Neal v. Butler Aviation Intern., Inc.

• Decision Date: 01 November 1978
• Docket Number: No. 76 C 10.,76 C 10.
• Citation: 460 F. Supp. 98
• Parties: Nancy J. NEAL, as Executrix of the Estate of Burnette Neal, Jr., and Jane C. Williams, as Executrix of the Estate of Bruce R. Williams, Plaintiffs, v. BUTLER AVIATION INTERNATIONAL, INC., Butler International, Inc., Butler Aviation-Miami, Inc., and Air International, Inc., Defendants.
• Court: U.S. District Court — Eastern District of New York

460 F. Supp. 98

Nancy J. NEAL, as Executrix of the Estate of Burnette Neal, Jr., and Jane C. Williams, as Executrix of the Estate of Bruce R. Williams, Plaintiffs, v. BUTLER AVIATION INTERNATIONAL, INC., Butler International, Inc., Butler Aviation-Miami, Inc., and Air International, Inc., Defendants.

No. 76 C 10.

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

November 1, 1978.

Laurence Goldhirsch, New York City (Speiser & Krause, P. C., and Paul D. Rheingold, New York City, of counsel), for plaintiffs.

James P. Donovan, New York City (Mendes & Mount, New York City, of counsel), for Butler Aviation-Miami, Inc.

James J. Sentner and John K. Weir, New York City (Haight, Gardner, Poor & Havens, New York City, of counsel), for Butler International and Butler Aviation International.

MEMORANDUM and ORDER

DOOLING, District Judge.

The general background of the case, as well as the conclusions reached on various points raised at an earlier stage, appear from the decision of October 15, 1976, reported in 422 F.Supp. 850.

All defendants have now moved for reconsideration of the October 15, 1976, decision sustaining the infants' claims against the asserted bar of the statute of limitations. Since that decision the New York Court of Appeals in Ratka v. St. Francis Hospital, 1978. 44 N.Y.2d 604, 407 N.Y.S.2d 458, 378 N.E.2d 1027, unanimously rejected Gaudette v. Webb, 1972, 362 Mass. 60, 28 N.E.2d 222, and the earlier decision in the present case (442 F.Supp. 850). Since this is an Erie v. Tompkins case, the decision of the Court of Appeals plainly requires reconsideration of the premises that (as a matter of New York's rules of Conflict of Laws) Vietnam law is inapplicable to the rights of the minor children (422 F.Supp. at 854), and that New York, Texas and Florida would conclude that the infant survivors had common law rights based on their fathers' deaths. The Ratka case makes it altogether clear that under New York law infant survivors have no common law right of action for a parent's tortiously caused death; the rule in Ratka, that there is no common law right of action for wrongful death, applies in diversity cases governed by New York law. It may be assumed that the New York court would very likely not hold that Texas or Florida — absent clear decisions in those states — would reject the analysis of Ratka. See Lowe v. Employers Casualty Co., Tex.Civ.App.1972, 479 S.W.2d 383, 389; Penry v. Wm. Barr, Inc., E.D.Tex.1976, 415 F.Supp. 126.

Defendants argue that the plaintiffs are barred, under C.P.L.R. § 202 and Estates, Powers and Trust Law § 5-4.1, by the two year statute of limitations, or by the three year limitation of C.P.L.R. § 214(2), (5), and are not entitled to claim on behalf of the infant beneficiaries the toll of C.P.L.R. § 208. And defendants contend that even if the infants had individual claims for their separate losses, the decedent's personal representative would be the appropriate party plaintiff, with the consequence, again, that the claims would be barred because C.P. L.R. § 208 would be inapplicable.

Lipton v. Lockheed Aircraft Corp., 1954, 307 N.Y. 775, 121 N.E.2d 615, held that the two-year limitation of former Decedent Estate Law § 130 (now Estate, Powers and Trusts Law § 5-4.1) was inapplicable to causes of action arising out of accidents occurring outside the state (in Lipton, Egypt); the decision rested on the premise that Section 130 applied only to deaths resulting from wrongs committed in the State of New York. In Lipton the plaintiff was a resident and so not bound under former Civil Practice Act § 13 (now CPLR § 202 in substance) by the shorter of the New York or the Egyptian statutes of limitations. Lipton does not reach the instance of the nonresident involved in a foreign accident. And, as defendants argue, Farber v. Smolock, 1967, 20 N.Y.2d 198, 282 N.Y.S.2d 248, 229 N.E.2d 36, annuls the premise on which Lipton rested in saying — albeit in a case in which, again, plaintiff was a resident — that (20 N.Y.2d at 204, 282 N.Y.S.2d at 253, 229 N.E.2d at 40):

"To the extent that earlier decisions decline to give extraterritorial effect to the statute, they are overruled."

That does not settle the question whether the Texas kin of a Texan killed in Vietnam who sue through a representative appointed in Texas are barred by the two year limitation of Section 5.4-1 if it is the shortest limitation possibly applicable. The question here differs; it is whether the two year limitation of Section 5.4-1 applies in the Wiener v. Specific Pharmaceuticals, Inc., 1949, 298 N.Y. 346, 83 N.E.2d 673, kind of case, in which the non-residency of the plaintiff parties (legal beneficiaries and legal representatives alike) is complete, and the suit is not brought in virtue of Section 5.4-1 et seq.

Plaintiffs here sue as the Texas executrices of Texas decedents and allege no foreign law. If, as appears to be the case, New York's two-year limitation in Section 5.4-1 is procedural, the non-residence of plaintiffs, and their possible duty to refer to their own wrongful death statute or to some other law for some substantive purposes, would not prevent the application of Section 5.4-1. Cf. Sharrow v. Inland Lines, Ltd., 1915, 214 N.Y. 101, 109-110. The opening language of Section 5.4-1, as it has long existed, authorizes suit by the "personal representative, duly appointed in this state or any other jurisdiction", and it is not, literally, limited to causes of action created by Section 5.4-1, et seq. There are older cases which intimate that foreign fiduciaries' suits based on the deaths outside the state of non-residents are authorized by Decedent Estate Law § 130, although Wiener v. Specific Pharmaceuticals, supra, was decided entirely in terms of the powers the Michigan fiduciary derived from the Michigan Law under which he was appointed and made no reference at all to Decedent Estate Law § 130 as a source of the right to sue. Cf. Richards v. Wright, Monroe Co. 1931, 139 Misc. 316, 248 N.Y.S. 298; Matter of von Kauffman, N.Y.Co. 1938, 167 Misc. 83, 3 N.Y.S.2d 486; Matter of Wilson, Kings Co. 1950, 198 Misc. 457, 98 N.Y.S.2d 701. Chartener v. Kice, E.D.N.Y.1967, 270 F.Supp. 432, 438, indicated that the limitation of Decedent Estate Law § 130 applied to an action by a California fiduciary for the wrongful death of a resident of California by reason of acts of malpractice committed in New York, and O'Keefe v. Boeing Co., S.D.N.Y.1971, 335 F.Supp. 1104, 1113, is of uncertain effect, so far as it dealt with the death claims for non-residents arising out of the crash in Maine of an aircraft manufactured in Washington. Cf. with Chartener v. Kice, supra, Hoffman v. Colonial Sand & Stone Co., Inc., Sup.1949, 91 N.Y.S.2d 607. While this precise point may necessarily have been in Barnette v. Butler Aviation International, Queens Co. 1977, 89 Misc.2d 350, 391 N.Y.S.2d 348, on appeal, it is not clear that withdrawal of that appeal turned precisely on the limitation in Section 5-4.1. There must be some doubt that the New York Court of Appeals would turn to Section 5-4.1 in the case of a foreign fiduciary for foreign beneficiaries suing on tort claims unconnected with New York, although, because of the procedural nature of the limitation and the breadth of the statutory language, that remains a very real possibility. Janes v. Sackman Bros. Co., 2d Cir. 1949, 177 F.2d 928, turned rather to the predecessor of CPLR § 214(2), relying on McConnell v. Caribbean Petroleum Co., 1938, 278 N.Y. 189, 15 N.E.2d 573. To the extent, then, that plaintiffs here sue as personal representatives of the decedents upon indivisible, single rights of action their claims would be barred either by the New York two-year limitation of Section 5-4.1 or by the three-year limitation of CPLR § 214(2), (5).

Plaintiffs have argued that the decedents' children may have, under Vietnamese or other relevant law, individual rights of action, and defendants counter by arguing that even rights of the type dealt with in Moragne v. States Marine Line, 1970, 398 U.S. 375, 90 S.Ct. 1772, 26 L.Ed.2d 339, would have to be vindicated by a suit commenced by the decedents' personal representatives and would be barred by the two or three year New York statute of limitations just as would a suit commenced under the New York wrongful death statute or another state's wrongful death statute (see 398 U.S. at 408, 90 S.Ct. 1772). The courts have implemented Moragne in its maritime law setting by applying analogically the Death on the High Seas Act and other admiralty related statutes and limited the right to sue to the personal representative of the decedent. Futch v. Midland Enterprises, Inc., 5th Cir. 1973, 471 F.2d 1195. Similarly, Renner v. Rockwell International Corp., C.D.Cal.1975, 403 F.Supp. 849, while treating laches as the rule of limitation, invoked the limitation of the Death on the High Seas Act as the analogous law statute to be referred to in measuring delay. And the beneficiary schedule of the Death on the High Seas Act was referred to in Savoie v. Nolty J. Theriot, Inc., E.D.La. 1972, 396 F.Supp. 973, to exclude parents of a crew member from a Moragne recovery for their son's death offshore in the Gulf of Mexico in favor of the son's widow, who was the sole statutory beneficiary, and had settled her separate suit under the Jones Act and the Death on the High Seas Act. Whether these cases will all survive the review of the nature of the survivors' rights in Sea-Land Services, Inc. v. Gaudet, 1974, 414 U.S. 573, 94 S.Ct. 806, 39 L.Ed.2d 9, is not clear. While the plaintiff there was the widow suing as administratrix of her husband, the decision emphasizes the distinctness of the surviving widow's claim from the claim of her husband (which he had litigated in his lifetime) and her distinct right as survivor to recover for her individual loss by reason of her husband's death. Putting Moragne claims aside, as Ratka and the Lowe, McEntire (infra) and Penr...