Verdicts

'Almost Instant' Change of Domicile Thwarts Motion to Dismiss

The U.S. District Court for the Western District of Virginia recently declined to dismiss a diversity action for wrongful death brought by the estate of a man who was medically treated in Virginia, then moved to Idaho for a short time before his sudden death. Despite the fact that the man had lived in Idaho for only nine days, the court found adequate evidence that the deceased had changed his place of domicile from Virginia to Idaho prior to his death. Bagheri v. Bailey, 2015 U.S. Dist. LEXIS 149859 (W. D. Va., 11/4/15).

Sean Matthew McKee went to Russell County Medical Center Emergency Department in Russell County, VA, on June 7, 2013, complaining of chest and back pain, shortness of breath, nausea, and a fever. Defendant Dwight L. Bailey, M.D., saw the patient, diagnosed him as suffering from acute bronchitis, and released him from care that same night. On June 12, McKee, along with his wife and two children, moved from Lebanon, VA, to Post Falls, ID, where Mrs. McKee's mother and brother lived. They arrived in Idaho on June 16 and moved in, temporarily, with the mother. Mr. and Mrs. McKee soon both interviewed for jobs at Qualfon (a call center), and both were offered positions, though there was some dispute during motion practice as to whether Mr. McKee had accepted the offered position. On June 25, 2013, Mr. McKee began to suffer from shortness of breath. Paramedics took him to the hospital, but he died soon after arrival. An autopsy showed that the cause of death was a pulmonary artery thromboembolism and bilateral pulmonary infarcts, which the plaintiff contends should have been diagnosed by Dr. Bailey on June 7.

The plaintiff brought suit against Dr. Bailey and his employer for failure to diagnose. The defendants moved for dismissal, contending that federal diversity jurisdiction did not apply, as the plaintiff could not establish that the deceased and the Virginia doctor and medical practice were not domiciliaries of the same state. They claimed McKee remained a Virginia resident at the time of his death because he: 1) had not purchased or rented a house in Idaho; 2) had not registered to vote in Idaho; 3) held Virginia bank accounts; 4) had paid taxes only in Virginia over the year previous to his death; 5) had only a Virginia driver's license; and 6) was buried in Virginia. The court noted that while “other courts have recognized that many of these factors are relevant to the domicile analysis,” it remained necessary to review the totality of the circumstances surrounding the deceased's move to Idaho.

Several factors pointed in the plaintiff's favor as well, including the facts that the deceased had quit his Virginia job and packed his family and all his belongings into a U-Haul truck to travel for four days across country. Upon arrival, he moved everything into his mother-in-law's house and began looking for work, at which time he completed tax forms indicating Idaho was his place of residence. Looking at these things, the court determined that the deceased had changed his domicile from Virginia to Idaho. Stated the court, “It appears Mr. McKee did not get the opportunity to change his bank account, driver's license, or voting registration before his untimely death, which occurred approximately nine days after he arrived in Idaho. While he did not purchase a house in Idaho, he moved in with his mother-in-law while he and his wife established themselves in the new state. Mr. McKee planned to stay in his mother-in-law's home for one or two years so he could save money ' a prudent plan commonly employed by young families. Given the circumstances, Mr. McKee's continued ties to Virginia do not negate his otherwise clear intent to remain in Idaho. I do not believe that Mr. McKee, a man of relatively modest means, would have quit his job, packed all of his belongings, and moved across the country to start a job search in Idaho unless he intended to stay in the area indefinitely. This appears to be a circumstance where Mr. McKee's domicile changed almost 'instantly' upon his arrival in Idaho.”

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'Almost Instant' Change of Domicile Thwarts Motion to Dismiss

The U.S. District Court for the Western District of Virginia recently declined to dismiss a diversity action for wrongful death brought by the estate of a man who was medically treated in Virginia, then moved to Idaho for a short time before his sudden death. Despite the fact that the man had lived in Idaho for only nine days, the court found adequate evidence that the deceased had changed his place of domicile from Virginia to Idaho prior to his death. Bagheri v. Bailey, 2015 U.S. Dist. LEXIS 149859 (W. D. Va., 11/4/15).

Sean Matthew McKee went to Russell County Medical Center Emergency Department in Russell County, VA, on June 7, 2013, complaining of chest and back pain, shortness of breath, nausea, and a fever. Defendant Dwight L. Bailey, M.D., saw the patient, diagnosed him as suffering from acute bronchitis, and released him from care that same night. On June 12, McKee, along with his wife and two children, moved from Lebanon, VA, to Post Falls, ID, where Mrs. McKee's mother and brother lived. They arrived in Idaho on June 16 and moved in, temporarily, with the mother. Mr. and Mrs. McKee soon both interviewed for jobs at Qualfon (a call center), and both were offered positions, though there was some dispute during motion practice as to whether Mr. McKee had accepted the offered position. On June 25, 2013, Mr. McKee began to suffer from shortness of breath. Paramedics took him to the hospital, but he died soon after arrival. An autopsy showed that the cause of death was a pulmonary artery thromboembolism and bilateral pulmonary infarcts, which the plaintiff contends should have been diagnosed by Dr. Bailey on June 7.

The plaintiff brought suit against Dr. Bailey and his employer for failure to diagnose. The defendants moved for dismissal, contending that federal diversity jurisdiction did not apply, as the plaintiff could not establish that the deceased and the Virginia doctor and medical practice were not domiciliaries of the same state. They claimed McKee remained a Virginia resident at the time of his death because he: 1) had not purchased or rented a house in Idaho; 2) had not registered to vote in Idaho; 3) held Virginia bank accounts; 4) had paid taxes only in Virginia over the year previous to his death; 5) had only a Virginia driver's license; and 6) was buried in Virginia. The court noted that while “other courts have recognized that many of these factors are relevant to the domicile analysis,” it remained necessary to review the totality of the circumstances surrounding the deceased's move to Idaho.

Several factors pointed in the plaintiff's favor as well, including the facts that the deceased had quit his Virginia job and packed his family and all his belongings into a U-Haul truck to travel for four days across country. Upon arrival, he moved everything into his mother-in-law's house and began looking for work, at which time he completed tax forms indicating Idaho was his place of residence. Looking at these things, the court determined that the deceased had changed his domicile from Virginia to Idaho. Stated the court, “It appears Mr. McKee did not get the opportunity to change his bank account, driver's license, or voting registration before his untimely death, which occurred approximately nine days after he arrived in Idaho. While he did not purchase a house in Idaho, he moved in with his mother-in-law while he and his wife established themselves in the new state. Mr. McKee planned to stay in his mother-in-law's home for one or two years so he could save money ' a prudent plan commonly employed by young families. Given the circumstances, Mr. McKee's continued ties to Virginia do not negate his otherwise clear intent to remain in Idaho. I do not believe that Mr. McKee, a man of relatively modest means, would have quit his job, packed all of his belongings, and moved across the country to start a job search in Idaho unless he intended to stay in the area indefinitely. This appears to be a circumstance where Mr. McKee's domicile changed almost 'instantly' upon his arrival in Idaho.”

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