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Coon v. Southwestern Vermont Medical Center

United States District Court, D. Vermont

January 30, 2014

Donald J. Coon, Plaintiff,
Southwestern Vermont Medical Center, Shea Family Funeral Homes, Lon McClintock, Esq., Defendants.

OPINION AND ORDER (Docs. 7, 9, 29, 37, 49, 62, 70)

JOHN M. CONROY, Magistrate Judge.

Plaintiff Donald J. Coon, proceeding pro se, brings this civil action against Defendants Southwestern Vermont Medical Center (SVMC), Shea Family Funeral Homes (Shea), [1] and Lon McClintock, Esq. (Docs. 3, 17.[2]) Mr. Coon's claims stem from the death of his mother, Joan M. Hunt, while she was an SVMC patient; from Shea's actions following Ms. Hunt's death; and from Attorney McClintock's alleged breaches of duties he owed to Mr. Coon during an investigation into Ms. Hunt's death. In July 2013, SVMC and Shea each filed a Motion to Dismiss or for Summary Judgment, asserting that Mr. Coon's claims are time-barred under Vermont's statute of limitations, that he lacks standing to bring this action, and that he has failed to state a cause of action. (Docs. 7, 9.)

In an Order filed on August 6, 2013, the Court requested supplemental memoranda of law on issues relating to the statute of limitations and Mr. Coon's standing to bring this action. (Doc. 18.) SVMC and Shea filed renewed motions and supplemental memoranda (Docs. 29, 37), and Mr. Coon filed responses (Docs. 40, 41). In an Order filed on October 9, 2013, the Court converted SVMC and Shea's Motions into Motions for Summary Judgment. (Doc. 52.) In accordance with the Court's Order, SVMC and Shea each filed statements of facts and memoranda of law. (Docs. 54, 54-1, 58, 58-1). Mr. Coon filed "final" responses on November 15 and 19, 2013, each of which includes statements of facts. (Docs. 60, 61.)[3]

Attorney McClintock has also filed a Motion to Dismiss or for Summary Judgment. (Doc. 49.) Mr. Coon has filed a response (Doc. 50), and Attorney McClintock has filed a reply (Doc. 55). Mr. Coon filed a "final" response on November 8, 2013. (Doc. 59.) Mr. Coon also filed a "Motion to Gain All Records of [Joan M. Hunt]" on January 13, 2014. (Doc. 70.) The Court held a hearing on all pending motions on January 15, 2014.

All parties have consented to direct assignment to the undersigned Magistrate Judge. (Docs. 4, 10, 11, 48.) For the reasons that follow, SVMC's Motion for Summary Judgment (Docs. 7, 29) is GRANTED; Shea's Motion (Docs. 9, 37) is GRANTED IN PART and DENIED IN PART; and Attorney McClintock's Motion (Doc. 49) is GRANTED. SVMC's Motion to Strike (Doc. 62) is DENIED; Mr. Coon's Motion to Gain All Records (Doc. 70) is DENIED.


Although Defendants' pending Motions are now motions for summary judgment, the facts presented by the parties in the Motions are focused primarily on the issues raised in those Motions. It is therefore helpful-for context-to begin by summarizing the allegations in the original and Amended Complaint.[4] The facts for the purposes of the summary judgment Motions are set forth as necessary in the discussion below; they are drawn from the parties' statements and other materials in the record, and are undisputed except where noted.[5]

Mr. Coon alleges the following. On or about January 25, 2010, Mr. Coon's mother, Joan M. Hunt, was assaulted and robbed at her home in New York. (Doc. 3 at 1-2, 4; Doc. 17 at 1.) The assailant was Joanne Becker (Doc. 3 at 4), [6] who is Mr. Coon's half-sister and Ms. Hunt's daughter ( id. at 3).[7] Two days later, Ms. Becker went to "check on" Ms. Hunt, expecting to find her dead. (Doc. 3 at 2; Doc. 17 at 1-2.) Instead, Ms. Becker found Ms. Hunt critically injured but alive, and transported her to SVMC. (Doc. 3 at 2; Doc. 17 at 1-2.) Ms. Hunt was in stable condition when Mr. Coon left the hospital on the night of January 27, 2010. (Doc. 3 at 2.)

When Mr. Coon came back, Ms. Hunt had been injured a second time, again by Ms. Becker. ( Id. at 3; Doc. 17 at 2.) Ms. Becker had "held her hand over [Ms. Hunt's] mouth and nose[, ] smothering her." (Doc. 3 at 3.) Ms. Hunt died on or about January 30, 2010 as a result of Ms. Becker's assaults. ( Id. at 3, 5.) The SVMC nurse assigned to care for Ms. Hunt, who happened to be Mr. Coon's cousin, [8] allowed the second assault to occur by leaving Ms. Hunt alone with Ms. Becker for hours in Ms. Hunt's hospital room. (Doc. 3 at 2-5.)

Ms. Becker killed Ms. Hunt for Ms. Becker's own financial gain. ( Id. at 3.) "Immediately after" Ms. Hunt's hospitalization and death, Ms. Becker "t[ook] over [Ms. Hunt's] identity, " wearing Ms. Hunt's clothes and altering her hair to look like Ms. Hunt. ( Id. at 3, 4.)

After Ms. Hunt's death, Mr. Coon and his sister, Kim Diotte, twice requested an autopsy, but "someone at [SVMC]" removed that request. (Doc. 3 at 5; Doc. 17 at 5.) Then, "in the middle of the night" on or about January 30, 2010, and at the direction of Ms. Becker, Mark Shea of Shea Family Funeral Homes took Ms. Hunt's body to Defendant Shea, which then cremated Ms. Hunt's remains without the consent of Mr. Coon or his sister. (Doc. 3 at 5; Doc. 17 at 3, 5.) According to Mr. Coon, Ms. Becker "had and has no right to speak for our family then or now." (Doc. 3 at 5; Doc. 17 at 3.)

Thereafter, Mr. Shea produced bills that he said were owed by Ms. Becker, "over charging and recharging for [the] same supposedly owed bill." (Doc. 3 at 5; Doc. 17 at 5.) On or about May 7, 2012, Mr. Shea stole the grave marker off Ms. Hunt's cemetery plot in Buskirk, New York, and also damaged Ms. Hunt's and other Hunt family members' graves. (Doc. 3 at 6; Doc. 17 at 5.) He did this on May 7, 2012-before the Memorial Day festivities-specifically so that Ms. Hunt's family would see the damage on Memorial Day weekend. (Doc. 3 at 6; Doc. 17 at 5.)

Law enforcement commenced a criminal investigation into Ms. Hunt's death. ( See Doc. 3 at 5; Doc. 17 at 3.) In an attempt to prevent anyone from discovering the hospital's role in Ms. Hunt's death, SVMC would not release Ms. Hunt's medical records, notwithstanding the fact that Mr. Coon had signed for the records and law enforcement had obtained subpoenas for those records. (Doc. 3 at 5, 7; Doc. 17 at 3, 6-7.) Lon McClintock, Esq.-who had been Mr. Coon's attorney for two years-became involved in the investigation on SVMC's behalf, and divulged privileged attorney-client information to SVMC, and conspired with SVMC to obstruct the murder investigation. (Doc. 17 at 3-4.)

Mr. Coon, who is a New York resident (Doc. 3 at 1, 7; Doc. 17 at 1, 7), is Ms. Hunt's oldest son. (Doc. 3 at 5; Doc. 17 at 5.) He "has suffered a big loss" as a result of his mother's death, including "no parental guidance, no trips, [and] no dinners...." (Doc. 3 at 5; Doc. 17 at 3.) Mr. Coon seeks at least $2.5 million in damages from SVMC, and an additional $2.5 million in damages from Shea. (Doc. 17 at 6-7.)


I. Diversity Jurisdiction

Mr. Coon claims that the Court has jurisdiction pursuant to 28 U.S.C. § 1332 on account of the parties' differing states of residence. (Doc. 17 at 1.) SVMC does not dispute that the Court has diversity jurisdiction. (Doc. 7 at 3; Doc. 29 at 3.) Attorney McClintock's Motion (Doc. 49) does not raise any jurisdictional issue. Shea maintains that the Court should dismiss most of Mr. Coon's claims against Shea on lack of standing, statute of limitations, or other grounds, and that Mr. Coon's remaining claims for wrongful conversion of a grave marker and overcharge or mischarge of fees for funeral services should be dismissed for lack of subject matter jurisdiction because the amount in controversy is less than § 1332's minimum of $75, 000. (Doc. 37 at 4.) The Court addresses Shea's jurisdictional argument in the discussion that follows.

II. Mr. Coon's Wrongful-Death Claim Against SVMC

A. Standing

The Court begins with SVMC's argument that Mr. Coon lacks standing to bring his wrongful-death claim because he has not been appointed the personal representative of his mother's estate, which SVMC asserts is a requirement under both Vermont and New York wrongful death statutes. (Doc. 7 at 3; Doc. 12 at 2; Doc. 29 at 6.) Mr. Coon maintains that he "[is] the Estate" because by law "the oldest son handles [the] Estate." (Doc. 8 at 2.) He says that he "is always the person Surrogate Court sends bill collectors who want to sue [him]" and that his "is [the] only address they have on Mom's file." (Doc. 40 at 11.) Mr. Coon confirms that he did pay fees to file in Surrogate's Court, but that after eight court hearings it was determined that all of Ms. Hunt's assets were stolen, missing, or gone, and that he was told to continue to handle the estate's business "same as I have done." (Doc. 47 at 1-2; see also Doc. 60 at 11; Doc. 60-3 at 1.) He asserts that he alone does all the work on the property that his mother owned, and that he pays all of the estate's bills and handles all of the estate's lawsuits. (Doc. 60 at 9.)

Mr. Coon does not dispute the following additional facts asserted by SVMC and Shea. In November 2011, Mr. Coon filed a petition for letters of administration with the Washington County (New York) Surrogate's Court. (Doc. 54-8.) The Surrogate's Court has not, however, issued letters of administration to Mr. Coon, and has not appointed him administrator or executor of his mother's estate. Mr. Coon has not applied to any Probate Court in the State of Vermont for ancillary letters of administration regarding his mother's estate.

Both Vermont and New York law require that wrongful-death actions be brought by the personal representative of the decedent. See 14 V.S.A. § 1492(a) (wrongful-death action "shall be brought in the name of the personal representative of such deceased person"); N.Y. Est. Powers & Trusts Law § 5-4.1(1) ("The personal representative, duly appointed in this state or any other jurisdiction, of a decedent who is survived by distributees may maintain an action to recover damages for a wrongful act, neglect or default which caused the decedent's death....").

Mr. Coon does not contend that any court has issued to him letters to administer his mother's estate. Instead, he relies on New York's "new surrogate laws" for the proposition that he "doesn't need to be appointed" by a court. (Doc. 13-1 at 2.) Indeed, there is a process in New York for the settlement of "small estates" without court administration. See N.Y. Surr. Ct. Proc. Act §§ 1301-1312. However, a "voluntary administrator" under that process has no power to enforce a claim for wrongful death. Id. § 1306(3). Thus to the extent that Mr. Coon asserts that he is a "voluntary administrator" of his mother's estate, that assertion is insufficient to establish his power to maintain a wrongful-death action against SVMC. Because no court has appointed Mr. Coon as the personal representative of his mother's estate, he cannot maintain the wrongful-death action.[9]

Mr. Coon's wrongful-death claim should therefore be dismissed without prejudice for lack of capacity. See Estate of Vaiselberg ex rel. Vaiselberg v. Snow, No. 02 Civ. 6235(DC), 2003 WL 1878248, at *1 (S.D.N.Y. Apr. 14, 2003) (dismissing employment discrimination case without prejudice for lack of capacity because the plaintiff, although he was the "voluntary administrator" for his mother's estate, lacked capacity to bring such a claim for "personal injuries"). For the reasons discussed below, Mr. Coon's wrongful-death claim should also be dismissed because, on the present facts, it is time-barred.

B. Statute of Limitations

SVMC and Mr. Coon both agree that the Court should refer to Vermont law in order to determine whether Mr. Coon's claim is time-barred. The Court concurs. "A federal court sitting in diversity jurisdiction applies the choice of law rules of the forum state." Forest Park Pictures v. Universal Television Network, Inc., 683 F.3d 424, 433 (2d Cir. 2012). In Vermont, choice-of-law issues in tort actions are resolved using the approach set forth in the Restatement (Second) of Conflict of Laws. Martineau v. Guertin, 170 Vt. 415, 417, 751 A.2d 776, 778 (2000) (citing Amiot v. Ames, 166 Vt. 288, 292, 693 A.2d 675, 677 (1997)). For statute-of-limitations issues, it is necessary to refer to §§ 142 and 143 of that Restatement. The gist of § 142 is that the local law of the forum determines whether the action is barred by the statute of limitations, except as stated in § 143. Restatement (Second) of Conflict of Laws § 142 cmt. a (1971). Section 143, in turn, provides that "[a]n action will not be entertained in another state if it is barred in the state of the otherwise applicable law by a statute of limitations which bars the right and not merely the remedy." Id. § 143. For the reasons that follow, the Court concludes that Mr. Coon's action is time-barred in Vermont.

Vermont law provides, in pertinent part, that a wrongful-death action must be commenced:

within two years from the discovery of the death of the person.... If the death of the decedent occurred under circumstances such that probable cause is found to charge a person with homicide, the action shall be commenced within seven years after the discovery of the death of the decedent or not more than two years after the judgment in that criminal action has become final, whichever occurs later.

14 V.S.A. § 1492(a). As Mr. Coon repeatedly notes (Doc. 40 at 6, 13-14; Doc. 60 at 5), section 1492(e) provides: "[n]otwithstanding subsection (a) of this section, if the death of the decedent was caused by an intentional act constituting murder, the action may be commenced within seven years after the discovery of the death of the decedent."

Despite Mr. Coon's own belief that Ms. Becker murdered Ms. Hunt, the alternative accrual date and seven-year limitations periods do not apply.[10] No probable cause has been found to charge a person with homicide for Ms. Hunt's death. Neither has there been any determination that her death was caused by an intentional act constituting murder.[11] Mr. Coon apparently asserts that this Court should make a determination about whether Ms. Becker murdered Ms. Hunt. ( E.g., Doc. 65 at 2.) But determining whether a "murder" has occurred is a criminal matter inappropriate for resolution in this civil cafe.

The Court concludes that the date of accrual in this case was January 30, 2010- the date that Mr. Coon discovered his mother's death. Mr. Coon argues that he did not learn "why how and who did the de[e]d"-i.e., the cause of her death-until October 2011. (Doc. 40 at 15.)[12] That assertion is immaterial because the plain language of § 1492(a) sets the accrual date as the time the plaintiff discovers the death of the decedent; the clock starts ticking whether or not the plaintiff knows the cause. Thus, at present, absent any tolling of the limitations period, January 30, 2012 was the deadline for filing a wrongful-death case. As noted above, Mr. Coon filed this case on June 27, 2013.

Mr. Coon makes a number of arguments for equitably tolling the limitations period. "[T]he burden of proving that tolling is appropriate rests on the plaintiff." Chapman v. ChoiceCare Long Island Term Disability Plan, 288 F.3d 506, 512 (2d Cir. 2002) (citing Boos v. Runyon, 201 F.3d 178, 185 (2d Cir. 2000)). In determining whether equitable tolling is applicable, the Court considers whether Mr. Coon: "(1) has acted with reasonable diligence during the time period [he] seeks to have tolled, ' and (2) has proved that the circumstances are so extraordinary that the doctrine should apply." Zerilli-Edelglass v. New York City Transit Auth., 333 F.3d 74, 80-81 (2d Cir. 2003) (quoting Chapman, 288 F.3d at 512). Equitable tolling is generally considered appropriate: (1) "where the plaintiff actively pursued judicial remedies but filed a defective pleading during the specified time period"; (2) "where plaintiff was unaware of his or her cause of action due to misleading conduct of the defendant"; or (3) "where a plaintiff's medical condition or mental impairment prevented [him] from proceeding in a timely fashion." Id. (internal quotation marks and citations omitted). Here, Mr. Coon argues that all three circumstances are present.

Mr. Coon notes that he filed suit against SVMC in the United States District Court for the Northern District of New York on May 13, 2013, but that the Magistrate Judge said that the case against SVMC belonged in Vermont. (Doc. 40 at 16; Doc. 40-2.) It is true that equitable tolling can apply when a plaintiff timely filed a complaint in the wrong court. Haekal v. Refco, Inc., 198 F.3d 37, 43 (2d Cir. 1999) (citing Burnett v. N.Y. Cent. R.R. Co., 380 U.S. 424 (1965)).[13] Because Mr. Coon has only filed the first page of his complaint from the New York matter, it is not entirely clear whether he asserted substantially the same claims against SVMC as he now asserts against SVMC in this case. However, even assuming that Mr. Coon's filing in New York is operative for statute-of-limitations purposes, it would only ...

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