Lunn v. United Aircraft Corporation

• Citation: 182 F. Supp. 12
• Decision Date: 23 February 1960
• Docket Number: Civ. A. No. 2063.
• Parties: Marguerite B. LUNN, Widow and Executrix of Estate of William M. Lunn, Deceased, Plaintiff, v. UNITED AIRCRAFT CORPORATION, Defendant.
• Court: U.S. District Court — District of Delaware

182 F. Supp. 12

Marguerite B. LUNN, Widow and Executrix of Estate of William M. Lunn, Deceased, Plaintiff, v. UNITED AIRCRAFT CORPORATION, Defendant.

Civ. A. No. 2063.

United States District Court D. Delaware.

February 23, 1960.

Robert W. Wakefield, Foulk, Walker, Miller & Wakefield, Wilmington, Del., and Eugene G. Lamb, Oppido & van Horne, Mineola, N. Y., for plaintiff.

Henry M. Canby, and E. Norman Veasey, Richards, Layton & Finger, Wilmington, Del., for defendant.

RODNEY, Senior District Judge.

This matter involves a diversity action in which two questions are presented but this opinion deals with only one, viz., the application of the Statute of Limitations to a claim for personal injuries sustained by a deceased person in a suit brought by the personal representative after the death of the injured person.

The facts may be summarized as follows and as set out in the complaint.

It is alleged that the defendant designed, manufactured and sold to New York Airways, Inc. a certain helicopter with the knowledge that it would be used by others including the deceased; that the deceased, William M. Lunn, was an employee of New York Airways, Inc.; that the helicopter operated by Lunn crashed and burned at LaGuardia Airport, New York on November 30, 1956, in which accident Lunn was severely burned and as a consequence of which he died January 13, 1957. The plaintiff alleges many acts of negligence on the part of the defendant in the design, manufacture and sale of the helicopter, which allegations of negligence need not be here considered.

The accident, as stated, occurred November 30, 1956. The plaintiff was granted Letters Testamentary in New York on September 2, 1958¹ and this suit was instituted in the United States District Court for the District of Delaware on November 26, 1958, The complaint quotes a provision of Section 130 of the Decedent's Estate Law of New York whereby a personal representative is given the cause of action for wrongful act, neglect or default by which decedent's death was caused where the defendant would have been liable to an action in favor of the decedent if death had not ensued. Such action, by the New York Statute, was required to be brought within two years after decedent's death.

At an earlier stage of this case, the plaintiff contended that the application of the Statute of Limitations could not be raised by a motion to dismiss the complaint and for this was cited Curtis v. Drybrough, D.C.W.D.Ky., 70 F.Supp. 151, 154 and Carlisle v. Kelly Pile & Foundation Corp., D.C.E.D.Pa., 72 F. Supp. 326.

The Curtis case did not pass upon the question of whether the Statute of Limitations could be raised by a motion to dismiss. The Carlisle case was reversed on reargument in D.C., 77 F.Supp. 51, but on other grounds. The later law of the Western District of Pennsylvania appears in Sauters v. Young, D.C.1954, 118 F.Supp. 361 and White v. American Barge Lines, D.C., 127 F.Supp. 637.

In the District of Delaware it is clear that, under appropriate circumstances, the application of the Statute of Limitations may be raised by a motion to dismiss. Park-In Theatres v. Paramount-Richards Theatres, D.C., 90 F.Supp. 727, affirmed 3 Cir., 185 F.2d 407; Henis v. Compania Agricola De Guatemala, D.C., 116 F.Supp. 223, affirmed 3 Cir., 210 F.2d 950. See also 2 Moore Fed.Prac. page 2257 and 5 Cyc.Fed.Proc. (3rd Ed.), page 545.

It is unnecessary to consider the New York law, for this being a diversity case brought in the District of Delaware the plaintiff concedes that the applicable Statute of Limitations is that of Delaware. This precise question was passed upon by this Court, as presently constituted, in Carpenter v. Rohm & Haas Co.² where it is said:

"Jurisdiction is here based upon diversity of citizenship. The pertinent principles of conflict of laws of the State of Delaware must be applied. Klaxon Company v. Stentor Electric Manufacturing Company, 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477. The appropriate principle of the law of Delaware is that if the action is barred by the statute of limitations of the forum, no action can be there maintained though the action is not barred in the jurisdiction where the cause of action arose.

White v. Govatos, 1 Terry 349, 361, 40 Del. 349, 361, 10 A.2d 524. This is in accord with general principles. Restatement of Conflict of Laws, Sec. 603, p. 720; Goodrich, Conflict of Laws (2d Ed.) p. 201. * * *"

While the plaintiff concedes that the Delaware Statute of Limitations applies in this case, yet a controversy exists as to which Delaware statute concerning limitations of action is applicable.

The defendant contends that the applicable Delaware statute is 10 Del.C. § 8118 which provides:

"No action for the recovery of damages upon a claim for alleged personal injuries shall be brought after the expiration of 1 year from the date upon which it is claimed that such alleged injuries were sustained."

Since the fatal accident occurred in New York, another Delaware Statute may have some pertinence. 10 Del.C. § 8120 provides:

"Where a cause of action arises outside of this State, an action can not be brought in a court of this State to enforce such cause of action after the

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