Schulhof v. Northeast Cellulose, Inc.

• Decision Date: 27 August 1982
• Docket Number: 79-1412-G.,Civ. A. No. 79-1205-G
• Citation: 545 F. Supp. 1200
• Parties: Peggy H. SCHULHOF et al., Plaintiffs, v. NORTHEAST CELLULOSE, INC., et al., Defendants. Alice C. SLIVERS et al., Plaintiffs, v. NORTHEAST CELLULOSE, INC., et al., Defendants.
• Court: U.S. District Court — District of Massachusetts

545 F. Supp. 1200

Peggy H. SCHULHOF et al., Plaintiffs, v. NORTHEAST CELLULOSE, INC., et al., Defendants.

Alice C. SLIVERS et al., Plaintiffs, v. NORTHEAST CELLULOSE, INC., et al., Defendants.

Civ. A. Nos. 79-1205-G, 79-1412-G.

United States District Court, D. Massachusetts.

August 27, 1982.

Timothy J. Healey, Healey & Farrell, Norwood, Mass., Robert R. Smiley, Washington, D. C., for plaintiffs.

Jerome M. Leonard, Ropes & Gray, Boston, Mass., for Samuel A. Tamposi, Gerald Nash, James Stellos Indiv. and dba Nash Tamposi Flight Operation.

Franklin N. Cunningham, Ralph T. Lepore III; Leonard Kopelman, Kopelman & Paige, Boston, Mass., for Northeast Cellulose, McKee, Scofield.

Salvatore F. Stramondo, Boston, Mass., David Bradley, Stebbins & Bradley, Hanover, N. H., for Whitcomb Const. Corp.

MEMORANDUM AND ORDERS ON CHOICE OF LAW ISSUES

GARRITY, District Judge.

These consolidated cases arise out of a midair collision of two small aircraft over Gardner, Massachusetts in January, 1979, which resulted in the deaths of all five persons aboard the planes. Because the collision implicates interests of three states, we decided to consider conflict of law issues in advance of trial. The court received briefs from all parties and heard argument on May 21, 1982. In their briefs and at that hearing, various parties raised five issues for determination regarding the applicable law: tort liability, compensatory damages, punitive damages, contract liability, and contribution between tortfeasors. At a subsequent pretrial conference on June 24, 1982 the court deferred decision on two other issues — prejudgment interest and plaintiff's motion to strike affirmative defenses — upon suggestion of the parties and according to a schedule announced in open court. The court stated its tentative conclusion that Massachusetts law governed most of the five issues the parties had identified, but stated its intention to study the question further. After further consideration, the court issues this memorandum consistent with the conclusion stated in open court on June 24, 1982.

Relevant Facts¹

This case arises from a collision over Gardner, Massachusetts, on January 11, 1979 between a Piper Aerostar and a Piper Navajo. The Piper Aerostar was owned by defendant Northeast Cellulose, a Massachusetts corporation, and carried as its passenger, William J. Slivers, a decedent whose domicile was, like that of his personal representative and heirs, New York. Slivers had been in Massachusetts on business. The Aerostar was transporting him from Boston's Logan Airport to Syracuse, New York, via Gardner. The Piper Navajo was owned by the Nash-Tamposi Flight Operation, which was a New Hampshire partnership, and carried as its passenger Mr. Ronald Schulhof, who was, like his personal representative and heirs, a New York domiciliary. The Navajo was to transport Schulhof from Concord, New Hampshire, to White Plains, New York. The Navajo was operated, on this trip, either by Sidney Clarkson, Jr., an employee of Nash-Tamposi, or by Kevin Hawkes, an employee of defendant Frank W. Whitcomb Construction Co., a New Hampshire corporation. The identity of the person operating the aircraft is a disputed issue in this case. Resolution of that issue does not affect consideration of these choice of law issues, however, since both defendants allegedly liable under a respondeat superior theory are from New Hampshire.

Since subject matter jurisdiction in these cases is founded upon diversity, the court must apply the substantive law a state trial court would properly follow, Erie Railroad Co. v. Tompkins, 1938, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, including the conflict of laws rules of the state courts of the forum. Klaxon Co. v. Stentor Electric Manufacturing Co., 1941, 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477. This court must therefore seek to determine what law a state trial court in Massachusetts would be compelled to apply.

Massachusetts has traditionally followed lex loci delicti as the general conflict of laws rule in tort actions for physical injuries. See, e.g., Brogie v. Vogel, 1965, 348 Mass. 619, 621, 205 N.E.2d 234; Goodale v. Morrison, 1962, 343 Mass. 607, 610, 180 N.E.2d 67. Rigid adherence to that rule has been widely criticized, see, e.g., Von Mehren and Trautman, The Law of Multistate Problems: Cases and Materials on Conflict of Laws (1965). In recent years, Massachusetts has abandoned its former disposition to apply lex loci delicti automatically for a more flexible approach.

The leading case in Massachusetts regarding choice of law in torts is Pevoski v. Pevoski, 1976, 371 Mass. 358, 358 N.E.2d 416. The Pevoskis, a Massachusetts married couple, were involved in an auto collision in New York. The wife-passenger sued the husband-driver for damages in Massachusetts Superior Court. New York law provided that a wife could sue her husband; Massachusetts law, at the time of the accident, was thought to include the doctrine of interspousal immunity. Apparently relying on the old Massachusetts rule, the Superior Court judge granted the husband's motion for summary judgment.

The Supreme Judicial Court reversed. Although the accident occurred in New York, the state's highest court applied Massachusetts law on the issue of whether one spouse could sue the other. It reasoned that lex loci delicti "has provided, and will continue to provide, a rational and just procedure for selecting the law governing the vast majority of issues in multi-State tort suits." But, it continued, "we recognize that there also may be particular issues on which the interests of lex loci delicti are not so strong. Indeed on the particular facts of a case another jurisdiction may sometimes be more concerned and more involved with certain issues than the State in which the conduct occurred." Ibid at 359-60, 358 N.E.2d 416. In Pevoski, the Supreme Judicial Court concluded, New York had an interest in regulating conduct which occurred within its borders but it did not have an interest in regulating the relationship between spouses domiciled in Massachusetts. Rather, Massachusetts law should govern that issue.² Essentially, then, Pevoski stands for the following propositions of law relevant to these cases: (a) lex loci delicti would continue as the general tort conflicts rule governing most issues in multi-state tort suits, but that (b) on some particular issues another jurisdiction might have a stronger interest such that the law of that jurisdiction should control. (c) Moreover, Pevoski ruled that the law of a single jurisdiction would not necessarily govern all issues in a case. Pevoski v. Pevoski, supra at 359-61, 358 N.E.2d 416.

Although the Supreme Judicial Court did not explicitly embrace the approach of Restatement (Second) of Conflict of Laws, §§ 145, 146, it did say that the disposition of issues "`must turn ... on the law of the jurisdiction which has the strongest interest in the resolution of the particular issue presented.'" Pevoski v. Pevoski, supra at 360, 358 N.E.2d 416 quoting Babcock v. Jackson, 1963, 12 N.Y.2d 473, 484, 240 N.Y.S.2d 743. This test is the standard of Restatement (Second) of Conflict of Laws, §§ 145, 146, and we construe the reference by the Supreme Judicial Court to it as an endorsement of the tort approach of the Restatement (Second). See also Engine Specialties, Inc. v. Bombardier Ltd., 1 Cir. 1979, 605 F.2d 1, 19, cert. denied 1980, 446 U.S. 983, 100 S.Ct. 2964, 64 L.Ed.2d 839; In re Air Crash Disaster at Boston, Massachusetts, on July 31, 1973, D.Mass., September 29, 1981, M.D.L. No. 160-N, pp. 5-6; Payton v. Abbott Labs, D.Mass.1979, 83 F.R.D. 382, 386 n. 1.

The general provisions of Restatement (Second) of Conflict of Laws that are most relevant to our inquiry here are sections 6, 145 and 146. Section 6 states general choice-of-law principles and is incorporated by reference in Sections 145 and 146. It provides:

§ 6. Choice-of-Law Principles

(1) A court, subject to constitutional restrictions, will follow a statutory directive of its own state on choice of law.

(2) When there is no such directive, the factors relevant to the choice of the applicable rule of law include

(a) the needs of the interstate and international systems,

(b) the relevant policies of the forum,

(c) the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue,

(d) the protection of justified expectations,

(e) the basic policies underlying the particular field of law,

(f) certainty, predictability and uniformity of result, and

(g) ease in the determination and application of the law to be applied.

Section 145 states, as the general principle for tort issues, that:

§ 145. The General Principle

(1) The rights and liabilities of the parties with respect to an issue in tort are determined by the local law of the state which, with respect to that issue, has the most significant relationship to the occurrence and the parties under the principles stated in § 6.

(2) Contacts to be taken into account in applying the principles of § 6 to determine the law applicable to an issue include:

(a) the place where the injury occurred,

(b) the place where the conduct causing the injury occurred,

(c) the domicil, residence, nationality, place of incorporation and place of business of the parties, and

(d) the place where the relationship, if any, between the parties is centered.

These contacts are to be evaluated according to their relative importance with respect to the particular issue.

Section 146 governs personal injuries and provides:

§ 146. Personal Injuries

In an action for a personal injury, the local law of the state where the injury occurred determines the rights and liabilities of the parties, unless, with respect to the particular issue, some other state has a more significant relationship under the principles stated in § 6 to the occurrence and the parties, in which event the local law of

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