UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Christopher D. Welcome,

Plaintiff

v. Civil No. 08-cv-429-SM

Opinion No. 2009 DNH 075

Domenick J. Yezzi,

Defendant

O R D E R

Christopher Welcome has sued Domenick Yezzi in two counts,

asserting a claim of negligence (Count I) and seeking enhanced

compensatory damages (Count II) for injuries he sustained in a

traffic accident involving Yezzi. Before the court is Yezzi’s

motion for partial judgment on the pleadings. Specifically, he

seeks a judgment that Welcome is not entitled to enhanced

compensatory damages. Welcome objects. For the reasons given,

Yezzi’s motion is granted.

“A motion for judgment on the pleadings under Federal Rule

of Civil Procedure 12(c) is treated much like a Rule 12(b)(6)

motion to dismiss.” Estate of Bennett v. Wainwright, 548 F.3d

155, 163 (1st Cir. 2008) (citing Pérez-Acevedo v. Rivero-Cubano,

520 F.3d 26, 29 (1st Cir. 2008)). When ruling on a motion for

judgment on the pleadings under Rule 12(c), the court takes the

facts in the light most favorable to the plaintiff and “draw[s]

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all reasonably supported inferences in [her] favor.” Abraham v.

Woods Hole Ocean. Inst., 553 F.3d 114, 115 (1st Cir. 2009)

(citation omitted). “[T]o survive a Rule 12(b)(6) motion (and,

by extension, a Rule 12(c) motion) a complaint must contain

factual allegations that ‘raise a right to relief above the

speculative level.’” Gray v. Evercore Restructuring L.L.C., 544

F.3d 320, 324 (1st Cir. 2008) (citation omitted). In other

words, a Rule 12(c) motion should be granted “if the complaint

fails to state facts sufficient to establish a ‘claim to relief

that is plausible on its face.’” Id. (quoting Trans-Spec Truck

Serv., Inc. v. Caterpillar Inc., 524 F.3d 315, 320 (1st Cir.

2008)).

According to Welcome’s complaint, he was injured when Yezzi,

who was driving while intoxicated, made a U-turn in front of him

while both were traveling northbound on Elm Street in Manchester. 

Welcome sued Yezzi in this court, under the court’s diversity

jurisdiction.

Yezzi moves for judgment on the pleadings on Count II,

arguing that under established New Hampshire Supreme Court

precedent, enhanced compensatory damages are not available to

plaintiffs who have been injured by intoxicated drivers. Welcome

counters that while the cases on which Yezzi relies have not been

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1 For a brief time, there was such a statute in New

Hampshire:

In 1981, [the New Hampshire legislature] enacted a law

that authorized the awarding of double damages if the

accident [injuring the plaintiff in a civil case]

resulted in the defendant’s conviction for operating

under the influence and if the conviction was the

second or subsequent conviction in a seven-year period. 

N.H. REV. STAT. ANN. § 265:82 (1981). But, it repealed

the law two years later. Id. (repealed 1983). There

is no indication it has acted on the issue since the

1983 repeal. 

McKinnon v. Harris, No. Civ. 1:05-CV-93-JAW, 2005 WL 23335350, at

*6 n.10 (D.N.H. Sept. 21, 2005).

3

overruled by the New Hampshire Supreme Court, they are

nonetheless bad law, and should not be followed. In the

alternative, he asks this court to certify a question of law to

the New Hampshire Supreme Court concerning the continuing

validity of the cases on which Yezzi relies, or to stay its

ruling on Yezzi’s motion while he seeks a declaratory judgment in

the state courts.

In New Hampshire, “[n]o punitive damages shall be awarded in

any action, unless otherwise provided by statute.” N.H. REV.

STAT. ANN. § 507:16; see also Fay v. Parker, 53 N.H. 342, 397

(1872). There is no statute that provides for punitive damages

under the circumstances presented by this case.1 However,

“[w]hen an act is wanton, malicious, or oppressive, the

aggravating circumstances may be reflected in an award of

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enhanced compensatory damages.” Stewart v. Bader, 154 N.H. 75,

87 (2006) (quoting Figlioli v. R.J. Moreau Cos., 151 N.H. 618,

621 (2005)).

The New Hampshire Supreme Court has twice addressed the

question of whether enhanced compensatory damages are available

to a plaintiff seeking to recover for injuries inflicted by an

intoxicated driver. Most recently, the court characterized its

previous decision in Johnsen v. Fernald, 120 N.H. 440, 441-42

(1980), as follows: “We stated that the act of driving while

intoxicated did not constitute ‘wanton or malicious’ conduct as

defined at common law for purposes of enhancing damages.” 

Gelinas v. Mackey, 123 N.H. 690, 693 (1983)). According to Judge

Woodcock, in a case decided in this court, “Gelinas unequivocally

expressed the law of the state of New Hampshire: operating a

motor vehicle under the influence and causing injury is not

wanton conduct supporting a claim for enhanced compensatory

damages . . .” McKinnon v. Harris, No. Civ. 1:05-CV-93-JAW, 2005

WL 2335350, at *7 (D.N.H. Sept. 21, 2005). 

Plaintiff attacks the validity of Gelinas in several ways. 

First, relying on Justice Douglas’s concurrence in Johnsen, and

an order from the New Hampshire Superior Court Hanscom v.

O’Connell, No. 03-C0338, 2003 WL 23305265 (N.H. Super. Ct. Nov.

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7, 2003), plaintiff argues, in essence, that Gelinas is of

“questionable soundness” because it is based on a misreading of

Johnsen. Second, he argues that Gelinas is outdated because it

“runs counter to the clear nationwide trend enabling enhanced

damages in drunk driving cases.” In McKinnon, Judge Woodcock was

presented with the first issue and acknowledged the second, yet

concluded: 

Gelinas remains the last word from the Supreme

Court of New Hampshire on the question of whether the

operation of a motor vehicle while under the influence

is wanton conduct sufficient in New Hampshire to

sustain a claim for enhanced damages. It is not. 

McKinnon, 2005 WL 2335350, at *8. Judge Woodcock’s analysis is

on point, comprehensive, and persuasive. There is no need to

belabor the issue; defendant is entitled to dismissal of

plaintiff’s claim for enhanced compensatory damages. It is not

for this court to determine whether Gelinas was correctly

decided, or whether changing social mores have rendered that

decision outdated and warrant a substantial change in the common

law of New Hampshire.

In an attempt to salvage his claim for enhanced compensatory

damages, plaintiff asks the court to either certify a question to

the New Hampshire Supreme Court, or to stay its ruling on

defendant’s motion while he seeks a declaratory judgment in the

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state courts. Technically, those requests are not properly

before the court. See L.R. 7.1.(a)(1) (“Objections to pending

motions and affirmative motions for relief should not be combined

in one filing.”). But, because defendant has addressed

plaintiff’s requests, and, in the interest of judicial economy,

the court will resolve the issue.

Certification of a question of law to the New Hampshire

Supreme Court is appropriate when the certifying court has before

it a case in which “there are involved . . . questions of law of

this State which may be determinative of the case then pending in

the certifying court and as to which it appears to the certifying

court that there is no controlling precedent in the decisions of

[the New Hampshire Supreme] [C]ourt.” N.H. SUP. CT. R. 34. This

is not such a case. There is controlling precedent. It is

Gelinas. And, “[w]hen state law is sufficiently clear . . . to

allow a federal court to predict its course, certification is

both inappropriate and an unwarranted burden on the state court.” 

Gilmore v. Citigroup, Inc. (In re Citigroup, Inc.), 535 F.3d 45,

62 (1st Cir. 2008) (quoting Manchester Sch. Dist. v. Crisman, 306

F.3d 1, 14 (1st Cir. 2002; citing Hugel v. Milberg, Weiss,

Bershad, Hynes & Lerach, LLP, 175 F.3d 14, 18 (1st Cir. 1999)). 

If the New Hampshire Supreme Court had not decided Johnsen and

Gelinas, then perhaps a question might be appropriately

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certified. See U.S. Steel v. M. DeMatteo Constr. Co., 315 F.3d

43, 54 (1st Cir. 2002) (“certification is particularly

appropriate where the question at issue is novel, and the law

unsettled”) (citing Lehman Bros. v. Schein, 416 U.S. 386, 391

(1974)). But, whether the New Hampshire Supreme Court stands by

Gelinas, or might overrule it, is not a novel question of

unsettled law suitable for Rule 34 certification. 

Finally, while the following observation is not dispositive,

the court notes that “one who chooses the federal courts in [a]

diversity action[ ] is in a peculiarly poor position to seek

certification.” Phoung Luc v. Wyndham Mgmt. Corp., 496 F.3d 85,

95 (1st Cir. 2007) (quoting Venezia v. Miller Brewing Co., 626

F.2d 188, 192 n.5 (1st Cir. 1980)). As the court of appeals for

this circuit explained in an opinion vacating an award of damages

for emotional distress made in the district court, in

contravention of established New Hampshire Supreme Court

precedents:

Although it is possible that the state supreme court

might be ready to adopt a different view [than that

expressed in two previous opinions], we cannot lightly

indulge such speculation. Where a directly pertinent

precedent of the state’s highest court obtains, a

federal court applying state law must be hesitant to

blaze a new (and contrary) trail. Absent more solid

evidence than is available here, see, e.g., Provencher

v. Berman, 699 F.2d 568, 570 (1st Cir. 1983); Mason v.

American Emery Wheel Works, 241 F.2d 906, 909-10 (1st

Cir. [(1957)], a diversity court must take state law as

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it finds it: “not as it might conceivably be, some day;

nor even as it should be.” Plummer v. Abbott

Laboratories, 568 F. Supp. 920, 927 (D.R.I. 1983); see

also Moores v. Greenberg, 834 F.2d 1105, 1107 n.3 (1st

Cir. 1987) (in diversity jurisdiction, task is to

determine state law, not fashion a rule which the

federal court, independently, might deem best). And

when state law has been authoritatively declared, the

federal tribunal should apply that law according to its

tenor. If plaintiff, fully chargeable with knowledge

of the decided New Hampshire cases, nonetheless chose

to reject a state-court forum in favor of a federal

forum, he is in a perilously poor position to grumble

when we follow existing state precedent. Cf. Freeman

[v. Package Mach. Co.], 865 F.2d [1331,] 1349 [(1st

Cir. 1988)] (party removing case from state court “hard

put to complain if the federal court follows state

practice in regard to state-law claims”). A plaintiff

“who seek[s] out a federal forum in a diversity action

should anticipate no more.” Plummer, 568 F. Supp. at

927

Kassel v. Gannett Co., 875 F.2d 935, 949-50 (1st Cir. 1989)

(parallel citations omitted). In view of the foregoing, the

court can discern no basis for certifying a question of law to

the New Hampshire Supreme Court. Moreover, as plaintiff had the

opportunity, in the first instance, to bring this action in the

state courts, but chose not to do so, his request for a stay is

also denied.

For the reasons given, defendant’s motion for judgment on

the pleadings (document no. 9) is granted, and Count II is

dismissed. 

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SO ORDERED.

____________________________

Steven J. McAuliffe

Chief Judge

June 9, 2009

cc: Scott H. Harris, Esq.

Thomas W. Kelliher, Esq.

Cathryn E. Vaughn, Esq.

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