Doe v. Nevada Crossing, Inc.

• Decision Date: 21 March 1996
• Docket Number: No. 94-C-799 W.,94-C-799 W.
• Citation: 920 F. Supp. 164
• Parties: John DOE and Jane Doe, Plaintiffs, v. NEVADA CROSSING, INC., et al., Defendants.
• Court: U.S. District Court — District of Utah

920 F. Supp. 164

John DOE and Jane Doe, Plaintiffs, v. NEVADA CROSSING, INC., et al., Defendants.

No. 94-C-799 W.

United States District Court, D. Utah, Central Division.

March 21, 1996.

Rodney G. Snow, Neil A. Kaplan, Anneli R. Smith, Amanda D. Seeger, Clyde, Snow & Swenson, P.C., Salt Lake City, UT, for Plaintiffs.

Robert R. Wallace, Hanson, Epperson & Smith, P.C., Salt Lake City, UT, Gary B. Ferguson, Kurt M. Frankenburg, Williams & Hunt, Salt Lake City, UT, for Defendants.

MEMORANDUM AND ORDER

BOYCE, United States Magistrate Judge.

The plaintiffs, John and Jane Doe, sued the defendants alleging that plaintiffs sustained severe physical, mental, and emotional injuries when they were violently and abusively assaulted while in their hotel room in the Nevada Crossing Hotel in Wendover, Nevada. In their initial pleadings, the plaintiffs, who are husband and wife, made no claim for loss of consortium arising from the assault. The trial in this matter is scheduled to begin in a short time, April 14, 1996. The plaintiffs are residents of the State of Utah and have been married since 1983. The assault against plaintiffs took place just over the Utah line in the defendant hotel in Wendover, Nevada. Plaintiffs had gone to Wendover on a short excursion and, including the time of assault, they were in Nevada less than 24 hours. They were allegedly assaulted on February 24, 1994. The plaintiffs' suit was brought based on diversity jurisdiction (28 U.S.C. § 1332) on August 12, 1994. On January 17, 1996 plaintiffs moved to amend their complaint to allege loss of consortium.

The case has been referred to the magistrate judge under 28 U.S.C. § 636(b)(1)(B). A motion to amend a complaint is usually considered non-dispositive and may be ruled on finally by the magistrate judge under 28 U.S.C. § 636(b)(1)(A) subject to Rule 72(a) F.R.C.P. Pagano v. Frank, 983 F.2d 343 (1st Cir.1993); Sinclair Practice Before Federal Magistrates § 16.03 (1995); Martin v. Purina Mills, Inc., 143 F.R.D. 254 (D.Kan.1992). Under the rules of this court a matter referred to the magistrate judge under 28 U.S.C. § 636(b)(1)(B) also includes all matters properly considered under 28 U.S.C. § 636(b)(1)(A).

It is agreed by the parties that a cause of action for loss of consortium does not exist under Utah law. Cruz v. Wright, 765 P.2d 869 (Utah 1988); Hackford v. Utah Power and Light Co., 740 P.2d 1281, 1286-87 (Utah 1987). Also, Boucher v. Dixie Medical Center, 850 P.2d 1179 (Utah 1992) (no claim for loss of filial consortium). Nevada law does recognize a claim for loss of consortium. General Electric Co. v. Bush, 88 Nev. 360, 498 P.2d 366 (1972). Plaintiffs contend Nevada law should govern their claim for loss of consortium in this case. Defendants object and contend Utah law applies.

The instant action is based on diversity of citizenship under 28 U.S.C. § 1332. The law of the state of the forum, including the choice of law rules, governs suits in federal court based on diversity. Klaxon v. Stentor Elec. Mfg. Co., 313 U.S. 487, 495-96 (1941); Perlmutter v. United States Gypsum Co., 54 F.3d 659, 662 (10th Cir.1995); Shearson Lehman Bros. v. M & L Investments, 10 F.3d 1510, 1514 (10th Cir.1993); Tucker v. R.A. Hanson Co., 956 F.2d 215, 217 (10th Cir.1992); Snyder v. Celsius Energy Co., 866 F.Supp. 1349, 1352 (D.Utah 1994); Hercules v. Martin Marietta Corp., 143 F.R.D. 266, 267 (D.Utah 1992). Traditionally, at one point, Utah followed the rule that in tort suits lex loci delicti governed choice of law issues. Velasquez v. Greyhound Lines, 12 Utah 2d 379, 381-82, 366 P.2d 989 (Utah 1961); Bodrug v. United States, 832 F.2d 136, 137 (10th Cir.1987). However, it is now clear that Utah courts have adopted the most "significant relationship" standard for most choice of law issues. In Forsman v. Forsman, 779 P.2d 218, 219-20 (Utah 1989) the Utah Supreme Court held that the most significant relationship standard was applicable to intra familial torts, adopting Restatement (Second) Conflict of Laws § 145. Recently, in Records v. Briggs, 887 P.2d 864, 867 (Utah App.1994) the Utah Court of Appeals said the significant relationship test of Forsman, supra, applies to tort, contract, property interests and like litigation.

In Shaw v. Layton Const. Co., 872 P.2d 1059 (Utah App.1994) the court adopted a hybrid standard for related worker compensation and tort conflicts of law issues. The court noted a special state interest and expectation of parties interest in the determination of the applicable law. The standard is still based on an evaluation of the various state interests. The court found Utah law applied and Nevada had insufficient interest to apply its law. In a worker's compensation case and the relationship to a possible independent tort action, the issues are somewhat similar to the issue of the applicability of consortium as an separate claim for relief.

The Tenth Circuit has interpreted Utah choice of law rules as applying the significant relationship test to tort claims. Rocky Mountain Helicopters Inc. v. Bell Helicopter Textron, Inc., 24 F.3d 125, 129 (10th Cir. 1994); Sutton v. Young, 69 F.3d 548 (10th Cir.1995 unpublished, table), 1995 WL 643029 p. 11; see also Snyder v. Celsius, supra citing to Pacheco v. Hercules, Inc., 61 Fair Empl.Prac.Cases 825, 8 Indiv.Empl.Rights Case (BNA) 1146, 1993 WL 193200 (D.Utah 1993) (Greene J.). Consider Romaine v. Charter Medical Corp., 1995 WL 765398 (D.N.D.Tex.1995) (discussing Utah law). The same standard has been applied to contracts and allied litigation. Mountain Fuel Supply v. Reliance Ins. Co., 933 F.2d 882, 888 (10th Cir.1991) (contract); Anaconda Min. Co. v. Stoller Chem. Co., 773 F.Supp. 1498, 1503-04 (D.Utah 1991).

It must be concluded that in applying Utah choice of law rules to the issue of consortium, the Utah courts would apply a most significant relationship test. In Forsman v. Forsman, supra, the court was concerned with the family relationship which is akin to the consortium interest. The substance of a claim for loss of consortium is the injury or breach of the spousal relationship. Andrulonis v. United States, 724 F.Supp. 1421 (D.S.D.N.Y.1989) aff'd in part reversed in part, other grounds 924 F.2d 1210 (2d Cir.1991); Ward v. American Hawaii Cruises, 719 F.Supp. 915 (D.Haw.1988); Pierce v. Casas Adobes Baptist Church, 162 Ariz. 269, 782 P.2d 1162 (1989); 41 Am.Jur.2d, Husband and Wife, § 244; Prosser and Keeton, Torts, 5th Ed. p. 933 (1984). In applying the significant relationship standard for choice of law, Forsman adopted the multifactor analysis in the Restatement (Second) Conflict of Laws, § 145(2)(a)-(d).¹

The first factor is the place where the injury occurred. Nevada is where the assault occurred but Utah is where injury occurred because the loss of consortium took place in Utah not Nevada. Utah is where the damage to the relationship of plaintiffs was experienced. The second factor is the place where the conduct causing the injury occurred. That was Nevada. The vicious criminal assault against plaintiffs occurred in Wendover, Nevada a few miles from the Utah border. Third, is domicile, residence, and place of business and incorporation of the parties. Plaintiffs' residence and domicile is Utah. The defendants' place of residence and incorporation is Nevada. For the purposes of a claim of loss of consortium the residence and domicile of plaintiffs is the more relevant situs since it is the place of the consortium of plaintiffs. The fact that defendants' situs of business is Nevada is of no consequence to the consortium situs. Nevada's interests are non existent in the personal relationship between two Utah residents who are husband and wife living in Utah and where Utah is the most significant place of their interpersonal relationship. This is also supported by the fact that plaintiffs' presence in Nevada was for only a short period, less than a day. Finally, the last factor is where the relationship between the parties is centered. In this case, the center of relationship for the loss of consortium is in Utah. The defendants have no real interest in the plaintiffs' consortium nor does the State of Nevada. The relationship between plaintiffs and defendants was a limited one and the relationship for purposes of a consortium claim is different than the interest for the primary liability. Applying the multi factors of Forsman and § 145 of the Restatement (Second) Conflict of Laws the place of the most significant relationship of the parties as to consortium is Utah.

Plaintiffs make two significant arguments as to why the choice of law on the plaintiffs' consortium issue should be Nevada. First, it is asserted that Chief Judge Winder applied Nevada law to the issue of liability at the time of ruling on motions for summary judgment. However, Chief Judge Winder did not conclude Nevada law should apply based on the significant relationship standard, but merely observed that the parties had determined that Nevada law governed the substantive issues of liability. Parties may stipulate to the governing law with the approval of the court, e.g. Oklahoma Fixture Company v. Ask Computer Systems, 45 F.3d 380 (10th Cir.1995); Red Panther Chemical Co. v. Ins. Company of the State of Pa., 43 F.3d 514, 516 fn. 1 (10th Cir.1994); National Union Fire Insurance Co. of Pittsburgh v. Emhart Corp., 11 F.3d 1524, 1528 (10th Cir.1993). Chief Judge Winder did not rule with specificity and apply the "significant relationship" standard because choice of law was not contested. However, for the purposes of plaintiffs' proposed amended complaint, defendants object to the amendment and contend the issue of consortium requires determination of the significant relationship issue for a choice of law determination. Further, as will be shown, a consortium claim is a different issue than that of the underlying liability.

The above consideration raises plaintiffs' second point. Plaintiffs point out that the Resta...