Rosenberg v. Celotex Corp., 84-1623

• Decision Date: 05 August 1985
• Docket Number: No. 84-1623,84-1623
• Citation: 767 F.2d 197
• Parties: Barbara ROSENBERG, Individually, and as Personal Representative of the Heirs and Estate of Stanley Rosenberg, Deceased, Plaintiffs-Appellants, v. The CELOTEX CORPORATION, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 197

767 F.2d 197

Barbara ROSENBERG, Individually, and as Personal Representative of the Heirs and Estate of Stanley Rosenberg, Deceased, Plaintiffs-Appellants, v. The CELOTEX CORPORATION, et al., Defendants-Appellees.

No. 84-1623.

United States Court of Appeals, Fifth Circuit.

Aug. 5, 1985.

Frederick M. Baron & Associates, Jane N. Saginaw, Dallas, Tex., for plaintiffs-appellants.

Don W. Kent, Murl E. Smith, Tyler, Tex., for Celotex.

Baker & Botts, Arthur Stamm, Houston, Tex., for Owens-Illinois, Inc.

Vial, Hamilton, Koch, Tabb, Knox & Stradley, Newton J. Jones, Jeffrey S. Lynch, C. Douglas Calvert, Dallas, Tex., for Raybestos-Manhattan.

Joe Michael Russell, Jack K. Smith, Corsicana, Tex., for Eagle-Picher Industries.

Appeal from the United States District Court for the Northern District of Texas.

Before BROWN, POLITZ and JOLLY, Circuit Judges.

JOHN R. BROWN, Circuit Judge:

This is an appeal from the dismissal of Barbara Rosenberg's suit for wrongful death. At issue are the wrongful death acts of New York ¹ and Texas, ² two prior New York actions, ³ and the effect Texas gives to causes of action arising in foreign jurisdictions held to be time barred in those jurisdictions. We hold that the district court properly dismissed Barbara Rosenberg's wrongful death claim because the substantive law of New York bars any suit by a survivor when the decedent did not have a cause of action at the time of his death. Additionally, we find that Mrs. Rosenberg's wrongful death claim is barred by the laws of Texas.

I. How it all Began

Stanley Rosenberg, Barbara Rosenberg's deceased husband, was employed from 1961 to 1965 at the New York Naval Shipyard in Brooklyn. While an employee at the shipyard, he was exposed to many asbestos products. Mr. Rosenberg was diagnosed as having asbestosis in November of 1976, and as having malignant mesothelioma in April of 1978. Mr. and Mrs. Rosenberg brought suit in New York state court in April of 1978 against the Celotex Corporation (Celotex) alleging that Mr. Rosenberg had contracted malignant mesothelioma from exposure to and use of Celotex's asbestos products. The Rosenbergs sought recovery in strict liability, negligence, and breach of warranty. The New York state court, however, dismissed the Rosenbergs' complaint, finding that the statutes of limitations barred all grounds for recovery. ⁴ The district court's decision was affirmed by the New York Court of Appeals, in The Matter of Steinhardt v. Johns-Manville, 54 N.Y.2d 1008, 446 N.Y.S.2d 244, 430 N.E.2d 1297 (1981), cert. denied sub nom. Rosenberg v. Johns-Manville Sales Corp., 456 U.S. 967, 102 S.Ct. 2226, 72 L.Ed.2d 840 (1982).

Stanley Rosenberg died on June 3, 1980. On December 4, 1981, Barbara Rosenberg, as executrix of her husband's estate, filed a wrongful death suit in federal district court in New York. The federal court dismissed her claim, ⁵ holding that New York law requires that at the time of death the decedent have a valid claim against the defendant. By definition a time barred claim is not a valid claim.

On June 2, 1982, one day short of the second anniversary of her husband's death, Mrs. Rosenberg filed a wrongful death suit in federal district court in Texas. The district court granted Celotex's motion for summary judgment based on the prior New York decisions. The court stated that full faith and credit required it to respect the previous New York determinations. On appeal Mrs. Rosenberg asserts that the district court misapplied both the Constitution's full faith and credit clause and the laws of Texas. However, after reviewing the New York and Texas wrongful death acts, and the many cases brought under them, we conclude that the district court correctly dismissed Mrs. Rosenberg's claim.

II. Following the Erie Trail

Under the Erie doctrine, a federal court sitting in diversity must apply the substantive law of the forum state and federal procedural law. Hanna v. Plumer, 380 U.S. 460, 85 S.Ct. 1136, 14 L.Ed.2d 8 (1965); Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 85 L.Ed. 1188 (1938). State substantive law includes a state's conflict of laws rules. Klaxon v. Stentor Electric Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941). The Texas conflict of laws rules mandate the application of New York substantive law and Texas procedural law to this case, since New York is the state of the most significant contacts and defendants are residents of Texas. See Gutierrez v. Collins, 583 S.W.2d 312 (Tex.1979). Further, the Texas statute governing wrongful death in a foreign state, article 4678, Tex.Rev.Civ.Stat.Ann. (Vernon Supp.1941-1985) provides that "all matters pertaining to procedures shall be governed by the laws of this state, and the court shall apply such rules of substantive law as are appropriate under the facts of the case." The validity of Mrs. Rosenberg's claim is thus dependent on the substantive law of New York governing wrongful death and the procedural laws of Texas.

A. Substantive Law of New York

The New York Wrongful Death Act is set out in Sec. 5-4.1 of the New York Estate Powers and Trust Law (McKinney, 1970):

The personal representative, duly appointed in this state or any other jurisdiction, of a decedent who is survived by distributees may maintain an action to recover damages for a wrongful act, neglect or default which caused the decedent's death against a person who would have been liable to the decedent by reason of such wrongful conduct if death had not ensued. Such an action must be commenced within two years after the decedent's death. When the distributees do not participate in the administration of the decedent's estate under a will appointing an executor who refused to bring such action, the distributees are entitled to have an administrator appointed to prosecute the action for their benefit. (emphasis added).

The New York statute is patterned after the original Wrongful Death Act, Lord Campbell's Act, Stat. 9 and 10 Vict. Chap. 93, 1846, which allows recovery:

[w]hensoever the death of a person shall be caused by wrongful act, neglect, or default, and the act, neglect, or default is such as would, (if death had not ensued) have entitled the party injured to maintain an action and recover damages.... (emphasis added).

New York does not use the conditioning language "is such as." Instead, New York defines the right to bring the action in terms of the liability of the tortfeasor-defendant. Thus, New York allows the decedent's representative a cause of action only in cases where the defendant would have been liable to the decedent. See generally 167 A.L.R. 894. The New York Court of Appeals has interpreted the state's wrongful death statute to mean that "no action should be maintainable under it unless the decedent, at the time of his death, could have maintained an action." Kelliher v. New York Cent. and H.R.R. Co., 212 N.Y. 207, 105 N.E. 824, 825 (1914) (emphasis added). In Kelliher, the court held that the wrongful death claim brought by the decedent's personal representative was barred by the running of the statute of limitations on the decedent's underlying personal injury claim. Subsequent New York decisions have followed Kelliher in holding that the representative's ability to maintain an action depends upon a valid subsisting claim in the decedent's favor at the time of his death. See Myers v. City of Plattsburgh, 214 N.Y.S.2d 773, 13 A.D.2d 866 (1961) (not maintainable when decedent's personal injury action time-barred at death); Prink v. Rockefeller Center, Inc., 48 N.Y.2d 309, 422 N.Y.S.2d 911, 398 N.E.2d 517 (1979) (not maintainable when decedent's death caused by suicide); Johnson v. Stromberg-Carlson Telephone Mfg. Co., 276 N.Y. 621, 12 N.E.2d 607 (1937), cert. denied, 305 U.S. 645, 59 S.Ct. 150, 83 L.Ed. 416 (1938) (not maintainable when underlying personal injury claim time-barred at death); Emery v. Rochester Telephone Corp., 271 N.Y. 306, 3 N.E.2d 434 (1936) (not maintainable when no direct interference with decedent's person). These decisions clearly establish that New York views the liability of a defendant to a decedent at the time of his death as a statutory condition precedent to, and an essential element of, any representative's wrongful death claim. Indeed, New York holds that if any essential element of the cause of action is lacking--such as the right of the injured party to bring suit--there is a failure to state a claim for wrongful death. Emery, 3 N.E.2d at 434, 435-36.

Despite the long held and clearly established precedents of New York, on this appeal Mrs. Rosenberg maintains that the statute of limitations governing her husband's personal injury claim is not a substantive part of her cause of action for wrongful death. She argues that the bar of the statute of limitations is merely procedural. Accordingly, she contends that even though her remedy has been barred in the courts of New York, her right of action for wrongful death remains valid--provided she can find a jurisdiction which will recognize it. She contends that Texas is such a jurisdiction. However, the cases relied upon by Mrs. Rosenberg refer only to the necessity to bring a wrongful death action within two years of the decedent's death, as explicitly required by the New York Wrongful Death Act. None of her authorities address New York's statutory requirement that an action may be maintained only when the defendant would have been liable to the decedent if death had not ensued. Neither do they abrogate or overrule the clear New York authority that the lack of a valid claim at the time of the decedent's death acts as a bar to the right of the personal representative to bring a wrongful death action. ⁶ Since Celotex was not liable to Stanley Rosenberg at the time of his death under New York law, it follows that Barbara Rosenberg can make no claim under the New York wrongful death statute.

Admitting that she has no remedy in New York, Mrs. Rosenberg...