Myers v. Hayes Intern. Corp.

• Decision Date: 18 November 1988
• Docket Number: No. 3-87-0702 to 3-87-0706.,3-87-0702 to 3-87-0706.
• Citation: 701 F. Supp. 618
• Parties: Kimberly M. MYERS, Personal Representative and Executrix of Timothy Jay Myers, Deceased, et al. v. HAYES INTERNATIONAL CORPORATION, United Technologies Corporation, General Motors Corporation, Lockheed Corporation and Pacific Scientific Corporation.
• Court: U.S. District Court — Middle District of Tennessee

701 F. Supp. 618

Kimberly M. MYERS, Personal Representative and Executrix of Timothy Jay Myers, Deceased, et al. v. HAYES INTERNATIONAL CORPORATION, United Technologies Corporation, General Motors Corporation, Lockheed Corporation and Pacific Scientific Corporation.

Nos. 3-87-0702 to 3-87-0706.

United States District Court, M.D. Tennessee, Nashville Division.

November 18, 1988.

Fred E. Cowden, Jr., Nashville, Tenn., Stephen P. Watters, Roe & Associates, Minneapolis, Minn., Jeffrey S. Henry, Murfreesboro, Tenn., for plaintiffs.

Lew Conner, Waller, Lansden, Dortch & Davis, Robert E. Boston, Joseph A. Woodruff, James W. White, Nashville, Tenn., for General Motors Corp.

MEMORANDUM

WISEMAN, Chief Judge.

This is a products liability action arising out of a plane crash which occurred on the Kentucky side of the Fort Campbell military installation.¹ The crash happened on September 9, 1986, while the five-man crew of a C-130A military aircraft was performing a series of "touch and go" maneuvers at Fort Campbell's airfield, which also is located within the boundaries of Kentucky. The maneuvers were part of a routine training exercise conducted by the Tennessee Air National Guard (T.A.N.G.). The aircraft was manufactured and delivered to the U.S. Government in 1957, assigned to T.A.N.G. and based in Nashville, where the ill-fated flight began and was scheduled to end. The crewmen were all members of T.A.N.G. and residents of Tennessee. Three of them were killed; two were injured.

In originally separate but now consolidated suits, the two injured crewmen and the widows of the three deceased seek recovery under theories of negligence, breach of warranty, strict liability in tort and "violation of the Consumer Protection Act."² Plaintiffs name as defendants several corporations who allegedly played some role in the design, redesign, manufacture, remanufacture, maintenance, inspection, overhaul, rebuilding, sale, and/or distribution of at least some part of the aircraft which crashed. This Court has diversity jurisdiction under 28 U.S.C. § 1332.

Defendant Lockheed Corporation, who is at least the original manufacturer of the aircraft, has moved for summary judgment on the grounds that this action is barred by Tennessee's statute of repose for products liability actions.³ In support, Lockheed and the other named defendants have submitted thorough and thoughtful briefs, the substance of which will be set forth in more detail below. The plaintiffs have responded in kind to support their argument that the statute of repose is substantive and does not apply where, as here, the action is controlled by Kentucky substantive law. For the reasons stated below, Lockheed's motion is denied.

A. Choice of Law

It is elementary that in a diversity case, this Court is obligated to apply the law of the forum state, including the forum's choice of law rules. See, e.g., Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 822, 82 L.Ed. 1188 (1938); Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496-97, 61 S.Ct. 1020, 1021-22, 85 L.Ed. 1477 (1941); Day & Zimmermann, Inc. v. Challoner, 423 U.S. 3, 4-5, 96 S.Ct. 167, 167-68, 46 L.Ed.2d 3 (1975); Mackey v. Judy's Foods, Inc., 654 F.Supp. 1465, 1468 (M.D.Tenn.1987) (Wiseman, C.J.). Equally as elementary is Tennessee's steadfast adherence to the traditional rule of lex loci delictus in determining which state's substantive law is applicable to actions sounding in tort. See, e.g., Trahan v. E.R. Squibb & Sons, Inc., 567 F.Supp. 505, 507 (M.D.Tenn.1983); Babcock v. Maple Leaf, Inc., 424 F.Supp. 428 (E.D.Tenn.1976) (applying rule to actions based on strict liability theory); Winters v. Maxey, 481 S.W.2d 755, 756-59 (Tenn.1972). Quite simply, lex loci delictus holds that the substantive law of the place where the tort occurs applies. E.g., Winters, 481 S.W.2d at 756. The Tennessee Supreme Court has rejected specifically the "dominant contacts" choice of law rule in favor of lex loci. Trahan, 567 F.Supp. at 507. See Winters, 481 S.W.2d at 756-59; Great Amer. Ins. Co. v. Hartford Acc. & Indemn. Co., 519 S.W.2d 579, 580 (Tenn.1975) (reaffirming viability of Winters and lex loci contractus rule). The lex loci rule is derived from the vested rights doctrine. According to the vested rights doctrine, "a plaintiff's cause of action `owes its creation to the law of the jurisdiction where the injury occurred and depends for its existence and extent solely on such law.'" Trahan, 567 F.Supp. at 508, quoting Winters, 481 S.W.2d at 756; Babcock, 424 F.Supp. at 432. Thus, where the tortious act and the resulting injury occur in different states, the traditional rule in Tennessee is that the substantive law of the state where the injury occurred controls. E.g., Trahan, 567 F.Supp. at 507; Babcock, 424 F.Supp. at 432-33; Koehler v. Cummings, 380 F.Supp. 1294, 1305 (M.D.Tenn.1971).

Nevertheless, defendants argue that this case presents occasion for diverging from the long-standing rule of lex loci. They claim that the language of both Winters, 481 S.W.2d at 758-59, and Great American, 519 S.W.2d at 580, left open the possibility of adopting the "dominant contacts" rule in light of future legal developments. Specifically, the court in Winters stated that the strongest reason for not repudiating lex loci was that the court was unable to discern any "uniform common law of conflicts" which had arisen under the "dominant contacts" approach and which could take the place of the uniform lex loci rule. 481 S.W.2d at 758. Subsequently, in Great American the court found that the dominant contacts rule had made "no significant progress toward uniformity since Winters," and thus refused to adopt the newer rule. 519 S.W.2d at 581.

According to defendants, the uniformity for which the court was waiting has emerged, at least in interstate aviation cases. In addition to calling the court's attention to the number of jurisdictions which have adopted and applied the dominant contacts approach since Winters and Great American,⁴ the defendants rely upon Halstead v. U.S., 535 F.Supp. 782 (D.Conn.1982), aff'd sub nom. Saloomey v. Jeppesen & Co., 707 F.2d 671 (2d Cir.1983). Halstead arose out of a West Virginia plane crash which killed the pilot and the passenger, both Connecticut residents. The crash occurred during a flight from Dallas, Texas, to Danbury, Connecticut, and was allegedly caused by the pilot's reliance on defective maps. The maps were manufactured and sold in Colorado by one of the defendants, a Colorado corporation. 535 F.Supp. at 784-85. Noting that the site of the crash was wholly fortuitous, the court refused to apply West Virginia law, even though Connecticut traditionally followed the lex loci conflicts rule. Instead, the court held that those particular circumstances were compelling enough to justify departing from the traditional rule. Accordingly, it predicted that a Connecticut court would apply the dominant contacts test, and held that Colorado law was controlling. Id. at 786-89.

The Second Circuit affirmed the district court's prediction. It agreed that the particular circumstances of the case presented good reasons to replace lex loci with the dominant contacts test in aviation accidents. Saloomey, 707 F.2d at 674-75. The court stated;

In contrast to automotive travel, aviation accidents — especially those occurring in interstate air travel — more frequently pose situations in which the place of actual injury is wholly fortuitous and unimportant....

* * * * * *

Invocation of the lex loci delicti rule in aviation generated wrongful death actions often produces unpredictable and undesirable results; the locale of injury may well have no connection to other relevant factors....

... The principles underlying the dominant contacts approach harmonize with the concerns voiced by the court in Gibson v. Fullin, 172 Conn. 407, 374 A.2d 1061 (1977); they include certainty and predictability of result as well as ease in determination and application of substantive law.

Id. at 675-76 (citations omitted).

Although Saloomey expresses succinctly one court's conclusion that the dominant contacts test is more appropriate than lex loci as a choice of law rule in tort actions arising out of interstate air travel, it does not appear to this court that Saloomey satisfies the concerns expressed by the Tennessee Supreme Court in Winters and Great American. Lex loci results in unpredictability only insofar as one cannot predict beyond a degree of probability before embarking on an interstate journey if and where an accident will occur. On a trip from Dallas to Danbury via West Virginia and a dozen other states, the probability that the accident will occur in West Virginia is no greater or less whether one travels by plane, train or automobile. In other words, taken alone, the mere fact that the locus of an accident may be fortuitous is not sufficient grounds for distinguishing air travel from auto travel.⁵

Nor does such fortuity highlight the concern for predictability expressed in Winters and Great American. In those opinions, the Tennessee Supreme Court allowed that it may change its stance when there emerged from the dominant contacts analysis sufficiently clear principles of decision that two courts presented with similar facts would most likely reach consistent conclusions.⁶See Winters, 481 S.W.2d at 758-59; Great American, 519 S.W.2d at 580. Defendants have failed to demonstrate the development of such principles. For example, defendants suggest that one reason this court should apply Tennessee law is that a Kentucky court would do so if plaintiffs had filed their claim in that state. In Arnett v. Thompson, however, the court considered whether Ohio or Kentucky law should control an action arising out of an automobile accident involving Ohio residents and occurring in Kentucky. Applying a dominant contacts analysis, the court held that the mere fact that the accident occurred in Kentucky was, standing...