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KUNREUTHER v. OUTBOARD MARINE CORP.

June 23, 1989

HOWARD KUNREUTHER, Individually and as Executor of the Estate of SYLVIA KUNREUTHER, his wife, Deceased
v.
OUTBOARD MARINE CORPORATION



The opinion of the court was delivered by: DUBOIS

 JAN E. DUBOIS, UNITED STATES DISTRICT JUDGE

 Presently before the Court is the Motion of the defendant, Outboard Marine Corporation ("Outboard Marine"), for an Order Holding that the Substantive Law of the Country of Jamaica Should Apply to the Issues of Liability and Damages. Outboard Marine cites Fed. R. Civ. P. 44.1 as authority for this Court to issue such an Order. Rule 44.1 of the Federal Rules of Civil Procedure provides that:

 
A party who intends to raise an issue concerning the law of a foreign country shall give notice by pleadings or other reasonable written notice. The court, in determining foreign law, may consider any relevant material or source, including testimony, whether or not submitted by a party or admissible under the Federal Rules of Evidence. The court's determination shall be treated as a ruling on a question of law.

 That rule does not provide for the pretrial adjudication of the choice of laws issue. However, that issue may be decided pretrial under Fed. R. Civ. P. 16. See Cannon v. Hilton Hotels Corp., 664 F. Supp. 199 (E.D. Pa. 1987).

 This is a diversity action to recover for the death of Sylvia Kunreuther. The decedent and her husband, plaintiff Howard Kunreuther, were residents and citizens of Pennsylvania. Outboard Marine, is a Delaware Corporation with its principal place of business in Waukegan, Illinois.

 On June 3, 1987, plaintiff and the decedent were vacationing in Montego Bay, Jamaica. On that date, while the decedent was snorkeling in Jamaican waters, she was struck by the propeller of a 175 horsepower Evinrude outboard motor allegedly manufactured by the defendant and being used to power a twenty-two foot Mako motorboat.

 The boat was operated by a Jamaican citizen and was owned by another Jamaican citizen. Neither of those individuals are parties to this action.

 The decedent received initial treatment at a Jamaican hospital. Later, she was taken by air ambulance to Mt. Sinai Hospital in Miami, Florida. She died on June 4, 1987, in Miami, allegedly as a result of the propeller wounds.

 The plaintiff's action against Outboard Marine is premised on the theory that the motor was of defective design. Specifically, plaintiff contends that the motor should have been equipped with a propeller guard and that injuries to the decedent would have been much less severe if the propeller had been guarded.

 Outboard Marine contends that Jamaican law should apply to the issues in this case. While I agree that Jamaican law should be applied on the issue of liability, I am not convinced that Jamaican law should govern the issue of damages.

 Because this action is brought under this Court's diversity jurisdiction, I must apply the choice of law rules of the forum state to determine which law governs the substantive issues of this case. Klaxon Co. v. Stentor Electric Manufacturing Co., 313 U.S. 487, 85 L. Ed. 1477, 61 S. Ct. 1020 (1941).

 In Griffith v. United Airlines, 416 Pa. 1, 203 A.2d 796 (1964), the Pennsylvania Supreme Court abandoned the strict lex loci delicti choice of law rule which provided that the law of the place of injury would be applied in all tort actions brought in Pennsylvania. Griffith was supplemented and clarified by another Pennsylvania Supreme Court case, Cipolla v. Shaposka, 439 Pa. 563, 267 A.2d 854 (1970). These two cases have defined and established the Pennsylvania choice of law rules. Blakesley v. Wolford, 789 F.2d 236 (3d Cir. 1986).

 The Cipolla/Griffith choice of law analysis combines the Restatement's "most significant relationship" analysis with an "interest analysis." Blakesley, 789 F.2d at 239. One method adopted by the Pennsylvania Supreme Court to determine which state has the greater interest in the application of its law is to analyze qualitatively the contacts each state has with the accident. Cipolla, 267 A.2d at 856. "Contacts considered vital in determining the state of the most significant relationship include place of injury, place of ...


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