Tiernan v. Westext Transport, Inc.

• Decision Date: 06 February 1969
• Docket Number: Civ. A. No. 3449,3471.
• Citation: 295 F. Supp. 1256
• Parties: Joseph J. TIERNAN, Jr., in his capacity as Administrator of the Estate of James E. Tiernan v. WESTEXT TRANSPORT, INC., Supervised Investors Services, Inc., Raymond West. Joseph J. TIERNAN, Jr., in his capacity as Administrator of the Estate of James E. Tiernan v. Patricia DUNN, in her capacity as Administratrix of the Estate of Richard J. Dunn.
• Court: U.S. District Court — District of Rhode Island

295 F. Supp. 1256

Joseph J. TIERNAN, Jr., in his capacity as Administrator of the Estate of James E. Tiernan v. WESTEXT TRANSPORT, INC., Supervised Investors Services, Inc., Raymond West.

Joseph J. TIERNAN, Jr., in his capacity as Administrator of the Estate of James E. Tiernan v. Patricia DUNN, in her capacity as Administratrix of the Estate of Richard J. Dunn.

Civ. A. Nos. 3449, 3471.

United States District Court D. Rhode Island.

February 6, 1969.

COPYRIGHT MATERIAL OMITTED

James M. Jerue, William C. Dorgan, Providence, R. I., for plaintiff.

Raymond A. LaFazia, Providence, R. I., for Westext Transport and Raymond West.

William A. Curran, Providence, R. I., for Supervised Investors.

Joseph A. Kelly, Providence, R. I., for Patricia Dunn, Admx.

OPINION

PETTINE, District Judge.

This is a motion to vacate orders of dismissal entered by this court on July 22, 1965 as to the first and second counts of the plaintiff administrator's complaints in C.A. Nos. 3449 and 3471.

These two diversity suits arose out of an automobile accident on April 10, 1964 in Plainville, Massachusetts in which the plaintiff's decedent, a former resident and citizen of Rhode Island, was killed. Both suits were commenced in early 1965,¹ and in both suits the plaintiff stated causes of action under both the Rhode Island and Massachusetts wrongful death statutes. Because reference to those statutes may be necessary to the reader they are stated in full in an Appendix to this opinion. In C.A. No. 3449, one of the multiple defendants,² and in C.A. No. 3471, the single defendant, moved for dismissal as to the Rhode Island wrongful death claims. Those motions were predicated on the theory that Rhode Island's wrongful death statute could not be the basis for the plaintiff's claims, because Rhode Island conflict of laws principles required the application of the substantive law of the place of the wrong, here Massachusetts. The plaintiff opposed the motions on the basis that the Rhode Island Supreme Court, if given the opportunity, would apply the more modern conflict of laws principles by which Rhode Island substantive law would control. Because this court recognized the possibility that the Rhode Island Supreme Court might follow the current trend away from strict lex loci delicti, it invited and encouraged the parties to seek declaratory relief in the state courts in order to obtain an authoritative determination. After the parties' rejection of that suggestion, this court entertained and granted the defendant's motions to dismiss on July 22, 1965. However, the cases have continued in litigation to the present time because of the vitality of the Massachusetts wrongful death causes of action. Moreover, in the interim the Rhode Island Supreme Court has reversed its prior conflict of laws principles in the area of torts involving multi-state contacts. Woodward v. Stewart, R.I., 243 A.2d 917 (July 9, 1968).

On the basis of the Woodward decision the plaintiff has moved to vacate the previous orders of dismissal. The plaintiff argues that the dismissals are not final and that, even if final, they can and should be vacated. Further, the plaintiff argues that the standards of Woodward as applied to the facts of this case mandate the application of Rhode Island's wrongful death law. The defendants respond by way of a two-fold argument. First, they claim that the previous dismissals are final judgments which could have been appealed within the prescribed period and, not having been so appealed cannot now be vacated at the trial level. Second, they argue that the Rhode Island wrongful death law is not the governing substantive law under Woodward's standards.³

The Procedural Aspects of the Motion to Vacate

The defendants have argued that the prior dismissals of July 22, 1965 are final judgments and should not now be disturbed. 28 U.S.C. Sec. 1291 states that the courts of appeals have jurisdictional power over "final decisions" of the federal district courts. Where either multiple parties or multiple claims are involved the status of a particular decision at the trial level with respect to its finality, and hence, also, with respect to its appealability, is measured by Fed.R. Civ.P. 54(b). That rule of procedure requires an express determination by a district court that there is no just reason for delay and an express direction for the entry of judgment as the two-fold sine qua non for a final determination. Both of these requirements are lacking in each of the instant cases. In C.A. No. 3449, which is a multi-claim multi-party proceeding, one of the three named defendants moved for dismissal of two of the four alleged causes of action. The motion was granted. The court, however, refrained from either any express determination that there was no just reason for delay or any express direction for the entry of judgment. In C.A. No. 3471 which is a multi-claim, single defendant proceeding, the defendant moved for dismissal as to two of the four alleged causes of action. The motion was granted. Yet the court likewise failed to meet the requisites of Fed.R.Civ.P. 54(b) in that case. In addition, an even cursory reading of the transcribed minutes of the trial court judge both before and after his decision of July 22, 1965 indicates a complete absence of intent on his part to elevate the dismissals to the level of finality. For those reasons it must be concluded that the dismissals of July 22, 1965 were not final judgments and may, accordingly be reconsidered by this court. See Partin v. Hassin Motors, Inc., 363 F.2d 104, 105 (6th Cir. 1966); Gabbard v. Rose, 330 F. 2d 705 (6th Cir. 1964).

There is a further reason why this court should reconsider the dismissals of July 22, 1965, and that reason rests on principles of federalism established by the Supreme Court in Erie R. R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938) and elaborated in subsequent decisions of the Supreme Court and the First Circuit Court of Appeals. In Vandenbark v. Owens-Illinois Glass Co., 311 U.S. 538, 61 S.Ct. 347, 85 L.Ed. 327 (1940) a plaintiff's cause of action in tort was dismissed, upon motion of the defendant, by the federal trial court on the basis that Ohio law banned recovery. While the case was on appeal the Supreme Court of Ohio changed the law and ruled that a person in the position of the plaintiff in Vandenbark did have a cause of action. The Supreme Court remanded the case to the federal district court and stated at p. 543, 61 S.Ct. at p. 350:

"These instances indicate that the dominant principle is that nisi prius and appellate tribunals alike should conform their orders to the state law as of the time of the entry (of their orders). Intervening and conflicting decisions will thus cause the reversal of judgments which were correct when entered.

"* * * we are of the view that, until such time as a case is no longer subjudice, the duty rests upon federal courts to apply state law under the Rules of Decision statute in accordance with the then controlling decision of the highest state court. Any other conclusion would but perpetuate the confusion and injustices arising from inconsistent federal and state interpretations of state law."

Hence it is the clear holding of Vandenbark that "the law of the case" may be modified by a change in state law during the pendency of the case on appeal. A fortiori a change in state law during the pendency of the case at the trial level merits a similar modification.

In Commerce Oil Refining Corp. v. Miner, 303 F.2d 125 (1st Cir. 1962) the First Circuit indicated that "* * * the district court's decision would be subject to change even after it became final within the conventional sense and was pending on appeal. A decision on pertinent state law is to be welcomed at any time."

In the instant case, therefore, the Rhode Island Supreme Court's change from lex loci to center of gravity, grouping of contracts, and interest analysis principles of conflict of laws requires the court to vacate its previous dismissals and to consider whether the principles of conflict of laws enunciated in Woodward warrant the application of Rhode Island substantive law.

The Conflict of Laws Question

A statement of those facts necessary to the court's ruling on the application of Woodward requires first a clarification of the procedural posture of the case at this time. In effect, the court's decision to reach the merits of the choice of laws question revives the defendants' previous motions to dismiss. However, both the plaintiff and the defendants have, in their choice of law arguments, alluded to facts gleaned from lengthy pre-trial discovery. Hence, the court could treat this motion as one for summary judgment. And yet, because pre-trial has not been completed, summary judgment at this juncture seems premature and would precipitate considerable unnecessary scrutiny of the various pre-trial materials. Accordingly these motions will be treated, with respect to the choice of laws question, as defendants' motions to dismiss the plaintiff's complaints.

On this basis, the undisputed facts are as follows. On April 10, 1964 the plaintiff's decedent, a citizen and resident of Rhode Island, was seriously injured in a highway accident in Plainville, Massachusetts. The plaintiff's decedent was riding in the automobile of one Richard J. Dunn, a citizen and resident of New York and an employee, then acting in the course of his employment, of Supervised Investors Services, Inc., a Delaware Corporation with its principal place of business outside Rhode Island. The Dunn vehicle was struck by a tractor-trailer owned and operated by the Westext Transport Co., Inc., a Texas Corporation with its principal place of business outside Rhode Island. The tractor-trailer was driven by one Raymond West, a citizen and resident of Vermont and an employee of Westext then acting in the course of his employment. The accident was allegedly caused by the...