ORDER

DEVINE, Senior District Judge.

This civil action "arises from the fraudulent conduct of an attorney who forged check indorsements and absconded with a widow's money." Kenerson v. FDIC, 44 F.3d 19, 21 (1st Cir. 1995). Plaintiff Jean Kenerson, serving in her capacity as adminstratrix of her deceased husband's estate, seeks to recover those losses from defendants Morgan Guaranty Trust Company (Morgan Guaranty) and Bank of California, N.A. (Bank of California), the banks on which said checks were drawn.

Presently before the court is plaintiff's motion for partial summary judgment regarding the availability of "pre-writ" interest, defendants' objection thereto, and plaintiff's reply memorandum.

Background

On July 15, 1981, the Sullivan County Probate Court appointed plaintiff Kenerson and John C. Fairbanks as co-administrators of the Estate of Vaughan H. Kenerson, who died on July 8, 1981.

On August 18, 1981, Fairbanks established an estate checking account, account number 1333291, with First Citizens. This account was opened in the name "Estate of Vaughan H. Kenerson, c/o John Fairbanks, Attorney," and Fairbanks listed himself as the sole authorized signatory. Complaint ¶ 11. Plaintiff alleges, "At all times relevant to this action, Fairbanks also maintained at First Citizens/BankEast an account under the name `John C. Fairbanks Law Offices Trust Account,' account number 11309-7 (the `Fairbanks Trust Account')." Id. ¶ 12. On or about November 10, 1981, Fairbanks opened an account at Dean Witter in the name of the Estate, account number 486-47326, to which he delivered Estate securities valued, as of November 30, 1981, at $248,660.87.

During the period in which the Dean Witter account was open, from November 10, 1981, until October 31, 1984, a total of $255,978.38 was paid out of that account. Each of the payments from the account was made by a check drawn by Dean Witter either on an account at Morgan Guaranty or on an account at Bank of California. A total of 25 such checks were written. Each such check was made payable to the order of:

Estate of Vaughan H. Kenerson

Jean R. Kenerson

John C. Fairbanks, Administrators.

"Fairbanks indorsed these checks by writing first his own name (without any description of his role), followed by the name of Mrs. Kenerson," Kenerson, supra, 44 F.3d at 21, and then deposited them at First Citizens.

First Citizens accepted all of the deposited checks and transmitted same, as appropriate, to either Morgan Guaranty or Bank of California, whereupon the checks were then paid. In total, "Fairbanks withdrew from the Estate bank account, for his own benefit, all but a small portion of the funds in that account . . . [and] little if any of the remaining funds . . . were disbursed in any way that inured to Mrs. Kenerson's benefit, either individually or in her capacity as co-administrator." Id. at 22.

Discussion

1. Summary Judgment Standard

Summary judgment shall be ordered when "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Rule 56(c), Fed.R.Civ.P. Since the purpose of summary judgment is issue finding, not issue determination, the court's function at this stage "`is not to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.'" Stone Michaud Ins., Inc. v. Bank Five for Savings, 785 F. Supp. 1065, 1068 (D.N.H. 1992) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986)). Although "motions for summary judgment must be decided on the record as it stands, not on litigants' visions of what the facts might some day reveal," Maldonado-Denis v. Castillo-Rodriguez, 23 F.3d 576, 581 (1st Cir. 1994), the entire record will be scrutinized in the light most favorable to the nonmovant, with all reasonable inferences indulged in that party's favor, Smith v. Stratus Computer Inc., 40 F.3d 11, 12 (1st Cir. 1994), cert. denied, ___ U.S. ____, 115 S.Ct. 1958, 131 L.Ed.2d 850 (U.S. 1995); see also Woods v. Friction Materials, Inc., 30 F.3d 255, 259 (1st Cir. 1994); Maldonado-Denis, supra, 23 F.3d at 581.

"In general . . . a party seeking summary judgment [is required to] make a preliminary showing that no genuine issue of material fact exists. Once the movant has made this showing, the nonmovant must contradict the showing by pointing to specific facts demonstrating that there is, indeed, a trialworthy issue." National Amusements, Inc. v. Dedham, 43 F.3d 731, 735 (1st Cir. 1995) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986)), petition for cert. filed; 63 U.S.L.W. 3736 (U.S. Apr. 4, 1995) (No. 94-1630).

When a party fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party bears the burden of proof at trial, there can no longer be a genuine issue as to any material fact: the failure of proof as to an essential element necessarily renders all other facts immaterial, and the moving party is entitled to judgment as a matter of law.

Conversely, when a trialworthy issue is raised, summary judgment is inappropriate. However, "[t]rialworthiness necessitates `more than simply show[ing] that there is some metaphysical doubt as to the material facts.'" National Amusements, supra, 43 F.3d at 735 (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986)) (alteration in National Amusements). Thus, "`[t]he evidence illustrating the factual controversy cannot be conjectural or problematic; it must have substance in the sense that it limns differing versions of the truth which a factfinder must resolve. . . .'" Id. (quoting Mack v. Great Atl. Pac. Tea Co., 871 F.2d 179, 181 (1st Cir. 1989)). Accordingly, "purely conclusory allegations . . . rank speculation . . . [or] improbable inferences" may be properly discredited by the court, id. (citing Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990)), and "`are insufficient to raise a genuine issue of material fact,'" Horta v. Sullivan, 4 F.3d 2, 8 (1st Cir. 1993) (quoting August v. Offices Unlimited, Inc., 981 F.2d 576, 580 (1st Cir. 1992)).

2. Uniform Commercial Code (Code) § 3-419

Plaintiff alleges that the drawee banks are liable for conversion based on the application of RSA 382-A:3-419. Plaintiff further "contends that a substantial component of her damages consists of the interest she would have earned on the converted funds if she had had the use of them from the time they were converted until the time suit was filed." Plaintiff's Memorandum of Law in Support of Motion for Partial Summary Judgment (Plaintiff's Memorandum) at 2. Styled as "pre-writ" interest, see supra note 2, plaintiff essentially seeks an interest award over and above whatever statutory prejudgment interest she may be entitled to pursuant to RSA 524:1-b. Defendants press for a strict reading of RSA 382-A:3-419(2) and maintain that their conversion liability, if any, is limited to the face amount of the checks at issue. a. Conversion Liability

Drawee liabllity under RSA 382-A:3-419 is clear and unambiguous. See JAMES J. WHITE AND ROBERT S. SUMMERS, UNIFORM COMMERCIAL CODE § 15-4, at 502 (1972) ("Section 3-419 covers drawees explicitly: when a drawee pays over a forged indorsement it is liable in conversion."). The amount of damages recoverable under RSA 382-A:3-419 is, however, less clear.

RSA 382-A:3-419(2) provides, "In an action against a drawee [for conversion], the measure of the drawee's liability is the face amount of the instrument." Notably absent from the language of this section is any mention of prejudgment or pre-writ interest. See 6A RONALD A. ANDERSON, UNIFORM COMMERCIAL CODE § 3-419:60, at 107 (1993) ("The [Uniform Commercial] Code makes no provision relating to the recoverability of prejudgment interest in an action based on UCC § 3-419."). However, one commentator has noted that "[c]onversion under [Uniform Commercial Code] § 3-419 by payment over a forged indorsement has the same attributes as the common law action of conversion." ANDERSON, supra, § 3-419:30, at 82 (footnote omitted).

Since a conversion action is tortious in character, "the recoverability of prejudgment interest will be governed by the pre-Code law relating to the recovering of such interest in tort actions." ANDERSON, supra, § 3-419:60, at 107-08. Accordingly, the court finds and rules that whether plaintiff is properly entitled to an award of interest, and the proper measure of such interest, turns upon an analysis of common law conversion actions in New Hampshire.

b. Pre-Writ/Prejudgment Interest

The Code provides that "unless displaced by the particular provisions of this chapter the principles of law and equity . . . shall supplement its provisions." RSA 382-A:1-103. Since pre-writ interest is not explicitly provided for in RSA 382-A:3-419, the court turns to the common law principles of conversion in order to "supplement" its analysis.

Defendants argue,

It is undisputed that this case is about a drawee bank's alleged conversion, and does not involve a claim for breach of fiduciary duty. Plaintiff is asking this Court to extend New Hampshire law beyond the parameters already laid out by the New Hampshire Supreme Court in [ Estate of] Ward, [ 129 N.H. 4, 523 A.2d 28 (1986)], while avoiding certification of this question of first impression to the New Hampshire Supreme Court. Defendants' Objection Memorandum at 5-6. Upon deeper inquiry, however, the court finds that the law of New Hampshire cannot sustain defendants' position.

The availability of prejudgment interest is a legislatively-created vehicle to provide complete compensation for a plaintiff's economic damages. See RSA 524:1-b, supra note 10; see also West Virginia v. United States, 479 U.S. 305, 310 n. 2, 107 S.Ct. 702, 706 n. 2, 93 L.Ed.2d 639 (1987) ("Prejudgment interest serves to compensate for the loss of use of money due as damages from the time the claim accrues until judgment is entered, thereby achieving full compensation for the injury those damages are intended to redress.") (citation omitted); Eastern Mountain Platform Tennis, Inc. v. Sherwin-Williams Co., 40 F.3d 492, 504 (1st Cir. 1994) (RSA 524:1-b is intended "to compensate the plaintiff for loss of use of the money it should have had.") (citing Lakin v. Daniel Marr Son, Co., 732 F.2d 233, 238 (1st Cir. 1984)), petition for cert. filed; 63 U.S.L.W. 3756 (U.S. Apr. 6, 1995) (No. 94-1640).

In an action for pecuniary damages, the customary rule in New Hampshire is that "pre-judgment interest can only accrue from the time that suit is filed or when a demand is made." In re Estate of Ward, 129 N.H. 4, 12, 523 A.2d 28, 34 (1986); see also 5 RICHARD V. WIEBUSCH, NEW HAMPSHIRE PRACTICE: CIVIL PRACTICE AND PROCEDURE § 1691, at 86-87 (Supp. 1992) ("The prevailing party is entitled, to an award of interest on the amount of any damages allowed by the verdict or decree, figured from the date the action is begun until the date judgment is entered. Interest is not awarded for the period between the time the claim arose and the commencement of the action.") (footnotes omitted).

However, when a cause of action sounds in conversion, "[t]he ordinary measure of damages . . . is the value of the property at the time of conversion with interest to the date of judgment." Perry v. W.H. Burbee, Inc., 100 N.H. 456, 457, 129 A.2d 670, 671 (1957). This is a rule of law that has been consistently repeated and applied in New Hampshire jurisprudence since at least 1880. See, e.g., Morin v. Hood, 96 N.H. 485, 486, 79 A.2d 4, 5 (1951) (plaintiff entitled to the value of the chattels at the time of the conversion with interest to the date of judgment); E.J. Caron Enters., Inc. v. State Operating Co., 87 N.H. 371, 373, 179 A. 665, 666 (1935) ("the measure of damages is the value of the property at the time of the conversion with interest to the date of judgment"); Johnson v. Farr, 60 N.H. 426, 428 (1880) ("the measure [of damages] is the value of the [chattels] at the time of their conversion, with interest to the date of judgment."). Thus, in an action for conversion, the prejudgment time frame is expanded to run from the date of the conversion until the date of judgment.

The point of distinction that must be noted, however, is that whereas plaintiff appears to claim pre-writ interest as a form of prejudgment interest, it is not such per se. As previously stated, prejudgment interest, in the context of tort claims, is an economic remedy added on to a claim "in order to compensate the plaintiff for loss of the use of damage money while a lawsuit is pending." Ward; supra, 129 N.H. at 12, 523 A.2d at 34 (citing Shepard v. General Motors Corp., 423 F.2d 406, 408 (1st Cir. 1979)). "[T]he pre-judgment sum [thus] represents the initial loss that constitutes the claim." Id.

When funds have been converted, however, what has been wrongfully taken is not simply the funds themselves, but also "the ability of the money to earn interest." Id. It is immaterial to the present discussion that the issue before the Ward court was misappropriation rather than conversion of funds or that the action was against a fiduciary rather than two drawee banks. What is material is the practical effect of each tort: a sum certain of money and the interest that could be earned thereon have been converted. As such, the Ward court's conclusion that "the lost interest was just as much a debt as the actual funds," id, not only is relevant and probative, but also is persuasive and dispositive.

The court finds and roles that in order for a prevailing plaintiff in a conversion action to be made whole, the damage remedy must include not only the base amount converted, but likewise the interest that would have been earned thereon, calculated from the date of the conversion up to the award of judgment. Accordingly, plaintiffs motion for partial summary judgment with regard to the measure of conversion damages available under RSA 382-A:3-419 must be and herewith is granted.

Conclusion

SO ORDERED.