Harris Corp., Data Communications v. Comair, Inc.
| Decision Date | 14 April 1981 |
| Docket Number | Civ. A. No. 80-129. |
| Citation | 510 F. Supp. 1168 |
| Court | U.S. District Court — Eastern District of Kentucky |
| Parties | HARRIS CORPORATION, DATA COMMUNICATIONS DIVISION Dallas, Texas, Plaintiff, v. COMAIR, INCORPORATED; Piper Aircraft Corporation; The Garrett Corporation; G & N Aircraft, Inc; Daniel Snyder, d/b/a The Accessory Shop; and John Does, Defendants. |
H. Henry Kramer, Edgewood, Ky., Ronald L. M. Goldman, Marina Del Rey, Cal., for plaintiff.
John W. Beatty and D. Gary Reed, Cincinnati, Ohio, for Comair.
Rodney S. Bryson, Covington, Ky., for Garrett.
John L. Bennett and Lee E. Sitlinger, Louisville, Ky., for G. & N.
John J. O'Hara and Arnold Taylor, Covington, Ky., for Piper.
This matter is before the court on the defendants' motion to dismiss for failure to state a claim. The motion presents the court with the question whether a corporation can recover in its own right for the death of its employee, where it can show it sustained economic loss by reason of the employee's death. Also presented is an apparent conflict of laws question concerning the employer's right to indemnity for workmen's compensation benefits paid to the employee's survivors.
On October 8, 1979, an airplane, owned and operated by the defendant Comair, a commuter airline, crashed at the Greater Cincinnati International Airport, which is located in Boone County, Kentucky. Several persons were killed in this tragic incident, including one Jeffrey Downey Lake, a passenger on board the ill-fated aircraft.
The administrator of Lake's estate has filed a wrongful death action in this court against the same defendants named in the instant action. These are Comair, Inc., whose pilot is alleged to have been negligent, the manufacturers of the airplane and of certain component parts, and a defendant who had serviced the aircraft.
The plaintiff in this action is the Harris Corporation, Data Communications Division, the decedent's employer. The action is brought in addition to and independently of the administrator's action.
The complaint herein alleges that the decedent was a valued employee of the plaintiff corporation and that it suffered economic loss by reason of his death. Also alleged is the fact that the plaintiff corporation paid to Lake's survivors substantial sums in workmen's compensation payments, for which indemnity is sought.1
The plaintiff does business nationwide, but the decedent worked in one of its Ohio offices and was a resident of Ohio. Claims by his survivors were made and paid under the Ohio Workmen's Compensation Act. This Act permits a double recovery by the employee or his survivors, when an action is successfully brought against a third-party tortfeasor for the employee's injury or death, and does not permit the employer to recover anything from a third-party tortfeasor by way of indemnity or contribution.2
Plaintiff contends that Kentucky law is applicable, and that it can bring a common law action of indemnity to recover the benefits paid against the alleged third-party tortfeasors, in spite of the fact that such a cause of action is denied to it under Ohio law.3
The plaintiff corporation relies primarily on two arguments in its attempt to recover for its employee's death. The first is that, as a matter of justice, a cause of action ought to be recognized in its favor, because it is an innocent party which has suffered economic loss as a proximate result of the defendants' alleged wrongful acts.4
A second and narrower argument is that, because the employer corporation purchased the employee's ticket for the business trip on which he was embarked at the time of his death, a contract of safe carriage resulted on the basis of which a separate recovery may be had.
The problem with the plaintiff's death claim is that it is well established that actions for wrongful death, since they did not exist at common law,5 are solely the creatures of statutory or constitutional provisions.6 Under Kentucky law,7 the right to recover for wrongful death exists by virtue of § 241 of the state Constitution,8 adopted in 1891. This constitutional provision has been implemented by K.R.S. 411.130.9
As early as 1887, it was held that there can be but one cause of action and one recovery based on the wrongfully caused death of a person.10 The Supreme Court of Kentucky has shown no disposition to depart from this principle or broaden the cause of action for wrongful death. Recently, in Brooks v. Burkeen,11 the court held that, outside the wrongful death act, there is no recovery even by the widow or surviving children for the loss of consortium or parental care as a result of the death of their husband and father. The Kentucky high court has also recently held that a mother of a deceased unmarried child did not have any separate cause of action based on her child's death and was barred by the administrator's settlement of the death claim.12
In the case at bar, the decedent lived for a few hours in the hospital before expiring, but the plaintiff is limiting its claim solely to that for death, making no effort to recover for loss of services for that brief period. It should be pointed out, however, that although there is some authority for recognizing a cause of action by an employer for loss of services resulting from the injury of the employee, the trend of the later cases is against the recognition of such a cause of action, even in the injury situation where the wrongful death statutes are not a problem.13
Although the plaintiff's argument in support of this cause of action has a surface appeal, a moment's reflection reveals that wisdom is in accord with the weight of authority that such a cause of action should be denied, whether based on the death or the injury of an employee.
As a practical matter, if a person is injured or killed under such circumstances that there would be a right to recover against the tortfeasor, there is usually only a limited amount of resources to compensate him or his survivors. That is true in the case at bar as in most cases. The policy of the common law and the wrongful death acts is to give the sole right to make a claim against those resources to the injured person and his spouse,14 if he survives, and to the survivors named in the wrongful death act in the event of death.
There are many people who may suffer economically or psychologically from the death of an individual. He may be a good customer at some place of business. He may contribute regularly to worthy causes. His friends may grieve for him perhaps more than his relatives. Yet, the law limits the right to recover for injury to himself or those having a special relationship with him in the eyes of the common law, and, in the event of death, to those named in the wrongful death act.
This is a wise course because, if recovery could be had by all who are injured in fact, the resources available to compensate an injured person or the survivors of a deceased person would be diluted. Also, the settlement of claims would be extremely difficult in that a tortfeasor or his insurer would have no way to know how many claims might be brought, or from whom to obtain releases.15
With regard to the contract of carriage theory adduced by the plaintiff, the claim is in essence one for the death of the employee, and is entirely circumscribed by the provisions of the Kentucky Constitution and statutes above discussed. The contract theory is but an evasion by which the plaintiff attempts to pursue indirectly a course which the law says it may not pursue directly. Our courts have had occasion previously to look to the true nature of tort claims, which have for one reason or another been presented in the guise of actions on contract.16
As has been stated, the decedent was based at one of his employer's Ohio offices. Therefore, both he and the employer were operating under the Ohio Workmen's Compensation law, which prohibits any recovery by the employer from a tortfeasor for compensation benefits paid.17
Although the generally recognized conflicts of law rule is that in such a situation the law of the state where the compensation benefits were paid applies,18 the plaintiff here relies on recent rulings by the Supreme Court of Kentucky that it will apply Kentucky law in tort cases wherever there are sufficient contacts to justify doing so.19 Plaintiff also relies on certain Kentucky cases which it interprets as permitting employers to claim common law indemnity for benefits paid.20
At first glance, this theory also might seem to have some merit. Close analysis, however, reveals it to be fallacious. It is best not to approach the matter as a conflict of laws problem at all. Rather, it should be regarded as a situation in which the decedent and his employer, the plaintiff, had an employment contract made in Ohio. Part of it was created by them; namely, that part providing for the duties to be performed and the amount of the wages and fringe benefits to be paid. Portions of the employment contract, however, were mandated by the State of Ohio, including those portions relating to the payment of workmen's compensation benefits.21 Part of the employment contract is a provision by operation of law that plaintiff would not assert any claim for indemnity against a third-party tortfeasor nor seek subrogation from the survivors, if Lake were to be injured or killed in the scope of his employment and plaintiff had to pay compensation benefits for that reason.
If this contract were a negotiated agreement in its entirety, Kentucky would enforce it as written in an action between employer and employee in a Kentucky court, not as a matter of conflict of laws, but because it was the contract by which the parties chose to define their relationship. There is no injustice or inconsistency in...
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...cause of action arising from death of its employee under common law or West Virginia statute); Harris Corp., Data Communications Division v. Comair, Inc., 510 F.Supp. 1168, 1170 (E.D.Ky.1981) ("actions for wrongful death, since they did not exist at common law, are solely the creatures of s......
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