Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

PELINSKI v. GOODYEAR TIRE & RUBBER CO.

October 27, 1980

STEPHEN C. PELINSKI AND PAMELA PELINSKI, PLAINTIFFS,
v.
THE GOODYEAR TIRE AND RUBBER COMPANY AND BEHLEN MANUFACTURING COMPANY, DEFENDANTS. THE GOODYEAR TIRE AND RUBBER COMPANY AND BEHLEN MANUFACTURING COMPANY, THIRD PARTY PLAINTIFFS, V. SPACEMARK, INC., THIRD PARTY DEFENDANT.



The opinion of the court was delivered by: Shadur, District Judge.

MEMORANDUM OPINION AND ORDER

Stephen Pelinski ("Pelinski") and Pamela Pelinski brought this diversity-based personal injury action against Goodyear Tire and Rubber Company ("Goodyear"), owner of the Norfolk, Nebraska premises on which the alleged injury occurred, and Behlen Manufacturing Company ("Behlen"), general contractor for construction of a plant on Goodyear's property. In turn, Goodyear and Behlen filed third party complaints against Spacemark, Inc. ("Spacemark"), Pelinski's employer and Behlen's subcontractor.

Spacemark has moved (1) "to dismiss for lack of cause of action" and (2) to transfer this action to the District Court for the District of Nebraska.*fn1 For the reasons stated in this memorandum opinion and order, Spacemark's motions are denied.

Applicable Law

Except for a few oblique references, none of the parties really addresses the question of what law applies to the questions before the Court. Each essentially assumes the applicability of Nebraska law, though there are some references in the briefs to Illinois law as well. Because this Court cannot indulge such an assumption, the choice of law question will be addressed briefly.

In this diversity action, Illinois choice of law doctrine of course applies under familiar Erie v. Tompkins principles, Klaxon Co. v. Stentor Electric Mfg. Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941). Whichever party's view of the controversy prevails, Illinois doctrines lead to the application of the substantive law of Nebraska:

  1. If Spacemark is right, the third party complaints
     are essentially tort actions. Because Nebraska was
     the place where the injury occurred and Illinois
     has no more significant relationship with the
     occurrence and with

     the parties, Nebraska law would apply. Ingersoll
     v. Klein, 46 Ill.2d 42, 45, 262 N.E.2d 593, 595
     (1970).
  2. If Goodyear and Behlen are right, the third party
     complaints would rest on grounds that are either
     impliedly contractual or arise out of a "special
     relationship" among the parties. In either case,
     the conflict of laws test would look to the
     jurisdiction having the most significant contacts
     (plainly Nebraska), and once again Nebraska law
     would apply. Arnold v. Industrial Commission,
     21 Ill.2d 57, 61, 171 N.E.2d 26, 28-29 (1960).

Motion to Dismiss

Spacemark's motion to dismiss is based on its argument that the Nebraska Workmen's Compensation Act (the "Act"), Neb.Rev.Stat. § 48-148, bars any third party actions against an employer:

  If any employee, or his dependents in case of death,
  of any employer subject to the provisions of section
  48-109 to 48-147 files any claim with, or accepts any
  payment from such employer, or from any insurance
  company carrying such risk, on account of personal
  injury, or makes any agreement, or submits any
  question to the court under said sections, such
  action shall constitute a release to such employer of
  all claims or demands at law, if any, arising from
  such injury.

That statute was definitively construed in Vangreen v. Interstate Machinery & Supply Co., 197 Neb. 29, 246 N.W.2d 652 (1976).

In Vangreen an employee filed a personal injury action against a fellow employee and against the lessor of equipment leased to plaintiff's employer, also making the employer a party to determine its subrogation rights under the Act. After the lessor had settled with plaintiff it cross-claimed against plaintiff's employer, seeking indemnity and contribution.

Although the lessor had denied any negligence, the Nebraska Supreme Court found that such denial had "little, if any, validity in view of the nature of its settlement with Vangreen" and that in any case it was required to assume that the third party defendant was also guilty of negligence ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.