The opinion of the court was delivered by: WARD
Plaintiffs Richard A. Sibley, Jr. and Worcester County National Bank move for an order, pursuant to Rules 1 and 42(a), Fed. R. Civ. P., and Section 1.80 of the Manual for Complex Litigation, declaring that the Massachusetts wrongful death act, Mass. Ann. Laws ch. 229, § 2 (1974), applies in this action with regard to plaintiffs' claim for punitive damages against defendant KLM-Royal Dutch Airlines ("KLM").
For the reasons hereinafter stated, the motion is denied.
This is a diversity action to recover damages for the wrongful death of Richard A. Sibley, Sr.
("the decedent"), a Massachusetts domiciliary, who was killed on March 27, 1977 when the Pan American World Airways, Inc. ("Pan Am") 747 aircraft on which he was a passenger collided with a KLM 747 aircraft on the airport runway at Santa Cruz de Tenerife, the Canary Islands, Spain. The action was commenced in the United States District Court for the District of Massachusetts. It was one of some 100 cases transferred to this Court by the Judicial Panel on Multidistrict Litigation, pursuant to 28 U.S.C. § 1407, for consolidated and coordinated pretrial proceedings. Plaintiff Richard A. Sibley, Jr. is the sole heir of the decedent. Plaintiff Worcester County National Bank is the executor of the decedent's estate. Both plaintiffs are Massachusetts domiciliaries. KLM is a Dutch corporation, with its principal place of business in the Netherlands.
The Court, plaintiffs, and KLM are all in agreement that the choice of law rules of Massachusetts, the state in which the transferor court is located, govern this diversity action. Day & Zimmermann, Inc. v. Challoner, 423 U.S. 3, 46 L. Ed. 2d 3, 96 S. Ct. 167 (1975); Klaxon Co. v. Stentor Electric Mfg. Co., 313 U.S. 487, 85 L. Ed. 1477, 61 S. Ct. 1020 (1941); In re Air Crash Disaster at Boston, Mass. on July 31, 1973, 399 F. Supp. 1106 (D. Mass. 1975); see Van Dusen v. Barrack, 376 U.S. 612, 11 L. Ed. 2d 945, 84 S. Ct. 805 (1964).
It is plaintiffs' position that a Massachusetts court would employ a governmental interest analysis approach to choice of law in this case and apply the Massachusetts wrongful death act in its entirety. That statute provides for the awarding of punitive damages, in addition to compensatory damages, in wrongful death cases when the decedent's death was caused by the malicious, willful, wanton or reckless conduct of the defendant or by the gross negligence of the defendant.
KLM agrees that a Massachusetts court would base its choice of law on an interest analysis, but contends that the court would conclude that Dutch law should be applied to the issue of punitive damages against KLM. Dutch law does not provide for the imposition of punitive damages in wrongful death cases.
Until recently, Massachusetts adhered strictly to the traditional lex loci delicti choice of law rule in tort cases, according to which all substantive aspects of a cause of action were governed by the law of the place where the injury occurred. E.g., Brogie v. Vogel, 348 Mass. 619, 205 N.E.2d 234 (1965); Goodale v. Morrison, 343 Mass. 607, 180 N.E.2d 67 (1962); Trudel v. Gagne, 328 Mass. 464, 104 N.E.2d 489 (1952); Burke v. Lappin, 1 Mass. App. Ct. 426, 299 N.E.2d 729 (1973). Under the traditional approach, the law to be applied to the issue of punitive damages here would be that of Spain, where the air crash occurred. Spanish law does not appear to provide for the recovery of punitive damages in wrongful death cases. Consequently, under traditional Massachusetts conflict of laws analysis, no punitive damages would be recoverable in this case.
However, two recent decisions of the Supreme Judicial Court of Massachusetts, Pevoski v. Pevoski, 371 Mass. 358, 358 N.E.2d 416 (1976), and Saharceski v. Marcure, 373 Mass. 340, 366 N.E.2d 1245 (1977), indicate that, at least in certain circumstances, Massachusetts will apply an interest analysis, rather than lex loci delicti, in making a choice of law.
Plaintiffs argue that Massachusetts has the greatest interest in this case because both plaintiffs are Massachusetts domiciliaries, as was the decedent. These factors would be important if the question before the Court were which state's law to apply to the issue of compensatory damages. Massachusetts has a significant interest in ensuring that its domiciliaries are adequately compensated for their decedents' wrongful death, for if they are not, it is Massachusetts which will bear the responsibility for their welfare. See, e.g., Reich v. Purcell, 67 Cal. 2d 551, 554-57, 63 Cal. Rptr. 31, 33-35, 432 P.2d 727, 729-31 (1967); Long v. Pan American World Airways, Inc., 16 N.Y.2d 337, 341, 266 N.Y.S.2d 513, 516, 213 N.E.2d 796, 798 (1965); cf. Pevoski v. Pevoski, supra, 358 N.E.2d at 417 ("The economic and social impact of this litigation will fall on Massachusetts domiciliaries . . . ."). However, in performing an interest analysis, the Court must look to the particular issue in question to determine which state has the strongest interest in having its law applied. See Pevoski v. Pevoski, supra, 358 N.E.2d at 417, quoting Babcock v. Jackson, 12 N.Y.2d 473, 484, 240 N.Y.S.2d 743, 752, 191 N.E.2d 279, 285 (1963). The issue presently before the Court is the availability of punitive damages. Unlike compensatory damages, the purpose of punitive damages is not to restore the plaintiff, but rather to punish the defendant and to deter future wrongful conduct by the defendant and others. E.g., Nader v. Allegheny Airlines, Inc., 167 U.S. App. D.C. 350, 512 F.2d 527, 549 (1975), rev'd on other grounds, 426 U.S. 290, 48 L. Ed. 2d 643, 96 S. Ct. 1978 (1976); Williams v. City of New York, 508 F.2d 356, 360 (2d Cir. 1974); W. Prosser, Law of Torts § 2, at 9 (4th ed. 1971); C. McCormick, Law of Damages § 77, at 275 (1935); see Massachusetts Bonding & Ins. Co. v. United States, 352 U.S. 128, 133, 1 L. Ed. 2d 189, 77 S. Ct. 186 (1956); id. at 136 (Harlan, J. concurring); Sullivan v. Hustis, 237 Mass. 441, 130 N.E. 247 (1921); Boott Mills v. Boston & M.R.R., 218 Mass. 582, 106 N.E. 680 (1914); Ellis v. Brockton Pub. Co., 198 Mass. 538, 84 N.E. 1018 (1908).
As the Supreme Judicial Court of Massachusetts has recognized, the jurisdiction in which the accident occurred
has the predominant interest in the regulation of conduct.
Pevoski v. Pevoski, supra, 358 N.E.2d at 417. By contrast, no significant interest of Massachusetts would be promoted by the application of the punitive damages sanction of that state's wrongful death statute in this case because the alleged tortious conduct did not occur there. See Henry v. Richardson-Merrell, Inc., 508 F.2d 28, 32-37 (3d Cir. 1975); In re Paris Air Crash of March 3, 1974, 399 F. Supp. 732, 744 (C. D. Cal. 1975); Babcock v. Jackson, 12 N.Y.2d 473, 483, 240 N.Y.S.2d 743, 750-51, 191 N.E.2d 279, 284 (1963). Massachusetts has no interest in punishment since acts which occurred in the Canary Islands do not offend the people of Massachusetts. Therefore, Massachusetts has no interest in the vindication of its sovereignty. Nor will application of the punitive damages provision serve a deterrent purpose. It is not reasonable to expect that KLM or other potential defendants will conform their future conduct to Massachusetts standards when acting in the Canary Islands in order to avoid the slight risk of injuring Massachusetts domiciliaries there. Furthermore, application of the Massachusetts punitive damages provision would impair the clear and substantial interest of the Netherlands, where punitive damages are not recoverable in wrongful death actions, in protecting its domiciliary KLM from excessive financial burdens. See, e.g., Massachusetts Bonding & Ins. Co. v. United States, supra, 352 U.S. at 136 (Harlan, J., concurring); Hurtado v. Superior Court, 11 Cal. 3d 574, 584, 114 Cal. Rptr. 106, 112, 522 P.2d 666, 672 (1974). Because application of the Massachusetts punitive damages provision would advance no interest of Massachusetts and would impair a significant interest of the Netherlands, the Court concludes that a Massachusetts court employing an interest analysis would not apply the punitive damages provision in this case.
Plaintiffs also argue that the Massachusetts wrongful death act is an integrated statute intended to be applied in toto. Assuming that, based on an interest analysis, the Massachusetts statute would govern the measure of plaintiffs' recovery for compensatory damages in this case, the Court is not convinced that it would be obliged to apply the punitive damages provision as well. There is nothing on the face of the statute nor any legislative history
which suggests such a legislative intent. Therefore, the Court sees no reason to deviate from the proper issue-by-issue approach to interest analysis recognized by the Supreme Judicial Court of Massachusetts in Pevoski. See 358 N.E.2d at 417, quoting Babcock v. Jackson, 12 N.Y.2d 473, 484, 240 N.Y.S.2d 743, 752, 191 N.E.2d 279, 285 (1963).
Accordingly, the Court concludes that the Massachusetts wrongful death act does not apply with regard to the punitive damages issue herein. Plaintiffs' motion is, therefore, denied.