Wilson v. Fraser

• Decision Date: 29 January 1973
• Docket Number: Civ. No. 21351.
• Parties: Marsha H. WILSON, Administratrix of the Estate of Clive N. Wilson, deceased v. Tamsen K. FRASER, executrix of the Estate of Lawrence A. Fraser, deceased.
• Court: U.S. District Court — District of Maryland

353 F. Supp. 1

Marsha H. WILSON, Administratrix of the Estate of Clive N. Wilson, deceased v. Tamsen K. FRASER, executrix of the Estate of Lawrence A. Fraser, deceased.

Civ. No. 21351.

United States District Court, D. Maryland.

January 29, 1973.

Bayard Z. Hochberg and Levin & Hochberg, Baltimore, Md., for plaintiff.

Thomas E. Cinnamond, Thomas Waxter, Jr., and Semmes, Bowen & Semmes, Baltimore, Md., for defendant.

MEMORANDUM OPINION

BLAIR, District Judge.

This is a wrongful death action arising out of a Virginia automobile accident in which both Clive N. Wilson and Lawrence A. Fraser were killed. The plaintiff is Wilson's widow, Marsha, the administratrix of his estate, and the defendant is Fraser's widow, Tamsen, the executrix of his estate. Jurisdiction is based upon diversity of citizenship, 28 U.S.C. § 1332. Counsel have agreed that pursuant to Rule 42(b) of the Federal Rules of Civil Procedure this court is to first determine whether this wrongful death action is barred as a matter of law. For that purpose, the pertinent facts have been presented by stipulation.

Clive N. Wilson and Lawrence A. Fraser had both worked for Sears, Roebuck & Company for a number of years at several locations. At the time of their deaths, they were both managerial employees in Sears' Bethesda, Maryland store and they were both residents of Maryland. To reward certain of its managerial employees for a successful sales promotion, Sears sponsored a dinner at the Market Inn in Washington, D. C. on January 10, 1969. Both Wilson and Fraser attended. Following the dinner, Wilson and Fraser left the Market Inn in the early morning hours of January 11, 1969 in Fraser's car to return to the Sears store in Bethesda so that Wilson could pick up his car. While proceeding along the George Washington Memorial Parkway in Arlington, Virginia, Fraser apparently lost control of his car and ran off the road striking a tree. Both occupants died from the injuries received in the accident.

Sears is a large multi-state employer doing business in both Maryland and Virginia and at the time of the deaths had the requisite number of employees and had filed certificates of self insurance under the workmen's compensation law of both states. The widows of Wilson and Fraser both sought workmen's compensation survivor's benefits in Maryland. Sears did not contest jurisdiction. After finding that the deaths arose out of and in the course of employment, the Maryland Workmen's Compensation Commission, in each case, made an award in excess of $27,000. Wilson's widow, as administratrix of his estate, then commenced this action for wrongful death.

The defendant contends and the plaintiff denies that a claim for Wilson's death would have been cognizable under the Virginia workmen's compensation laws; that in such cases Virginia law bars a wrongful death claim against a fellow servant who caused the death; and that Maryland would apply the Virginia law so as to bar this wrongful death claim.

I.

Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), and its progeny make it clear that in a case founded upon diversity of citizenship this court must apply the law that would be applied by the highest court in Maryland. This law is settled. The Maryland Wrongful Death Statute, Annotated Code of Maryland, Art. 67, § 2 (1970), provides that whenever a wrongful death has occurred outside of Maryland:

the courts of this State shall apply the law of such other state, . . . 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.

Initially then, it is clear that this court must look to the laws of Virginia to determine whether the instant suit may be maintained.

Virginia, like Maryland, has a workmen's compensation law providing benefits for injuries to or death of employees. Under both workmen's compensation laws, the injuries or deaths must arise out of and in the course of covered employment. See, Annotated Code of Virginia, § 65.1-7 (1968); Annotated Code of Maryland, Art. 101, § 15 (1964). See also, Immer & Co. v. Brosnahan, 207 Va. 720, 152 S.E.2d 254 (1967); Coates v. J. M. Bucheimer Co., Inc., 242 Md. 198, 218 A.2d 191 (1966). In Maryland, neither the eligibility for nor the receipt of such benefits is a bar to suit against a fellow servant who was responsible for the injuries or death. Travelers Corp. v. Boyer, 301 F.Supp. 1396 (D.Md. 1969); Hutzell v. Boyer, 252 Md. 227, 249 A.2d 449 (1969). The rule in Virginia is otherwise. Section 65.1-40 of the Annotated Code of Virginia, 1968, provides that an employee, his personal representative, or dependents may not recover in tort from a fellow employee where the injuries sustained arose out of and in the course of the employment. Thus in Virginia, workmen's compensation benefits are the exclusive remedy where the injuries resulted from the actions of a fellow employee. See, Lucas v. Biller, 204 Va. 309, 130 S.E.2d 582 (1963); Ferrell v. Beddow, 203 Va. 472, 125 S.E.2d 196 (1962). See also, Beall v. Standard Elec. Co., 404 F.2d 881 (4th Cir. 1968); Doane v. E. I. Dupont de Nemours & Co., 209 F.2d 921 (4th Cir. 1954).

In Feitig v. Chalkley, 185 Va. 96, 38 S.E.2d 73 (1946), the Supreme Court of Appeals of Virginia clearly set forth the rationale for the development of its workmen's compensation law and its attendant bar to suits between fellow servants. It is this bar that the defendant relies upon in claiming that the wrongful death action may not be maintained in Maryland. The plaintiff seeks to avoid the bar by contending that the lex loci delecti does not extend to the workmen's compensation laws of a foreign jurisdiction. The plaintiff further argues that even if this bar does so extend, Maryland would reject it as being contrary to the State's public policy. This court is persuaded otherwise.

Home Indemnity Co. of New York v. Poladian, 270 F.2d 156 (4th Cir. 1959), involved a claim arising out of injuries to a District of Columbia employee who was injured while temporarily employed in Virginia. The contention there, as here, was that the laws of Virginia governed only the substantive aspects of the claim such as negligence and that the workmen's compensation laws of Virginia which would bar the claim were not part of the lex loci delecti. Chief Judge Sobeloff termed such a contention "curiously restrictive" and observed "that nothing could be more directly related to substance than the question of liability." See also, Restatement (Second), Conflict of Laws, § 184 (1971).

The court has little doubt that there are no public policy or other considerations which would lead the Maryland Court of Appeals to a contrary conclusion. In Harford Mutual v. Bruchey, 248 Md. 669, 238 A.2d 115 (1968), that court held that the law of Virginia—the place of accident—which did not permit recovery for loss of consortium was controlling in an action brought in Maryland whose laws did permit such a recovery. Similarly, in White v. King, 244 Md. 348, 223 A.2d 763 (1966), the Court of Appeals of Maryland held that the Michigan guest statute defeated recovery by a Maryland passenger who brought an action in Maryland against a Maryland driver for injuries sustained in an accident in Michigan. In these holdings, Maryland has rejected the so-called "center of gravity", "grouping of contacts" and "most significant relationships" tests for the older and in the view of the Maryland Court of Appeals more sound lex loci delecti rule.

Nonetheless plaintiff cites Hutzell v. Boyer, 252 Md. 227, 249 A.2d 449 (1969), as authority for her contention that the public policy of Maryland would be contravened by applying the bar of Virginia workmen's compensation law. In that case, both Boyer and Hutzell were Maryland residents employed in Virginia by a Virginia employer. The employer furnished transportation from their home in Maryland to the Virginia job site by providing a truck driven by Hutzell. While they were returning from work, the truck was involved in an accident in Maryland and Boyer was injured. Boyer was not entitled to workmen's compensation benefits in Maryland but he was entitled to such benefits in Virginia. However, he declined to make a claim for them and instead, filed a common law tort action against Hutzell in Maryland. The Court of Appeals of Maryland held that the Virginia workmen's compensation law which barred common law actions against a fellow servant would not prohibit the bringing of such an action in Maryland where the accident happened in Maryland, whose law permitted such suits. This court reads Hutzell v. Boyer as holding only that where the accident occurred in Maryland a claim for injuries sustained could not be defeated by the fact that the injured workman was covered by the workmen's compensation law of another state which would have barred that claim had it been brought in the other state. To this court, the public policy of Maryland, manifest in its statutes, is that where a wrongful death occurs in another state "the courts of this State shall apply the law of such other state . . . as though such foreign law were the law of this State." Annotated Code of Maryland, Art. 67, § 2. If the Maryland Legislature had wanted it otherwise, it would have been...