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VIRGINIA I. MACKENDRICK v. NEWPORT NEWS SHIPBUILDING & DRY DOCK CO. (06/12/69)

SUPREME COURT OF NEW YORK, TRIAL TERM, NEW YORK COUNTY 1969.NY.42003 <http://www.versuslaw.com>; 302 N.Y.S.2d 124; 59 Misc. 2d 994 June 12, 1969 VIRGINIA I. MACKENDRICK, AS EXECUTRIX OF GENE E. MACKENDRICK, DECEASED, PLAINTIFF,v.NEWPORT NEWS SHIPBUILDING & DRY DOCK CO., DEFENDANT John J. Tomich for plaintiff. Fogarty & Nielsen (John W. Fuhrman of counsel), for defendant. Samuel A. Spiegel, J. Author: Spiegel


Samuel A. Spiegel, J.

Author: Spiegel

 The issue confronting this court is whether to apply the substantive laws of the State of New York or of the Commonwealth of Virginia, in an out-of-State wrongful death action due to an accident other than in an automobile or airplane. Jurisdiction of this court is not challenged.

This is an action to recover damages in the sum of $500,000 for wrongful death and $50,000 for conscious pain and suffering.

When this matter was called for trial, counsel agreed with the court that until the appropriate substantive law was determined, obviously, there could be no trial on the issue of negligence.

As a consequence, counsel submitted an agreed statement of facts on which to resolve the motion before this court.

The defendant asserts three separate and complete affirmative defenses to the causes of action herein. In substance, they are as follows:

1. The contributory negligence of the deceased;

2. That pursuant to the laws of Virginia, where the death occurred, plaintiff's recovery herein, if any, is limited by said Virginia law to an amount not exceeding $30,000;

3. That plaintiff's exclusive remedy herein is under the Virginia Compensation Act, which would preclude any suit by the widow against the defendant for any common-law recovery.

Essentially, the court will render a decision on the motion of the defendant for a dismissal of the complaint based upon the Virginia law as it relates to the defense of workmen's compensation, and on the cross motion of the plaintiff for a dismissal of the second and third affirmative defenses.

Substantially, the facts are as follows:

Plaintiff is the widow of Gene MacKendrick, who died of asphyxiation in an oxygen-deficient chamber on January 24, 1961, in Newport News, Virginia. At the time of this accident, the family had resided in Dunkirk, New York, for over 25 years. Except for intervening military service, the deceased had been continuously employed as a welder by Alco, a Delaware corporation, and its predecessor, American Locomotive, at its plant in Dunkirk, New York.

On July 1, 1959, the Department of the Navy entered into an agreement in Newport News, Virginia, with defendant, Newport News Shipbuilding & Dry Dock Company (hereinafter referred to as Newport), a Virginia corporation, for the construction of two Polaris submarines.

The Navy likewise entered into an agreement with Westinghouse, a Pennsylvania corporation, to install the air-conditioning system, also referred to as heat exchangers, in the two submarines.

Westinghouse then contracted in Pennsylvania with deceased's employer, Alco Products, a Delaware corporation, for the purchase of nine emergency heat exchangers pursuant to naval specifications. The contract required that Alco make good any defects in materials or workmanship and correct any items found inadequate, upon request by Westinghouse. It specifically provided for the correction "in place" of equipment delivered under this agreement.

Pursuant to said agreement, Alco manufactured and sold emergency cooling systems for installation in various submarines at different shipyards. A system was installed by Newport in each of the two Polaris submarines, Sam Houston and John Marshall. On October 10, 1960, certain defects were found in the welding of various portions of the heat exchanger equipment. A repair memorandum was executed by Westinghouse, United States Navy and Newport at Newport News, Virginia, which provided that Alco personnel would arrive at Newport News on December 19, 1960 to make weld repairs to the heat exchangers.

Newport was at no time a party to any contract with Alco. The inadequacy of the heat exchange system necessitated Alco's presence in Virginia solely for the specified repairs.

By reason of the foregoing, Alco sent four of its employees to Virginia. Three of these employees, including deceased, came from Dunkirk to Newport News. While working on the submarines, the employees lived in a motel in Newport News.

Commencing October 20, 1960, and up to January 24, 1961, decedent worked for Alco as a welder at shipyards in Newport News and Pascagoula, Mississippi, except for the Thanksgiving and Christmas holidays when he returned to his family in Dunkirk.

Alco did business in Dunkirk, New York, and in Pittsburgh, Pennsylvania. Its principal place of business is in Schenectady, New York, and its employees were sent on assignments to various shipyards in Connecticut, Mississippi, New Hampshire, California and Virginia.

Defendant, a Virginia corporation since 1886, is one of the largest shipbuilding companies in the United States. It is in the business of building ships and attending to the repair, construction and maintenance of vessels at its shipyard and dry dock in Newport News, Virginia, exclusively. It has an office in New York City limited solely to sales and had such office there at the time of this accident.

On the morning of January 24, 1961, on the premises of Newport, decedent entered the hard tank through a manhole of the submarine, John Marshall. It is alleged that argon gas had leaked into the chamber, causing an oxygen deficiency and the decedent was asphyxiated. The repair to the cooling system was completed about three weeks after the accident.

Plaintiff made a claim for workmen's compensation benefits under the Labor Law of the State of New York and was awarded same. No claim was filed for workmen's compensation under the Labor Law of Virginia or Pennsylvania. Newport was a qualified self-insurer under the Virginia Workmen's Compensation Act.

Plaintiff urges that Gene MacKendrick was a domiciliary of New York and was ordinarily regularly and permanently employed in the State of New York. He was covered by the Workmen's Compensation Law of the State of New York. His estate is being administered in New York and his widow and family reside in New York. His trip and temporary stay in the Commonwealth of Virginia were at the instance of his employer, and the work to be performed was on a product manufactured in Dunkirk, New York. He was in Virginia at the time of his death, adventitiously and fortuitously only because of the accidental circumstance that the submarine was there and his employer had sent him there on a temporary assignment.

The defendant urges that it is a Virginia corporation, domiciled in Virginia, and has no connection with the State of New York; that decedent lived and worked in Virginia at the time of the accident; that any and all repairs were required pursuant to a work order resulting from a deficient product; that the original agreement with Westinghouse was made in Pennsylvania; that the suit is authorized by the wrongful death statute of the Commonwealth of Virginia; that the job involved came from work orders issued and executed outside New York; that Newport seeks the protection of the very laws of the State in which it is incorporated, domiciled and transacts business; and that to apply New York law would deny defendant due process.

Defendant adds that since plaintiff seeks damage under the Virginia wrongful death statute, recovery, if at all, should be limited to an amount not exceeding $30,000 (Code of Va. of 1950, § 8-633 et seq.).

The principal interest which the Commonwealth of Virginia has in this case is that the death occurred on its soil while deceased was within its territory, and defendant is the largest single corporation resident in Virginia, and contributes more to the economic health and vitality of that State than any other corporation or business.

Defendant concludes that since death occurred in the course of employment in Virginia, plaintiff's exclusive remedy is under the Virginia Compensation Act which is analogous to the Workmen's Compensation Law of New York.

In short, defendant contends very simply that the lex loci delicti should apply.

Let us examine the Virginia Compensation Act relied on by the defendant.

Under the Code of Virginia (former §§ 65-26, 65-27 and 65-28), the owner, contractor and subcontractor are liable for compensation benefits to an employee performing work as part of the over-all trade, business or occupation.

Former section 65-37 of the Code of Virginia further provides: "The rights and remedies herein granted to an employee * * * shall exclude all other rights and remedies of such employee, his personal representative * * * on account of such injury, loss of service or death." Paraphrasing the foregoing, the defendant argues that the Virginia Code provides in effect that no matter what happens to an employee on a job in Virginia, his sole remedy is workmen's compensation. This, of course, applies as well to the representative of an employee who suffered death. In effect, this statute prevents a monetary recovery in any action against a third party for wrongful death.

Our courts have emphatically declared that statutory recovery limitations are repugnant to our established public policy and that the amount recoverable in this State in a wrongful death action of a New York resident is not subject to the statutory limitations of the State where the death took place ...


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