Uppgren v. Executive Aviation Services, Inc.

• Decision Date: 10 May 1971
• Docket Number: Civ. A. No. 70-155-M.
• Citation: 326 F. Supp. 709
• Parties: E. Barbara UPPGREN et al. v. EXECUTIVE AVIATION SERVICES, INC., a Maryland corporation; Loving Chevrolet, Inc., a Maryland corporation; and Hughes Tool Company (Aircraft Division), a Texas corporation.
• Court: U.S. District Court — District of Maryland

326 F. Supp. 709

E. Barbara UPPGREN et al. v. EXECUTIVE AVIATION SERVICES, INC., a Maryland corporation; Loving Chevrolet, Inc., a Maryland corporation; and Hughes Tool Company (Aircraft Division), a Texas corporation.

Civ. A. No. 70-155-M.

United States District Court, D. Maryland.

May 10, 1971.

Donald E. Sharpe, Baltimore, Md., and Kenneth Walls Parkinson, Washington, D. C., for plaintiffs.

William H. Clarke, Rockville, Md., for defendant, Loving Chevrolet, Inc.

Hal C. B. Clagett and Sasscer, Clagett, Powers & Channing, Upper Marlboro, Md., for defendant, Hughes Tool Company.

JAMES R. MILLER, Jr., District Judge.

I.

The plaintiff trustee, a Minnesota resident, on her own behalf as the surviving spouse of Robert A. Uppgren and on behalf of their four minor children, to recover damages for the wrongful death of her husband, has instituted this action against the defendants, Executive Aviation Services, Inc. (Executive) and Loving Chevrolet, Inc. (Loving), both Maryland corporations, and Hughes Tool Company (Hughes), a Texas corporation.

Decedent, Robert A. Uppgren, was employed by the United States Government, Department of the Interior (Interior), in Minneapolis, Minnesota, as a wildlife biologist. On May 12, 1967, in the course of his employment, Mr. Uppgren was a passenger in an Interior helicopter piloted by another Interior employee, when it crashed near Walker, Minnesota, resulting in the death of both Interior employees.

The helicopter involved in the fatality was manufactured by Hughes and purchased by Interior from Loving, Hughes' dealer, in 1965. It was delivered to Interior at the College Park Airport, College Park, Maryland. On or about April 3, 1967, at College Park, Maryland, Loving and Executive procured and installed a replacement engine in the helicopter. Shortly afterward the helicopter was flown to Minnesota for Interior where the fatal crash occurred.

The Amended Complaint¹ alleges breach of warranties and negligence against each defendant as a result of their failure to equip the helicopter with a "fixed lower pulley coupling bumper plug," an omission which is alleged as the proximate cause of the May 12 fatality. (This omission is alleged to have occurred on the April 3, 1967 repair-date at College Park, Maryland).

From the facts presented it appears that Interior purchased the helicopter from Loving by means of a bid, said bid having been accepted by Interior at Washington, D. C., and notice of such acceptance having been mailed by Interior in Washington, D. C., to Loving at its College Park, Maryland address. A copy of the original contract between the parties has not been presented to the court for consideration by it in connection with the pending motion.

Loving has filed a Motion to Strike and/or Reduce Ad Damnum (in which Hughes joins), pursuant to Rule 12(f) F.R.Civ.P., on the theory that Minnesota law applies and, therefore, it should receive the benefit of the Minnesota statute² limiting the amount of recovery in wrongful death actions to a sum not to exceed $35,000. Loving claims that all amounts in plaintiff's petition in excess of this figure should be stricken or reduced as "immaterial and impertinent."

Loving (with Hughes) has also moved to strike paragraph 10 of the Amended Complaint which alleges that the death of Robert A. Uppgren was proximately caused by the wrongful acts of Hughes and Loving, jointly and severally, by breaking an implied warranty of fitness and quality in the sale of the helicopter by defendants to Interior because no "privity" has been alleged between plaintiff's decedent, Uppgren, and Loving. Loving claims that Maryland law is applicable to the warranty phase of the case, and that Maryland requires "privity" when a plaintiff seeks to recover on a warranty arising, as this one does, prior to July 1, 1969.³

Jurisdiction in this matter is based upon diversity of citizenship and the amount claimed exceeds $10,000, exclusive of costs and interest.

II

In an action founded on diversity of citizenship jurisdiction, this court is bound to follow the choice of law rules of Maryland. Where the highest Maryland court has not established an applicable rule, this court must apply a rule which it reasonably believes would be adopted by the highest Maryland court were it to rule on the question. Debbis v. Hertz Corp., 269 F.Supp. 671 (D.Md.1967); La Chance v. Service Trucking Co., 215 F.Supp. 162 at 164 (D.Md.1963). The general choice of law rule for tort actions instituted in the courts of Maryland is the doctrine of lex loci delicti, that the substantive rights of the parties are to be determined by the law of the state in which the alleged tort took place. Dersookian v. Helmick, 256 Md. 627, 261 A.2d 472 (1970); Brady v. State Farm Mutual Automobile Insur. Co., 254 Md. 598, 255 A.2d 427 (1969); Hutzell v. Boyer, 252 Md. 227, 249 A.2d 449 (1969); White v. King, 244 Md. 348, 223 A.2d 763 (1966); Debbis v. Hertz Corp., supra; Huber v. Baltimore & Ohio R. R. Co., 241 F.Supp. 646 (D.Md.1965).

The general rule for the choice of law under the doctrine of lex loci delicti where the place of the injury is different from the place where the allegedly negligent or wrongful act or omission took place is set out in Annotation, 77 A.L.R.2d 1266 (1961), at 1273, as follows:

"Where the issue is the choice between the law of the place where an allegedly wrongful act or omission took place and the law of the place where physical injury or death or both were inflicted, the general rule is that the place of the tort, within the contemplation of the rule that the law of the place of the tort or wrong governs liability and other substantive matters, is the place where the injury or death was inflicted and not the place where the allegedly wrongful act or omission took place."

This rule has been applied as expressing Maryland law in Debbis v. Hertz Corp., supra.

In the present case, the place where the physical injury or death occurred and, therefore, the place of the tort would clearly be Minnesota, the site of the helicopter crash. Applying the rule of lex loci delicti, it would appear incumbent upon this court to apply the substantive tort law of Minnesota and, thus, the monetary limitation on recoveries which the Minnesota Legislature has seen fit to enact. However, plaintiff asserts to do so would be repugnant to the public policy of Maryland as promulgated by its legislature through the Wrongful Death Act found in Article 67, § 1 et seq., Annotated Code of Maryland (1970 Replacement Volume).

Section 2 of said Act provides:

"§ 2. When wrongful act occurs outside of Maryland—In general.

"In any action instituted in the courts of this State where it shall appear that the death of a person has been caused by the wrongful act, neglect or default of a vessel or of another person, firm or corporation, and such wrongful act, neglect, or default shall have occurred outside of the State of Maryland, whether in another state, the District of Columbia or territory of the United States, to the facts of the particular case, as though such foreign law were the law of this State, provided, however, that the rules of pleading and procedure effective in the courts of this State in which the action is pending govern and be so applied as to give effect to the rights and obligations created by and existing under the laws of the foreign jurisdiction in which the wrongful act, neglect or default occurred; provided, however, that nothing in this section shall apply to causes of action arising prior to June 1, 1937."

Nowhere within the language of this section, nor the other sections of the Act, has the legislature imposed a monetary limitation on recoveries under the statute. Judge Thomsen of this court had occasion to quote with approval, in La Chance v. Service Trucking Co., supra, pertinent statements of law as follows:

"In Loucks v. Standard Oil Co., 224 N.Y. 99, 120 N.E. 198, 201, Judge Cardozo said: `Similarity of legislation has indeed this importance; its presence shows beyond question that the foreign statute does not offend local policy. But its absence does not prove the contrary.' Judge Goodrich, in his work on Conflict of Laws, 3d ed., sec. 11, says: `It should take an extraordinary case to justify an argument founded upon the public policy of the forum.'" 215 F.Supp. at 164 (Emphasis supplied).

The mere absence, therefore, of a monetary limitation upon recovery under the Maryland Wrongful Death Act does not of itself reflect such a strong public policy of Maryland as to prevent enforcement of the Minnesota Wrongful Death Statute's monetary limitation. In a proper case, however, it is true that comity between the states does not require the Maryland courts to enforce a law of a sister state when such action would violate the public policy of Maryland. Henderson v. Henderson, 199 Md. 449, 87 A.2d 403 (1952).⁴ The question then remains as to what the public policy of Maryland is on the question of monetary limitations on recovery for wrongful death.

In recent years the Maryland General Assembly has removed certain artificial barriers to recovery for wrongful death.⁵ On the other hand, Judge Kaufman of this court ruled in Debbis v. Hertz Corp., supra, 269 F. Supp. at 679, in 1967 that a recovery ceiling imposed by the wrongful death statute of a sister state in which the tort occurred will be given effect in a suit in Maryland to recover damages for the tort. Subsequent to that holding the General Assembly of Maryland repealed and re-enacted § 4, Article 67 of the Maryland Code, with amendments to expand the measure of damages allowed in a wrongful death action,⁶ but apparently did not see fit to amend § 4 or any other section in the Act to contradict or overrule the construction of the Act in Debbis enforcing the arbitrary ceiling in the amount of recovery in a case where the law of the place where the tort occurred imposes such a ceiling. The General Assembly...