Simon v. US

• Decision Date: 30 March 2004
• Docket Number: No. 94S00-0308-CQ-377.,94S00-0308-CQ-377.
• Citation: 805 N.E.2d 798
• Parties: Louis SIMON, et al., Appellants (Plaintiffs below), v. UNITED STATES, Appellee (Defendant below). John Fare, Appellant (Cross-Plaintiff below), v. United States, Appellee (Cross-Defendant below).
• Court: Indiana Supreme Court

805 N.E.2d 798

Louis SIMON, et al., Appellants (Plaintiffs below), v. UNITED STATES, Appellee (Defendant below).

John Fare, Appellant (Cross-Plaintiff below), v. United States, Appellee (Cross-Defendant below).

No. 94S00-0308-CQ-377.

Supreme Court of Indiana.

March 30, 2004.

Karl Mulvaney, Nana Quay-Smith, Indianapolis, IN, Joel S. Perwin, Michael S. Olin, Miami, FL, Arthur Raynes, Stephen Raynes, Philadelphia, PA, Joseph Lamonaca, Chadds Ford, PA, Attorneys for Appellants.

Peter D. Kiesler, Assistant Attorney General, Jeffrey S. Bucholtz, Deputy Assistant Attorney General, Susan W. Brooks, United States Attorney, Thomas E. Kieper, Assistant United States Attorney, Terence M. Healy, Rodney Patton, United States Department of Justice, Washington, District of Columbia, Attorneys for Appellee. SHEPARD, Chief Justice.

The U.S. Court of Appeals for the Third Circuit has certified two questions regarding Indiana's choice-of-law rules. We hold that there is a true conflict between the choice of law rules of Indiana and the District of Columbia because Indiana does not engage in dépeçage and has not adopted the policy analysis component of the Restatement (Second) of Conflict of Laws approach. In so saying, we restate the Indiana choice of law analysis outlined in Hubbard Manufacturing Co. v. Greeson, 515 N.E.2d 1071 (Ind.1987).

Statement of Facts

This case involves a wrongful death suit brought against the United States by the estates of individuals killed in the crash of a small private aircraft. The flight began in Pennsylvania, included an overnight stop in Ohio, and ended in Kentucky while attempting to land at the Somerset Airport. The plane never flew through Indiana airspace. Two of the passengers lived in Pennsylvania and one lived in Georgia; the pilot lived in New Jersey but worked in Pennsylvania. The plane was owned by a Delaware-based, wholly-owned subsidiary of a company incorporated in Pennsylvania, where the plane was hangared.

Relying on a chart published by the Federal Aviation Administration in Washington, D.C., the pilot sought clearance to complete a Simplified Directional Facility (SDF) approach due to the poor weather conditions. FAA air traffic controllers based at Indianapolis cleared the approach despite the fact that the instrumentation required for the landing at Somerset Airport had not been operational for several years. While attempting to land, the plane struck a radio tower and crashed.

Plaintiffs filed four wrongful death complaints in the U.S. District Court for the Eastern District of Pennsylvania against the United States under the Federal Tort Claims Act (FTCA). They alleged (1) negligence in the publication at Washington of a chart incorrectly showing that a long-inactive instrument landing approach at the airport was active; and (2) the negligence of Indiana-based air traffic controllers in clearing the pilot for an approach that was out of service, neglecting to monitor the radar during the flight's landing approach, failing to alert the pilot that he was in peril of striking an obstacle, and failing to respond to the pilot's last-minute radio communications. (App. at 52-57).

Of these cases, two have settled. The remaining two, which were brought on behalf of the pilot and one of the passengers from Pennsylvania, are the subject of an interlocutory appeal to the Third Circuit. To facilitate its resolution of that appeal, the Third Circuit certified the following questions to us:

1.) Whether a true conflict of law exists between Indiana's and the District of Columbia's choice-of-law rules; and

2.) If a true conflict exists and Indiana's choice-of-law rules therefore control per the "last significant act" test, how should a split among the choice-of-law factors identified in Hubbard Manufacturing Co., Inc. v. Greeson, 515 N.E.2d 1071 (Ind.1987), be resolved in choosing a jurisdiction's substantive law when one factor points toward Indiana, another toward Pennsylvania, and the third is indeterminate, and which jurisdiction's substantive law would Indiana apply under the facts of this case?

Simon v. United States, 794 N.E.2d 1087 (Ind.2003). We accepted the certification pursuant to Appellate Rule 64.

I. Does a true conflict exist between the choice-of-law rules of Indiana and the District of Columbia?

Under the FTCA, a court should apply the whole law, including choice-of-law rules, of the place where the acts of negligence occurred. 28 U.S.C. §§ 1346(b), 2674; Richards v. United States, 369 U.S. 1, 82 S.Ct. 585, 7 L.Ed.2d 492 (1962). In this case, acts of negligence occurred in both Indiana and D.C. The Third Circuit held that if there is a true conflict between the choice-of-law rules of the two jurisdictions, it will apply the law of the place where the last significant act or omission occurred, in this case Indiana. Simon v. United States, 341 F.3d 193, 203-04 (3rd Cir.2003). The first certified question asks whether such a conflict exists. The Third Circuit identified two areas of potential conflict: (1) the use of dépeçage and (2) the role of policy. We conclude that a true conflict exists between the rules of the two jurisdictions.

A. Dépeçage

Dépeçage is the process of analyzing different issues within the same case separately under the laws of different states. Although Indiana allows different claims to be analyzed separately, it does not allow issues within those counts to be analyzed separately. For example, an Indiana court might analyze a contract claim and a tort claim independently but would not separately analyze and apply the law of different jurisdictions to issues within each claim. Dépeçage has not been part of Indiana's lexicon.¹

Under our history as a lex loci delecti state, Indiana courts applied the law of the state in which the tort was committed. Hubbard Manufacturing Co. v. Greeson, 515 N.E.2d 1071, 1073 (Ind.1987). Courts did not consider whether the law of a different state might be more relevant to the claim, much less to individual issues within the claim. Plaintiffs argue that our liberalization of the lex loci rule in Hubbard implicitly adopted dépeçage. (Appellants Br. 24-25.) They say that because the opinion employs language similar to that used in the Restatement (Second) of Conflict of Laws and cites the Restatement for factors courts might consider when the place of the tort is insignificant, Hubbard must have also adopted the Restatement's use of dépeçage. Id.

This argument is unpersuasive. First, our opinion in Hubbard made it clear that the Second Restatement factors listed in Hubbard were mere examples of factors that courts might consider. We cited the Restatement as the source of the listed contacts, but the list was not an exclusive one. We did not adopt the Restatement's approach to resolving conflicts. Second, the Hubbard language relied on by plaintiffs, though similar to the language used in the Restatement, does not amount to an adoption of dépeçage, a matter not even contemplated in the resolution of that appeal. The language at issue is the Court's instruction that "[t]hese factors should be evaluated according to their relative importance to the particular issues being litigated." Hubbard, 515 N.E.2d at 1074. Read alone or in the context of the opinion, the statement recognizes that the relevance of the various factors will vary from case to case due to the particular issues being litigated and instructs courts to analyze the factors according to their relative importance. It does not suggest that a court apply different law to individual issues. Any ambiguity is easily eliminated by the Court's application of the test to the facts of Hubbard: the Court applied the factors to the wrongful death action and found that Indiana law applied; it did not make separate determinations for individual issues within the action.²

Moreover, because Indiana is still primarily a lex loci state and lex loci analysis does not allow for the application of dépeçage, most cases necessarily would not deploy dépeçage. It would be illogical, therefore, to incorporate it into the second step of the Hubbard analysis.

On the simple merits of dépeçage as a judicial technique, we find ourselves unimpressed. By making separate determinations for each issue within a claim, the process amalgamates the laws of different states, producing a hybrid that may not exist in any state. This is a problem for several reasons. First, legislatures "may enact a given law only because of its expected interaction with a complementary law." Erin A. O'Hara & Larry E. Ribstein, From Politics To Efficiency In Choice-Of-Law, 67 U. Chi. L.Rev. 1151, 1193 (2000). For example, a legislature may allow recovery for certain injuries or impose a low standard of proof for liability but place a cap on the damages that might be recovered or adopt immunities for certain potential defendants. Id. Consequently, applying the law outside the context of the other laws in the jurisdiction may contravene legislative intent. In addition, applying a law in isolation increases the likelihood that its purpose and importance will be misconstrued, thereby thwarting state policy. William H. Allen & Erin A. O'Hara, Second Generation Law And Economics Of Conflict Of Laws: Baxter's Comparative Impairment And Beyond, 51 Stan. L.Rev. 1011, 1033 (1999). Ultimately, by applying dépeçage a court may hinder the policy of one or more states without furthering the considered policy of any state.

Dépeçage may also produce unfair results because the hybrid law may be more favorable to one party than another, allowing a result that could not be reached if the laws of any one state were applied. As Brainerd Currie said, a party "should not be allowed to put `together half a donkey and half a camel, and then ride to victory on the synthetic hybrid.'" Christopher G. Stevenson, Depecage: Embracing Complexity to Solve Choice-of-Law Issues, Note, 37 Ind. L.Rev. 303, 320 (2003) (quoting ...