Barnette v. Butler Aviation Intern., Inc.
| Decision Date | 28 January 1977 |
| Citation | 391 N.Y.S.2d 348,89 Misc.2d 350 |
| Parties | Doris M. BARNETTE, as Executrix of the Estate of Fred E. Barnette, Plaintiff, v. BUTLER AVIATION INTERNATIONAL, INC., et al., Defendants. |
| Court | New York Supreme Court |
Speiser & Krause, Paul D. Rheingold, New York City, for plaintiff.
Mendes & Mount, New York City, for Butler Aviation-Miami & Air International.
Haight, Gardner, Poor & Havens, New York City, for Butler Aviation International, Inc. & Butler International, Inc.
In this action for wrongful death and for personal injuries sustained by decedent, defendants Butler Aviation-Miami, Inc., and Air International, Inc., move to dismiss the complaint on the ground that the applicable periods of limitation have expired. (CPLR 3211(a), par. 5.)
Plaintiff alleges that decedent, Fred E. Barnette, a member of the United States Armed Forces, was killed on April 26, 1967 while aboard a United States military aircraft when it crashed in Vietnam. Plaintiff further alleges that the fatal crash was caused by the tortious assembly, repair and inspection of said aircraft by defendants in 1966 or 1967.
In a decision dated August 2, 1976, the court indicated that of the jurisdictions involved in this action, Vietnam has the most significant relationship with the issue of compensation for the injuries and death sustained by decedent. The court held the instant motion in abeyance pending submission of information on whether Vietnamese law considered the relevant periods of limitation as substantive or procedural in nature.
On further consideration the court withdraws its finding that Vietnamese substantive law is applicable. In light of the belligerent circumstances under which decedent and his aircraft were present in Vietnam, it is unlikely that the present government of that country would have a significant state interest in affording a remedy to compensate for injuries suffered an American serviceman. (Miller v. Miller, 22 N.Y.2d 12, 290 N.Y.S.2d 734, 237 N.E.2d 877; Farber v. Smolack, 20 N.Y.2d 198, 282 N.Y.S.2d 248, 229 N.E.2d 36; Long v. Pan Amer. World Airways, 16 N.Y.2d 337, 266 N.Y.S.2d 513, 213 N.E.2d 796; Babcock v. Jackson, 12 N.Y.2d 473, 240 N.Y.S.2d 743, 191 N.E.2d 279.)
Without determining at this juncture which jurisdiction does have the predominate state interest in assessing liability here, the court notes that the applicable statutes of limitation have expired in New Jersey, Florida and New York, the possible choice of law jurisdictions. In any event, periods of limitation for wrongful death and personal injury are generally deemed procedural in this country. (See, e.g., Chartener v. Kice, D.C., 270 F.Supp. 432.) Therefore, the law of the forum state, in this case New York, would apply. (Chartener v. Kice, supra; Schwertfeger v. Scandinavian Am. Line, 186 App.Div. 89, 174 N.Y.S. 147, affd., 226 N.Y. 696, 123 N.E. 888; cf. Gatti Paper Stock Corp. v. Erie R.R. Co., 247 App.Div. 45, 286 N.Y.S. 669, affd., 272 N.Y. 535, 4 N.E.2d 724.)
Both New York's two-year period of limitation for wrongful death (EPTL 5--4.1) and the three-year period for personal injury actions (CPLR 214) have expired. Thus, the causes of action stated in the complaint are time barred. (CPLR 202.)
The question remains, however, whether the claims of the infants for whose benefit the wrongful death action is being brought are preserved by the provisions of New York's tolling statute. (CPLR 208.)
CPLR 208 provides that the period of limitation shall be tolled during the infancy of a 'person entitled to commence an action'. Section 5--4.1 of the Estates, Powers and Trusts Law gives the personal representative of a decedent the right to maintain an action for wrongful death. While a decedent's infant children may be the beneficiaries of a wrongful death claim, they are not entitled to bring the action directly. Therefore, the infancy of said children will not toll the period of limitation for a wrongful death action under said section. (Mossip v. F. H. Clement & Co., 256 App.Div. 469, 10 N.Y.S.2d 592, affd., 283 N.Y. 554, 27 N.E.2d 279.)
Accordingly, no statutory remedy exists to enforce the infants' claim in New York. The further question remains whether the infants have a common-law cause of action for wrongful death.
In Moragne v. States Marine Lines, 398 U.S. 375, 90 S.Ct. 1772, 26 L.Ed.2d 339, the Supreme Court, reviewing the history of wrongful death actions, concluded that in addition to whatever statutory remedies might be available, a common-law cause of action for wrongful death will lie for death caused by violation of maritime duties. (See, also, Sea-Land Svces. v. Gaudet, 414 U.S. 573, 94 S.Ct. 806, 39 L.Ed.2d 9.) In reaching its decision the court expressly overruled The Harrisburg, 119 U.S. 199, 7 S.Ct. 140, 30 L.Ed. 358, decided 85 years earlier, wherein the court had found that in the absence of statute there is no action for wrongful death.
In Gaudette v. Webb, 362 Mass. 60, 284 N.E.2d 222, the Supreme Judicial Court of Massachusetts concluded that the principles of Moragne were logically applicable with equal force to nonmaritime actions.
Gaudette involved a situation similar to that presented in the instant case. Like New York, Massachusetts' wrongful death statute provides that an action can be brought only 'by the executor or administrator of the deceased'. (Mass.Gen.Laws, ch. 229, § 2.) An action was brought by the decedent's widow as administratrix, but after the period of limitation had expired. A motion was made to dismiss the complaint. Decedent's infant children claimed the benefit of section 7 of chapter 260 of the Massachusetts General Laws which tolls the period of limitation where the person entitled to bring an action is a minor.
In evaluating this question, the court in Gaudette conceded that if...
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