FSM 2 Intrm. 107-115

Determination of whether an individual is a managing or general agent for purposes of FSM Civ. R. 4(d)(3) is made on the basis of whether person served can fairly be expected to know what to do with the papers so that the organization will have notice of the filing of the action. A person of authority and responsibility in an organization's operation is a managing or general agent for purposes of the rule. Luda v. Maeda Road Constr. Co., 2 FSM Intrm. 107, 109 (Pon. 1985).

An affidavit unsupported by factual detail is not sufficient to cast doubt on the proposition that a project manager of a joint venture, who is in charge of all activities of a corporate member of the joint venture within a state, is a managing or general agent of that corporation. Luda v. Maeda Road Constr. Co., 2 FSM Intrm. 107, 110 (Pon. 1985).

The Judicial Guidance Clause of the FSM Constitution cautions against simply adopting previous interpretations of other jurisdictions without careful analysis of its application to the circumstances of the Federated States of Micronesia. Luda v. Maeda Road Constr. Co., 2 FSM Intrm. 107, 112 (Pon. 1985).

The common law today reflects no policy against wrongful death actions. The Federated States of Micronesia Supreme Court is not required to adopt the restrictive method of interpretation employed by the first courts who approached wrongful death statutes more than a century ago.Luda v. Maeda Road Constr. Co., 2 FSM Intrm. 107, 113 (Pon. 1985).

The Federated States of Micronesia tolling statute, 6 F.S.M.C. 806, applies to persons "entitled to a cause of action," including minors for whom wrongful death actions may be brought. Luda v. Maeda Road Constr. Co., 2 FSM Intrm. 107, 113 (Pon. 1985).

The wrongful death complaint here alleges that Miswo Luda died on January 8, 1982, from injuries sustained the day before when a motorcycle he was driving on the Nanpihl River road in Nett Municipality, Pohnpei collided with a Maeda Road Construction Company, Ltd. dumptruck traveling south on that road.

Maeda has moved to quash service of process, challenging the validity of plaintiff's service of the complaint and summons. In addition, defendants have moved to dismiss the complaint on grounds that three years had passed since Miswo Luda's death before a complaint was filed, and that the statute requires that any wrongful death action be instituted within two years of the death. The principal issue on the motion to dismiss is whether the two-year period for filing a wrongful death action is affected by the tolling statute, 6 F.S.M.C. 806, which extends the time for filing of lawsuits for minors who are entitled to a cause of action.

The original complaint was filed on February 1, 1985. Shortly thereafter, on February 15, 1985, an amended complaint was filed. The amended complaint was accompanied by a certificate of service executed by R. Barrie Michelsen, counsel for the plaintiffs, certifying that he had mailed a copy of the amended complaint on that day to Tadao Tanaka, project manager of Maeda Construction Co., Ltd/Maeda Road Construction Company, Ltd. The file also contains a return of service executed by Lester Ruda, a national police officer with the FSM Division of Security and Investigation, certifying that he served a copy of the original complaint on Tadao Tanaka on February 4, 1984, at Moen Island, Truk.

The motion to quash contends that service was not made upon a person authorized by the Rules of Civil Procedure to receive service on behalf of Maeda Road Construction Co. Ltd. The motion is supported by an affidavit of one Thomas J. Nielsen, an employee of Maeda Road Construction Co. Ltd., saying that Tadao Tanaka "is not an officer, manager or general agent or agent authorized by appointment of law to receive service of process for Maeda Road Construction Company, Ltd."

Rule 4(d)(3) of this Court's Rules of Civil Procedure provides that service upon a corporation may be made by delivering a copy of the summons and complaint to "an officer, a managing or general agent, or to any other agent authorized by appointment or by law to receive service of process...." The determination of whether a given individual is a managing or general agent is not made simply on the basis of the person's title. A factual analysis is needed. The purpose of the rule is to assure that the person served can fairly be expected to know what to do with the papers so that the organization will have notice of the filing of the copy of the action. A person of authority and responsibility in the organization's operation is a managing or general agent for purposes of the rule.

The Nielsen affidavit does not describe Tanaka's duties. The Court file contains a copy of a letter signed on February 4, 1985 by Tanaka as project manager of a joint venture consisting of Maeda Construction Co. Ltd. and Maeda Road Construction Company, Ltd. Counsel for defendant concedes that Tanaka is

It is reasonable to infer from the documents before the Court and the representations made by counsel that Tanaka as project manager, has a great deal of authority over and responsibility for, both Maeda Road Construction Co., Ltd. and Maeda Construction Co., Ltd., both of whom are apparently participating in the joint venture. Tanaka apparently is in charge of all of their business activities in Truk.

I conclude that Mr. Tanaka, as project manager of the joint venture, is a "manager or general agent" of Maeda Road Construction Company, Ltd. within the meaning of Rule 4(d)(3) of our Rules of Civil Procedure.

Information concerning details of the corporate makeup of Maeda Road Construction Company, Ltd. Maeda Construction Company, Ltd. and their joint venture, is most readily available to Maeda. If there indeed were facts to support the claim that although Mr. Tanaka is project manager of the joint venture, he still is not a managing or general agent of Maeda Road Construction Company Ltd., those facts should have been brought forward by Maeda.

The Nielsen affidavit, with its legal conclusions, unsupported by factual detail, that Mr. Tanaka is not "an officer, managing or general agent or agent authorized by appointment or law to receive service of process for Maeda Road Construction Company Ltd.," is not sufficient to cast doubt on the efficacy of service of process here.

Maeda asserts that any such wrongful death action must be commenced within two years after the death upon which the action is based, and that the failure of the plaintiffs to do so in this case bars all claims.

The wrongful death provisions of the Code of the Federated States of Micronesia, 6 F.S.M.C. 501 to 503, are similar to those which appear in most jurisdictions which trace their legal origins to common law traditions.

Under the English common law, if a tortious wrong caused a victim's death, relatives and dependents of the victim who were deprived of financial support or who suffered emotional loss had no cause of action. W. Keeton, D. Dobbs, R. Keeton, D. Owen, Prosser and Keeton on Torts 945 (5th ed. 1984). The reasons for this rule were obscure and eventually a consensus was reached that the rule worked unfair and intolerable results. The rule was changed in England by the passage of the Fatal Accident Act of 1846, otherwise known as

The wrongful death provisions in the Code of the Federated States of Micronesia are also based upon Lord Campbell's Act in that they provide for a "death" action creating a new cause of action to be brought by the personal representative of the decedent and for the exclusive benefit of designated persons, including the surviving spouse, the children, and sometimes other relatives of the decedent. 6 F.S.M.C. 502.

The wrongful death statute here, like many such statutes, also specifies the time period during which an action under the wrongful death act may be initiated: "Except as otherwise provided, every such action shall be commenced within two years after the death of such person." 6 F.S.M.C. 503(2).

Plaintiff argues that the two-year limitation period has not even begun to run against the children of Miswo Luda. They argue that the statute of limitations is "tolled," that is, suspended or stopped temporarily, for children by 6 F.S.M.C. 806. That section says, "If a person entitled to a cause of action is a minor ... when the cause of action first accrues, the action may be commenced within the times limited in this chapter after the disability is removed."

Maeda's rejoinder is that general tolling statutes such as 6 F.S.M.C. 806 do not apply to a wrongful death cause of action. This is so, they contend, because wrongful death statutes create a new cause of action not generally recognized in the common law. The right to bring such an action, they insist, expires upon completion of the two-year term specified in the wrongful death statute, 6 F.S.M.C. 503(2), unaffected by tolling provisions applicable to other kinds of torts. Maeda has cited ample authority to establish that the rule upon which it relies is the generally accepted rule for wrongful death statutes in the United States.

Having become accustomed to the uniform, albeit strange, common law rule that "the death of a human being could not be complained of as an injury" in civil actions, 1 the first courts interpreting wrongful death statutes understandably viewed those statutes as extraordinary departures from the common law. Accordingly, those courts construed wrongful death statutes

Basic principles flowing from those earliest decisions remain intact in most jurisdictions in the United States today because of the doctrine of stare decisis, under which courts within a particular jurisdiction generally follow their own previous rulings and those of higher courts within the same jurisdiction.

We are interpreting this wrongful death statute within the Federated States of Micronesia today under quite different circumstances. First, there is no case precedent to govern our interpretation. We do typically consider interpretations of other courts construing the language adopted by the FSM Congress for statutes here. However, as this opinion will demonstrate, there are significant differences between the statutes here and those of other jurisdictions we have reviewed. No party has suggested or demonstrated that the FSM wrongful death statute was drawn directly from any specific statute.

Moreover, the Judicial Guidance Clause cautions against simply adopting previous interpretations of other jurisdictions without analysis. FSM Const. art. XI, § 11. This Court should not be easily persuaded that our interpretation of the FSM wrongful death act is to be controlled by earlier decisions of other jurisdictions flowing from an odd and essentially unexplained twist in English law.

Viewing the statutory language in the context of the FSM today, one can not start with the premise that a remedy for wrongful death is abnormal. No local custom or tradition absolving one who causes a death, as contrasted to personal injury, has been brought to the Court's attention.

Similarly, the common law which has percolated to this day and place reflects no policy against wrongful death actions. As early as 1970, some 15 years ago, the United States Supreme Court found "unanimous disapproval of the rule against recovery for wrongful death." Moragne, 398 U.S. at 389, 90 S. Ct. at 1782, 26 L. Ed. 2d at 350.

These numerous and broadly applicable statutes, taken as a whole, make it clear that there is no present public policy against allowing recovery for wrongful death. The statutes evidence a wide rejection by the legislatures of whatever justifications may once have existed for a general refusal to allow such recovery. This legislative establishment of policy carries significance beyond the particular scope of each of the statutes involved. The policy thus established has become itself a part of our law, to be given its appropriate weight not only in matters of statutory

Confronting the FSM wrongful death statute for the first time, this Court is not required now to adopt the same restrictive and crabbed method of interpretation employed by the first courts who approached wrongful death statutes more than a century ago. Instead, it is proper to give "appropriate weight" in our statutory construction to the now generally established policy that wrongful death claims are a legitimate part of the common law of torts, not to be regarded with suspicion or chipped away where possible. Id.

Surely some aspects of a wrongful death claim are different from certain aspects of tort claims for physical injuries and property damage and require special consideration. These aspects may include questions concerning the beneficiaries entitled to recover, the elements of damage to be included and the interplay between survival acts and wrongful death statutes. However, there appears no conceptual reason, intrinsically linked to the nature of the claims, why statutes of limitations should be different for wrongful death than for other kinds of tort claims. The general considerations which normally motivate legislatures and courts in requiring that legal actions be initiated within some prescribed period, e.g., the wish to protect defendants against fictitious claims and the difficulties of obtaining evidence after an undue lapse of time, apply to wrongful death claims equally as to other types of torts.

For all of these reasons, the FSM wrongful death statute should be approached with a presumption that it will yield a result comparable to that which would obtain for other similar tort actions. In absence of clear statutory language to the contrary, the period of limitations for one suing for wrongful death would be presumed parallel to the time available for other tort claimants. I find the FSM wrongful death act is plainly amenable to such a reading.

Maeda argues that because section 806 only assists those "entitled to a cause of action," 2 it does not apply to wrongful death actions, which are to be brought in the name of the "personal representative of the deceased." 6 F.S.M.C. 502. I disagree.

In the first place, the common law today, in contrast to that of 150 years ago, strongly suggests that even without a wrongful death statute, beneficiaries of one killed by a wrongful act or neglect would be "entitled to

Moreover, there are important differences between the statutes here and those of most of the other jurisdictions whose decisions have come to the Court's attention. First, the FSM tolling statute, 6 F.S.M.C. 806, differs from the tolling statutes discussed in most cases cited by Maeda. Section 806 applies to persons "entitled to a cause of action," not just to those "entitled to bring a cause of action. 3 The wrongful death action is "for the exclusive benefit of the surviving spouse, the children and other next of kin, if any." 6 F.S.M.C. 502. Although the action is to be brought "in the name of the personal representative," the beneficiaries are those for whom the cause of action may be brought. I conclude that these beneficiaries are "entitled to a cause of action" even if they may not bring it themselves. See Gaudette v. Webb, 284 N.E.2d at 230, 61 A.L.R.3d at 903. Also see Cross v. Pacific Gas & Elec. Co., 388 P.2d 353 (Cal. 1964); Neal v. Butler Aviation Int'l, Inc., 422 F. Supp. 850 (E.D.N.Y. 1976).

A second distinction between the FSM statutory scheme and similar statutes of most other jurisdictions is that the general statute here limiting the period for initiating tort claims to two years refers to actions for wrongful death. 6 F.S.M.C. 803(4).4 Such a reference is not typical of most statutes of limitation and is inconsistent with Maeda's contention that wrongful death claims in the Federated States of Micronesia are to be considered entirely separate from, and unaffected by, the general limitation provisions applicable to other tort claims.

The final, and perhaps most important distinction between the wrongful death statute here and that of other jurisdictions, is in the same vein as the preceding point. The section 503(2) statement relied upon by Maeda, that "every such action shall be commenced within two years after the death of such person," is preceded by the phrase, "Except as otherwise provided." Nothing within the wrongful death provisions, 6 F.S.M.C. 501-03, purports to establish any exception to the two-year limitation.

That opening phrase of section 503(2) apparently refers to 6 F.S.M.C. 806, which extends the allowable time for filing claims, for persons who are minors, insane or imprisoned, until the "disability is removed."

For all of these reasons, I conclude that there is interplay between the wrongful death provisions and the general statutory limitation provisions. Specifically, the two-year period proclaimed in 6 F.S.M.C. 503(2) is subject to the tolling provisions of 6 F.S.M.C. 806. When 6 F.S.M.C. 806 applies, the period of limitations is to be determined by reference to it and to 6 F.S.M.C. 803(4). Accordingly, the statute of limitations has not run against the minor children of Miswo Luda. Maeda's motion to dismiss the claims made on their behalf must be denied.

The record is not sufficient to make a fair determination as to whether the claims of Florida Luda on her own behalf are time-barred. More than three years have elapsed since Mrs. Luda's husband died. However, the record does contain reference to facts which might cast doubt on the otherwise obvious conclusion that the statute expired as to Mrs. Luda's individual claims. Therefore the motion to dismiss the claims made on her behalf is also denied.

1. Moragne v. States Marine Lines, Inc., 398 U.S. 375, 383, 90 S. Ct. 1772, 1778, 26 L. Ed. 2d 339, 347 (1970), quoting the opinion of Lord Ellenborough in Baker v. Bolton, 1 Camp. 493, 170 Eng. Rep. 1022 (1808). (Back to opinion)

2. The tolling statute, 6 F.S.M.C. 806, says: "If the person entitled to a cause of action is a minor ... when the cause of action first occurs, the action may be commenced within the times limited in this chapter after the disability is removed." (Back to opinion)

3. For examples of "entitled to bring" statutes, see Gomez v. Leverton, 509 P.2d 735 (Ariz. Ct. App. 1973); Hemingway v. Shull, 286 F. Supp. 243 (D.S.C. 1968); Cugell v. Sani-Wash Laundry Co., 273 N.W. 571 (Mich. 1937); Mossip v. F.H. Clement & Co., 10 N.Y.S.2d 592 (App. Div. 1939); Van Vactor's Adm'x. v. Louisville & N.R.R., 66 S.W. 4 (Ky. App. 1902); Huntington v. Samaritan Hosp., 666 P.2d 405 (Wash. App. 1983). See generally, Annot., 85 A.L.R.3d 162 (1978). (Back to opinion)

4. "The following actions shall be commenced only within two years after the cause of action accrues: ... (4) actions for injury to or for the death of one caused by the wrongful act or neglect of another, except as otherwise provided in chapter 5 of this title...." 6 F.S.M.C. 803(4). (Back to opinion)