Appeal from an order and judgment of the United States District Court for the Southern District of New York, Cooper, Judge, granting defendant's motion for summary judgment on the ground that plaintiffs' action was barred by Virginia's two-year statute of limitations.
Kaufman, Kearse, and Pierce, Circuit Judges.
Plaintiffs Martin and Louana Katz appeal from an order and judgment of the United States District Court for the Southern District of New York, Irving Ben Cooper, Judge, entered August 15, 1983, granting the motion of defendant The Goodyear Tire and Rubber Company ("Goodyear") for summary judgment and dismissing the complaint on the ground that plaintiffs had failed to prove that they wre New York domiciliaries at the time their claim accrued and consequently had not shown that pursuant to New York's borrowing statute, N.Y. Civ. Prac. Law § 202 (McKinney 1972), New York's three-year limitation period instead of Virginia's two-year limitation provision should apply.
Upon review, we conclude that there is a material factual dispute about plaintiffs' domicile at the time their action accrued. Therefore, we reverse the order and judgment of the district court and we remand for determination of this disputed factual issue by the trier of facts, in this case a jury.
Plaintiffs initiated this diversity action on June 25, 1981, to recover damages for personal injuries and loss of consortium allegedly caused by an accident which occurred in Virginia on October 23, 1978, when one of the tires on the truck Martin Katz was driving allegedly exploded and caused the vehicle to overturn. In their complaint, plaintiffs alleged that they were New York domiciliaries and demanded a jury trial. Goodyear's answer denied liability and asserted various affirmative defenses, including the statute of limitations.
By motion dated August 23, 1982, Goodyear moved before Judge Pollack, to whom the case initially had been assigned, for summary judgment dismissing the complaint on the ground that the action was barred by the applicable statute of limitations. On September 23, 1982, Judge Pollack held a hearing on the motion, at which time Goodyear argued that plaintiffs' action was barred by Virginia's two-year statute of limitations. Goodyear also argued that plaintiffs were not New York domiciliaries at the time the cause of action accrued and, consequently, plaintiffs could not take advantage, pursuant to New York's borrowing statute, N.Y. Civ. Pract. Law § 202,*fn1 of New York's three-year statute of limitations. Goodyear acknowledged that Martin Katz had been domiciled in New York from 1948, when he moved to this country from Innsbruck, Austria, until 1974, but contended that Katz had abandoned his New York domicile and had adopted a Florida domicile by the time the accident occurred. Plaintiffs disputed this assertion and contended that Katz had remained a New York domiciliary. Judge Pollack denied Goodyear's motion "without prejudice to renewal at the trial."
On April 26, 1983, Goodyear renewed its motion for summary judgment, this time before Judge Cooper, to whom the case had been reassigned. Judge Cooper held a hearing on the motion on May 9, 1983.At the hearing, Goodyear relied on the papers it previously had submitted. At Judge Cooper's request, plaintiffs testified and presented two witnesses on their behalf. The substance of this testimony was that Martin Katz had expressed his intention during the relevant period to remain domiciled in New York. By Memorandum and Order filed July 13, 1983, Judge Cooper granted Goodyear's motion for summary judgment, finding that "plaintiff failed to convince us of his claim of domiliciary intent."
As is often the case where the question of intent vis-a-vis domicile is involved, the parties herein agree on many of the facts but disagree on the inferences the fact-finder should draw therefrom. See Hawes v. Club Ecuestre El Comandante, 598 F.2d 698, 699 (1st Cir. 1979); Restatement (Second) of Conflict of Laws § 18 comment d (1971). Plaintiffs and Goodyear agree that Martin Katz was a New York domiciliary until September, 1974, when his parents sold their home in Plainview, New York, where Katz was living, and moved to Sunrise, Florida. Katz helded his parents move by driving the family car, which carried his parents' belongings, to Florida. He remained in Sunrise for one or two months, purportedly only to assist his parents in the move. In an affidavit submitted in opposition to the summary judgment motion, Katz' sister, Barbara Sosne, stated that "other than the change of clothes and toiletries he took [to Florida], he left most of his own personal belongings at my home at 53 Roundtree Drive, Melville, New York." Katz' friend John Dalton testified at the May 9, 1983 hearing that Katz was "emphatic in saying that he . . . could not conceive of living anywhere but New York on his farm." Both Katz and his sister Barbara stated via affidavit that Katz" intention was to return to New York and then to attend a commercial diving training center in California in the early part of 1975.
In late September, 1974, Katz obtained a Florida driver's license that bore the address of his parents' new home in Sunrise. He also worked for a short period parking cars in Fort Lauderdale, Florida. In October of that year, he met Louana Christine Mobley, who eventually became his wife. Shortly after he met Louana, Katz moved in with her in Lake Wales, Florida. In an affidavit to the court, Katz stated that meeting his future wife "caused me to delay my trip to California and to adjourn commencement of commercial diving classes for one semester." Louana testified at the May 9th hearing that "from the very beginning" Katz told her of his aspiration to return to New York and buy a farm there.
In June, 1975, Katz and Louana left Florida, toured the southwest in a van and eventually went to California, where, in August, 1975, Katz applied to diving school. In his application, Katz listed Louana's Lake Wales residence as his "previous address." In the employment history section of the application, Katz stated that he had left a previous job because he "moved to [Florida]."
After Katz completed the diving training course in March, 1976, the couple left California and went to New York, where they stayed for several weeks with Katz' friend Nancy Prince. In April, 1976, plaintiffs left New York for Scotland. In October, 1976, while in Scotland, Katz completed an employment application in which he listed his parents' residence in Sunrise, Florida as his address. While in Scotland, he also completed tax and insurance forms which listed his mother's Florida residence as his address.
The Katz' were married in January, 1977, in Scotland, where they remained until September of that year. In October, 1977, the couple returned to New York, where they stayed with Nancy Prince. In January, 1978, plaintiffs moved their belongings into Katz' sister's home in Melville, New York. The next month, they again left for Scotland in search of employment. While in Scotland, Louana gave birth to a child and, in August, 1978, they returned to Melville, New York, where they stayed with Katz' sister. In September, 1978, plaintiffs set out from New York with their child to visit their grandparents for several weeks in Florida and South ...