Burgio v. McDonnell Douglas, Inc.

• Decision Date: 28 September 1990
• Docket Number: No. 88 C 3092.,88 C 3092.
• Citation: 747 F. Supp. 865
• Parties: Ann M. BURGIO, as Administratrix of the Estate of Joseph M. Burgio, deceased, and Ann M. Burgio, individually, Plaintiffs, v. McDONNELL DOUGLAS INC., individually and d/b/a Douglas Aircraft, Inc. and Douglas Aircraft, Inc., Defendants.
• Court: U.S. District Court — Eastern District of New York

747 F. Supp. 865

Ann M. BURGIO, as Administratrix of the Estate of Joseph M. Burgio, deceased, and Ann M. Burgio, individually, Plaintiffs, v. McDONNELL DOUGLAS INC., individually and d/b/a Douglas Aircraft, Inc. and Douglas Aircraft, Inc., Defendants.

No. 88 C 3092.

United States District Court, E.D. New York.

September 28, 1990.

Law Offices of Leonard L. Finz, P.C. (Joseph Lichtenstein, of counsel), New York City, for plaintiffs.

Bryan Cave McPheeters & McRoberts (Robert Dwyer, Steven R. Haffner, Andreas F. Lowenfeld, Linda J. Silberman, of counsel), New York City, for defendants.

MEMORANDUM AND ORDER

NICKERSON, District Judge:

This action arises out of an airplane accident on September 17, 1987 at Barksdale Air Base in Louisiana which resulted in the death of Sgt. Joseph M. Burgio. On September 16, 1988, Sgt. Burgio's widow, Ann M. Burgio, suing under letters of administration issued in Suffolk County, New York, as executrix of his estate and in her individual capacity, brought this wrongful death action in the Supreme Court of the State of New York against defendants McDonnell Douglas, Inc., a Maryland corporation with a principal place of business in Missouri, and Douglas Aircraft, Inc., a division of McDonnell Douglas, Inc. located in California. Defendants removed the case to federal court. The parties stipulated that defendants would not contest liability, thereby leaving at issue only damages.

Defendants have moved for an order in limine determining which state's law should apply to the issue of damages. They argue that the court should look first to Louisiana choice of law rules, and that these dictate application of New York internal law. Plaintiff contends that the court should look only to Louisiana's internal law of damages.

Unlike New York, Louisiana allows damages for loss of consortium and for emotional grief or psychological injury, and does not require that collateral benefits received by plaintiff on account of the death be deducted from any judgment.

I.

A.

The facts regarding the couple's domicile and where plaintiff now lives are not in dispute. Plaintiff and the decedent were married in New York on July 8, 1982, shortly after the decedent's enlistment in the United States Air Force. Both were then residents of New York. Shortly after being married, the two moved to live near the Spangdahlem Air Base in West Germany where the decedent was stationed. They lived there from 1982 until 1985, at which point decedent was assigned to Barksdale Air Base in Louisiana, to which they moved. They lived there until decedent's death in 1987. Plaintiff then left Louisiana and returned to New York where her parents and the decedents' parents live and where she obtained letters of administration.

B.

The parties agree that since the airplane accident occurred on a federal military base, this wrongful death action is controlled by the Federal Reservations Act (the Act), Act of February 1, 1928, 45 Stat. 54 (codified at 16 U.S.C. § 457 (1988)), which states that

In the case of the death of any person by the neglect or wrongful act of another within a national park or other place subject to the exclusive jurisdiction of the United States, within the exterior boundaries of any State, such right of action shall exist as though the place were under the jurisdiction of the State within whose exterior boundaries such place may be; and in any action brought to recover on account of injuries sustained in any such place the rights of the parties shall be governed by the laws of the State within the exterior boundaries of which it may be.

The principal purpose of this Act was evidently to make wrongful death statutes, which by 1928 had been enacted in all of the states, applicable to federal enclaves where the common law bar against wrongful death actions still controlled. Admittedly the Act requires the court to apply Louisiana state law to plaintiff's wrongful death claim. The parties dispute whether the statute incorporates the whole law of Louisiana, including its choice of law rules, as defendants urge, or only the internal law of Louisiana, as plaintiffs contend. In the alternative, each party proposes various other approaches, including federal choice of law and New York choice of law rules.

II.

A.

The court will address first whether the Act in providing that the action "shall be governed by the laws" of the state where the accident occurred, here Louisiana, requires the court to apply that state's choice of law rules.

The only two courts that have directly considered the choice of law implications of the Act have reached different conclusions. See Quadrini v. Sikorsky Aircraft, 425 F.Supp. 81 (D.Conn.1977); Jenkins v. Whittaker, 785 F.2d 720 (9th Cir.1986).

In Quadrini, the court held that the Act requires the incorporation of neither the adjacent state's whole law nor its internal law, but leaves federal courts free to apply their own choice of law rules. Id. at 87. The court said that the first clause of the Act looks to the adjacent state's law to "remove the common law bar to the existence of a right of action for wrongful death," id. at 87, while the second clause looks to the state's "law to determine ... which persons possessed the right created in clause one." Id.

The court held that it must resolve all other issues, including choice of law determinations, without reference to the law of the surrounding state. In the words of the court, the Act in "§ 457 should be construed narrowly so as to provide no reference to state law, as a matter of federal law, for deciding issues of liability, nor to contain any implication as to applicable choice of law rules." Id.

The court therefore applied federal choice of law rules, interpreting them as governed by the most significant relationship test of the Second Restatement, to determine the applicable state law. Id. at 88 & n. 2. Furthermore, the court concluded that that state law should be the law at the time the federal enclave was created, as opposed to that in effect when the claim arose. Id. at 88.

In Vasina v. Grumman Corp., 644 F.2d 112 (2d Cir.1981), aff'g 492 F.Supp. 943 (E.D.N.Y.1980), the Court of Appeals for the Second Circuit rejected the final conclusion in Quadrini, saying

We decline to make Quadrini the law of this circuit on this point. If the authors of § 457 had had only the narrow purpose ascribed to them in Quadrini, we think that they would have drawn the statute itself more narrowly. The plain language of the provision as drafted, and its later judicial construction, lead us to conclude that § 457 envisions the application of the current substantive law of the surrounding state in actions for death or personal injury occurring within a federal enclave.

Id. at 117-18. Although Vasina did not consider the choice of law implications of the Act, dicta in the Second Circuit's opinion casts serious doubt on Quadrini's narrow reading of the Act. The court held that "the natural reading of the statutory language is that the wrongful-death law of a federal enclave should be identical to that of the surrounding state, whatever that law might be and however it might change over time." Id. at 117. This court, in its own opinion in Vasina, said that

The ordinary meaning of the words used in Section 457 suggests that the purpose of the first sentence was to make the law applicable to wrongful death actions on federal lands consistent with the law applied in the state surrounding the federal lands, while the second sentence was intended to adopt the state law applicable to personal injury actions generally.

492 F.Supp. at 945.

The legislative history of the Act offers no indication that the court should read the Act narrowly. When it reached the floor of the Senate, two Senators engaged in a colloquy to explain its purpose. When Senator Robinson of Arkansas asked for an explanation of the bill, Senator Walsh of Montana responded that the bill was intended to make Lord Campbell's Act apply to places within the exclusive jurisdiction of the United States, and that practically every state had by statute changed what had been the common law to give a right of action to the representatives of a decedent who died as a result of a wrongful act. 69 Cong.Rec. 1486 (1928). He explained that a decedent's representatives had no such right if the Act occurred on federal property. Id. The bill, he said, would make state law applicable "so that if under the law of Arkansas a right of recovery could be had if the death occurred outside of the national park, the same right of action would exist if it occurred in the national park." Id.

This court finds nothing in the legislative history that indicates that it should read the broad language of the Act narrowly. Its purpose appears to be to create a uniformity between the law to be applied in the federal enclave and that applied in the adjacent state. Vasina, 644 F.2d at 117.

As noted above, the only other court to have considered the choice of law issues in the Act has been the Ninth Circuit in Jenkins v. Whittaker, 785 F.2d 720, 724 n. 6 (9th Cir.1986), which held without discussion that the Act requires application of the whole law of the state adjacent to the federal enclave. For the reasons discussed below, this court chooses to adopt the approach of the Ninth Circuit.

B.

Neither the language nor the legislative history of the Act offers any explicit help in deciding whether the adjacent state's whole law or only its internal law should apply. Since probably all of the states in 1928 applied the same choice of law rule for torts, that is, the place of the tort, it is likely that the legislators did not consider the issue.

Prior to the enactment of the Act, the rule of lex loci required that any accident occurring on federal lands be adjudicated according to federal common law rules that did not permit recovery for wrongful death. It does not follow that an Act seeking to correct...