Tennimon v. Bell Helicopter Textron, Inc.
| Decision Date | 07 July 1987 |
| Docket Number | No. 86-1909,86-1909 |
| Citation | 823 F.2d 68 |
| Parties | Elaine Roselyn TENNIMON, et al., Plaintiff-Appellant, v. BELL HELICOPTER TEXTRON, INC., Defendant-Appellee. Summary Calendar. Fifth Circuit |
| Court | U.S. Court of Appeals — Fifth Circuit |
D.L. Middlebrooks, Charles J. Kahn, Jr., Pensacola, Fla., for plaintiff-appellant.
John W. Proctor, R. David Broiles, Brown, Herman, Scott, Dean & Miles, Fort Worth, Tex., for defendant-appellee.
Appeal from the United States District Court for the Northern District of Texas.
Before RUBIN, RANDALL and HIGGINBOTHAM, Circuit Judges.
Elaine Tennimon appeals from the district court's grant of summary judgment in favor of Bell Helicopter Textron, Inc. ("Bell") on Bell's defense that Tennimon's wrongful death claims are barred by limitations. Because we agree with the district court that the statute of limitations has run on Tennimon's claims, we affirm.
On March 28, 1973, Thomas Durwood Tennimon, Jr., Elaine Tennimon's husband, was killed in a crash involving a Huey Cobra Helicopter manufactured by Bell. The crash occurred at Fort Campbell, Kentucky. Tennimon was informed of her husband's death on the day of the crash. Tennimon contends that four days after she learned of the accident she asked the commanding officer at Fort Campbell the cause of the accident and was informed that the accident was caused by "pilot error." Apparently accepting this explanation, Tennimon made no further inquiries as to the cause of the crash until 1984, when Tennimon's mother called her attention to a newspaper article in the Fort Worth Star-Telegram which described a mechanical problem with the rotors in helicopters manufactured by Bell. After reading another article on alleged defects in Bell helicopters, this one published in the Pensicola News Journal on May 23, 1984, Tennimon contacted an attorney.
On September 26, 1984, more than eleven years after her husband's death, Tennimon sued Bell for wrongful death, alleging theories of warranty, negligence, and products liability, with federal jurisdiction premised on diversity of citizenship. Tennimon sued individually, as the personal representative of Thomas Tennimon's estate, and as next friend of her minor children, Thomas Durwood Tennimon III and Andrew Wayne Tennimon. The suit was originally brought in the United States District Court for the Southern District of Texas but, on Bell's motion, was transferred to the Northern District of Texas. On August 21, 1985, Bell filed a motion for summary judgment, arguing that Tennimon had failed to qualify as a personal representative of her husband's estate under either Florida or Kentucky law, and that, in any case, Tennimon's claims were barred by either the Florida or Kentucky statutes of limitations.
In a memorandum opinion filed on November 26, 1986, the district court granted Bell's motion for summary judgment. The district court, noting that the parties were in agreement that the 1973 Texas wrongful death statute, Tex.Rev.Civ.Stat.Ann. art. 4671, had no extra-territorial effect, held that Tennimon's claim for wrongful death must be founded on the law of either Florida, the Tennimon's domicile, or Kentucky, the place where the crash occurred. The district court concluded, however, that under Texas choice-of-law rules, a Texas court would apply the two-year Texas statute of limitations for wrongful death actions. Since the Texas statute of limitations applied to this case, the district court reasoned, any argument that the statute of limitations was tolled would also be decided according to Texas law. Turning to Tennimon's arguments that the statute of limitations had been tolled, the district court held that neither the "discovery rule" nor the doctrine of fraudulent concealment operated to toll the limitations period in this case. Finally, the district court held that the minority of Tennimon's sons did not toll the statute of limitations because the exclusive right to bring a wrongful death action under both Kentucky and Florida law is vested by statute in the personal representative of the decedent's estate, not in the decedent's children. Hence, the district court entered judgment dismissing Tennimon's complaint with prejudice. Tennimon filed a timely notice of appeal to this court.
On appeal, Tennimon argues that the district court erred in rejecting her argument that the statute of limitations did not begin to run until 1984, the time that Tennimon "discovered" that Bell might have been responsible for her husband's death, rather than at the time of her husband's death in 1973. Tennimon argues that she used due diligence to discover the cause of her husband's death by inquiring of the commanding officer at the base concerning the cause of the accident, and that, in any case, due diligence is a fact issue precluding summary judgment. Furthermore, Tennimon argues that, under Kentucky law, the statute of limitations was tolled as to her children's claims until she was appointed by a Florida state court as administrator of her husband's estate on September 23, 1985.
In response, Bell argues that because Tennimon is not qualified under Kentucky law as the personal representative of her husband's estate, she is not entitled to maintain this action for wrongful death, and that, even if she were so qualified, the Kentucky statute of limitations would be a bar to this action. Bell argues further that the minority of Tennimon's children did not toll the statute of limitations under Kentucky law because this provision only applies when no other person can sue, and therefore does not apply in this case because the Kentucky wrongful death statute confers the exclusive right to sue on the personal representative. Bell argues that Tennimon's claims are also time-barred under Florida's one-year statute of limitations, which is not tolled during infancy. Finally, Bell argues that neither the discovery rule nor the doctrine of fraudulent concealment operated to toll the statute of limitations in this case.
Before addressing the arguments of the parties, we will first address the choice-of-law issue.
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, 82 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).
Rosenberg v. Celotex Corp., 767 F.2d 197, 199 (5th Cir.1985). Hence, a district court in Texas will apply Texas choice-of-law rules.
As noted above, the district court declined to decide whether the substantive law of Kentucky or that of Florida governed this action, but instead held that Tennimon's claims were barred under either Kentucky or Florida law. Similarly, Bell did not take a firm position on choice-of-law before either the district court or this court, except to take the position that the Texas wrongful death statute, which had no extra-territorial effect in 1973, does not apply in this case. 1 On appeal, Tennimon takes the position that Kentucky substantive law applies to this case. We agree with Tennimon that a Texas court would apply the Kentucky wrongful death statute in this case. In Cox v. McDonnell-Douglas Corp., 665 F.2d 566 (5th Cir.1982), this court had occasion to analyze the Texas choice-of-law rules for wrongful death actions brought in Texas pursuant to the pre-1975 Texas wrongful death statute involving deaths occurring outside of Texas. After conducting an extensive review of the Texas case law on this issue, we concluded as follows:
Thus, it appears (1) that the Texas courts interpret the pre-1975 article 4678 as a mandate to apply the judicially-created lex loci delicti rule in a foreign statutory wrongful death action, and (2) that the lex loci delicti rule, as interpreted by the Texas courts at the time article 4678 was enacted, calls for application of the law of the place of injury, even in instances where the injury and the act that causes the injury occur in different states.
Id. at 571; see Gutierrez v. Collins, 583 S.W.2d 312, 315 (Tex.1979). The substantive law of Kentucky, the jurisdiction in which Tennimon's husband was killed, therefore governs Tennimon's claims.
Turning to the issue of the statute of limitations to be applied in this case, the district court held that the Texas statute of limitations applicable to actions for wrongful death applied, since the applicable statutes of limitations in Kentucky and Florida were "procedural," rather than "substantive." 2 The district court also decided that since the Texas statute of limitations applied, any argument that the statute was tolled would also be decided according to Texas law. Hence, the district court applied Texas law to the issues of the applicability of the discovery rule and the doctrine of fraudulent concealment. The parties apparently do not dispute the application of either the Texas statute of limitations or of Texas tolling doctrines, although Tennimon also argues that the minority of her sons suspends the running of the statute of limitations under both Texas and Kentucky law. Hence, we will analyze this issue under both Texas and Kentucky law. We also note that, on appeal to this court, Tennimon has apparently abandoned her arguments based on fraudulent concealment, and argues only that the discovery rule operated to toll the statute of limitations in this case until 1984, the time that Tennimon discovered that the helicopter built by Bell might have been defective. Hence, we give only cursory consideration to the district court's disposition of this issue.
Hence, Tennimon's arguments for reversal center on the discovery rule as applied by the Texas courts, and whether the minority of Tennimon's children operated to toll the statute of limitations...
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...1986). The federal district court dismissed the suits, citing the recent Fifth Circuit decision of Tennimon v. Bell Helicopter Textron, Inc., 823 F.2d 68 (5th Cir.1987), wherein that court held the discovery rule does not apply to section 16.003(b). The cases were consolidated on appeal, an......
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