Evans v. Hawker-Siddeley Aviation, Ltd., 79 Civ. 1855 (KTD).

• Decision Date: 13 December 1979
• Docket Number: No. 79 Civ. 1855 (KTD).,79 Civ. 1855 (KTD).
• Citation: 482 F. Supp. 547
• Parties: Deborah Richardson EVANS, Individually and as personal representative of the Estate of T. J. Evans, deceased, and as Natural Tutrix of the Estate of the Minor Child Thomas David Evans, Plaintiff, v. HAWKER-SIDDELEY AVIATION, LTD.; Rolls-Royce, Ltd.; the Marston-Green Division of Lucas Aerospace, Ltd.; Normalair-Garrett, Ltd.; Fairey-Britain Norman, Ltd.; Page Engineering Co., Ltd.; Smith's Industries Ltd.; Ferranti, Ltd.; Elliott Electronic Systems, Ltd.; Clare Elliott Limited; and Stencel Aero Engineering Corp., Defendants.
• Court: U.S. District Court — Southern District of New York

482 F. Supp. 547

Deborah Richardson EVANS, Individually and as personal representative of the Estate of T. J. Evans, deceased, and as Natural Tutrix of the Estate of the Minor Child Thomas David Evans, Plaintiff, v. HAWKER-SIDDELEY AVIATION, LTD.; Rolls-Royce, Ltd.; the Marston-Green Division of Lucas Aerospace, Ltd.; Normalair-Garrett, Ltd.; Fairey-Britain Norman, Ltd.; Page Engineering Co., Ltd.; Smith's Industries Ltd.; Ferranti, Ltd.; Elliott Electronic Systems, Ltd.; Clare Elliott Limited; and Stencel Aero Engineering Corp., Defendants.

No. 79 Civ. 1855 (KTD).

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

December 13, 1979.

Due, Dodson & deGravelles, Baton Rouge, La., for plaintiff; Chester John Caskey, Baton Rouge, La., Harvey F. Gerber, Jr., New York City, of counsel.

Condon & Forsyth, New York City, for defendant Fairey-Britton Norman, Ltd.; George N. Tompkins, Jr., Thomas J. Whalen, Stephen R. Stegich III, Joseph G. DeRespino, New York City, of counsel.

Mendes & Mount, New York City, for defendant British Aerospace, Ltd.; James J. Finnerty, Jr., New York City, of counsel.

Townley & Updike, New York City, for defendant Ferranti, Limited; John C. Sabetta, New York City, of counsel.

Kirtland & Packard, Los Angeles, Cal., for defendant Clare Elliott Limited; John M. Downing, New York City, of counsel.

OPINION

KEVIN THOMAS DUFFY, District Judge:

On April 6, 1977, First Lieutenant T. J. Evans, United States Marine Corps, was killed when the AV-8A "Harrier" aircraft he was piloting crashed in Beaufort, South Carolina. The crash was attributed to mechanical difficulties which apparently caused him to lose control of the plane. Plaintiff is decedent's widow, Deborah Richardson Evans who individually, as personal representative of the estate of decedent T. J. Evans, and as natural tutrix of the estate of their minor child, Thomas David Evans, has brought this wrongful death action against the eleven named defendants. Plaintiff and her son are domiciled in and are residents of the State of Florida.¹

Alleging her own as well as her son's dependence on the decedent for support, companionship and sustenance, plaintiff demands $3,805,000 in compensatory and $1,000,000 in punitive damages plus interests and costs. Jurisdiction in this case is based on diversity of citizenship.

All of the defendants are foreign corporations alleged by the complaint to be doing substantial and regular business within New York State and amenable to service of process there through various agents. With the exception of Stencel Aero Engineering Corporation, which is incorporated in North Carolina, all other defendants are incorporated pursuant to the laws of Great Britain.

Hawker-Siddeley Aviation, Ltd. hereinafter referred to as "Hawker-Siddeley" is alleged to have been engaged in the manufacture and marketing of the AV-8A "Harrier" aircraft. All other defendants are engaged in the manufacture and marketing of various component parts of that aircraft.

Plaintiff avers that all defendants were negligent in designing, manufacturing, and assembling their respective products and that each breached its warranty that its product was free from defects and reasonably suited for the purposes, both express and implied, for which it was intended. Further, plaintiff alleges that all defendants are strictly liable for placing defective and unreasonably dangerous products in the stream of commerce. Under all three theories, plaintiff claims that these defective products were the proximate cause of decedent's death for which each defendant is jointly and severally liable.

Four of the eleven defendants—Hawker-Siddeley, Fairey-Britton Norman, Ltd. sued incorrectly as Fairey-Britain Norman, Ltd. and hereinafter referred to as "FBN", Ferranti, Ltd. and Clare Elliott Limited — have moved for an order dismissing the complaint. Hawker-Siddeley's grounds for this motion are (a) failure to state a cause of action by failing to allege in the complaint any common law theory or statutory provision upon which this wrongful death claim is based, (b) expiration of the applicable statute of limitations and (c) lack of personal jurisdiction over Hawker-Siddeley. This defendant further argues that the punitive damages claim and the separate causes of action for damages by individual heirs are improper under New York State law and should be stricken.

Defendants FBN and Ferranti have moved pursuant to Fed.R.Civ.P. 12 to dismiss the complaint on the ground that the action is barred by the applicable statute of limitations or, in the alternative, on grounds that this Court lacks personal jurisdiction over them and service of process was insufficient. Jurisdiction is questioned on the grounds that the foreign corporations are not doing business in New York State and that service on an alleged affiliate is without effect.

Plaintiff requests an opportunity to pursue discovery regarding jurisdiction and service of process before I decide the motion based upon those grounds. Since I find that, in any event, the instant lawsuit is barred by the applicable statute of limitations, I need not reach plaintiff's arguments with respect to discovery on the jurisdiction and service issues.

Defendant Clare Elliott has moved for an order granting summary judgment on the ground that the action is barred by the applicable statute of limitations.

It is well settled law that federal courts in diversity cases will apply state statutes of limitation despite the fact that such statutes are technically "procedural" as opposed to "substantive." Guaranty Trust Co. v. York, 326 U.S. 99, 65 S.Ct. 1464, 89 L.Ed. 2079 (1945). A federal court cannot "take cognizance of the suit because there is diversity of citizenship between the parties" if the action would be barred by the state statute of limitations. Id. at 107, 65 S.Ct. 1464. Thus, in this diversity suit, I am compelled to apply the law of the forum state, New York, on conflicts and statute of limitations questions.

In the instant case, plaintiff is a Florida resident and the cause of action accrued in South Carolina. Assuming for the moment that jurisdiction is proper, I am required, under the circumstances, to apply the New York "borrowing statute", N.Y. Civ.Prac.Law § 202 (McKinney 1972)² to determine the applicable statute of limitations. According to that statute, "New York courts will apply either the statute of the state where the cause of action accrued or the New York statute, whichever is shorter." 1 Weinstein-Korn-Miller, New York Civil Practice ¶ 202.01 at 2-41 (1977). If plaintiff's claim has expired under either statute, the claim is barred.

New York Est., Powers & Trusts Law § 5-4.1 (McKinney 1972) provides that an action to recover damages for wrongful death must be commenced within two years after decedent's date of death. Failure of a personal representative to commence an action for wrongful death within two years of the date of decedent's death bars the...