United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
STEPHAN M. VIDMAR UNITED STATES MAGISTRATE JUDGE
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.
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].
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. Id. at 2, 9-10.
to Intervene Under Fed.R.Civ.P. 24
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).
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
as to Wrongful Death Claim
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.
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
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.
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 ...