Powell v. Erb

• Decision Date: 01 September 1997
• Docket Number: No. 39,39
• Parties: Candace POWELL et al. v. Edith B. ERB et al. Misc.,
• Court: Maryland Court of Appeals

Page 791

349 Md. 791

709 A.2d 1294

Candace POWELL et al. v. Edith B. ERB et al.

Misc. No. 39, Sept. Term, 1997.

Court of Appeals of Maryland.

May 22, 1998.

Robert R. Michael (Shadoan & Michael, L.L.P., Rockville, Richard E. Genter, Philadelphia, PA, Phillip L. Feliciano, Kensington), all on brief, for appellants.

Kathryn A. Ledig (Matthew D. Banks, Tigert & Ledig, on brief), Fairfax, VA, for appellees.

Argued before BELL, C.J., and ELDRIDGE, RODOWSKY, CHASANOW, RAKER, WILNER and CATHELL JJ.

BELL, Chief Judge.

Pursuant to the Maryland Uniform Certification of Questions of Law Act, Maryland Code (1974,1989 Repl.Vol.), §§ 12-601 to 12-609 of the Courts and Judicial Proceedings Article, the United States District Court for the District of Maryland has certified to this Court a question concerning the scope of our holding in Hauch v. Connor, 295 Md. 120, 453 A.2d 1207 (1983). Presented in that case was a choice of law question, "whether Maryland residents, who sustained injuries in an automobile accident in Delaware while temporarily there in furtherance of their employer's business, and who claimed no benefits under the Delaware workmen's compensation law, may maintain in Maryland courts a personal injury action against the co-employee who operated the employer's automobile in which the plaintiffs were passengers." Id. at 121, 453 A.2d at 1208. We answered the question in the affirmative. Faced with the situation in which Maryland permitted an employee injured because of the negligence of a fellow employee, to bring a personal injury action against that co-employee where Delaware did not, ¹ the Court made clear that the relevant choice of law principles were those of workers' compensation law, rather than tort law, and that the choice of law decision turned on the determination of which jurisdiction had the greater interest. Id. at 133, 453 A.2d at 1214. Accordingly, the certified question seeks to determine whether the legal analysis applied in Hauch is equally applicable in wrongful death actions. ²

I

The litigation in the federal court arose out of an airplane crash in Pennsylvania. Frederick G. Erb, a pilot for K & L Microwave, Inc., ("K & L") a company based in Salisbury, Maryland, piloted a private airplane belonging to that company's parent corporation. On March 18, 1994, the plane, a Piper Aerostar 601P, departed from the Salisbury Airport in Maryland, where it was regularly hangered and routinely kept for the business use of K & L, on a scheduled trip to a temporary work site in Pennsylvania. John Powell, Sr. and James Cooper, also employees of K & L, were passengers. The plane landed at the Airport in Pottstown, Pennsylvania uneventfully; however, the plane crashed while attempting a take off from that Airport, in bad weather, for the return to Maryland, apparently the result of ice adhering to one or both of the wings of the plane. Erb and Powell were killed. Cooper was seriously injured, but he survived the crash.

Powell is survived by a wife and two children who, along with Powell's estate, filed a wrongful death action in the United States District Court for the District of Maryland, against Erb's estate, K & L and its parent corporation. Cooper and his wife sued the same parties for personal injury. Central to both cases were allegations that Erb's negligence was the cause of the injuries suffered, the death of Powell and the serious personal injuries suffered by Cooper. The cases were consolidated for trial. Pursuant to the plaintiffs' Joint Motion for Determination of Applicability of Maryland Law, opposed by the defendants, the District Court signed the Certification Order forwarding the certified questions presently being considered by this Court.

At the time of his death, Powell was a resident of the State of Maryland. So, too, were, and are, his wife and children. Although they initially applied for benefits from the Pennsylvania State Workers' Compensation Commission, they withdrew that application and subsequently applied for and received Maryland State Workers' Compensation benefits. On the date of the airplane crash, Cooper and his wife were residents of the State of Delaware; however, Cooper daily reported to work at K & L's office in Salisbury, Maryland. Like Powell's survivors, Cooper applied for and received Maryland workers' compensation benefits. Erb, although a resident of Pennsylvania, lived in an apartment in Maryland during the week, paid for by K & L and used by other K & L pilots. In addition, Erb maintained a local phone listing for the apartment and commuted to his home in Pennsylvania on the weekends.

As we have seen, the flight originated in Maryland. Moreover, the preparation for the round trip flight occurred in Maryland. And, of course, the home base for the airplane that crashed was the Salisbury Airport, also in Maryland.

II

As indicated the question certified to this Court requires that we revisit the analysis in Hauch with a view towards determining whether it is applicable in wrongful death cases. In that case, during the relevant period, all of the parties, the two plaintiffs and the defendant, were employees of the Hertz Corporation, an automobile rental company. Not only was each of them a resident of the State of Maryland, but the regular place of employment for each of them was also Maryland. Maryland was also the place where their employment contracts were executed. The issue in that case arose when the parties were injured in an accident that occurred in Delaware. They were in Delaware on company business, in a company owned car, when the collision with another car took place. The passengers in the car applied for and received workers' compensation under the Maryland law. They also brought a personal injury action in Maryland against their co-worker who was the driver at the time of the accident, alleging negligence in the operation of the automobile.

The defendant filed a motion for summary judgment, arguing that the Delaware workers' compensation act applied to bar the plaintiffs' action against him, their co-employee. In response, the plaintiffs maintained that Maryland's act applied. The trial court granted the defendant's motion for summary judgment. It treated the matter as a question of tort choice of law and, thus, applied the doctrine of lex loci delicti.

Acknowledging that the issue of which of two states' compensation laws applies when the co-employee action is brought in one state and the act causing the injury occurred in another, the Court nevertheless pointed out that, in co-employee actions, the choice of law question is not simply a matter of tort conflict of laws, "Maryland public policy [being] an important consideration." Id. at 132, 453 A.2d at 1213-14, citing Hutzell v. Boyer, 252 Md. 227, 249 A.2d 449 (1969). At issue in Hutzell was the applicability of the Maryland workers' compensation law to a co-employee action filed in Maryland in respect to an accident occurring in Maryland and involving Maryland residents, employed, however, in Virginia and the accident occurred as the co-employees were returning home from their job site in Virginia. Virginia's workers' compensation law, contrary to Maryland's, barred co-employee suits. Discussing Hutzell, this Court pointed out that the reference to the rule of lex loci delicti did not represent the principal basis of the decision. Rather, the Court explained:

"As pointed out by the Court of Special Appeals in the present case, [Connor v. Hauch, 50 Md.App. 217, 223, 437 A.2d 661, 664 (1981) ] and by Professor Larson, [4 A. Larson, Workmen's Compensation Law, § 88.22, 16-149 (1982) ] the principal basis for the decision in Hutzell was Maryland public policy. In that case, the defendant argued that the Maryland allowance of co-employee suits did not represent 'a formulated or defined public policy against granting immunity to fellow employees from tort action, as provided in the Virginia statute,'.... This Court's response was that the defendant's 'argument has not persuaded us.' The Court expressly disagreed with the New Jersey case of Stacy v. Greenberg, 9 N.J. 390, 88 A.2d 619 (1952), which had attached little importance to the policy of the forum state in allowing co-employee suits. The Hutzell opinion stated that 'we are unable to make a similar finding with regard to ... the public policy of Maryland.' "

Hauch, 295 Md. at 132-33, 453 A.2d at 1214 (footnotes and citations omitted).

Having established the applicability and importance of public policy to the decision in Hutzell, we recognized that resolution of the choice of law issue would determine "whether the court is open to a particular litigant," a threshold inquiry. Id. at 133, 453 A.2d at 1214. With respect to that inquiry, we said, "the policy of the forum state is extremely important," and we analogized the presence or absence of a bar in the state's workers' compensation law to a state's statute of limitations, which also "is controlled by the law of the forum." Id.

Noting that, on public policy grounds, specifically with respect to its workers' compensation law, a co-employee suit has been allowed in Maryland even though the place of employment was in another state, the Court concluded that the Maryland workers' compensation law also should resolve the threshold question in that case. It explained:

"In the instant case, although the injury did not occur in Maryland, there are greater Maryland interests. Here, in addition to the parties being Maryland residents, their normal place of employment is in Maryland with the Hertz Corporation. Moreover, the plaintiffs and the defendant made claims for and received benefits under the Maryland Workmen's Compensation Act."

Id. at 133-34, 453 A.2d at 1214.

III

The defendants argue that the Hauch analysis does not apply to the case sub judice. They reason, first, that Hauch was a personal injury case, while wrongful death is the subject of this one and, second,...