Attorneys for Appellants Attorneys for Appellee
Karl Mulvaney Peter D. Kiesler
Nana Quay-Smith Assistant Attorney General
Jeffrey S. Bucholtz
Joel S. Perwin Deputy Assistant Attorney General
Michael S. Olin
Miami, Florida Susan W. Brooks
United States Attorney
Stephen Raynes Thomas E. Kieper
Philadelphia, Pennsylvania Assistant United States Attorney
Joseph Lamonaca Terence M. Healy
Chadds Ford, Pennsylvania Rodney Patton
United States Department of Justice
Washington, District of Columbia
On Certification from U.S. Court of Appeals, Third Circuit,
Nos. 02-2945, 02-3997
March 30, 2004
Relying on a chart published by the Federal Aviation Administration in Washington, D.C.,
the pilot sought clearance to complete a Simplified Directional Facility (SDF) approach due
to the poor weather conditions. FAA air traffic controllers based at Indianapolis
cleared the approach despite the fact that the instrumentation required for the landing
at Somerset Airport had not been operational for several years. While attempting
to land, the plane struck a radio tower and crashed.
Plaintiffs filed four wrongful death complaints in the U.S. District Court for the Eastern District of Pennsylvania against the United States under the Federal Tort Claims Act (FTCA). They alleged (1) negligence in the publication at Washington of a chart incorrectly showing that a long-inactive instrument landing approach at the airport was active; and (2) the negligence of Indiana-based air traffic controllers in clearing the pilot for an approach that was out of service, neglecting to monitor the radar during the flight's landing approach, failing to alert the pilot that he was in peril of striking an obstacle, and failing to respond to the pilot's last-minute radio communications. (App. at 52-57).
Of these cases, two have settled. The remaining two, which were brought on behalf of the pilot and one of the passengers from Pennsylvania, are the subject of an interlocutory appeal to the Third Circuit. To facilitate its resolution of that appeal, the Third Circuit certified the following questions to us:
Whether a true conflict of law exists between Indianas and the District of Columbias choice-of-law rules; and
If a true conflict exists and Indianas choice-of-law rules therefore control per the
last significant act test, how should a split among the choice-of-law factors identified
in Hubbard Manufacturing Co., Inc. v. Greeson, 515 N.E.2d 1071 (Ind. 1987), be
resolved in choosing a jurisdictions substantive law when one factor points toward Indiana,
another toward Pennsylvania, and the third is indeterminate, and which jurisdictions substantive law
would Indiana apply under the facts of this case?
Simon v. United States, 794 N.E.2d 1087 (Ind. 2003). We accepted the
certification pursuant to Appellate Rule 64.
Under our history as a
lex loci delecti state, Indiana courts applied the
law of the state in which the tort was committed. Hubbard Manufacturing
Co. v. Greeson, 515 N.E.2d 1071, 1073 (Ind. 1987). Courts did not
consider whether the law of a different state might be more relevant to
the claim, much less to individual issues within the claim. Plaintiffs argue
that our liberalization of the lex loci rule in Hubbard implicitly adopted dépeçage.
(Appellants Br. 24-25.) They say that because the opinion employs language
similar to that used in the Restatement (Second) of Conflict of Laws and
cites the Restatement for factors courts might consider when the place of the
tort is insignificant, Hubbard must have also adopted the Restatements use of dépeçage.
This argument is unpersuasive. First, our opinion in Hubbard made it clear that the Second Restatement factors listed in Hubbard were mere examples of factors that courts might consider. We cited the Restatement as the source of the listed contacts, but the list was not an exclusive one. We did not adopt the Restatements approach to resolving conflicts. Second, the Hubbard language relied on by plaintiffs, though similar to the language used in the Restatement, does not amount to an adoption of dépeçage, a matter not even contemplated in the resolution of that appeal. The language at issue is the Courts instruction that [t]hese factors should be evaluated according to their relative importance to the particular issues being litigated. Hubbard, 515 N.E.2d at 1074. Read alone or in the context of the opinion, the statement recognizes that the relevance of the various factors will vary from case to case due to the particular issues being litigated and instructs courts to analyze the factors according to their relative importance. It does not suggest that a court apply different law to individual issues. Any ambiguity is easily eliminated by the Courts application of the test to the facts of Hubbard: the Court applied the factors to the wrongful death action and found that Indiana law applied; it did not make separate determinations for individual issues within the action. See footnote
Moreover, because Indiana is still primarily a lex loci state and lex loci analysis does not allow for the application of dépeçage, most cases necessarily would not deploy dépeçage. It would be illogical, therefore, to incorporate it into the second step of the Hubbard analysis.
On the simple merits of dépeçage as a judicial technique, we find ourselves unimpressed. By making separate determinations for each issue within a claim, the process amalgamates the laws of different states, producing a hybrid that may not exist in any state. This is a problem for several reasons. First, legislatures may enact a given law only because of its expected interaction with a complementary law. Erin A. O'Hara & Larry E. Ribstein, From Politics To Efficiency In Choice Of Law, 67 U. Chi. L. Rev. 1151, 1193 (2000). For example, a legislature may allow recovery for certain injuries or impose a low standard of proof for liability but place a cap on the damages that might be recovered or adopt immunities for certain potential defendants. Id. Consequently, applying the law outside the context of the other laws in the jurisdiction may contravene legislative intent. In addition, applying a law in isolation increases the likelihood that its purpose and importance will be misconstrued, thereby thwarting state policy. William H. Allen & Erin A. O'Hara, Second Generation Law And Economics Of Conflict Of Laws: Baxter's Comparative Impairment And Beyond, 51 Stan. L. Rev. 1011, 1033 (1999). Ultimately, by applying dépeçage a court may hinder the policy of one or more states without furthering the considered policy of any state.
Dépeçage may also produce unfair results because the hybrid law may be more
favorable to one party than another, allowing a result that could not be
reached if the laws of any one state were applied. As Brainerd
Currie said, a party should not be allowed to
put together half a
donkey and half a camel, and then ride to victory on the synthetic
hybrid. Christopher G. Stevenson, Depecage: Embracing Complexity to Solve Choice-of-Law Issues, Note,
37 Ind. L. Rev. 303, 320 (2003) (quoting Frederick K. Juenger, How Do
You Rate a Century?, 37 Williamette L. Rev. 89, 106 (2001) (quoting Brainerd
Currie)). Moreover, dépeçage compounds the advantage of parties with greater access to
legal resources because it requires a separate analysis of each issue for each
Because D.C.s choice-of-law rules permit
and Indianas do not, there is a
true conflict between the choice-of-law rules used by D.C. and Indiana.
Role of Policy
Although Indiana and the District of Colombia consider the same basic contacts when
analyzing a conflict-of-law problem, we approach the problem from different perspectives. D.C.
implements a hybrid of the governmental interest and Restatement (Second) methodologies that identifies
the governmental policies underlying the applicable laws and determines which states policy would
be most advanced by having its laws applied to the facts of the
Simon, 341 F.3d at 200 (citing Raflo v. United States, 157
F. Supp. 2d 1, 4 (D.D.C. 2001)). Indiana does not require that
courts undertake the difficult and ultimately speculative task of identifying the policies underlying
the laws of multiple states and weighing the potential advancement of each in
the context of the case.
Indiana courts, assuming they reach the second
step of the Hubbard analysis, simply look at the contacts that exist between
the action and the relevant states and determine which state has the most
significant relationship with the action.
This difference in approach may or may not lead to the selection of
different states in a given case. We need not determine whether the
difference is a false conflict in this case, however, because the difference between
the jurisdictions stances on
dépeçage is sufficient to create a true conflict between
the laws of Indiana and D.C.
As Judge Calabresi said so famously, we live in an age that is
choking on statutes. Guido Calabresi,
A Common Law for the Age of Statutes
1 (1982). Rules about choice of law are among the few fields
still dominated by judge-made doctrine. Some seventeen years ago, this Court concluded
that Indianas tradition of adherence to lex loci served well in many cases,
but not in all. Saying that rigid application of lex loci could
lead to absurd results, we set out to liberalize our approach. Hubbard,
515 N.E.2d at 1073. One way to do that, of course, would
have been to adopt the Restatement (Second) of Conflict of Laws. It
seemed an unattractive path then, as it does now. The Second Restatement
has been an inviting target for critics who assert that it supplies little
real guidance to courts (much less to actors). As Professor Shreve observed,
The Second Restatement has attracted many judges (if fewer commentators), but it has
not prevented the subject of choice of law from reaching what many believe
is a state of crisis. Gene R. Shreve, Introduction, Symposium: Preparing
for the Next CenturyA New Restatement of Conflicts?, 75 Ind. L.J. 399, 399
(2000). Another commentator noted:
The second Restatement thus was a hodgepodge of all theories. A court was to compare apples, oranges, umbrellas, and pandas, and determine which state's law to apply by the relative importance assigned to these factors. The supposed virtue of the second Restatement was the freedom it provided courts to weigh all conceivably relevant factors and then tailor the choice of law to the circumstances of the case. That very flexibility was, however, equally its vice: courts could arrive at any outcome applying its factors, and no one could predict in advance what state's law governed their actions. The problem was not merely that courts were afforded the opportunity to be manipulative; the problem was that even a court without such desire could find in the second Restatement no guidance as to how it was to decide a case after identifying the factors in play.
Michael H. Gottesman, Draining the Dismal Swamp: The Case for Federal Choice of Law Statutes, 80 Geo. L.J. 1, 8 (1991) (footnote omitted). See footnote Accordingly, we saw some value in using lex loci as a starting point and said that it would govern unless the state where the tort occurred is an insignificant contact. Hubbard, 515 N.E.2d at 1073.
Thus, in tort cases Indiana choice-of-law analysis now involves multiple inquiries. As
a preliminary matter, the court must determine whether the differences between the laws
of the states are important enough to affect the outcome of the litigation.
Hubbard, 515 N.E.2d at 1073. If such a conflict exists, the
presumption is that the traditional lex loci delicti rule (the place of the
wrong) will apply. Id. Under this rule, the court applies the
substantive laws of the the state where the last event necessary to make
an actor liable for the alleged wrong takes place. Id.
This presumption is not conclusive, however. It may be overcome if the
court is persuaded that the place of the tort bears little connection to
this legal action.
Id. at 1074.
If the location of the tort is insignificant to the action, the court
should consider other contacts that may be more relevant, such as: 1) the
place where the conduct causing the injury occurred; 2) the residence or place
of business of the parties; and 3) the place where the relationship is
Id. at 1073-74 (citing Restatement (Second) of Conflict of Laws §
145(2) (1971)). These factors are not an exclusive list nor are they
necessarily relevant in every case. All contacts should be evaluated according to
their relative importance to the particular issues being litigated. Id. at 1074.
This evaluation ought to focus on the essential elements of the whole
cause of action, rather than on the issues one party or the other
forecasts will be the most hotly contested given the anticipated proofs.
The parties argue that either Indiana or Pennsylvania substantive law should be applied in this case. First, we must determine whether there is a true conflict between the laws of the two states. Because Indiana does not employ dépeçage, we consider the wrongful death cause of action as a whole. The Third Circuit determined that this case is essentially about damages and identified three areas where the applicable Indiana law differed from Pennsylvania law: (1) Pennsylvania allows joint-and-several liability and right of contribution, while Indiana does not; See footnote (2) unlike Pennsylvania, Indiana does not permit recovery for both wrongful death and survival damages; See footnote and (3) unlike Indiana, Pennsylvania damages include the decedents conscious pain and suffering from the moment of injury to the time of death. Simon, 341 F.3d at 204-05. We associate ourselves with the conclusion our Third Circuit friends have reached that there are significant differences between the substantive laws the two states would apply to the trial of these cases.
Because there is a conflict between the laws of Indiana and Pennsylvania that
is important enough to affect the outcome of the litigation, we must determine
which law to apply. The presumption is that the law of the
place of the tort applies because in a large number of cases, the
place of the tort will be significant and the place with the most
Hubbard, 515 N.E.2d at 1073. Our next inquiry, therefore, is
the location of the tort, or where the last event necessary to make
the United States liable occurred. Id.
For the United States to
be held liable in this wrongful death action, the plaintiffs must prove that
a wrongful act or omission caused the deaths of the decedents. Ind.
Code Ann. § 34-23-1-1 (West 1999). In this case, the allegedly negligent
acts of the United States, the publication of the inaccurate chart and negligence
of the air traffic controllers, occurred prior to the plane crash. Therefore
the last event necessary to make the United States liable was the injury,
which occurred when the plane crashed in Kentucky and the decedents died.
Consequently, under lex loci delicti, Kentucky law would apply.
Next, we must examine whether the place of the tort bears little connection
to the legal action.
Hubbard, 515 N.E.2d at 1074. This is
one of the rare cases in which the place of the tort is
insignificant. The negligence at issue occurred in Indiana and the District of Colombia,
and none of the victims or the parties are residents of Kentucky (except
to the extent that the United States is a resident of every state).
The plane flew over multiple states during the course of the flight,
and the crash might have occurred anywhere. In addition, unlike in cases
involving an automobile accident, the laws of the state where the crash occurred
did not govern the conduct of the parties at the time of the
accident. Consequently, we conclude that the place of the tort was an
insignificant contact in this case.
Because we hold that the place of the tort is insignificant to this
action, we reach the second step from
Hubbard and must consider what other
contacts exist and evaluate them according to their relative importance to the litigation
at hand. Id. We apply the law of the state with
the most significant relationship to the case. Hubbard suggests three factors that
might be relevant: 1) the place [or places ]where the conduct causing
the injury occurred; 2) the residence or place of business of the parties;
and 3) the place where the relationship is centered. Id. This
is not a comprehensive list, of course, and other relevant factors may be
considered, though we see no others that are particularly pertinent in this case.
These factors should not be applied mechanically; rather, they are to be
evaluated according to their relative importance to the particular issues before the court.
Jean v. Dugan, 20 F.3d 255, 261 (7th Cir. 1994) (quoting Hubbard,
515 N.E.2d at 1074).
As with many difficult choice-of-law cases, in this instance the contacts are splintered: the injury occurred in a different state than the allegedly negligent conduct, which occurred in a different state than where the plaintiffs reside. The gravamen of this case is the allegedly negligent conduct. See footnote Consequently, the most important relevant factor is where the conduct causing the injury occurred because an individuals actions and the recovery available to others as a result of those actions should be governed by the law of the state in which he acts. See footnote
Here, the negligent conduct occurred in both Indiana and D.C. The conduct
in Indiana was more proximate to the harm, and none of the parties
are arguing that D.C. law should apply. The residence or place of
business of a party, while important in cases involving family law or asset
distribution, is not a particularly relevant contact in this case. People do
not take the laws of their home state with them when they travel
but are subject to the laws of the state in which they act.
Moreover, it is the conduct of the FAA and the air traffic
controllers that is at issue, not the conduct of the plaintiffs. Finally,
in a case such as this where the contact between the allegedly negligent
party and the injured party is fleeting, there is no real relationship and
therefore no place where that relationship could be centered.
Consequently, we hold that Indiana has a more significant relationship with the case
and, therefore, under Indiana choice-of-law rules, Indiana law would apply.
Dickson, Sullivan, Boehm, and Rucker, JJ., concur.
Even under the modern methods there are certain issues for which courts continue
to apply the law of the place where the tort occurred. The most
notable of these issues are those concerning a party's conduct. If the state
of conduct has a law regulating how the tortfeasor or victim is supposed
to act in the particular situation, courts will apply that standard rather than
the law of the parties' residence. In fact, this preference for the
conduct-regulating law of the conduct state is virtually absolute, winning out even over
the law of other interested states. Courts as a practical matter recognize a
conduct-regulating exception' to the normal interest-based choice-of-law methods.
John T. Cross, The Conduct-Regulating Exception In Modern United States Choice-Of-Law, 36 Creighton L. Rev. 425, 425 (2003) (footnote omitted). This is also true in Indiana. As the Seventh Circuit said when applying Indiana law in Judge v. Pilot Oil Corporation:
The facts of this wrongful death case demonstrate that the last act necessary to make the defendant liable, the shooting of David, took place in Indiana. Furthermore, the parties' conduct in Indiana that resulted in David's death will be the key element to determine if the defendants should be held accountable for David's death. The conduct of Pops and David will be governed by Indiana law; if there is any justification for Pops shooting David, it will be determined under Indiana law. With all this, Indiana, the place of injury, cannot be said to be insignificant.
205 F.3d 335, 337 (7th Cir. 2000) (emphasis added).