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September 28, 1990


The opinion of the court was delivered by: Nickerson, District Judge:


This action arises out of an airplane accident on September 17, 1987 at Barksdale Air Base in Louisiana which resulted in the death of Sgt. Joseph M. Burgio. On September 16, 1988, Sgt. Burgio's widow, Ann M. Burgio, suing under letters of administration issued in Suffolk County, New York, as executrix of his estate and in her individual capacity, brought this wrongful death action in the Supreme Court of the State of New York against defendants McDonnell Douglas, Inc., a Maryland corporation with a principal place of business in Missouri, and Douglas Aircraft, Inc., a division of McDonnell Douglas, Inc. located in California. Defendants removed the case to federal court. The parties stipulated that defendants would not contest liability, thereby leaving at issue only damages.

Defendants have moved for an order in limine determining which state's law should apply to the issue of damages. They argue that the court should look first to Louisiana choice of law rules, and that these dictate application of New York internal law. Plaintiff contends that the court should look only to Louisiana's internal law of damages.

Unlike New York, Louisiana allows damages for loss of consortium and for emotional grief or psychological injury, and does not require that collateral benefits received by plaintiff on account of the death be deducted from any judgment.



The facts regarding the couple's domicile and where plaintiff now lives are not in dispute. Plaintiff and the decedent were married in New York on July 8, 1982, shortly after the decedent's enlistment in the United States Air Force. Both were then residents of New York. Shortly after being married, the two moved to live near the Spangdahlem Air Base in West Germany where the decedent was stationed. They lived there from 1982 until 1985, at which point decedent was assigned to Barksdale Air Base in Louisiana, to which they moved. They lived there until decedent's death in 1987. Plaintiff then left Louisiana and returned to New York where her parents and the decedents' parents live and where she obtained letters of administration.


The parties agree that since the airplane accident occurred on a federal military base, this wrongful death action is controlled by the Federal Reservations Act (the Act), Act of February 1, 1928, 45 Stat. 54 (codified at 16 U.S.C. § 457 (1988)), which states that

  In the case of the death of any person by the
  neglect or wrongful act of another within a
  national park or other place subject to the
  exclusive jurisdiction of the United States,
  within the exterior boundaries of any State, such
  right of action shall exist as though the place
  were under the jurisdiction of the State within
  whose exterior boundaries such place may be; and
  in any action brought to recover on account of
  injuries sustained in any such place the rights
  of the parties shall be governed by the laws of
  the State within the exterior boundaries of which
  it may be.

The principal purpose of this Act was evidently to make wrongful death statutes, which by 1928 had been enacted in all of the states, applicable to federal enclaves where the common law bar against wrongful death actions still controlled. Admittedly the Act requires the court to apply Louisiana state law to plaintiff's wrongful death claim. The parties dispute whether the statute incorporates the whole law of Louisiana, including its choice of law rules, as defendants urge, or only the internal law of Louisiana, as plaintiffs contend. In the alternative, each party proposes various other approaches, including federal choice of law and New York choice of law rules.



The court will address first whether the Act in providing that the action "shall be governed by the laws" of the state where the accident occurred, here Louisiana, requires the court to apply that state's choice of law rules.

The only two courts that have directly considered the choice of law implications of the Act have reached different conclusions. See Quadrini v. Sikorsky Aircraft, 425 F. Supp. 81 (D.Conn. 1977); Jenkins v. Whittaker, 785 F.2d 720 (9th Cir. 1986).

In Quadrini, the court held that the Act requires the incorporation of neither the adjacent state's whole law nor its internal law, but leaves federal courts free to apply their own choice of law rules. Id. at 87. The court said that the first clause of the Act looks to the adjacent state's law to "remove[ ] the common law bar to the existence of a right of action for wrongful death," id. at 87, while the second clause looks to the that state's "law to determine . . . which persons possessed the right created in clause one." Id.

The court held that it must resolve all other issues, including choice of law determinations, without reference to the law of the surrounding state. In the words of the court, the Act in "§ 457 should be construed narrowly so as to provide no reference to state law, as a matter of federal law, for deciding issues of liability, nor to contain any implication as to applicable choice of law rules." Id.

The court therefore applied federal choice of law rules, interpreting them as governed by the most significant relationship test of the Second Restatement, to determine the applicable state law. Id. at 88 & n. 2. Furthermore, the court concluded that that state law should be the law at the time the federal enclave was created, as opposed to that in effect when the claim arose. Id. at 88.

In Vasina v. Grumman Corp., 644 F.2d 112 (2d Cir. 1981), aff'g 492 F. Supp. 943 (E.D.N.Y. 1980), the Court of Appeals for the Second Circuit rejected the final conclusion in Quadrini, saying

  We decline to make Quadrini the law of this circuit
  on this point. If the authors of § 457 had had only
  the narrow purpose ascribed to them in Quadrini, we
  think that they would have drawn the statute itself
  more narrowly. The plain language of the provision
  as drafted, and its later judicial construction,
  lead us to conclude that § 457 envisions the
  application of the current substantive law of the
  surrounding state in actions for death or personal
  injury occurring within a federal enclave.

Id. at 117-18. Although Vasina did not consider the choice of law implications of the Act, dicta in the Second Circuit's opinion casts serious doubt on Quadrini's narrow reading of the Act. The court held that "[t]he natural reading of the statutory language is that the wrongful-death law of a federal enclave should be identical to that of the surrounding state, whatever that law might be and however it might change over time." Id. at 117. This court, in its own opinion in Vasina, said that

  The ordinary meaning of the words used in Section
  457 suggests that the purpose of the first
  sentence was to make the law applicable to
  wrongful death actions on federal lands
  consistent with the law applied in the state
  surrounding the federal lands, while the second
  sentence was intended to adopt the state law
  applicable to personal injury actions generally.
  492 F. Supp. at 945.

The legislative history of the Act offers no indication that the court should read the Act narrowly. When it reached the floor of the Senate, two Senators engaged in a colloquy to explain its purpose. When Senator Robinson of Arkansas asked for an explanation of the bill, Senator Walsh of Montana responded that the bill was intended to make Lord Campbell's Act apply to places within the exclusive jurisdiction of the United States, and that practically every state had by statute changed what had been the common law to give a right of action to the representatives of a decedent who died as a result of a wrongful act. 69 Cong.Rec. 1486 (1928). He explained that a decedent's representatives had no such right if the Act occurred on federal property. Id. The bill, he said, would make state law applicable "so that if under the law of Arkansas a right of recovery could be had if the death occurred outside of the national park, the same right of action would exist if it occurred in the national park." Id.

This court finds nothing in the legislative history that indicates that it should read the broad language of the Act narrowly. Its purpose appears to be to create a uniformity between the law to be applied in the federal enclave and ...

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