weese had contracted to provide delivery services (collectively, “Defendants”). [Doc. 1-1]. Pursuant to the New Mexico Wrongful Death Act, NMSA 1978, § 41-2-1, Plaintiff alleges that Defendants' negligence caused Tristan Lucero's death and requests compensatory and punitive damages. [Doc. 31] at 2-4. Defendants removed the action to this District on March 6, 2017. [Doc. 1].

         Movants are the biological father and stepmother of the decedent. [Doc. 10] at 1. They seek to intervene in the wrongful death action on two bases. First, Movants claim that they should be permitted to intervene to challenge Plaintiff's appointment as personal representative of the decedent's estate. Second, they seek to assert independent claims on their own behalf against Defendants for loss of consortium.[1] Id. at 2, 9-10.

         Motions to Intervene Under Fed.R.Civ.P. 24

         Pursuant to Fed.R.Civ.P. 24, a party may intervene in a lawsuit either through his own right or by permission of the court. The court must permit a party to intervene when the applicant “claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant's ability to protect its interest, unless existing parties adequately represent that interest.” Fed.R.Civ.P. 24(a)(2). The Tenth Circuit has summarized the requirements for intervention as a matter of right as follows: “(1) the application is timely; (2) the applicant claims an interest relating to the property or transaction which is the subject of the action; (3) the applicant's interest may as a practical matter be impair[ed] or impede[d]; and (4) the applicant's interest is [not] adequately represented by existing parties.” Utah Ass'n of Ctys. v. Clinton, 255 F.3d 1246, 1249 (10th Cir. 2001) (alterations in original) (internal quotation marks omitted).

         A movant who does not satisfy the test for intervention as a matter of right under Rule 24(a) may be permitted to intervene under Rule 24(b) if he has a claim or defense that shares a common question of law or fact with the main action.[2]

         Analysis

         Intervention as to Wrongful Death Claim

         Movants seek to intervene in this wrongful death action to challenge the appointment of Plaintiff as the personal representative of the decedent's estate. The New Mexico Wrongful Death Act (“Act”) provides a cause of action for what “the decedent himself would have been entitled to recover had death not ensued.” Romero v. Byers, 1994-NMSC-031, ¶ 18, 117 N.M. 422 (internal quotation marks omitted). Lawsuits under the Act must be brought “by and in the name of the personal representative of the deceased person.” NMSA 1978, § 41-2-3. The personal representative “is only a nominal party who was selected by the Legislature to act as the statutory trustee for the individual statutory beneficiaries” in order to “centralize the claims and prevent multiple and possibly contradictory lawsuits.” Chavez v. Regents of Univ. of N.M., 1985-NMSC-114, ¶¶ 8, 10, 103 N.M. 606. In sum, “[t]he wrongful death act . . . provides a cause of action for the benefit of the statutory beneficiaries to sue a tortfeasor for the damages, measured by the value of the decedent's life, which the decedent himself would have been entitled to recover had death not ensued. Solon v. WEK Drilling Co., 1992-NMSC-023, ¶ 7, 113 N.M. 566.

         The proceeds of any judgment are distributed to the decedent's statutory beneficiaries, as prescribed in § 41-2-3. The personal representative serves as trustee for the statutory beneficiaries-that is, the personal representative owes a fiduciary duty to the statutory beneficiaries. Kretek v. Bd. of Comm'rs of Luna Cty., 2013 WL 11977932, at *2 (D.N.M. Mar. 21, 2013) (citing § 41-2-3). A statutory beneficiary may therefore recover damages from the personal representative if the personal representative fails to fulfill his statutory responsibilities. Id. (citing Leyba v. Whitley, 1995-NMSC-066, ¶ 2, 120 N.M. 768; Dominguez v. Rogers, 1983-NMCA-135, ¶ 19, 100 N.M. 605).

         Movants do not seek to intervene to assert individual wrongful death claims. They acknowledge that only the designated personal representative may bring a wrongful death action pursuant to § 41-2-3. It is clear, however, that they want to participate in the prosecution of the wrongful death action. They believe the appointed personal representative is doing an inadequate job and seek to intervene in order to have a new personal representative appointed. They claim that, as a statutory beneficiary, Mr. Lucero has an interest in the wrongful death action and argue that Plaintiff will not adequately represent that interest. [Doc. 10] at 3-4, 7-9. In the main, they contend that Plaintiff purposefully kept Mr. Lucero in the dark about his appointment as personal representative and has otherwise failed to involve them and their own retained counsel in the litigation. Movants ascribe nefarious motives to Plaintiff's actions. Id. at 8-9. They conclude that this “unfair and inappropriate conduct” suggests that Plaintiff will not adequately represent Mr. Lucero's interest as a statutory beneficiary. Id. at 9. They also contend that they-and not the decedent's biological mother, who retained Plaintiff's counsel and had the personal representative appointed-had a parent-child relationship with the decedent, such that excluding them would be detrimental to successful litigation of the wrongful death action. Id. at 8.

         Both Plaintiff and Defendants oppose the motion. Plaintiff notes that Mr. Lucero cannot bring his own claim under the Act. [Doc. 13] at 2. And, as one of two statutory beneficiaries (the other being the decedent's biological mother), he is already entitled to half of the decedent's estate, including any award to Plaintiff in the instant wrongful death action. Id. at 3-4. Plaintiff argues that the failure to notify Movants of or involve them in the proceedings does not render Plaintiff an inadequate personal representative. Defendants likewise contend that Movants have failed to show that they have any legal basis to challenge the appointment of Plaintiff as personal representative. [Doc. 14] at 2-3. They further assert that intervention would be contrary to New Mexico law, which specifically limits who may bring a wrongful death ...


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