Komlos v. Compagnie Nationale Air France
| Decision Date | 14 July 1952 |
| Citation | 111 F. Supp. 393 |
| Parties | KOMLOS v. COMPAGNIE NATIONALE AIR FRANCE. ROYAL INDEMNITY CO. v. COMPAGNIE NATIONALE AIR FRANCE. |
| Court | U.S. District Court — Southern District of New York |
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Frederick W. Scholem, New York City (Theodore E. Wolcott, New York City, of counsel), for plaintiff Komlos.
Sutta & Frankel, New York City (Nathan Frankel and Frank Reiter, New York City, of counsel), for plaintiff Royal Indemnity Co.
Foley & Statt, New York City (Frank J. Foley and Milton James, New York City, of counsel), for defendant.
On October 28, 1949, Emery Komlos was a passenger on an airplane operated by the defendant (Air France), on a flight from Paris to New York. He lost his life when the plane crashed on the island of San Miguel, Azores, Republic of Portugal.
Komlos was a citizen of the United States and a resident of the State of New York. He was in the employ of Refugee Economic Corporation and was engaged in the work of the corporation at the time of his death. The Royal Indemnity Company had issued a workmen's compensation policy, which covered Komlos and other employees of the Refugee Economic Corporation under the Workmen's Compensation Law of the State of New York.
Komlos was 32 years old and was unmarried. He left him surviving his mother, Bertha Komlos, and a sister, Edith Komlos. After his death payments were made to his mother under the compensation policy. The attorney for the administratrix raises a question as to whether an "award" had been "made" and the "claim" for compensation "determined" under section 20 of the Compensation Law. I believe that the provisions of the Law were complied with. This will be discussed near the end of this opinion.
On October 3, 1951, Royal Indemnity Company instituted an action (hereinafter called the Royal Indemnity action) in this court against Air France for the wrongful death of Emery Komlos, claiming that Royal Indemnity is the statutory assignee of the "cause of action" under section 29, subd. 2, of the N. Y. Compensation Law, in that a claim had been filed with the Workmen's Compensation Board by the next of kin of the decedent, Bertha, the mother; that an award had been duly entered and filed by the Board on March 6, 1950; and that pursuant to the award the Royal Indemnity had paid $400 for funeral expenses, and certain sums in weekly and bi-weekly payments to the mother, which up to September 28, 1950, amounted to $2,100. Royal Indemnity alleged that the "cause of action" of the next of kin against the defendant for the death of Emery Komlos was assigned to the Company under section 29, subd. 2, by operation of law, by reason of the failure of the next of kin to institute an action against Air France within the time fixed by the New York Workmen's Compensation Law, that is, "within six months after the awarding of compensation".
The Surrogate's Court, New York County, issued Letters of Administration on the estate of Emery Komlos, to his sister, Edith. On October 26, 1950, as such Administratrix of the Komlos estate, she instituted in the Supreme Court of the State of New York an action (hereinafter called the Komlos action) against Air France on behalf of Bertha Komlos and Edith Komlos and the estate of the decedent. The action was removed to this Court on grounds of diversity of citizenship. The original complaint was an ordinary negligence suit. It made no reference to the Warsaw Convention1; nor did it use any of the language thereof. Subsequently an amended complaint was served in the Komlos action. It was used as a model for the complaint in the Royal Indemnity action.
The complaints in the two actions are now similar in the claims they assert.2 Each pleads six claims or causes of action. Each complaint claims $150,000 as the loss of next of kin for the wrongful death of Emery Komlos and $550 for burial expenses. A claim of $1,500 is also pleaded in each action for the loss of decedent's baggage and personal belongings.
The defendant answered the Komlos amended complaint November 2, 1951, but has not yet answered the Royal Indemnity complaint. In the answer to the Komlos complaint the defendant has pleaded that the entire "cause of action" for wrongful death alleged in the Komlos complaint belongs to the Royal Indemnity Company, under the assignment provision of Section 29, subd. 2, of the New York Workmen's Compensation Law, subject to the obligation of the insurer to account to decedent's dependents for a certain part of the recovery as provided in the said section.
As to the claim of $1,500 for loss of baggage and personal belongings, the defendant asserts that it is for a sum less than the $3,000 pecuniary jurisdiction requirement of this Court, in an action where jurisdiction is based on diversity of citizenship.
In the Komlos action the defendant has moved for summary judgment on the grounds that the plaintiff does not own the claims asserted therein, because such claims and all rights thereto have been assigned by operation of law to the Royal Indemnity Company which has commenced an action in this court for the same relief. In the Royal Indemnity Company action, the defendant has moved to dismiss the complaint, on the grounds that the complaint fails to state a claim on which relief can be granted, in that Royal Indemnity Company does not own the claim. Defendant argues that both complaints are for the same relief and that there cannot be a recovery for wrongful death under both the Komlos and Royal Indemnity complaints; that one of the actions is not brought by the real party in interest and should be dismissed; that the documentary proof shows that Royal Indemnity owns the cause of action for wrongful death and that the Komlos complaint should be dismissed; but that if the court should decide that Royal Indemnity does not own the claim for wrongful death then the Royal Indemnity complaint should be dismissed.
The Administratrix of the Komlos estate has moved to consolidate the Komlos action and the Royal Indemnity action for trial.
Although both complaints allege a claim for the loss of decedent's baggage and personal effects, valued at $1,500, that claim is separate and distinct from the death claim — to this extent at least, that it did not pass to the Royal Indemnity Company by statutory assignment under the New York Workmen's Compensation Law. It belongs to the decedent's estate and is subject to the provisions of the Warsaw Convention in relation to destruction or loss of baggage.
The claim for funeral expenses may be recovered in the action for wrongful death, § 132 of the N. Y. Decedent Estate Law. Royal Indemnity, under the compensation award, paid $400 for funeral expenses. Either the administratrix or the Royal Indemnity Company would be entitled to recover for the funeral expenses, because it is part of the claim in the death action under section 132. If the administratrix recovered on that claim, she would have to pay $400 to Royal Indemnity.
The principal questions presented by defendant's motions are these: (A) Has decedent's sister, Edith, a beneficial interest in the cause of action, the right of action, for wrongful death? (B) Who has the right to bring suit for the wrongful death of Emery Komlos, the Administratrix of the Komlos estate or the compensation insurer, Royal Indemnity Company? In answering those questions it will be necessary to consider the Warsaw Convention, the New York doctrine of conflict of law, the applicability of the law of the Republic of Portugal and the applicability of certain statutes of the State of New York.
The attorney for the Komlos Administratrix argues that the persons who have the right of action for wrongful death should be determined by the lex loci delicti, the law of Portugal; that the Warsaw Convention does not create a right of action; that section 29, subd. 2, of the N.Y. Compensation Act has no extra-territorial effect; that a right of action arising under Portugese law would not be assigned to the insurer under section 29, subd. 2, of the N. Y. Compensation Act; that under Portugese law the sister Edith as well as the mother, Bertha, own the right of action; and that they may assert that right through the Administratrix.
The attorney for the defendant, Air France, argues that the cause of action for wrongful death is created by the Warsaw Convention; that the lex fori, the law of New York, determines who have the right to bring the suit and who are entitled to share in any recovery; that the mother, Bertha, is the sole next of kin of the decedent under New York law and she was also found to be decedent's sole dependent by the New York Workmen's Compensation Board; that the cause of action for wrongful death passed to the insurer, Royal Indemnity Company, under section 29, subd. 2, of the New York Workmen's Compensation Law, because decedent's sole dependent (the mother, Bertha) received the compensation award and failed to bring an action against the defendant through the Administratrix until more than six months after the compensation award was made.
Before arriving at a conclusion as to what parts of the lex fori or the lex loci delicti apply to the facts in this case, it is necessary to consider a preliminary question. Did the Warsaw Convention itself create the cause of action for the wrongful death of Emery Komlos, a passenger on an international airplane flight?
Counsel for defendant, Air France, contends that the Warsaw Convention created a cause of action "ex contractu"; and that the law of Portugal, the place of the accident, has no application. Counsel for plaintiff Komlos denies that the Convention created a new right of action. He argues that plaintiff's action is based on a tort and that it is created under the lex loci delicti, the law of Portugal, and that Portugese law should be applied in determining who owns...
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