Schalliol v. Fare

• Decision Date: 13 June 2002
• Docket Number: No. CIV.A. 01-5671.,No. CIV.A. 01-224.,CIV.A. 01-224.,CIV.A. 01-5671.
• Citation: 206 F.Supp.2d 689
• Parties: Mary SCHALLIOL, Plaintiff, v. John FARE, Jr., et al. Defendants. Louis SIMON, et al., Plaintiffs, v. The UNITED STATES of America, Defendants.
• Court: U.S. District Court — Eastern District of Pennsylvania

206 F.Supp.2d 689

Mary SCHALLIOL, Plaintiff, v. John FARE, Jr., et al. Defendants.

Louis SIMON, et al., Plaintiffs, v. The UNITED STATES of America, Defendants.

No. CIV.A. 01-224.

No. CIV.A. 01-5671.

United States District Court, E.D. Pennsylvania.

June 13, 2002.

COPYRIGHT MATERIAL OMITTED

Cathleen M. Devlin, Saul, Ewing, Remick and Saul, Philadelphia, PA, Harry A. Wilson, Jr., Wilson Kehoe & Winingham, Indianapolis, IN, H. Andrew Owen, Owen Gleaton Egan Jones & Sweeney, LLP, Atlanta, GA, D. Bruce Kehoe, Wilson, Kehoe & Winningham, Indianapolis, IN, Daniel S. Weinstock, Feldman, Shepard, Wohlgelernter & Tanner, Philadelphia, PA, for Plaintiff.

Kevin J. Ruane, Francis R. Gartner & Associates, Blue Bell, PA, David N. Zeehandelaar, Blank Rome Comisky & McCauley LLP, Philadelphia, PA, Joseph Michael Lamonaca, Chadds Ford, PA, J. Arthur Mozley, Mozley Finlayson & Loggins LLP, Atlanta, GA, for Defendants.

Terrence M. Healy, Rodney Patton, U.S. Dept. of Justice Torts Branch, Civil Div., Washington, DC, for Respondent.

MEMORANDUM AND ORDER

KATZ, Senior District Judge.

Now before the court are two motions by the United States for the determination of the choice of law. Each motion pertains to one of the above-captioned lawsuits, both of which arise from a fatal plane crash.¹ In both suits, the United States is a defendant under the Federal Tort Claims Act, 28 U.S.C.A. §§ 1346(b), 2671 et al. (FTCA), for the alleged negligence of its air traffic controllers and its allegedly negligent publication of materials listing an approach to an airplane runway that was, in fact, not in service. Upon consideration of the parties' submissions, including the parties' stipulation of facts necessary to decide the conflicts of law issue, the court finds that Indiana substantive law applies to all claims pled against the United States under the FTCA. The court further certifies this ruling for immediate appeal pursuant to 28 U.S.C. § 1292(b).

Background

On January 18, 2000, while attempting to land at an airport near Somerset, Kentucky, an airplane collided with a guy wire on a microwave communications tower, and crashed.² All four people aboard were killed,³ including the pilot John Fare, Sr. (Pilot Fare), and B. Kenin Hart (Passenger Hart), Dennis Schalliol (Passenger Schalliol) and Loy D. Thompson, IV, who were traveling on behalf of a real estate brokerage conglomerate known as Hart Corporation.

While in flight, Pilot Fare contacted an air traffic controller at the Indianapolis Air Route Traffic Control Center,⁴ who cleared him landing via the Simplified Directional Facility approach at Runway 4 (SDF 4) at the Somerset airport.⁵ Pilot Fare also possessed an Instrument Approach Procedure (IAP) for SDF 4, which was published by the United States,⁶ and allegedly contained information stating that that approach was in service. However, the navigational facility supporting the SDF approach was out of service indefinitely.⁷ This was indicated on the Airport Directional Facility (AFD) published by the Federal Aviation Administration (FAA).⁸

In their various claims against the United States, plaintiffs contend that the publication of the IAP was negligent, and all parties agree that any such negligence occurred in Washington, D.C.⁹ Plaintiffs also allege that the air traffic controllers were negligent, and all parties agree that any such negligence of the controllers, including any failure to monitor the aircraft or to supervise personnel, occurred in Indiana.¹⁰ Finally, all parties agree that any negligence of Pilot Fare occurred in Ohio and Kentucky,¹¹ and that any negligence of the United States with respect to the publication of the AFD occurred in Washington, D.C.¹²

The parties to this case include plaintiff Mary Schalliol as personal representative of the estate of Dennis Schalliol (Plaintiff Schalliol), who brings claims of negligence against the United States under the FTCA, and also brings claims of negligence on the part of Pilot Fare against the estate of Pilot Fare (Defendant Fare) and against Pilot Fare's employer, Hart Corporation/Delaware Division¹³ (Defendant Hart Delaware).¹⁴ The estate of Pilot Fare, under separate representation, has also brought a cross-claim of negligence against the United States (Cross-Plaintiff Fare).¹⁵

In a separate action, four personal representatives of the estate of B. Kenin Hart, his three children and his 88-year-old mother (collectively, the Simon Plaintiffs), also bring claims against the United States.

The United States has filed a separate motion for a determination of the choice of law in each of these cases, and in each motion seeks the application of Indiana substantive law to the claims pled against it under the FTCA. Plaintiff Schalliol, Defendants Fare/Hart Delaware, and the Simon Plaintiffs have each responded separately,¹⁶ and each seek the application of Pennsylvania substantive law to these claims.¹⁷

Discussion

The Third Circuit requires courts to engage in a complex choice-of-law analysis when FTCA claims are based on allegedly tortious conduct that occurred in more than one state. According to the Third Circuit,

[t]he FTCA waives sovereign immunity and grants district courts jurisdiction over tort claims against the United States "under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred." 28 U.S.C. § 1346(b)(1) (emphasis added).... When a case involves multiple alleged acts or omissions occurring in more than one state, the FTCA, as construed by [Richards v. United States, 369 U.S. 1, 82 S.Ct. 585, 7 L.Ed.2d 492 (1962)], requires the District Court to engage in a complex conflict of laws analysis to determine which state law governs the jurisdictional inquiry.... Because Richards interpreted the "law of the place where the act or omission occurred" to mean the "whole law" of the state where the act or omission occurred, including that state's choice of law rules, a two step choice of law analysis is required when multiple acts or omissions have occurred in more than one state. First, the court must select between the states' respective choice of law rules. See Richards, 369 U.S. at 11, 82 S.Ct. 585; Ducey v. United States, 713 F.2d 504, 509 n. 2 (9th Cir.1983); Bowen v. United States, 570 F.2d 1311, 1318 (7th Cir. 1978); James A. Shapiro, Choice of Law Under the Federal Tort Claims Act: Richards and Renvoi Revisited, 70 N.C.L.Rev. 641, 669-75 (1992). Second, the court must apply that state's choice of law rules to determine which state's substantive tort law applies. See Richards, 369 U.S. at 11, 82 S.Ct. 585, 7 L.Ed.2d 492; Tyminski v. United States, 481 F.2d 257, 265 (3d Cir.1973). Because of this bifurcated analysis, the state whose choice of law rules are selected in the first step may or may not be the same state whose substantive law is chosen in the second step.

Before proceeding to the conflict of laws analysis, it is prudent to ensure that there is not a "false conflict" in the underlying choice of law rules or the underlying contribution and indemnity law making it unnecessary to engage in this complex bifurcated analysis. See Williams v. Stone, 109 F.3d 890, 893 (3rd Cir.1997).

Gould Electronics, Inc. v. United States, 220 F.3d 169, 179-80 (3d Cir.2000). In sum, in this case the court must first determine whether there is a true conflict in the underlying choice of law rules of the states in which the act or omission of negligence occurred or in the substantive law that might apply; if there is such a conflict the court must next determine which jurisdiction's choice-of-law rules apply; and finally the court must determine which jurisdiction's substantive rules apply. See id.

In this case, the allegedly tortious "acts or omissions" of the United States occurred both in Washington, D.C. and perhaps Oklahoma, where the IAP and AFD were published, and also in Indiana, where the air traffic controllers who instructed Pilot Fare in landing were located.¹⁸ With respect to the choice-of-law rules of these jurisdictions, Indiana employs a modified lex loci delicti test that applies the substantive law of the place where the tort was committed, that is, where the last event necessary to make an actor liable for the alleged wrong takes place, Hubbard Manufacturing Co., Inc. v. Greeson, 515 N.E.2d 1071, 1073 (Ind.1987), whereas D.C. employs a governmental interest test, see Raflo v. United States, 157 F.Supp.2d 1, 4-5 (D.D.C.2001)¹⁹, and thus there exists a true conflict between the two.²⁰ See generally id. at 8 (finding true conflict between Virginia's lex loci delicti approach and District of Columbia's governmental interest approach).

As to whether there is a true conflict in the potentially applicable substantive law, a court must first determine which substantive law might apply. As discussed infra, under Indiana choice of law rules, the most likely jurisdictions are Indiana and D.C.; under the D.C. "interest" analysis, the possible jurisdictions are, at minimum, D.C., Indiana and Pennsylvania, the latter two being the only jurisdictions whose substantive law are endorsed by any party in this case.²¹ There is a true conflict as to the substantive law, since Indiana and Pennsylvania embrace comparative fault, that is, proportional allocation of fault,²² whereas D.C. follows the rule that contributory negligence will bar recovery except in cases where the last clear chance doctrine applies.²³ Furthermore, Indiana has barred joint and several liability by statute,²⁴ whereas D.C. and Pennsylvania embrace it.²⁵ Also, Indiana does not permit survivor claims in addition to wrongful death claims in cases involving negligence, see IND. CODE § 34-9-3-4, and for wrongful death cases Indiana awards damages including net lost earnings of the decedent, see id. § 34-23-1-1; Elmer Buchta Trucking, Inc. v. Stanley, 744 N.E.2d 939, 943 (Ind.2001) (...