In re Air Crash Near Clarence Ctr.

• Citation: 983 F.Supp.2d 249
• Decision Date: 19 November 2013
• Docket Number: No. 09–md–2085.,09–md–2085.
• Parties: In re AIR CRASH NEAR CLARENCE CENTER, NEW YORK, on February 12, 2009.
• Court: U.S. District Court — Western District of New York

983 F.Supp.2d 249

In re AIR CRASH NEAR CLARENCE CENTER, NEW YORK, on February 12, 2009.

No. 09–md–2085.

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

Nov. 19, 2013.

Anthony J. Colucci, III, Michael J. Keane, Paul G. Joyce, Colucci & Gallaher, P.C., Buffalo, NY, Colin H. Dunn, Kevin P. Durkin, Michael S. Krzak, Robert A. Clifford, Clifford Law Offices, P.C., Chicago, IL, for Plaintiff.

Oliver K. Beiersdorf, Reed Smith LLP, New York, NY, Patrick Eugene Bradley, Reed Smith LLP, Princeton, NJ, Terrance P. Flynn, Harris Beach LLP, Neil A. Goldberg, Goldberg Segalla LLP, Buffalo, NY, David J. Harrington, Jonathan E. Demay, Condon & Forsyth LLP, New York, NY, for Defendant.

DECISION AND ORDER

WILLIAM M. SKRETNY, Chief Judge.

I. INTRODUCTION

On February 12, 2009, while on final approach to the Buffalo Niagara International Airport, Continental Connection Flight 3407 crashed into a house in Clarence Center, N.Y., killing all 45 passengers, the four-person crew, and one person in the house. By order entered October 6, 2009, the United States Judicial Panel on Multidistrict Litigation transferred all then-pending actions concerning the crash of Flight 3407 to this Court for coordinated or consolidated pretrial proceedings, pursuant to 28 U.S.C. § 1407. In re Air Crash Near Clarence Ctr., N.Y., on Feb. 12, 2009, 655 F.Supp.2d 1355, 1356 (J.P.M.L.2009). Subsequently-filed actions have also been transferred here.

Presently before this Court is Plaintiff Xiaojun Pan's motion for the application of New York law to the issue of compensatory damages. (Docket No. 288.¹) Defendants Colgan Air, Inc., Pinnacle Airlines Corp., and Continental Airlines, Inc. have also cross-moved for the application of Chinese law to this issue. (Docket No. 295.) This Court has reviewed and considered the parties' motion papers and finds oral argument to be unnecessary. For the reasons discussed below, Plaintiff's motion is granted and Defendants' cross-motion is denied.

II. DISCUSSION

Plaintiff contends that, pursuant to the relevant choice-of-law rules, New York law applies to the issue of compensatory damages and this state has a strong interest in seeing its law applied in the instant case. Defendants assert that Plaintiff and decedent, his wife, were legally domiciled in China at the time of the accident, therefore Chinese law should be applied to this damages issue.

Where, as here, a federal court is exercising diversity jurisdiction in a multidistrict litigation, resolution of a conflict of laws issue applies the choice of law rules of the state in which the relevant action was commenced. In re Air Crash Near Clarence Ctr., N.Y., on Feb. 12, 2009, 798 F.Supp.2d 481, 486 (W.D.N.Y.2011); see In re Air Crash Disaster Near Chicago, Ill. on May 25, 1979, 644 F.2d 594, 610 (7th Cir.1981). This action was commenced in the Southern District of New York, therefore the forum state is New York. Thus, this Court's task is to determine how New York courts would resolve this issue, even if it were to find a different resolution better or wiser. In re Air Crash Near Clarence Ctr., N.Y., on Feb. 12, 2009, 798 F.Supp.2d at 492 (citing In re Air Crash at Belle Harbor, N.Y. on Nov. 12, 2001, No. MDL 1448(RWS), 2006 WL 1288298, *29 (S.D.N.Y. May 9, 2006)).

The New York Court of Appeals has held that “[t]he first step in any case presenting a potential choice of law issue is to determine whether there is an actual conflict between the laws of the jurisdictions involved.” In re Allstate Ins. Co., (Stolarz–N.J. Mfrs. Ins. Co.), 81 N.Y.2d 219, 223, 597 N.Y.S.2d 904, 613 N.E.2d 936, 937 (1993); seeGlobalNet Financial.Com, Inc. v. Frank Crystal & Co., Inc., 449 F.3d 377, 382 (2d Cir.2006). The law of New Jersey, where Plaintiff asserts he and decedent were domiciled at the time of the accident, is identical to that of New York with respect to pecuniary damages in a wrongful death action. CompareN.J.S.A. § 2A:31–5, andThalman v. Owens–Corning Fiberglas Corp., 290 N.J.Super. 676, 683, 676 A.2d 611, 614 (N.J.Super.A.D.1996), withEPTL § 5–4.3(a), andMilczarski v. Walaszek, 108 A.D.3d 1190, 969 N.Y.S.2d 685 (N.Y.A.D. 4th Dep't 2013). As such, no conflict-of-laws analysis is required if Plaintiff and decedent were in fact legally domiciled in New Jersey at the time of the accident. See Tronlone v. Lac d'Amiante Du Quebec, 297 A.D.2d 528, 528, 747 N.Y.S.2d 79, 80 (N.Y.A.D. 1st Dep't 2002), aff'd,99 N.Y.2d 647, 760 N.Y.S.2d 96, 790 N.E.2d 269 (2003).

If they were domiciliaries of China, however, the parties do not dispute that an actual conflict exists between the laws of New York and China for compensatory damages in a wrongful death action. “[T]he essence of the cause of action for wrongful death in [New York] State is that the plaintiff's reasonable expectancy of future assistance or support by the decedent was frustrated by the decedent's death.” Gonzalez v. N.Y.C. Hous. Auth., 77 N.Y.2d 663, 668, 569 N.Y.S.2d 915, 572 N.E.2d 598, 601 (1991). The amount of pecuniary damages recoverable is determined by, among other things, the decedent's financial status, including his or her past and potential future income. See Johnson v. Manhattan & Bronx Surface Tr. Operating Auth., 71 N.Y.2d 198, 204, 524 N.Y.S.2d 415, 519 N.E.2d 326, 328 (1988); see also Gonzalez, 77 N.Y.2d at 668, 569 N.Y.S.2d 915, 572 N.E.2d 598 (damages may be properly calculated, in part, from a decedent's present and future earning potential); Franchell v. Sims, 73 A.D.2d 1, 5–6, 424 N.Y.S.2d 959, 962 (N.Y.A.D. 4th Dep't 1980) (myriad of factors to be considered in damages calculation includes decedent's income and his or her relationship with those claiming pecuniary loss).

In contrast, the parties' respective experts agree that under Chinese law, the equivalent compensatory damages for a wrongful death claim is a “death compensation” award. (Decl. of Jacques del-isle ¶ 31, Docket No. 288–2; Decl. of Cui Jianyuan ¶¶ 19–20, Docket No. 295–9.) This award is calculated based not on a beneficiary's individual loss, but by the average per capita disposable income of urban residents or net income of rural residents in either the forum locality or plaintiff's “domicile or usual place of residence,” whichever is higher. (del-isle Decl. ¶¶ 31–33; Cui Decl. ¶¶ 20–35.) The annual average is generally multiplied by a 20 year time period when the decedent was younger than 60 at the time of death. (del-isle Decl. ¶ 31; Cui Decl. ¶ 22.) Thus, although both jurisdictions provide compensation for a wrongful death, there is a material difference in the amount of recovery permissible that would effect the outcome of a trial. See Curley v. AMR Corp., 153 F.3d 5, 12 (2d Cir.1998); Simon v. Philip Morris Inc., 124 F.Supp.2d 46, 71 (E.D.N.Y.2000); cf.Anderson v. SAM Airlines, 939 F.Supp. 167, 173 (E.D.N.Y.1996) (no conflict in absence of evidence that second jurisdiction would allow a lesser amount of recovery).

To resolve a conflict of laws in a tort action, New York courts apply an ‘interests analysis' to determine which jurisdiction has the greatest interest in the litigation. GlobalNet Financial.Com, Inc., 449 F.3d at 384;Cooney v. Osgood Mach., 81 N.Y.2d 66, 72, 595 N.Y.S.2d 919, 612 N.E.2d 277 (1993). In making this determination, courts distinguish “between laws that regulate primary conduct (such as standards of care) and those that allocate losses after the tort occurs (such as vicarious liability rules).” Cooney, 81 N.Y.2d at 72, 595 N.Y.S.2d 919, 612 N.E.2d 277;GlobalNet Financial.Com, Inc., 449 F.3d at 384. Significant to either determination is the locus of the tort and the domiciles of the parties; however, where “the conflict involves allocation of losses, the site of the tort is less important, and the parties' domiciles are more important.” GlobalNet Financial.Com, Inc., 449 F.3d at 384–85;Cooney, 81 N.Y.2d at 72, 595 N.Y.S.2d 919, 612 N.E.2d 277 (citing Schultz v. Boy Scouts, 65 N.Y.2d 189, 197–99, 491 N.Y.S.2d 90, 480 N.E.2d 679 (1985)).

The New York Court of Appeals refined the interest analysis in loss allocation cases in Neumeier v. Kuehner “in order to assure a greater degree of predictability and uniformity.” Edwards v. Erie Coach Lines Co., 17 N.Y.3d 306, 320, 929 N.Y.S.2d 41, 952 N.E.2d 1033 (2011) (citing Neumeier, 31 N.Y.2d 121, 127, 335 N.Y.S.2d 64, 286 N.E.2d 454, 457 (1972)). There, the Court of Appeals approved a three-rule framework for resolving conflicts involving guest statutes governing automobile accidents, “which by definition allocate losses after the tort occurs rather than regulate primary conduct.” Edwards, 17 N.Y.3d at 321, 929 N.Y.S.2d 41, 952 N.E.2d 1033 (citing Neumeier, 31 N.Y.2d at 128, 335 N.Y.S.2d 64, 286 N.E.2d 454). “Under the first Neumeier rule, when the driver and passenger are domiciled in the same state, and the vehicle is registered there, the law of their shared jurisdiction controls.” Edwards, 17 N.Y.3d at 321, 929 N.Y.S.2d 41, 952 N.E.2d 1033 (citing Neumeier, 31 N.Y.2d at 128, 335 N.Y.S.2d 64, 286 N.E.2d 454). “The second Neumeier principle operates to protect a defendant from exposure to liability under the law of the plaintiff's domicile where the conduct occurred in the defendant's state of domicile, and conversely, to prevent an out-of-state defendant from avoiding liability imposed under the laws of the plaintiff's state of domicile where the injury occurred in that state.” Shaw v. Coach, 82 A.D.3d 98, 101–102, 918 N.Y.S.2d 120, 124 (N.Y.A.D. 2d Dep't 2011); see Edwards, 17 N.Y.3d at 321, 929 N.Y.S.2d 41, 952 N.E.2d 1033;Neumeier, 31 N.Y.2d at 128, 335 N.Y.S.2d 64, 286 N.E.2d 454.

The third Neumeier rule applies in all other situations where the parties are domiciled in separate jurisdictions:

[W]hen the passenger and the driver are domiciled in different states, the rule is necessarily less categorical. Normally, the applicable rule of decision will be that of the state where the accident occurred but not if it can be shown that displacing that...