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                   THE SUPREME COURT OF NEW HAMPSHIRE

                             ___________________________


Belknap
No. 2017-0559


                                  MONICA ANDERSON

                                         v.

                            ESTATE OF MARY D. WOOD

                           Argued: September 13, 2018
                        Opinion Issued: November 28, 2018

      Leahy & Leahy, PLLC, of Penacook (Linda B. Sullivan Leahy on the brief
and orally), for the plaintiff.


      O’Shaughnessy, Walker & Buchholz, P.A., of Manchester (James G.
Walker on the brief and orally), for the defendant.

      HICKS, J. The plaintiff, Monica Anderson, appeals a decision of the
Superior Court (O’Neill, J.) dismissing her personal injury action against the
defendant, the Estate of Mary D. Wood, as time-barred by RSA 508:4 (2010).
We reverse and remand.

       The following facts are taken from the trial court’s orders; the procedural
history is taken from the record before us. On April 5, 2013, the plaintiff was
involved in a motor vehicle accident with a vehicle driven by Mary D. Wood
(Wood). The plaintiff commenced suit by complaint dated March 25, 2016,
alleging that Wood had caused her injury by negligently rear-ending her
vehicle. The complaint was mistakenly served on Wood’s daughter, who was
also named Mary D. Wood. The daughter moved to dismiss on the grounds
that Wood had passed away on January 22, 2015, and the plaintiff had no
cause of action against the daughter, who was neither the administrator of
Wood’s estate nor had any legal relationship with, or legal duty to, the plaintiff.

       On April 29, 2016, the plaintiff moved to amend her complaint to
substitute the Estate of Mary D. Wood for Mary D. Wood as the defendant. The
plaintiff’s motion alleged that she had filed a petition for estate administration
for the Estate of Mary D. Wood and that she would serve notice of the action on
the estate once the circuit court ruled on that petition.

       On June 30, 2016, the trial court dismissed the action, ruling, sua
sponte, that it did not have subject matter jurisdiction. The court noted the
plaintiff’s concession that she had filed the action against the wrong defendant,
but concluded that it could not grant her motion to amend because there was
“nothing in the record to suggest . . . that an Estate of Mary D. Wood presently
exists.” The parties did not dispute that Wood died intestate and no estate had
been opened immediately following her death. The court acknowledged the
plaintiff’s allegation that she had sought to open an estate, but noted that the
plaintiff had not provided “any documentation demonstrating that the [circuit
court] ever issued a grant of administration of said estate.” Accordingly, the
court dismissed the action, ruling that “there is presently no legal entity that
can be properly substituted for the current defendant such that this Court
would possess subject matter jurisdiction over this action pursuant to RSA
556:7.” See RSA 556:7 (2007).

      In August 2016, a certificate of appointment was issued, naming an
administrator of the Estate of Mary D. Wood. The plaintiff filed her complaint
in the instant action on April 4, 2017. The defendant moved to dismiss,
arguing that the statute of limitations had run on the claim.

       The trial court granted the motion to dismiss. The court ruled that
because the action “is one for personal injury, and it was not pending until
after [Wood’s] death[,] . . . said action falls within the purview of RSA 556:11,
and is thus subject to the limitations of RSA 508:4.” See RSA 508:4; RSA
556:11 (2007). The court further ruled:

      It is undisputed that the accident giving rise to the present cause
      of action occurred on April 5, 2013. Therefore, in order to satisfy
      the three-year statute of limitations period set forth in RSA 508:4,
      the plaintiff was required to file the present action by April 5, 2016.
      Because the present action was filed April 4, 2017, nearly one year
      after the three-year statute of limitations had run, the Court finds
      that the plaintiff’s claim is time-barred by RSA 508:4.



                                         2
This appeal followed.

      We first set forth our standard of review.

             In reviewing a trial court’s ruling on a motion to dismiss, we
      generally consider whether the [plaintiff’s] allegations are
      reasonably susceptible of a construction that would permit
      recovery. The [defendant], however, moved to dismiss based
      exclusively upon the statute of limitations. The statute of
      limitations is an affirmative defense and the [defendant] bear[s] the
      burden of proving that it applies.

State v. Lake Winnipesaukee Resort, 159 N.H. 42, 45 (2009) (citations omitted).
As there was no dispute regarding the dates on which the cause of action
accrued and on which suit was brought, the trial court’s conclusion that the
statute of limitations had run is a ruling of law. Accordingly, our review is de
novo. Id.

       On appeal, the plaintiff argues, among other things, that the trial court
misapplied RSA 556:11 in dismissing her complaint. That statute provides: “If
an action is not then pending, one may be brought for such cause at any time
within 6 years after the death of the deceased party, subject to the provisions of
RSA 508.” RSA 556:11. Citing Coffey v. Bresnahan, 127 N.H. 687 (1986), the
plaintiff asserts that because her claim was not time-barred by RSA 508:4 at
the time of Wood’s death, RSA 556:11 allows her six years from the date of
Wood’s death to commence her action. She contends that her suit filed on
April 4, 2017 was timely because: (1) at the time of Wood’s death on January
22, 2015, three years had not passed since the accrual of her cause of action
on April 5, 2013; and (2) at the time her complaint was filed on April 4, 2017,
six years had not passed since Wood’s death on January 22, 2015.

       The defendant, on the other hand, argues that in Cheever v. Southern
New Hampshire Regional Medical Center, 141 N.H. 589 (1997), we interpreted
RSA 556:11 “as being subservient to the general statute of limitations
contained in RSA 508:4.” The defendant contends that the issue presented
here was decided in Cheever, and that the three-year statute of limitations in
RSA 508:4 controls. Thus, according to the defendant, the statute expired on
April 5, 2016 — three years after the cause of action accrued.

      The parties’ arguments require us to interpret both our prior case law
and the applicable statutory provisions.

      In matters of statutory interpretation, we are the final arbiter of
      legislative intent as expressed in the words of the statute
      considered as a whole. We first examine the language of the
      statute and ascribe the plain and ordinary meanings to the words


                                        3
      used. We interpret legislative intent from the statute as written
      and will not consider what the legislature might have said or add
      language that the legislature did not see fit to include. Unless we
      find statutory language to be ambiguous, we will not examine
      legislative history.

Balise v. Balise, 170 N.H. 521, 524 (2017) (citations omitted). We review the
trial court’s interpretation of statutes de novo. Id.

       In Coffey, we applied a prior version of RSA 556:11, which provided: “If
an action is not then pending, and has not already become barred by the
statute of limitations, one may be brought for such cause at any time within
two years after the death of the deceased party, and not afterwards.” RSA
556:11 (1974) (amended 1983); see Coffey, 127 N.H. at 690. In light of our
holding in Gould v. Concord Hospital, 126 N.H. 405 (1985), that “the
classification created by RSA 556:11 violated the equal protection clause of the
New Hampshire Constitution,” we did not apply the statute as written. Coffey,
127 N.H. at 690. Instead, we “conclude[d] that the statute [was] constitutional
when a six-year limitations period is substituted for the unconstitutional two-
year limitation.” Id. Under that construction, the plaintiff’s action,
commenced in 1984 against a defendant who had died in 1979, “was timely
under the six-year limitations period.” Id. at 691.

       That conclusion, we noted, “d[id] not end the matter, . . . for there is an
additional requirement in RSA 556:11; that is, the suit must not have already
become barred by the statute of limitations in RSA 508:4.” Id. at 691-92. On
that issue, we found our decision in Perutsakos v. Tarmey, 107 N.H. 51 (1966),
controlling. Coffey, 127 N.H. at 692. In that case, we held:

      We think that the words of [RSA 556:11], “has not already become
      barred” mean an action which has not become barred at the time
      of the death of the deceased party.

             In other words section 11 permits suits within a designated
      period after the decedent’s death on all claims not already barred
      at the time of such death by the general statute of limitations.

Perutsakos, 107 N.H. at 53 (quoting RSA 556:11) (citation omitted). The acts of
alleged medical malpractice giving rise to the suit in Coffey had occurred in
1978. Coffey, 127 N.H. at 689. Thus, given our holding in Perutsakos, we
concluded that the suit in Coffey “was clearly not barred at the time of [the
defendant’s] death and, thus, the second requirement of RSA 556:11 has been
satisfied.” Id. at 692.

       In 1983, the legislature amended RSA 556:11 to its present form. The
plaintiff implicitly contends that this amendment did not abrogate our


                                        4
decisions in Coffey and Perutsakos, as she asserts that she satisfied RSA
556:11’s requirement that her claim must not have been barred by RSA 508:4
at the time of Wood’s death. We agree.

       We have long held that when the legislature amends a statute, it “is
presumed to [be] cognizant of the interpretation put upon the statute by the
court.” Waterman v. Lebanon, 78 N.H. 23, 24 (1915). It is further presumed
“to have adopted that construction, in the absence of any change in the
phraseology used or other competent evidence of a different purpose.” Id. On
the other hand, we have also noted that “any material change in the language
of” a statute by amendment is “[o]rdinarily . . . presumed to indicate a change
in legal rights.” Appeal of Manchester Transit Auth., 146 N.H. 454, 458 (2001)
(quotations omitted).

       In Petition of CIGNA Healthcare, 146 N.H. 683 (2001), we recognized a
third possibility: a substantial revision to a statute that, nevertheless, conforms
to pre-existing statutory construction. See Petition of CIGNA Healthcare, 146
N.H. at 690. There, we determined that amendments that were admittedly
intended to expand probate court jurisdiction nevertheless did not extend them
to the point urged by the respondent because, given the presumption that the
legislature knew of our previous narrow construction of statutes involving
probate court jurisdiction, it would not “have left [its] intention to be inferred
from a single doubtful expression but would have conferred the authority in
plain and explicit terms.” Id. at 690 (quotation and ellipsis omitted). Courts in
other jurisdictions have applied similar reasoning. See, e.g., Havens v.
Portfolio Inv. Exchange Inc., 983 F. Supp. 2d 1007, 1011 (N.D. Ind. 2013)
(noting that “when a legislature is aware that a statute is being interpreted in a
particular way and [amends it in a way that] fails to expressly reject that
construction, it has effectively ‘acquiesced’ to it”); Pudmaroff v. Allen, 951 P.2d
335, 337 (Wash. Ct. App. 1998) (“The Legislature is presumed to be familiar
with judicial interpretations of statutes” and “[u]nless there is an indication the
Legislature intended to overrule a particular interpretation, amendments are
presumed to be consistent with previous interpretations.”).

      Here, nothing in the plain language of RSA 556:11, as amended, clearly
evinces an intent to abrogate the holdings of Coffey and Perutsakos. The
pertinent language was changed from “has not already become barred by the
statute of limitations,” RSA 556:11 (1974) (amended 1983), to “subject to the
provisions of RSA 508,” RSA 556:11. We interpret this amended language as
consistent with the holdings of Coffey and Perutsakos. Accordingly, we
conclude that the 1983 amendment to RSA 556:11 was not intended to, and
did not, abrogate our interpretation of that statute in Coffey and Perutsakos.
See, e.g., Havens, 983 F. Supp. 2d at 1011; Pudmaroff, 951 P.2d at 337. We
also agree with the plaintiff that she satisfied the requirement that, at the time
of Wood’s death, her claim was not barred by RSA 508:4 — Wood died on



                                        5
January 22, 2015, less than three years from the accrual of the plaintiff’s
cause of action on April 5, 2013.

       We now must determine whether the plaintiff’s claim was brought within
the applicable limitations period. We first note two events subsequent to the
amendment of RSA 556:11 that impact that determination. First, in 1986, RSA
508:4 was amended to, among other things, change the six-year limitations
period to three years. See Laws 1986, 227:12. Subsequently, we decided
Cheever, the case relied upon by the defendant. In Cheever, the plaintiff
commenced a wrongful death action against a doctor and a hospital on March
31, 1995, alleging negligence in the care given to the decedent on April 7, 1989,
the date he died. Cheever, 141 N.H. at 590. The plaintiff appealed the
dismissal of the suit as time-barred, arguing that RSA 556:11 provided a six-
year statute of limitations. Id. The defendants, on the other hand, “read the
‘subject to the provisions of RSA 508’ language to mandate a three-year limit.”
Id. (quoting RSA 556:11). We construed the statute according to its plain
language:

      The six-year period referenced in RSA 556:11 is, by the express
      terms of the statute, “subject to the provisions of RSA 508.” . . .
      The plain meaning of the phrase “subject to” indicates that the six-
      year period set forth in the statute is subservient to or governed by
      the provisions of RSA chapter 508. Thus, because we construe
      statutes to effectuate their evident purpose, the applicable statute
      of limitations period in this instance must be three years.

Id. at 591 (quoting RSA 556:11) (citations omitted). We therefore affirmed the
dismissal of the plaintiff’s action. Id. at 592.

      In light of Cheever, we cannot agree with the plaintiff’s assertion that the
applicable limitations period is six years: Cheever clearly holds that it is three
years. Id. at 591. Neither party has asked us to overrule Cheever, and, in any
event, the outcome in this case would be the same whether a six-year or three-
year period applied. Accordingly, we follow Cheever’s three-year holding. We
disagree, however, with the defendant’s assertion that Cheever compels the
conclusion that the three-year period expired on April 5, 2016. In Cheever, it
was not necessary to decide whether the limitations period started on the date
of death or, as the defendant contends, on the date the cause of action
accrued, because both dates were the same. See id. at 590. We now hold that
the period starts on the date of death, as to hold otherwise would
impermissibly write the phrase “after the death of the deceased party,” RSA
556:11, out of the statute. See Hodges v. Johnson, 170 N.H. 470, 484 (2017)
(noting that “when construing a statute, we must give effect to all words in the
statute and presume that the legislature did not enact superfluous or
redundant words” (quotation and brackets omitted)). Thus, a claim will be
timed-barred by RSA 556:11 unless brought within three years after the


                                        6
decedent’s death. We note that this construction alleviates the defendant’s
concern that “the plaintiff’s construction of the applicable statutes relating to
claims against estates would result in an unlimited horizon for a plaintiff to
bring a claim in circumstances where an estate had not been established.”

      Because the plaintiff’s claim was not time-barred by RSA 508:4 at the
time of Wood’s death and the instant suit was brought within three years of
Wood’s death, the action is timely. Accordingly, we reverse the grant of the
defendant’s motion to dismiss and remand for further proceedings. In light of
our holding on this issue, we need not address the remaining issues on appeal.

                                                   Reversed and remanded.

     LYNN, C.J., and BASSETT, HANTZ MARCONI, and DONOVAN, JJ.,
concurred.




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