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VOGEL v. PAN AM

May 19, 1978

Rachel VOGEL, Individually and Rachel Vogel and Crocker National Bank as Executors and Personal Representatives of the Estate of Le Roy W. Vogel, Deceased, Plaintiffs,
v.
PAN AMERICAN WORLD AIRWAYS, INC., Koninklijke Luchtvaart Maatschappij N.V., a corporation, Individually and doing business as KLM Royal Dutch Airlines, Victor Grubbs, Robert Bragg, and the Kingdom of Spain, Defendants


Robert J. Ward, District Judge.


The opinion of the court was delivered by: WARD

ROBERT J. WARD, District Judge.

Defendant Pan American World Airways, Inc. ("Pan Am") moves for summary judgment, pursuant to Rule 56, Fed.R.Civ.P. For the reasons hereinafter stated, the motion is granted and the claims asserted by Rachel Vogel ("Mrs. Vogel") in her individual capacity are dismissed.

 This is an action *fn1" to recover for the wrongful death of Le Roy W. Vogel as the result of a crash between a Pan Am 747 aircraft and a KLM Royal Dutch Airlines 747 aircraft at Santa Cruz de Tenerife, Spain on March 27, 1977. The following facts are not disputed by Mrs. Vogel: On August 28, 1975, Mrs. Vogel (then Rachel Phillips) married Le Roy Vogel in San Diego, California. On October 12, 1976, the Superior Court of California, County of Santa Barbara, entered a Final Judgment of Dissolution of Marriage In re the Marriage of Rachel H. Vogel and Le Roy William Vogel. Rachel and Le Roy Vogel did not remarry prior to the death of Le Roy Vogel on March 27, 1977. At the time of his death, Le Roy Vogel was domiciled in the State of California.

 Pan Am, in essence, contends that summary judgment is warranted because Mrs. Vogel is not an heir of Le Roy Vogel and, thus, is not entitled to maintain an action in her individual capacity for Mr. Vogel's wrongful death.

 The Court first concludes that California substantive law applies to the issue of who may maintain an action for the wrongful death of Mr. Vogel, a California domiciliary. *fn2" Klaxon Co. v. Stentor Electric Mfg. Co., 313 U.S. 487, 61 S. Ct. 1020, 85 L. Ed. 1477 (1941); Van Dusen v. Barrack, 376 U.S. 612, 84 S. Ct. 805, 11 L. Ed. 2d 945 (1964); see Hurtado v. Superior Court, 11 Cal.3d 574, 581, 114 Cal.Rptr. 106, 110, 522 P.2d 666, 670 (1974). Under California substantive law, a wrongful death action may be maintained, in an individual capacity, only by the decedent's heirs. California Code of Civil Procedure § 377(a).

 So far as is relevant, heirs is defined by California Code of Civil Procedure § 377(b) to include those who would be entitled to succeed to the property of the decedent under California's rules of intestate succession. Since Mrs. Vogel was not married to Le Roy Vogel at the time of his death, she would not qualify as an heir on this basis. Also included within § 377(b)'s definition of heirs are "putative spouses," defined as "surviving [spouses] of a void or voidable marriage, who [are] found by the court to have believed in good faith that the marriage to the decedent was valid." Mrs. Vogel is not a putative spouse because, according to her own uncontroverted testimony, she did not participate in any marriage ceremony with Le Roy Vogel subsequent to the dissolution of their marriage on October 12, 1976, nor did she believe she was married to him at the time of his death. Therefore, the Court concludes that Mrs. Vogel was not Le Roy Vogel's heir within the meaning of § 377.

 Mrs. Vogel appears to concede that she does not qualify as a plaintiff under the traditional meaning of § 377. However, she argues that this Court ought to interpret § 377 so as to allow her to maintain this action individually because she was Le Roy Vogel's meretricious spouse at the time of his death, and California now recognizes the rights of meretricious spouses. *fn3" Regardless of any other rights of meretricious spouses now acknowledged by the California courts, the courts of that state have also recognized that wrongful death remains purely a statutory cause of action in California and that, absent constitutional considerations, the matter of who may bring a wrongful death action is within the province of the legislature. See, e.g., Justus v. Atchison, 19 Cal.3d 564, 139 Cal.Rptr. 97, 565 P.2d 122 (1977) (en banc); Steed v. Imperial Airlines, 12 Cal.3d 115, 115 Cal.Rptr. 329, 524 P.2d 801 (1974). As the California Supreme Court recently noted:

 
. . . [We] are persuaded that the Legislature intends to occupy the field of recovery for wrongful death. For this reason the remedy remains a creature of statute in California (Larcher v. Wanless (1976) 18 Cal.3d 646, 656, 135 Cal.Rptr. 75, 557 P.2d 507; Steed v. Imperial Airlines (1974) 12 Cal.3d 115, 119-120, 115 Cal.Rptr. 329, 524 P.2d 801) regardless of whether a cause of action for wrongful death did or did not exist at common law. . . .
 
Because it is a creature of statue, the cause of action for wrongful death "exists only so far and in favor of such person as the legislative power may declare." (Pritchard v. Whitney Estate Co. (1913) supra, 164 Cal. 564, 568, 129 P. 989, 992.)

 Justus v. Atchison, supra, 19 Cal.3d at 575, 139 Cal.Rptr. at 104, 565 P.2d at 129 (1977).

 The plain fact is that "meretricious spouses" are not included in the statutory definition of "heirs". Therefore, Mrs. Vogel is not entitled under the California wrongful death statute to maintain this action in her individual capacity. *fn4"

 Mrs. Vogel also asserts that the California wrongful death statute denies her equal protection and due process because the legislature lacked a rational basis for giving dependent putative spouses the right to sue for wrongful death, while denying the same right to dependent meretricious spouses.

 In evaluating Mrs. Vogel's constitutional challenge, this Court must be guided by the principle that

 
[state] legislatures are presumed to have acted within their constitutional power despite the fact that, in practice, their laws result in some inequality. A statutory discrimination will not be set aside if any ...

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