Morgan v. United Air Lines, Inc., Civ. No. 90-B-209

• Decision Date: 06 November 1990
• Docket Number: 90-B-314.,Civ. No. 90-B-209
• Citation: 750 F. Supp. 1046
• Parties: Charles E. MORGAN and Joyce E. Morgan, Plaintiffs, v. UNITED AIR LINES, INC., Defendant. Richard L. GUTSHALL and Barbara Ann Gutshall, Plaintiffs, v. UNITED AIR LINES, INC., Defendant.
• Court: U.S. District Court — District of Colorado

750 F. Supp. 1046

Charles E. MORGAN and Joyce E. Morgan, Plaintiffs, v. UNITED AIR LINES, INC., Defendant.

Richard L. GUTSHALL and Barbara Ann Gutshall, Plaintiffs, v. UNITED AIR LINES, INC., Defendant.

Civ. Nos. 90-B-209, 90-B-314.

United States District Court, D. Colorado.

November 6, 1990.

Bruce A. Lampert, Denver, Colo., for plaintiffs.

John W. Grund, Denver, Colo., for defendant.

ORDER

BABCOCK, District Judge.

This case is before me on Defendant, United Air Lines, Inc.'s objections to and Motion for Reconsideration of Magistrate's Recommendation. Having reviewed the magistrate's exhaustive and detailed analysis in support of his recommendations concerning defendant's Motion in Limine, I conclude as follows:

1. The magistrate recommends that I deny defendant's motion in limine which substantively attacks plaintiffs' right to seek purely emotional distress damages under the Warsaw Convention. Because this dispositive aspect of defendant's motion in limine is necessarily treated as a motion to dismiss for failure to state a claim, I review the magistrate's recommendation de novo. On de novo review I conclude that the magistrate's recommendation is correct and should be adopted by the court. Floyd v. Eastern Airlines, Inc., 872 F.2d 1462 (11th Cir.1989), cert. granted sub nom., ___ U.S. ___, 110 S.Ct. 2585, 110 L.Ed.2d 266 (1990).

2. My review of the magistrate's remaining recommendations regarding the evidentiary matters addressed in defendant's motion in limine leads me to conclude that they are not clearly erroneous or contrary to governing law. Fed.R.Civ.P. 72(a); Local Rule 602(C). Accordingly, I adopt and approve the magistrate's recommendations on these matters; provided however, that insofar as the magistrate deems relevant the events immediately following evacuation of the plane, I do not decide whether and to what extent events thereafter may be relevant to plaintiff's damage claims.

IT IS THEREFORE ORDERED that the magistrate's recommendations are adopted and approved by the court.

RECOMMENDATION OF UNITED STATES MAGISTRATE

DONALD E. ABRAM, United States Magistrate.

FACTS

This lawsuit arose from an airline incident on February 24, 1989, while Plaintiffs were en route from Honolulu, Hawaii to Auckland, New Zealand, United Air Lines Flight 811 experienced sudden decompression at 23,000 ft. Decompression occurred after the right forward lower lobe cargo door and part of the fuselage separated from the airplane. Five double-seat units in the lower business section were lost during the decompression. The plane returned to Honolulu approximately 20 minutes after the decompression and Passengers and crew were evacuated. Plaintiffs in their complaint allege mental distress due to their experience while on board flight 811.

Defendants have filed several motions in limine. This court has received briefs from both parties. After doing a detailed analysis of the briefs and the cases cited by each party, this court makes the following recommendation.

EVIDENCE OF FAULT, MISCONDUCT, AND NEGLIGENCE

The Defendants in their motion in limine request an exclusion of all evidence of misconduct, negligence, or fault. Plaintiffs do not object to this exclusion. Therefore, the recommendation from this court is that no evidence of misconduct, negligence or fault of the defendants be allowed to be presented at trial.

PLAINTIFFS' COUNSEL

Defendants also seek a motion in limine excluding evidence that Plaintiffs' counsel Mr. Lampert was a passenger on board flight 811. Plaintiffs do not object to this motion in limine. Therefore, this court recommends that no evidence will be allowed to be presented at trial that Plaintiffs' counsel was a passenger on board flight 811.

INSURANCE

Defendants have also sought a motion in limine excluding any evidence about insurance or communications by or to United's insurer. Plaintiffs do not object to excluding evidence that United is covered by insurance. Plaintiffs merely suggest that if they are allowed to ask questions during voir dire concerning the juror's affiliation with United States Aviation Underwriters or United States Aviation Insurance Group that they will be satisfied with not presenting any evidence of insurance coverage by Defendants. There is no issue of control, fault or negligence in this case. There is no reason to offer any evidence concerning Defendant's insurance. Plaintiffs have not objected to excluding all evidence at trial concerning insurance, and therefore, this court recommends that all evidence of Defendant's insurance be excluded from the trial except that which will be inferred during voir dire.

LESION CORPORELLE

Plaintiffs and Defendants agree that the Warsaw Convention governs this case as an international air accident. However, the two parties disagree as to interpretation and application. Defendants claim that the terms lesion corporelle of article 17 of the Warsaw Convention do not encompass emotional injuries. Plaintiffs, however, claim that emotional injuries are recoverable under the Warsaw Convention. Both parties have cited this court to several cases in support of their definition of the term lesion corporelle under the Warsaw Convention.

Plaintiffs rely on a recent opinion by the Eleventh Circuit Court of Appeals Floyd v. Eastern Airlines, 872 F.2d 1462 (11th Cir. 1989) cert. granted, ___ U.S. ___, 110 S.Ct. 2585, 110 L.Ed.2d 266 (1990), which did a detailed analysis of the meaning of lesion corporelle. The court in Floyd held that although the literal French translation to lesion corporelle was bodily injury, the French legal meaning for those words encompassed mental injury as well as bodily injury and therefore mental and emotional injuries were to be compensated for under the Warsaw Convention. In their discussion, the court reviewed several other court's decisions which have held that the term lesion corporelle only covers physical injuries and does not encompass mental or emotional injuries. The Floyd court stated, "our study of the issue has convinced us that there is nothing in French law prohibiting compensation for any particular kind of damage, including emotional trauma, provided the damage is certain and direct." Floyd, 872 F.2d at 1472. Husserl v. Swiss Air Transport Company, LTD, 388 F.Supp. 1238 (S.D.N.Y.1975), also supports the proposition that emotional injuries are recoverable under the Warsaw Convention. In Husserl, the court held that the drafters of the convention had no specific intent as to whether to include or to exclude mental and emotional injuries. They said, however,

There is no evidence they intended to precluded recovery for any particular type of injury. To regulate in a uniform manner the liability of the carrier, they must have intended to be comprehensive. To effect the treaty's avowed purpose, the types of injuries enumerated should be construed expansively to encompass as many types of injury as are colorably within the ambit of the enumerated types.

Id. at 1250.

Defendants in opposition to Floyd have cited to several cases which have discussed the meaning of the language lesion corporelle.¹ Defendant's mainly refer this court to the United States District Court opinion which preceded and underlies Floyd, In re Eastern Airlines, Inc., Engine Failure, 629 F.Supp. 307 (S.D.Fla.1986). In In re Eastern Airlines, the district court held that lesion corporelle did not include mental injuries. They stated, "lesion corporelle has been defined to mean `an infringement of physical integrity (l'atteninte a l'integrite physique).'" Id. at 313 (citation omitted). "The definition does not indicate that mental injuries are to be included within its domain." Id. at 313-14 (citation omitted). The defendants have also cited Burnett v. Trans World Airlines, Inc., 368 F.Supp. 1152, 1157 (D.N.M.1973), in which the Federal District Court for the District of New Mexico did a detailed analysis of the term lesion corporelle and came to the conclusion that lesion corporelle does not include mental injuries.² Defendants also refer this court to a New York case Rosman v. Trans World Airlines, Inc., 34 N.Y.2d 385, 358 N.Y.S.2d 97, 314 N.E.2d 848 (1974).³ The Rosman case held that if there was no physical manifestation of injury then, under the Warsaw Convention, the injuries would not be compensable. If there was a physical manifestation from the emotional distress, only the injury by physical manifestation itself would be compensable and not the mental distress. Defendants request that the In re Eastern Airlines, Inc., Engine Failure, Burnett v. Trans World Airlines, Inc., and Rosman v. Trans World Airlines, Inc. cases, which held emotional injuries are not recoverable, should control this court's decision of the meaning of lesion corporelle.

After reviewing the cases cited before this court, this court finds the analysis of Floyd to be convincing. The 11th Circuit had the Burnett, Rosman, and In re Eastern Airlines, Inc., Engine Failure cases before it. They reviewed both the literal translation and the legal meaning. The Floyd court accepted the French legal contractual meaning between carrier and passenger to find lesion corporelle did encompass mental injury. The analysis was well reasoned and well researched. Because this court finds the Floyd analysis to be correct, this court recommends that Plaintiffs be allowed to put on evidence of purely emotional injury. However, even though the term lesion corporelle does encompass mental injuries, this court is still faced with a difficult question of what law will be used to determine whether any such mental or emotional injuries had occurred.

PREEMPTION OF STATE LAWS

Plaintiffs suggests that there is a "federal common law" under the Warsaw Convention that would govern this case and preempts any state law concerning mental injuries. Plaintiffs in the alternative suggests that maritime law governs this case. Finally Plaintiffs suggests that should...