Tomlin v. Boeing Co.

• Decision Date: 13 July 1981
• Docket Number: No. 79-4369,79-4369
• Citation: 650 F.2d 1065
• Parties: Maria Cardwell TOMLIN, et al., and Christine Williams Harrell, et al., Plaintiffs-Appellants, v. The BOEING COMPANY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1065

650 F.2d 1065

Maria Cardwell TOMLIN, et al., and Christine Williams Harrell, et al., Plaintiffs-Appellants, v. The BOEING COMPANY, Defendant-Appellee.

No. 79-4369.

United States Court of Appeals Ninth Circuit.

Argued and Submitted March 3, 1981.

Decided July 13, 1981.

Robert S. Cooper, Jr., Cooper & Cooper, Baton Rouge, La., for plaintiffs-appellants.

John D. Dillow, Seattle, Wash., argued for defendant-appellee; Richard Prentke, Seattle, Wash., on brief.

Appeal from the United States District Court for the Western District of Washington.

Before CHOY and BOOCHEVER, Circuit Judges, and FRYE, ^* District Judge.

BOOCHEVER, Circuit Judge:

The laws of four states and the Republic of South Vietnam are potentially involved in this case. The issue is whether the appellants' wrongful death action against the Boeing Company is time-barred. The answer turns on which statute of limitations governs. The district court, interpreting Washington conflicts law, concluded that a Washington court would not apply Washington's three year statute of limitation and dismissed the case as time-barred under the other states' shorter limitation periods. We conclude that a recent decision of the Washington Supreme Court indicates that it would apply Washington's three year statute and reverse.

The relevant facts are not disputed. Two servicemen, Barry Tomlin and Samuel Harrell, were killed in a helicopter crash in South Vietnam on May 10, 1972. The helicopter which they were piloting crashed because an aft rotor blade developed a crack and separated in mid-flight. Vetrol, a Pennsylvania based division of The Boeing Company, built the helicopter and rotor blade. The United States Army acquired the helicopter in 1965.

Tomlin and Harrell were each survived by a wife and two children. Tomlin's wife, Maria, and children lived in Alabama at the time of the accident. Maria Tomlin is the administratrix of Tomlin's estate which is being probated in Alabama. At the time she filed her complaint, she had moved to Georgia. Christine Harrell and her children lived in Florida at the time of the accident and she is probating Harrell's estate there. She was still living in Florida when she filed her complaint.

Boeing's principal place of business is in the State of Washington.

Tomlin and Harrell brought this action for the wrongful deaths of their husbands in the Federal District Court for the Western District of Washington on May 9, 1975, a day short of Washington's three-year statute of limitation. Both sides began extensive discovery and a pretrial order containing a lengthy stipulation of facts was filed on June 30, 1978. On March 1, 1979, Boeing moved for summary judgment on the ground that the action was barred by the statute of limitation. On May 14, 1979, Judge Voorhees granted Boeing's motion and this appeal followed.

No party contends that the law of Vietnam should be applied and we have not considered the possibility. Each of the four states, namely, Alabama, Florida, Pennsylvania and Washington, has a wrongful death statute and the only conflict with which this appeal is concerned relates to the applicable limitation period. Alabama and Florida both have two-year statutes of limitation applicable to wrongful deaths, Pennsylvania has a one-year statute, and Washington has a three-year statute. ¹ The case is thus time-barred unless Washington's statute applies.

This is a diversity case and Washington is the forum state. A federal court sitting in Washington will apply Washington law, including its conflicts law. Klaxon Co. v. Stentor Electric Manufacturing Co., 313 U.S. 487, 496, 61 S.Ct. 1020, 1021, 85 L.Ed. 1477 (1941).

Washington has rejected the doctrine of lex loci delicti which requires a forum state to apply the substantive law of the place of the injury. Instead it applies the law of the state with the most significant contacts and interest in having its law applied. Johnson v. Spider Staging Corp., 87 Wash.2d 557, 555 P.2d 997, 1000 (1976).

In a thoughtful opinion, the district judge suggested that a Washington court might analyze a conflict in statutes of limitation using either of two approaches. Under the first approach (modified interest analysis), a Washington court would first decide which wrongful death act applied. If the court decided that a foreign state had the greatest interest in application of its wrongful death act, the court would next determine whether the applicable statute of limitation was substantive or procedural. Washington would apply the statute of limitation of the foreign state's wrongful death act if substantive, but its own statute of limitation if procedural.

Since the two plaintiffs were domiciliaries of Alabama and Florida at the time of the accident, the judge concluded that those two states were the most interested in having their wrongful death acts applied. He further concluded that the Alabama and Florida statutes of limitation relating to wrongful deaths were substantive. Thus he concluded that Washington would apply the two-year statute of limitation from those states rather than Washington's three-year statute.

The district judge considered it more likely that Washington would follow modified interest analysis and look to the applicable wrongful death act before examining the statute of limitation. Nevertheless, the judge alternatively examined how a Washington court applying "direct" interest analysis would approach a conflict in statutes of limitation. Under this approach, the judge analyzed the choice of law issue relating to the statute of limitation independently of the wrongful death act to be applied. The judge believed that Pennsylvania had the greatest interest in seeing its shorter statute of limitation applied, and concluded that a Washington court would dismiss the appellants' case under this approach as well.

I. APPLICATION OF MODIFIED INTEREST ANALYSIS

As discussed, the district court's primary approach used modified interest analysis. Under that analysis, the court first used interest analysis to determine which state's wrongful death act was applicable and then used a substantive-procedural test, rather than interest analysis, to determine whether that state's statute of limitation controlled. Despite the deference granted to district court judges in interpreting questions of local law, see Takahashi v. Loomis Armored Car Service, 625 F.2d 314, 316 (9th Cir. 1980), our reading of Washington law convinces us that a Washington court would apply direct interest analysis to both aspects of the conflicts issue, rather than a modified interest analysis. We also believe that a Washington court applying direct interest analysis would apply its own statute of limitations.

One reason the district court considered it more likely that Washington would follow a modified interest analysis was that Washington has a "borrowing statute." This statute provides that where a cause of action arises between two non-residents in a foreign state, a Washington court will "borrow" the statute of limitation of the state where the cause of action arose. Wash.Rev.Code Ann. § 4.16.290. ² Because such a statute might discourage forum shopping, the judge concluded that there would be less need to use direct interest analysis for resolution of conflicts in statutes of limitation.

We do not believe that Washington's borrowing statute can be considered authority for not applying interest analysis to a conflict in statute of limitation, however. First, the Washington borrowing statute, which is narrowly drawn, is inapplicable to this case because Boeing is a resident of Washington. ³ Second, the statute, which was first enacted over a century ago, was designed to prevent automatic application of the forum state's statute of limitation to foreign claims. But, interest analysis has essentially the same purpose. Because the borrowing statute is inapplicable and was enacted before the state's adoption of the interest analysis approach to conflicts problems, it does not support the position that interest analysis should not be applied to a conflict in statutes of limitation.

In the same situation, the Supreme Court of Wisconsin has twice applied interest analysis to conflicts between statutes of limitation when Wisconsin's borrowing statute was inapplicable. See Central Mutual Insurance Co. v. H. O., Inc., 63 Wis. 54, 216 N.W. 239, 243 (1974) ("borrowing statute does not block the path" of an action to which it is inapplicable); Air Products & Chemicals, Inc. v. Fairbanks Morse, Inc., 58 Wis.2d 193, 206 N.W.2d 414, 418 (1973). ⁴

The highest court of New Jersey and the First Circuit, interpreting New Hampshire law, have applied interest analysis to statutes of limitation. ⁵ Additionally, it has been suggested, in either somewhat ambiguous terms or with conflict in authority, as the applicable approach in California, the District of Columbia, Indiana, Michigan and Oregon. ⁶

Although there is authority directly opposed to this position, Cuthbertson v. Uhley, 509 F.2d 225 (8th Cir. 1975) (the court, interpreting Minnesota Law, refused to extend interest analysis to statutes of limitation), accord, Wright v. Fireman's Fund Ins. Co., 522 F.2d 1376 (5th Cir. 1975) (Louisiana Law) the modern commentators have uniformly advocated direct interest analysis to conflicts in statutes of limitation. As Professor Leflar states:

There is no inherent reason why the choice between statutes of limitations should be handled any differently than other choice-of-law problems. R. Leflar, American Conflicts of Law, § 128, at 256 (3d ed. 1977).

See Milhollin, supra note 4, at 16; Grossman, Statutes of Limitations and the Conflict of Laws: Modern Analysis, 1980 Ariz.St.L.J. 1, 42-43, 64-65 (1980); Wurfel, Statutes of Limitations in the Conflict of Laws, 52 N.C.L.Rev. 489 (1974); Note: An Interest-Analysis Approach to the Selection of Statutes of Limitation, 49 N.Y.U.L.Rev. 299 (1974).

Although the...