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SCHALLIOL v. FARE

June 13, 2002

MARY SCHALLIOL, PLAINTIFF,
V.
JOHN FARE, JR., ET AL., DEFENDANTS. LOUIS SIMON, ET AL., PLAINTIFFS, V. THE UNITED STATES OF AMERICA, DEFENDANTS.



The opinion of the court was delivered by: Katz, Senior Judge.

  MEMORANDUM AND ORDER

Now before the court are two motions by the United States for the determination of the choice of law. Each motion pertains to one of the above-captioned lawsuits, both of which arise from a fatal plane crash.*fn1 In both suits, the United States is a defendant under the Federal Tort Claims Act, 28 U.S.C.A. §§ 1346(b), 2671 et al. (FTCA), for the alleged negligence of its air traffic controllers and its allegedly negligent publication of materials listing an approach to an airplane runway that was, in fact, not in service. Upon consideration of the parties' submissions, including the parties' stipulation of facts necessary to decide the conflicts of law issue, the court finds that Indiana substantive law applies to all claims pled against the United States under the FTCA. The court further certifies this ruling for immediate appeal pursuant to 28 U.S.C. § 1292 (b).

Background

On January 18, 2000, while attempting to land at an airport near Somerset, Kentucky, an airplane collided with a guy wire on a microwave communications tower, and crashed.*fn2 All four people aboard were killed,*fn3 including the pilot John Fare, Sr. (Pilot Fare), and B. Kenin Hart (Passenger Hart), Dennis Schalliol (Passenger Schalliol) and Loy D. Thompson, IV, who were traveling on behalf of a real estate brokerage conglomerate known as Hart Corporation.

While in flight, Pilot Fare contacted an air traffic controller at the Indianapolis Air Route Traffic Control Center,*fn4 who cleared him landing via the Simplified Directional Facility approach at Runway 4 (SDF 4) at the Somerset airport.*fn5 Pilot Fare also possessed an Instrument Approach Procedure (IAP) for SDF 4, which was published by the United States,*fn6 and allegedly contained information stating that that approach was in service. However, the navigational facility supporting the SDF approach was out of service indefinitely.*fn7 This was indicated on the Airport Directional Facility (MD) published by the Federal Aviation Administration (FAA).*fn8

In their various claims against the United States, plaintiffs contend that the publication of the IAP was negligent, and all parties agree that any such negligence occurred in Washington, D.C.*fn9 Plaintiffs also allege that the air traffic controllers were negligent, and all parties agree that any such negligence of the controllers, including any failure to monitor the aircraft or to supervise personnel, occurred in Indiana.*fn10 Finally, all parties agree that any negligence of Pilot Fare occurred in Ohio and Kentucky,*fn11 and that any negligence of the United States with respect to the publication of the MD occurred in Washington, D.C.*fn12

The parties to this case include plaintiff Mary Schalliol as personal representative of the estate of Dennis Schalliol (Plaintiff Schalliol), who brings claims of negligence against the United States under the FTCA, and also brings claims of negligence on the part of Pilot Fare against the estate of Pilot Fare (Defendant Fare) and against Pilot Fare's employer, Hart Corporation/Delaware Division*fn13 (Defendant Hart Delaware).*fn14 The estate of Pilot Fare, under separate representation, has also brought a cross-claim of negligence against the United States (Cross-Plaintiff Fare).*fn15

In a separate action, four personal representatives of the estate of B. Kenin Hart, his three children and his 88-year-old mother (collectively, the Simon Plaintiffs), also bring claims against the United States.

The United States has filed a separate motion for a determination of the choice of law in each of these cases, and in each motion seeks the application of Indiana substantive law to the claims pled against it under the FTCA. Plaintiff Schalliol, Defendants Fare/Hart Delaware, and the Simon Plaintiffs have each responded separately,*fn16 and each seek the application of Pennsylvania substantive law to these claims.*fn17

Discussion

The Third Circuit requires courts to engage in a complex choice-of-law analysis when FTCA claims are based on allegedly tortious conduct that occurred in more than one state. According to the Third Circuit,

[t]he FTCA waives sovereign immunity and grants district courts jurisdiction over tort claims against the United States "under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred." 28 U.S.C. § 1346(b)(1) (emphasis added). . . . When a case involves multiple alleged acts or omissions occurring in more than one state, the FTCA, as construed by [Richards v. United States, 369 U.S. 1 (1962)], requires the District Court to engage in a complex conflict of laws analysis to determine which state law governs the jurisdictional inquiry. . . . Because Richards interpreted the "law of the place where the act or omission occurred" to mean the "whole law" of the state where the act or omission occurred, including that state's choice of law rules, a two step choice of law analysis is required when multiple acts or omissions have occurred in more than one state. First, the court must select between the states' respective choice of law rules. See Richards, 369 U.S. at 11; Ducey v. United States, 713 F.2d 504, 509 n. 2 (9th Cir. 1983); Bowen v. United States, 570 F.2d 1311, 1318 (7th Cir. 1978); James A. Shapiro, Choice of Law Under the Federal Tort Claims Act: Richards and Renvoi Revisited. 70 N.C.L. Rev. 641, 669-75 (1992). Second, the court must apply that state's choice of law rules to determine which state's substantive tort law applies. See Richards, 369 U.S. at 11, 82 S.Ct. 585; Tyminski v. United States, 481 F.2d 257, 265 (3d Cir. 1973). Because of this bifurcated analysis, the state whose choice of law rules are selected in the first step may or may not be the same state whose substantive law is chosen in the second step.
Before proceeding to the conflict of laws analysis, it is prudent to ensure that there is not a "false conflict" in the underlying choice of law rules or the underlying contribution and indemnity law making it unnecessary to engage in this complex bifurcated analysis. See Williams v. Stone, 109 F.3d 890, 893 (3rd Cir. 1997).

Gould Electronics. Inc. v. United States, 220 F.3d 169, 179-80 (3d Cir. 2000). In sum, in this case the court must first determine whether there is a true conflict in the underlying choice of law rules of the states in which the act or omission of negligence occurred or in the substantive law that might apply; if there is such a conflict the court must next determine which jurisdiction's choice-of-law ...


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