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Simon v. United States

August 20, 2003


On Appeal from the United States District Court for the Eastern District of Pennsylvania District Judge: Honorable Marvin Katz (D.C. Civil No. 01-cv-05671) (D.C. Civil No. 01-cv-00224)

Before: Sloviter, Ambro, and Becker, Circuit Judges

The opinion of the court was delivered by: Becker, Circuit Judge.


Argued June 23, 2003


The threshold question presented by this interlocutory appeal, 28 U.S.C. § 1292(b), is whether Indiana's or Pennsylvania's choice-of-law rules govern a suit against the United States by the estates of passengers killed in the crash of a small private aircraft. Two of the decedents lived in Pennsylvania, another worked in Pennsylvania, the plane was hangared in Pennsylvania, and the corporation that owned it was incorporated in Pennsylvania. The plane crash, which occurred during a landing at a Kentucky airport in inclement weather, resulted from: (1) the Government's publication in Washington, D.C. of a chart incorrectly showing that a long-inactive instrument landing approach at the airport was active; and (2) the negligence of Indiana-based federal air traffic controllers in relying on that chart, in neglecting to monitor the radar during the flight's landing approach, and in failing to respond to the pilot's last-minute radio communications.

In a multistate tort action, the Federal Tort Claims Act ("FTCA") requires a federal court to apply the whole law of the place where the acts of negligence occurred, including its choice-of-law rules. 28 U.S.C. §§ 1346(b), 2674; Richards v. United States, 369 U.S. 1 (1962). In a pretrial ruling, the District Court determined that because acts of negligence were committed in both Indiana and the District of Columbia ("D.C."), those jurisdictions' choice-of-law rules were candidates to govern the case. In order to determine whether it was necessary to choose between the two, the Court first had to determine whether there was a true conflict between their choice-of-law rules. It concluded that there was a true conflict because, unlike the District of Columbia, Indiana law does not recognize the doctrine of depeçage, i.e., conducting separate choice-of-law analyses for different issues within a single theory of recovery, such as liability and damages. To determine which jurisdiction's rules applied, the District Court employed the methodology set forth in Gould Electronics, Inc. v. United States, 220 F.3d 169 (3d Cir. 2000), where we described five different approaches to choice-of-law conflicts. Concluding that these factors on balance favored Indiana, the District Court utilized Indiana's choice-of-law rules to determine whether to apply Indiana's or Pennsylvania's substantive law.

Turning to the question whether Indiana's choice-of-law rules would apply Pennsylvania or Indiana's substantive law to the case (no party urged the application of D.C. or Kentucky substantive law), the District Court first determined that there was a true conflict between the two jurisdictions' damages regimes, as Pennsylvania's damages law (urged by Plaintiffs) allows for more generous compensation of tort victims than Indiana's (urged by the Government). The Court concluded that the Indiana Supreme Court would choose Indiana substantive law over that of Pennsylvania. Reasoning that the choice-of-law issue would likely be outcome determinative, however, the Court certified the choice-of-law question to us under 28 U.S.C. § 1292(b). The papers are not entirely precise, but it is clear from their tenor that the District Court decided both choice-of-law issues and that they have been presented by this appeal.

We are unsure about the correctness of the District Court's threshold ruling - that a true conflict exists between Indiana and D.C.'s choice-of-law rules. Because the Indiana Supreme Court has not addressed the question whether Indiana courts may apply depeçage, we will vacate the District Court's conclusion that the Indiana Supreme Court would not permit them to do so, and certify that question to the Indiana Supreme Court itself pursuant to Rule 64 of the Indiana Rules of Appellate Procedure.*fn2 In the ordinary case, that would be sufficient for now. But if the Indiana Supreme Court holds that Indiana does not recognize depeçage, meaning that there is a true conflict between Indiana and D.C. law, we will then be obliged to decide which jurisdiction's choice-of-law rules to apply, and if we choose Indiana, another question looms - whether Indiana would apply its own substantive law or Pennsylvania's to the case.*fn3 This is an extremely difficult question, and we are doubtful of the correctness of the District Court's resolution of the issue. Evaluating the Indiana three-pronged test for determining which state's law it would apply would seem to result in a "tie" between two factors, the third being largely neutral. This question too would therefore benefit from a determination by the Indiana Supreme Court as to how it would apply the factors and break the tie.

While logically we might make the initial certification to the Indiana Supreme Court and await its results (which might or might not render it necessary for us to proceed further), we are reluctant to risk the necessity of a second certification to the Indiana high court, especially in view of the fact that this case was fully ready for a four-week trial when the District Court made its § 1292(b) certification.

Avoiding the spectre of a two-step certification requires that we assume that Indiana may decide that it does not recognize depeçage, in which case: (1) there will be a true conflict between Indiana and D.C. choice-of-law principles; and (2) this Court will have to decide which applies. To do this, we must clarify our reasoning in Gould Electronics since that opinion did not establish a general rule. We synthesize the Gould approaches into a single inquiry that chooses the rules of the jurisdiction containing the last significant negligent act or omission relevant to the FTCA. Since we conclude that the air traffic controllers in Indiana committed the last significant act, we will apply Indiana's choice-of-law rules. As noted above, under the Indiana Supreme Court's three-part choice-of-law test set forth in Hubbard Manufacturing Co., Inc. v. Greeson, 515 N.E.2d 1071, 1073 (Ind. 1987), one factor is indeterminate, one favors Indiana substantive law, and one favors Pennsylvania substantive law. Since Hubbard gives no indication of how to break such a tie, we will also certify this question to the Indiana Supreme Court. Upon receipt of the answers to both certified questions, the trial court can proceed to trial with certainty as to the law.


These cases arise out of a fatal plane crash in Somerset, Kentucky, in January of 2000. Dennis Schalliol, a Pennsylvania resident, was employed as a salesman by Hart National, a Pennsylvania Corporation with its principal place of its national real estate business in Pennsylvania. B. Kenin Hart, also a Pennsylvania resident, was the sole owner, chairman, and CEO of Hart National. In 1998, Hart National established a subsidiary, Hart Delaware, whose main job it was to operate the aircraft in question. (Although called Hart Delaware, it is based in Pennsylvania.) Hart Delaware had but one employee, John Fare, a New Jersey resident and pilot, who was hired to fly the airplane. The airplane was hangared and operated out of the Northeast Philadelphia Airport for the primary purpose of transporting employees of Hart National from Pennsylvania to related business sites.

In January of 2000, the airplane departed from Northeast Philadelphia Airport bound for Ohio State University Airport, via Cincinnati, with pilot Fare and passengers Schalliol and Hart on board. After picking up a broker, Loy Thompson, in Cincinnati, the plane traveled to Ohio State University Airport in Columbus and remained there overnight. The next morning, pilot Fare received a weather briefing indicating that there were bad conditions at the scheduled destination of Somerset, Kentucky. Such conditions required an instrument flight rules (IFR) landing. While en route to Kentucky, pilot Fare communicated with federal air traffic controllers at the Indianapolis Air Route Traffic Control Center who cleared the flight for the SDF (Simplified Directional Facility) runway 4 approach at the Somerset airport. The SDF system is a group of instruments that guides a plane horizontally onto the runway. Together with an altimeter, it allows a plane to land "blind." As it turns out, the SDF approach had been out of service since 1995, a fact reflected in the Airport Facility Directory ("AFD") published by the Federal Aviation Administration ("FAA"), although pilot Fare was unaware of that condition.

The plane's last radio contact with the air traffic controllers occurred when it was about 30 miles north of the Somerset airport. As it descended, weather conditions made it impossible to see the surrounding terrain. With no further contact from the air traffic controllers, pilot Fare relied on the Instrument Approach Procedure ("IAP"), a document compiled and published in Washington, D.C. that lists navigable IFR approaches to various airports around the country, to guide the landing. If operational, the SDF would have guided the plane safely onto the runway, but instead the plane drifted off course and struck a guy wire from a radio communications tower approximately 3.3 miles from the Somerset airport. The resulting crash killed everyone on board.

The personal representatives of the decedents brought suit in the District Court for the Eastern District of Pennsylvania. Plaintiffs' amended complaint under the Federal Tort Claims Act, 28 U.S.C.A. §§ 1346(b), 2671 et al. ("FTCA"), alleged that the U.S. was negligent in publishing the IAP for the SDF approach to Somerset when in fact that approach had been out of service for five years at the time of the crash.*fn4 It further alleged that the air traffic controllers in Indiana acted negligently by issuing a clearance for an approach that was out of service, failing to monitor radar scopes after clearance was given, failing to conduct proper briefings, and failing to issue a safety alert to pilot Fare.

Plaintiff Mary Schalliol, as personal representative of the estate of Dennis Schalliol, not only brought a claim of negligence against the United States under the FTCA, but also sued the estate of pilot Fare (alleging his negligence) and Fare's employer, Hart Corporation/Delaware Division. The estate of pilot Fare, through separate counsel, has also brought a cross-claim of negligence against the United States. In a separate action that has been consolidated on appeal, four personal representatives of the estate of B. Kenin Hart, his three children and his mother (collectively, the "Simon Plaintiffs"), have brought claims against the United States. The United States filed separate motions for determinations of the applicable choice of law in each of the cases, and each motion sought the application of Indiana substantive law to the claims pled against it ...

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