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November 22, 1996


The opinion of the court was delivered by: CASTILLO

 This is the fourth opinion this Court has issued in these consolidated cases arising out of the fatal crash of American Eagle Flight 4184 near Roselawn, Indiana on October 31, 1994. In this opinion, the Court addresses the defendants' motion for a choice of law ruling establishing the substantive law to be applied to the claims of non-Indiana plaintiffs *fn1" for compensatory damages, specifically those damages sought for the passengers' pre-impact fear and terror. In its most recent previous opinion, In re Aircrash Disaster Near Roselawn, Indiana on October 31, 1994, 926 F. Supp. 736 (N.D. Ill. 1996) (" Roselawn III "), this Court held that Indiana law applied to the compensatory damage claims of five Indiana plaintiffs and decedents. The defendants now seek a ruling that Indiana law governs the pre-impact fear damage claims of all other decedents and plaintiffs as well (the "Remaining Cases"). *fn2" For the reasons stated below, the Court grants in part and denies in part the motion.

 Many of the relevant facts concerning the tragic Flight 4184 were laid out in Roselawn III. Additional facts relevant here are largely supplied by Exhibit A to the defendants' motion, which lists the domiciles of the decedents, plaintiffs, and next-of-kin in all the Remaining Cases; the place where each decedent's estate is administered; the named defendants in each case, and their domiciles; and the state in which the action was originally filed. We note certain minor corrections made by the plaintiffs, *fn3" and otherwise incorporate Exhibit A by reference. To the extent that they are necessary to our analysis, these facts may be discussed in more detail below.


 Existence of a Conflict

 A court need not conduct a choice of law determination unless there is an actual conflict in the substantive law such that the case could have a different outcome depending on which law is applied. In re Aircrash Disaster Near Chicago, Illinois on May 25, 1979 ("Air Crash Chicago"), 644 F.2d 594, 605 (7th Cir. 1981). It is clear that such a conflict exists here on the issue before us: the availability of damages for a decedent passenger's pre-impact fear.

 The defendants ask this Court to apply Indiana law (the law of the place where the injury was sustained) on this issue in all the Remaining Cases. Indiana does not permit recovery for decedents' personal injuries, including pre-impact mental distress. See Sekerez v. Gehring, 419 N.E.2d 1004, 1007 (Ind. Ct. App. 1981); Ind. Code § 34-1-1-1 (under Indiana law, a decedent cannot bring a claim for personal injuries that caused his death).

 By contrast, most of the plaintiffs ask the Court to apply the law of each decedent's domicile in his or her case. In most cases, these domiciliary states' laws offer greater possibilities of recovery for pre-crash fear. For example, many of the decedents in the Remaining Cases were residents of Illinois before their deaths. Illinois permits recovery for a decedent's mental distress under certain circumstances when it is accompanied by a related physical injury. See Kapoulas v. Williams Ins. Agency, Inc., 11 F.3d 1380, 1384-85 (7th Cir. 1993) (analyzing Illinois law of emotional distress claims); 755 ILCS § 5/27-6 (1996) ("actions to recover damages for an injury to the person" survive the person's death). The laws of some other decedents' domiciles appear to be even more favorable, allowing recovery for this type of injury without requiring accompanying physical injury. See, e.g., Shu-Tao Lin v. McDonnell Douglas Corp., 742 F.2d 45, 53 (2d Cir. 1984) (New York law permits recovery for aircrash decedent's pre-impact fear); Chapple v. Ganger, 851 F. Supp. 1481, 1487 (E.D. Wash. 1994) (awarding pre-impact mental distress damages under Washington law in auto accident case); Livingston v. United States, 817 F. Supp. 601, 605 (E.D.N.C. 1993) (decedent who "more likely than not . . . knew that he was faced with imminent bodily injury before impact" could recover damages for pre-impact fear under North Carolina law); Larsen v. Delta Air Lines, Inc., 692 F. Supp. 714, 721 (S.D. Tex. 1988) (compensatory damages for decedent's pre-impact fear are generally available under Texas law). In addition, the parties represent that South Korean law permits recovery.

 On the other hand, some plaintiffs' decedents resided in states or foreign countries with laws that would prevent recovery for pre-impact fear. See, e.g., ARIZ. REV. STAT. § 14-3110 (providing for survival of certain actions but barring recovery for decedent's pain and suffering); CAL. CIV. PROC. CODE § 377.34 (damages recoverable in a survival action "do not include damages for pain, suffering"). The parties also submit that under English law, fear of impending death standing alone cannot give rise to a cause of action which survives that death. Some of these plaintiffs argue against applying the law of the decedent's domicile and instead seek the application either of Texas law, because that state is the principal place of business of some of the defendants, *fn4" or a new "federal common law" of air crash cases, to be created by reference to maritime law. These parties argue that either of these sources of law would permit recovery for mental distress experienced immediately prior to the crash. See Larsen, 692 F. Supp. at 721 (Texas law); Anderson v. Whittaker Corp., 894 F.2d 804, 814 (6th Cir. 1990) (maritime law recognizes survival claims for pre-death fear and terror).

 It can easily be seen that a true conflict exists among the various states' laws that might apply here. Accordingly, this Court must engage in a two-step analysis: determining the proper choice of law rule to be applied to each case, and then using that rule to arrive at the substantive law that will govern the issue of pre-impact fear damages in each case. Before beginning our analysis, however, we dispose of some preliminary matters raised by the parties.

 Preliminary Matters

 Initially, the plaintiffs claim that the entire issue raised by this motion was disposed of in our last opinion, Roselawn III. That opinion held that Indiana law governed compensatory damages for Indiana residents, because Indiana had the most significant contacts on the issue of appropriate compensation for its own residents' injuries sustained in that state. The plaintiffs argue that, because damages for pre-impact fear and terror are compensation for one specific type of personal injury, Roselawn III, which is law of the case, is dispositive here.

 The Court agrees that pre-impact fear damages are merely one category of compensatory damages. It is hornbook law that pain and suffering, whether physical or otherwise, is an element of compensatory damages. We cannot see that this principle is altered by the fact that the compensation at issue here is directed toward the decedent's estate, rather than toward his survivors in their own right--it is still compensatory in nature, and is subject to all the usual characteristics of compensatory damages. Thus, although this opinion is directed specifically toward damages for pre-impact fear, the same choice of law principles would also apply to compensatory damages for other personal injuries. In the same way, because Roselawn III identified the compensatory damages law governing all personal injuries sustained by Indiana residents, it necessarily included the damages recoverable by those residents for their pre-impact fear.

 Nevertheless, our opinion in Roselawn III is not dispositive of the law to be applied to compensatory damages claimed by non-Indiana residents, for at least two reasons. *fn5" First, it did not apply any choice of law rule other than the Restatement (Second) of Conflict of Laws' "most significant relationship" test. Here, by contrast, the court must apply other rules to at least one of the Remaining Cases. Second, even the calculation of factors under the "most significant relationship" test was different there than it would be here: there, the place of injury and the domicile of all the decedents were the same state (Indiana); here, while the place of injury of course remains the same, none of these decedents were domiciled in Indiana. So, the same inquiry conducted then could produce a different answer this time.

 The plaintiffs also urge us to apply "judicial estoppel" to prevent the defendants from raising arguments contrary to those they advanced in support of their previous motion. Specifically, in moving for a ruling applying Indiana law to the Indiana plaintiffs, the defendants argued that the domicile of the plaintiffs was a key factor in the "most significant relationship" test, whereas now they discount the importance of that factor. While the defendants' present approach asks us to ignore many of their previous contentions, however, the plaintiffs are equally guilty of this sin. They, too, now adopt positions contrary to the ones they advanced earlier. The Court certainly is not impressed by both sides' casual abandonment of their earlier arguments, nor has it forgotten those arguments. Nevertheless, the circumstances make the application of judicial estoppel inappropriate here. Judicial estoppel is an equitable doctrine, DeGuiseppe v. Village of Bellwood, 68 F.3d 187, 191 (7th Cir. 1995), so it should not be applied where the party claiming it is as much at fault as the claimed wrongdoer. For this reason, and because the issues presented in the two motions are not identical, we find that the application of judicial estoppel to parties' arguments is not warranted here.

 The final preliminary issue is the effect of the Warsaw Convention on the choice of law analysis in the cases brought on behalf of those passengers who were covered by the Convention. *fn6" In Zicherman v. Korean Air Lines Co., Ltd., 133 L. Ed. 2d 596, 116 S. Ct. 629, 634 (1996), the Supreme Court held that "the Convention does not affect the substantive questions of who may bring suit and what they may be compensated for." Rather, "compensable harm is to be determined by domestic law," 116 S. Ct. at 635, and a court must "apply the law that would govern in the absence of the Warsaw Convention." Id. at 636. By implication, a court must also apply the choice of law rules that would govern in the absence of the Convention. See, e.g., Floyd v. Eastern Airlines, Inc., 872 F.2d 1462, 1482 (11th Cir. 1989) (Warsaw Convention preempts only those aspects of state law that are incompatible with it), rev'd on other grounds, 499 U.S. 530, 113 L. Ed. 2d 569, 111 S. Ct. 1489 (1991); Morgan v. United Air Lines, Inc., 750 F. Supp. 1046, 1052, 1054-55 (D. Colo. 1990) (applying Colorado choice of law rules and substantive law to Warsaw Convention passenger's recovery for emotional distress).

 In their briefs, the Warsaw Convention plaintiffs argued that, since the $ 75,000 damages cap set by the Convention may only be overcome by a showing of willful misconduct, the appropriate choice of law for all damages issues is the Texas, the state where the Airline Defendants are domiciled. That state, they claimed, is the state with the greatest interest in regulating the conduct of corporations residing within its borders. We reject this approach for several reasons. First, in the time since these plaintiffs filed their briefs, the Department of Transportation has announced new regulations raising the damage cap and shifting the burden of proof to defendants with regard to certain issues. The implementation of the new regulations has been delayed by protests from various airline groups. These recent developments cast into question the plaintiffs' argument. Under the new regulations, there are fewer differences between claims brought under the Convention and other passengers' claims. It follows that there is no special reason to focus on the place of the defendants' domicile for Convention claims. Second, adopting these plaintiffs' approach would require giving greater weight to the domicile of the defendants, but only in the Warsaw Convention cases. This unequal treatment would depart from the ...

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