State of Maryland v. Capital Airlines, Inc.

• Decision Date: 03 April 1967
• Docket Number: 11386,Civ. A. No. 11385,11393.
• Parties: STATE OF MARYLAND for the Use of John Lowell GLIEDMAN, Jeffrey Bruce Gliedman, Ellen Deborah Gliedman and Darcy Joan Gliedman, surviving infant children of Lester H. Gliedman and Gertrude Gliedman, Deceased, by their guardians and next friends Karl Eppstein and Anna K. Emerson Eppstein as Executors of the Estate of Lester H. Gliedman, Deceased, and Karl Eppstein and Anna K. Emerson Eppstein as Executors of the Estate of Gertrude Gliedman, Deceased v. CAPITAL AIRLINES, INC. and The United States of America. STATE OF MARYLAND for the Use of Willa DICKSON, surviving widow and Michael Dickson, Patricia Dickson and Kelly Dickson, surviving infant children of James R. Dickson, Deceased, by Willa Dickson, their mother, next friend and guardian, and Willa Dickson as Administratrix of the Estate of James R. Dickson, Deceased v. CAPITAL AIRLINES, INC. and The United States of America. Enriqueta L. TEN, Administratrix of the Goods, Chattels and Credits of Helen Irizarry, Deceased, and State of Maryland, To the Use of Enriqueta L. Ten, Cosme Irizarry, Lillian Irizarry, and Micheal Ten, Next of Kin of Helen Irizarry, Deceased v. UNITED STATES of America and Julius R. McCoy.
• Court: U.S. District Court — District of Maryland

267 F. Supp. 298

STATE OF MARYLAND for the Use of John Lowell GLIEDMAN, Jeffrey Bruce Gliedman, Ellen Deborah Gliedman and Darcy Joan Gliedman, surviving infant children of Lester H. Gliedman and Gertrude Gliedman, Deceased, by their guardians and next friends Karl Eppstein and Anna K. Emerson Eppstein as Executors of the Estate of Lester H. Gliedman, Deceased, and Karl Eppstein and Anna K. Emerson Eppstein as Executors of the Estate of Gertrude Gliedman, Deceased v. CAPITAL AIRLINES, INC. and The United States of America.

STATE OF MARYLAND for the Use of Willa DICKSON, surviving widow and Michael Dickson, Patricia Dickson and Kelly Dickson, surviving infant children of James R. Dickson, Deceased, by Willa Dickson, their mother, next friend and guardian, and Willa Dickson as Administratrix of the Estate of James R. Dickson, Deceased v. CAPITAL AIRLINES, INC. and The United States of America.

Enriqueta L. TEN, Administratrix of the Goods, Chattels and Credits of Helen Irizarry, Deceased, and State of Maryland, To the Use of Enriqueta L. Ten, Cosme Irizarry, Lillian Irizarry, and Micheal Ten, Next of Kin of Helen Irizarry, Deceased v. UNITED STATES of America and Julius R. McCoy.

Civ. A. Nos. 11385, 11386, 11393.

United States District Court D. Maryland.

April 3, 1967.

COPYRIGHT MATERIAL OMITTED

George L. Clarke, Buckmaster, White, Mindel & Clarke, George W. White, Jr., Baltimore, Md., for plaintiffs, Gliedman, Eppstein, and Dickson, Theodore E. Wolcott, New York City, of counsel.

John J. O'Connor, Jr., O'Connor & Preston, Baltimore, Md., and Lee S. Kreindler, Paul S. Edelman, Kreindler & Kreindler, New York City, for plaintiffs, Ten and Irizarry.

Paul F. Due, Baltimore, Md., and Richard W. Galiher, Washington, D. C., for defendant Capital Airlines.

John H. Mudd, Baltimore, Md., for defendant McCoy.

Thomas J. Kenney, U. S. Atty., and William E. Malloney, Dept. of Justice, for the United States.

NORTHROP, District Judge.

In three companion cases consolidated for trial, Civil Nos. 11385, 11386, and 11393, the plaintiffs move for summary judgment against the United States on the basis of collateral estoppel. In two of these cases, 11385 and 11386, Capital Airlines, one of the defendants, moves for summary judgment against the United States by requesting that the United States be estopped from claiming contribution against it. Capital Airlines is not a party in 11393.

Each of the cases, involving a survival action and a wrongful death action, arose out of a collision over Brunswick, Maryland, about three o'clock in the afternoon on May 20, 1958, between a small jet trainer, consigned to the Maryland National Guard and piloted by Julius R. McCoy, and an airplane owned and operated by Capital Airlines, Inc. All the passengers aboard Capital's plane were killed. McCoy was ejected from the jet trainer and is the sole survivor. These suits were filed by the administrators and survivors of certain passengers of the Capital Airlines Viscount.

There are various actions against the United States, Capital Airlines, and McCoy pending in other jurisdictions. The ones that are of particular interest to the court for these motions are the cases in which the survivors and administrators of the Capital Airlines' pilot and co-pilot and Capital Airlines sued the United States in the United States District Court for the District of Columbia. State of Maryland for the Use of Meyer, etc. v. United States, Civil No. 1236-59, Dec. 6, 1961, aff'd, 116 U.S.App.D.C. 259, 322 F.2d 1009 (1963), rev'd on the issue of agency and remanded, 382 U.S. 158, 86 S.Ct. 304, 15 L.Ed.2d 226 (1965), 257 F. Supp. 768 (D.D.C.1966); State of Maryland for the Use of Vance Lewman Brady, etc. v. United States, Civil No. 1237-59, Dec. 6, 1961, aff'd 116 U.S.App.D.C. 259, 322 F.2d 1009 (1963), rev'd on the issue of agency and remanded, 382 U.S. 158, 86 S.Ct. 304, 15 L.Ed.2d 226 (1965), 257 F.Supp. 768 (D.D.C.1966); and Capital Airlines, Inc. v. United States, Civil No. 1238-59, D.D.C., Dec. 6, 1961, rev'd on damages, 116 U.S.App.D.C. 259, 322 F.2d 1009 (1963), rev'd on the issue of agency and remanded, 382 U.S. 158, 86 S.Ct. 304, 15 L.Ed.2d 226 (1965), 257 F.Supp. 768 (D.D.C.1966). These cases are again on appeal.

Before the court continues with the discussion of the principle of collateral estoppel, it must say a word about the other cases which arose out of the accident, more particularly the cases which proceeded through the United States District Court for the Western District of Pennsylvania, the United States Court of Appeals for the Third Circuit, and the United States Supreme Court. The reason for this recitation is that by agreement of all the attorneys for the parties named herein, including the United States, all of the discovery proceedings both in this court and in other courts were handled in a consolidated manner. The depositions, the interrogatories and answers thereto, and the requests for admissions and answers thereto were deemed to be applicable to all of the said actions. Needless to say, extensive depositions were taken, numerous exhibits marked, et cetera, so that the testimony, evidence and exhibits relating to liability would be the same in all of the pending cases. In fact, as to liability, the parties in the Pennsylvania cases proceeded on the transcript of the trial of the District of Columbia cases. State of Maryland for the Use of Levin, etc. v. United States and State of Maryland for the Use of Johns, etc. v. United States, 200 F.Supp. 475 (W.D.Pa.1961), rev'd on issue of agency, 329 F.2d 722 (3d Cir. 1964), aff'd 381 U.S. 41, 85 S. Ct. 1293, 14 L.Ed.2d 205 (1965), judgment modified and remanded, 382 U.S. 159, 86 S.Ct. 305, 15 L.Ed.2d 227 (1965).

The District of Columbia cases were tried before Judge Holtzoff in November of 1961. The issue of negligence litigated was that of Captain McCoy. At that time the court found that McCoy was an agent of the United States Government. However, this finding was set aside by the Supreme Court, 86 S.Ct. 304. While plaintiffs in the D.C. cases had alleged negligence of the Federal Aviation Agency employees on duty at the Washington Air Route Traffic Control Center under whose jurisdiction the Capital Airlines Viscount was at the time of the accident, proof of this negligence had been specifically withheld at the 1961 trial.

Further, at the 1961 hearing, Judge Holtzoff found that neither the pilot nor co-pilot of the Viscount was negligent. This finding was affirmed by the Court of Appeals for the District of Columbia. The Supreme Court denied certiorari, 375 U.S. 954, 84 S.Ct. 445, 11 L.Ed.2d 314 (1963).

Following the conclusion of the 1961 trial of the D.C. cases, the cases before the United States District Court for the Western District of Pennsylvania were heard. Chief Judge Gourley came to the same conclusion in the Pennsylvania cases as Judge Holtzoff had come to in the District of Columbia cases. However, the Third Circuit reversed the District Court's decision as to the issue of the agency of the United States. The United States Supreme Court granted certiorari and affirmed the Third Circuit's finding that no agency relationship existed between the United States and McCoy. It is interesting to note, in passing, that Mr. Justice Harlan in that opinion relegated the plaintiffs to the mercy of Congress for any recovery.

On the motion of the United States, the Supreme Court reopened the D.C. cases and reversed the judgment of the Circuit Court of Appeals for the District of Columbia in conformance with its affirmance of the Third Circuit's opinion that McCoy was not an agent of the United States. In the course of its opinion of November 22, 1965, the Court remanded the cases for further proceedings "with respect to the unresolved issues tendered in respondents' bill of complaint." 86 S.Ct. 304.

On the same day, the judgments in the Pennsylvania cases were modified and remanded for "proceedings with respect to the unresolved issues tendered in petitioners' bill of complaint, and . . in all other respects affirmed." 86 S.Ct. 305. In both remands, Mr. Justices Harlan and Clark dissented.

Again the D.C. cases came on before Judge Holtzoff for trial in June of 1966 on the issue of the negligence of the F. A. A. employees on duty at the Washington Air Route Traffic Control Center. The United States sought to introduce evidence as to the negligence of the pilot and co-pilot of the Viscount. Judge Holtzoff refused to allow this because he had resolved that issue in his decision of November 20, 1961, in which he stated, at page 13:

"The pilot and co-pilot of the Capital Airlines plane were neither negligent nor contributorily negligent at the time of and prior to this occurrence."

He also found that inasmuch as the jet trainer was flying from behind and underneath the Viscount, neither the pilot nor the co-pilot could have seen the approach of the jet before it collided with the Viscount. This finding was never disturbed; however, it was not expressly affirmed as it had been in the Pennsylvania cases.

Judge Holtzoff again found for the plaintiffs in the D.C. cases on the grounds that the accident was the result of the negligence of the F. A. A. employees. Judge Holtzoff further found that there was an agency relationship between the F. A. A. employees and the United States. Thus the United States was responsible for their acts of negligence.

As the court has mentioned before, Judge Holtzoff's decision of June 30, 1966, is now on appeal. The Pennsylvania cases have not been retried.

With this background, the position of the parties on the issues raised by the motions for summary judgment can now be examined.

The plaintiffs herein are seeking collaterally to estop the United States from denying its negligence on the ground that the issue of negligence of the United States was litigated and determined against it by the United States District Court for the District of Columbia in ...