Rosenthal v. Warren

Decision Date13 February 1973
Docket NumberNo. 128,Docket 72-1658.,128
Citation475 F.2d 438
PartiesElaine ROSENTHAL, as executrix of the estate of Martin C. Rosenthal, Deceased, Plaintiff-Appellee, v. Kenneth W. WARREN, and New England Baptist Hospital, Defendants-Appellants.
CourtU.S. Court of Appeals — Second Circuit

Solomon M. Cheser, New York City, for defendant-appellant Warren.

Douglas A. Boeckmann, New York City, for defendant-appellant New England Baptist Hospital.

Melvin I. Friedman, New York City (Kreindler & Kreindler, Gerald A. Robbie and Alan J. Konigsberg, New York City, of counsel), for plaintiff-appellee.

Before LUMBARD, FEINBERG and OAKES, Circuit Judges.

OAKES, Circuit Judge:

This appeal in a diversity case raises the question whether New York would apply a Massachusetts damage limitation to the death of a New York domiciliary occurring in Massachusetts. The appeal, taken before final judgment pursuant to 28 U.S.C. § 1292(b), is from an order of the district court granting partial summary judgment in favor of the plaintiff in an action for wrongful death, 342 F. Supp. 246. The partial summary judgment struck the affirmative defense based upon the Massachusetts wrongful death statute limiting recoverable damages to ". . . not less than five thousand nor more than fifty thousand dollars, to be assessed with reference to the degree of the tortfeasor's culpability . . . ."1 The district court held that New York law was applicable. That law places no fixed value on wrongful death or limitation upon the damages in a wrongful death action. N.Y.Estates, Powers & Trust Law, McKinney's Consol.Laws, c. 17-b, § 5-4.3; N.Y.Const. art. 1, sec. 16. We affirm.

The relevant facts are simple, the legal issue difficult. The decedent, Dr. Martin C. Rosenthal, was a citizen of New York. Decedent and his wife, who as executrix is plaintiff here, went to Boston where he was examined and diagnosed by Dr. Warren, whom the plaintiff describes as a world-renowned physician and surgeon treating patients from all over the world. On March 27, 1969, eight days after an operation performed by Dr. Warren at the New England Baptist Hospital, decedent died in the hospital while under the care of the defendant Warren.

Suit, alleging malpractice and asking for $1,250,000 in damages, was brought in New York state court. Jurisdiction of Dr. Warren to the extent of his insurance coverage was obtained by attachment levied on the St. Paul Fire & Marine Insurance Company, a Minnesota corporation doing business in New York, the malpractice insurer of a clinic where Dr. Warren is employed.2 Jurisdiction of New England Baptist Hospital, of which Dr. Warren is surgeon in chief, a trustee, a member of the planning committee and an officer of the corporation, was obtained by service upon another officer of the hospital while soliciting funds in New York City. Defendants removed the suit to the federal district court on the basis of diversity of citizenship.

It is undisputed that although the hospital is a Massachusetts corporation, approximately one-third of its patients in 1969 came from outside Massachusetts and approximately 8 per cent of its patients in the same year were from New York. Indeed, the hospital claimed in its 1969 annual report that it was "not a local or community hospital in the usual sense because its patients come from literally everywhere." An affidavit of the head of the casualty underwriting department of the Boston office of St. Paul Fire & Marine, which issued the liability policy under which defendant Warren was covered, indicates that a general surgeon's liability policy in Massachusetts has a basic limit premium of $192, while a New York City surgeon pays a basic limit premium of $1,139, and that one factor contributing to the difference is the "dollar exposure" in New York, which has no wrongful death limitation. Dr. Warren's policy, however, makes no reference to coverage limitation in wrongful death cases.

This being a diversity case, it is, of course, elemental that we must look to the choice of law rules of the forum state, that is, to New York law. Klaxon Co. v. Stentor Electric Manufacturing Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941); Patch v. Stanley Works, 448 F.2d 483, 487 (2d Cir. 1971). Formerly New York probably would have applied the law of Massachusetts under the simplistic rule of lex loci delicti. Baldwin v. Powell, 294 N.Y. 130, 61 N.E.2d 412 (1945); Whitford v. Panama Railroad Co., 23 N.Y. 465 (1861). But cf. Conklin v. Canadian-Colonial Airways, Inc., 266 N.Y. 244, 194 N.E. 692, Id., 242 App.Div. 625, 271 N.Y.S. 1107 (1935) (New Jersey death limitation inapplicable to a New Jersey plane crash because the validity of a ticket stipulation for limiting the airline's damages is to be determined by New York law, where the ticket was purchased).

In Kilberg v. Northeast Airlines, Inc., 9 N.Y.2d 34, 172 N.E.2d 526, 211 N.Y.S.2d 133 (1961), however, the New York Court of Appeals characterized the Massachusetts wrongful death limitation as "procedural" and refused to apply it in a suit brought in New York by a New York decedent's estate arising from the crash of an airplane flight originating in New York but fatally ending at Nantucket, Massachusetts. The court said that "modern conditions make it unjust and anomalous to subject the traveling citizen of this State to the varying laws of other States through and over which they move," and pointed out that there were only 14 states limiting death case damages as of that time. 9 N.Y.2d at 39, 211 N.Y.S.2d at 135, 172 N.E.2d at 527. The court also characterized wrongful death recovery limitations as "absurb and unjust"3 and emphasized the strong New York policy against such limitations, at least as to its domiciliaries, enshrined in a constitutional prohibition against them. Said the court, "The absurdity and injustice have become increasingly apparent in the six decades that have followed the adoption of the New York constitutional prohibition. For our courts to be limited by the Massachusetts damage ceiling (at least as to our own domiciliaries) is so completely contrary to our public policy that we should refuse to apply that part of the Massachusetts law . . . ." 9 N.Y.2d at 40, 211 N.Y.S.2d at 136, 172 N.E.2d at 528.

Kilberg foreshadowed New York's total break with the wooden rule that the law of the place of the tort inevitably governed. The break became complete in the landmark Babcock v. Jackson, 12 N.Y.2d 473, 240 N.Y.S.2d 743, 191 N.E.2d 279 (1963), where the Court of Appeals chose to apply New York law even though a statute of the place of the tort foreclosed rather than merely limited liability. Babcock refused to apply an Ontario statute barring recovery by an automobile guest in the case of an automobile accident in Ontario in which the driver and passenger were New Yorkers. The opinion laid the foundation for an "interest analysis" approach to choice of law problems, looking to "the law of the jurisdiction which, because of its relationship or contact with the occurrence or the parties has the greatest concern with the specific issue raised in the litigation." 12 N.Y.2d at 481, 240 N.Y.S.2d at 749, 191 N.E.2d at 283. Carefully distinguishing what the court then considered was Ontario's legislative concern over guest-driver collusion against insurers from its interest in regulating the manner in which a driver operates his car, 12 N.Y.2d at 482-483, 240 N.Y.S.2d 750, 751, 191 N.E.2d at 284, and examining the relative importance of the relationships and contacts of the respective jurisdictions in light of "`the relevant purposes of the tort rules involved,'" 12 N.Y.2d at 482, 240 N.Y.S.2d at 750, 191 N.E.2d at 284,4 the Babcock court concluded that application of the inflexible rule of lex loci delicti could lead to "unjust and anomalous results." 12 N.Y.2d at 484, 240 N.Y.S.2d at 751, 191 N.E.2d at 285.

Analysis of the respective interests underlying the choice of law applicable in tort cases was soon explicitly extended to actions for wrongful death. See Long v. Pan American World Airways, Inc., 16 N.Y.2d 337, 266 N.Y.S.2d 513, 213 N.E.2d 796 (1965) (applying Pennsylvania law to an air crash where decedents were Pennsylvania residents but wreckage landed in Maryland). In Miller v. Miller, 22 N.Y.2d 12, 290 N.Y.S.2d 734, 237 N.E.2d 877 (1968), the New York Court of Appeals faced the question whether to apply a Maine $20,000 limit on wrongful death recovery in the case of a New York resident killed in Maine while a passenger in an automobile driven by a Maine resident. Again the court emphasized the strong New York policy against wrongful death limitations and saw "no substantial countervailing considerations" which would warrant the rejection of New York law, pointing out that the Maine statute did not "regulate conduct" and that "the only justifiable reliance which could be present here would involve the purchase of liability insurance in light of the remedies available to an injured person." 22 N.Y.2d at 19, 290 N.Y.S.2d at 740, 237 N.E.2d at 881. But the court pointed out that standard automobile liability policies issued in Maine drew no distinction between liability coverage for wrongful death and personal injuries, 22 N.Y.2d at 20, 290 N.Y.S.2d at 740, 237 N.E.2d at 881, so that it could not have been purchased in reliance on the Maine wrongful death limitation.

Similarly, in Tooker v. Lopez, 24 N.Y.2d 569, 301 N.Y.S.2d 519, 249 N.E.2d 394 (1969), the New York Court of Appeals refused to apply a Michigan guest statute in the case of an automobile accident which occurred on an intra-Michigan trip taken by two New York coeds at Michigan State, one the driver and the other the decedent passenger. Relying upon Miller v. Miller, supra, the court "rejected unequivocally" "the argument that the choice of law in tort cases should be governed by the fictional expectation of the parties." 24 N.Y.2d at 577, 301...

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