On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-2200-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad and J. N. Harris.
By leave granted, we review the interlocutory order entered on May 28, 2010, which dismissed the consolidated wrongful death complaint brought by the Maryland-appointed Administratrix Ad Prosequendum of the Estate of Michael W. Baumiester in favor of the similarly-pled consolidated wrongful death complaint filed by the New Jersey-appointed Administratrix Ad Prosequendum of the Estate of Michael William Baumiester. We reverse.
This case has its genesis in the tragic death of Michael Baumiester on the New Jersey Turnpike, in Newark, on Valentine's Day, 2007. Ironically, the fatal accident happened as Baumiester was driving to White Plains, New York, from his home in Baltimore, Maryland, to participate in paternity proceedings that he commenced. On that same date, the Family Court of the State of New York declared Baumiester to be the father of Chloe Nicole Ward (Chloe), born out of wedlock to Megan S. Ward (Ward) ten months earlier.*fn1 The details of the three-vehicle accident that occurred in the vicinity of Newark Airport are less important than the litigational activities of the parties to this appeal, and we will concentrate on the latter.
Barbara Bodnar (Bodnar), a New Jersey resident, was the mother of Baumiester. At his death, Baumiester was unmarried and had not executed a will. Although Baumiester lost his life in New Jersey, and Bodnar lived here, Bodnar applied in her son's home state of Maryland for Letters of Administration of a Small Estate, which were granted by the Baltimore City Register of Wills on March 17, 2007. See Md. Code Ann., Estates and Trusts §§ 5-601 to 5-608 (2011). The instrument memorializing Bodnar's status indicated that the letters of administration were granted for "litigation only." Armed with this Maryland authority, Bodnar filed the first wrongful death action (Docket No. L-2200-07)*fn2 on May 2, 2007, in the Monmouth vicinage.
Meanwhile, Ward, a resident of New York, applied for Letters of Guardianship for Chloe, which were issued by the Surrogate of Westchester County, New York, on April 18, 2007. Thereafter, Ward applied for Letters Administration Ad Prosequendum in New Jersey, which were issued by the Essex County Surrogate on July 10, 2007, approximately 146 days after Baumiester died. Finally, Ward filed the second wrongful death action (Docket No. L-9200-07)*fn3 on November 9, 2007, in the Essex vicinage, where the accident occurred.
The two wrongful death actions -- together with two other related personal injury cases -- were consolidated for trial purposes in the Monmouth vicinage by order dated May 28, 2008. Discovery ensued, and the consolidated action proceeded towards a final disposition.
The first salvo launched against one of the wrongful death actions was initiated by Bodnar, but not in the Monmouth vicinage. Instead, Bodnar sought -- in the Chancery Division, Probate Part, Essex Vicinage -- to oust Ward from her status as the New Jersey Administratrix Ad Prosequendum of the Estate of Michael William Baumiester. In rendering a decision denying Bodnar's application, the Chancery Division judge accurately predicted, in part, what was to come:
I certainly have to give, in the first instance, the full faith and credit to the Maryland judgment. I just don't know what it means with respect to Maryland law and it seems to me if it has to be attacked or it must be -- if the -- if there [are] questions or issues with respect to what it means, then there might have to be made -- an application made in Maryland with respect to that -- Miss [Bodnar's] appointment, but I can -- so I can't vacate, do not vacate the Maryland letters. I don't make any -- I can't grant the relief which, at least in the papers, [counsel] asks for me to dismiss the appointment of Miss [Bodnar] as administrator under the Maryland cases. What I do . . . or can do is say that Miss Ward is entitled to letters of administration ad prosequendum and she is entitled to prosecute this lawsuit because she is qualified pursuant to the statute, had the right to serve pursuant to the statute and pursuant to the rules because her daughter is the only heir who was entitled to serve in that capacity, so I do make that ruling today, and to the extent that resolves the conflict between the two sides, it may. To the extent it doesn't, there may have to be an application in the Monmouth County cases or there may have to be an application in the -- in Maryland, I don't know [what] else [the] parties may have to do under the circumstances.
On February 11, 2010, an order was entered in the Chancery Division that memorialized the judge's decision. No appeal was pursued from that final determination.
As foretold, the two warring personal representatives filed motions to dismiss each other's complaint in the consolidated proceeding in the Monmouth vicinage. The Law Division judge thoughtfully considered the competing claims, and in a detailed written opinion declared that because Bodnar was "not [d]ecedent's next of kin, nor does [p]laintiff, Bodnar, have an interest in the [d]ecedent's estate," only Ward was entitled to pursue the wrongful death claim pursuant to N.J.S.A. 3B:10-2 and -11. This ...