Allison v. ITE Imperial Corp.

• Citation: 928 F.2d 137
• Decision Date: 26 March 1991
• Docket Number: No. 90-1132,90-1132
• Parties: Prod.Liab.Rep.(CCH)P 12,777 James Clayton ALLISON, Carolyn Allison and Tru-Amp Corporation, Plaintiffs-Appellants, and Insurance Company of North America, Intervenor-Appellant, v. ITE IMPERIAL CORPORATION, Gould, Ins., et al., Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 137

928 F.2d 137

Prod.Liab.Rep.(CCH)P 12,777

James Clayton ALLISON, Carolyn Allison and Tru-Amp

Corporation, Plaintiffs-Appellants, and Insurance Company of North America, Intervenor-Appellant, v. ITE IMPERIAL CORPORATION, Gould, Ins., et al., Defendants-Appellees.

No. 90-1132.

United States Court of Appeals, Fifth Circuit.

March 26, 1991.

Rehearing Denied May 24th, 1991.

James W. Nobles, Jr., Jackson, Miss., Malcolm McCune, Nashville, Tenn., Kellis L. Madison, Pearl, Miss., for plaintiffs-appellants.

Damon S. Gibson, Alben N. Hopkins, Hopkins, Dodson, Wyatt & Crawley, Gulfport, Miss., for intervenor-appellant.

Robert Miller, James A. Becker, Watkins & Eager, Jackson, Miss., for defendants-appellees.

Appeals from the United States District Court for the Southern District of Mississippi.

Before RUBIN, SMITH, and BARKSDALE, Circuit Judges.

BARKSDALE, Circuit Judge:

Plaintiffs, James and Carolyn Allison and Tru-Amp Corporation (Tru-Amp), and intervenor, Insurance Company of North America (INA), appeal the district court's summary judgment that Tennessee substantive law (statute of repose) applies to this products liability action, thereby barring their claims. We AFFIRM.

I.

James Allison, a Mississippi resident, was employed by Tru-Amp, a Mississippi corporation. In the course of his employment, Allison was sent to Brentwood, Tennessee, in 1988 to inspect, clean, and test switch equipment at a South Central Bell (Bell) facility, pursuant to a July 1986 contract between Bell and Tru-Amp. After Allison had been working in Brentwood for five days, he and a fellow employee attempted to remove a circuit breaker from a bank of breakers. During the removal, a part fell off the breaker, causing an explosion and electrical fire, by which Allison was injured and the Bell premises damaged.

The switchboard and circuit breakers, manufactured in Pennsylvania by ITE Imperial Corp. (ITE), a Pennsylvania corporation, had been sold to a company in Nashville, Tennessee, pursuant to a purchase order dated June 6, 1975. They were installed at the Brentwood facility before September 21, 1976. ITE was subsequently acquired by Gould, Inc., a Delaware corporation owned by Nippon Mining U.S., a division of the Japanese company.

After Allison, his wife Carolyn Allison, and Tru-Amp filed suit in Mississippi state court against ITE and Gould, this action was removed to the district court on the basis of diversity jurisdiction. The Allisons asserted claims for personal injury and loss of consortium based on negligence and strict liability; Tru-Amp asserted a subrogation claim for its indemnification of Bell for property repair and lost revenues; and INA intervened, asserting a subrogation claim for payment of worker's compensation benefits to Allison.

The district court granted summary judgment for the defendants, holding, as discussed infra, (1) that Tennessee, not Mississippi, law applied and (2) that the statute of repose found in Tennessee's Products Liability Act, Tenn.Code Ann. Sec. 29-28-103 (Supp.1989) (product liability actions against manufacturers must be brought within ten years from the date on which the product was first purchased for use or consumption) barred the action. Allison v. ITE Imperial Corp., 729 F.Supp. 45 (S.D.Miss.1990). Appellants timely appealed.

II.

The material facts are not in dispute. Appellants contend that Mississippi, rather than Tennessee, law applies and that accordingly, their suit is not barred. "Summary judgment is proper when, viewed in the light most favorable to the non-moving party, 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact' " and that the movant is entitled to judgment as a matter of law. Smith v. Xerox Corp., 866 F.2d 135, 137 (5th Cir.1989) (quotation omitted); Fed.R.Civ.P. 56(c). We apply the same standard, de novo, on appeal. Trial v. Atchison, Topeka & Santa Fe R.R., 896 F.2d 120, 122 (5th Cir.1990); see also Walls v. General Motors, Inc., 906 F.2d 143, 145-46 (5th Cir.1990) (reviewing grant of summary judgment on choice of law under the Mississippi "center of gravity" test).

Needless to say, a federal court in a diversity case must apply the choice of law rules of the State in which it sits. Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938); Klaxon Co. v. Stentor Electric Mfg. Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941). And, as recently held by the United States Supreme Court, we "review de novo a district court's determination of state law." Salve Regina College v. Russell, --- U.S. ----, ----, 111 S.Ct. 1217, 1221, 113 L.Ed.2d 190 (1991). ¹

Although prior to 1968, Mississippi applied the law of the place of injury to tort actions, Mississippi in the oft-discussed Mitchell v. Craft, 211 So.2d 509, 515-16 (Miss.1968), adopted the "center of gravity" or "most significant relationship" test, relying in large part upon the then official draft of the Restatement (Second) Conflict of Laws. Mitchell arose out of a two-car collision in Louisiana, involving Mississippi residents and resulting in two wrongful death actions in Mississippi state court, in which each party pleaded contributory negligence. Mississippi's comparative negligence statute would not bar an injured, but negligent, party's recovery; but Louisiana's common-law doctrine of contributory negligence would. Accordingly, a threshold issue was which State's law applied.

Prior to citing the Restatement, the Mitchell court stated the following, which has generated some confusion about the holding in Mitchell, as discussed infra, including note 4:

We will assume that a case is to be governed by the law of the forum unless it is expressly shown that a different law applies, and in case of doubt, a court will naturally prefer the laws of its own state. Moreover, a forum state will not favor application of a rule of law repugnant to its own purposes, and forum law should presumptively apply unless it appears that the non-forum contacts are of greater significance.

Id. at 512 (emphasis added). In reaching its subsequent holding, the Mississippi Supreme Court first stated that the Restatement "summarizes the rules which we think are applicable to this case" and quoted Secs. 175 ("Right of Action for Death"), 145 ("The General Principle"), 164 ("Contributory Fault") and 6 ("Choice of Law Principles"):

Sec. 175. Right of Action for Death.

In an action for wrongful death, the local law of the state where the injury occurred determines the rights and liabilities of the parties unless, with respect to the particular issue, some other state has a more significant relationship to the occurrence and the parties, in which event the local law of the other state will be applied.

Sec. 145. The General Principle.

(1) The rights and liabilities of the parties with respect to an issue in tort are determined by the local law of the state which, as to that issue, has the most significant relationship to the occurrence and the parties under the principles stated in Sec. 6.

(2) Contacts to be taken into account in applying the principles of Sec. 6 to determine the law applicable to an issue include:

(a) the place where the injury occurred,

(b) the place where the conduct causing the injury occurred,

(c) the domicile, residence, nationality, place of incorporation and place of business of the parties, and

(d) the place where the relationship, if any, between the parties is centered.

These contacts are to be evaluated according to their relative importance with respect to the particular issue.

Sec. 164. Contributory Fault.

(1) The law selected by application of the rule of Sec. 145 [the same as Sec. 175] determines whether contributory fault on the part of the plaintiff precludes his recovery in whole or in part.

(2) The applicable law will usually be the local law of the state where the injury occurred.

Sec. 6. Choice of Law Principles.

(1) A court, subject to constitutional restrictions, will follow a statutory directive

of its own state on choice of law.

(2) When there is no such directive, the factors relevant to the choice of the applicable rule of law include

(a) the needs of the interstate and international systems,

(b) the relevant policies of the forum,

(c) the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue,

(d) the protection of justified expectations,

(e) the basic policies underlying the particular field of law,

(f) certainty, predictability and uniformity of result, and

(g) ease in the determination and application of the law to be applied.

Id. at 515-516 (emphasis and brackets by the court).

Based upon these sections, the court held:

Ordinarily, the local law of a state where the injury occurred will determine the rights and liabilities of the parties, "unless with respect to the particular issue, some other state has a more significant relationship to the occurrence and the parties, in which event the local law of the other state will be applied."

211 So.2d at 516 (quoting Sec. 175, addressing wrongful death actions) (emphasis by court). And, for the claims in Mitchell, the court next held that Mississippi law applied, because it had "the most substantial relationship to the parties." Id. at 516. ²

Pursuant to Mitchell and its progeny, and primarily basing its decision on a discussion of the factors in Sec. 145, the district court here concluded that the law of Tennessee applied. It found that (1) the injury occurred in Tennessee; (2) the conduct causing injury occurred where the breaker was manufactured--Pennsylvania; (3) the plaintiffs were Mississippi residents, defendant Gould was a Delaware corporation with its principal place of business in Illinois, and its predecessor in interest, ITE, was domiciled in Pennsylvania; and (4) although there was no...