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April 1, 1992

MARJORIE DATSKOW, Executrix of the Estates of Robert C. Gross and Susan C. Gross, deceased, and Administratrix of the Estates of Michael and David Gross, deceased, and GROSSAIR, INC., Plaintiffs,
TELEDYNE CONTINENTAL MOTORS AIRCRAFT PRODUCTS, A Division of Teledyne Industries, Inc., Defendant.


The opinion of the court was delivered by: DAVID G. LARIMER



 This tort action arises out of a November 26, 1986, airplane crash in North Carolina in which four members of the Robert C. Gross family, all New York residents, died. Plaintiffs allege that the crash was caused by the failure of an aircraft engine designed and manufactured by defendant Teledyne Continental Motors Aircraft Products ("TCM").

 The amended complaint contains four wrongful death and survival claims sounding in negligence, strict liability, breach of warranty, and "willful or wanton misconduct, gross negligence and fraud." The wrongful death claims are brought on behalf of decedents' distributees, Marjorie Datskow (the sister of decedent Robert Gross) and Juletta Cook (the mother of decedent Susan Gross), who are residents of Pennsylvania and New York respectively. *fn1" The complaint alleges various losses, including funeral expenses and loss of care, comfort, earnings, aid, etc. There is also a property damage cause of action by plaintiff Grossair, Inc. ("Grossair"), the owner of the airplane involved.

 TCM has moved for partial summary judgment dismissing the wrongful death claims. TCM argues that under the New York wrongful death statute, E.P.T.L. § 5-4.3, recovery for distributees is limited to pecuniary injuries. TCM contends that the record proves that plaintiffs did not suffer any pecuniary loss from decedents' deaths.

 In response, plaintiffs claim that North Carolina law should govern because the accident occurred there, and, according to plaintiffs, North Carolina law permits recovery of non-pecuniary damages in a wrongful death action.

 Plaintiffs also contend that under either New York or North Carolina law, TCM is not entitled to summary judgment. Plaintiffs dispute TCM's claims that there is no evidence of pecuniary loss, and argue that the issue of damages should go to the jury.


 1. Choice of Law

 The first issue that the court must address is the choice of law. As stated, plaintiffs contend that North Carolina law should apply. TCM argues in favor of New York law.

 At the outset, I note that until the motion under consideration was filed, plaintiffs have consistently prosecuted this as an action under New York's wrongful death and survival statutes. See Complaint P 15; Catherine B. Slavin Aff., 8/17/89 p. 4; Plaintiffs' Brief in Opposition to Petition for Writ of Certiorari p. 4. Only now, when faced with a motion for partial summary judgment based on New York law, have plaintiffs raised a claim that North Carolina law should apply.

 A district court in a diversity case must follow the choice-of-law rules of the forum state. Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496, 85 L. Ed. 1477, 61 S. Ct. 1020 (1941). My decision, then, depends upon New York's choice-of-law analysis.

 As the Second Circuit explained in Barkanic v. General Admin. of Civil Aviation of the People's Republic of China, 923 F.2d 957 (2d Cir. 1991), the rules governing the choice-of-law in New York have undergone an evolution in recent years, moving from a rigid rule of lex loci delicti to an analysis based on the relative interests of the jurisdictions involved. Id. at 961-63; see also Schultz v. Boy Scouts of America, Inc., 65 N.Y.2d 189, 491 N.Y.S.2d 90, 480 N.E.2d 679 (1985).

 The current rule in New York arises from the New York Court of Appeals' decision in Neumeier v. Kuehner, 31 N.Y.2d 121, 335 N.Y.S.2d 64, 286 N.E.2d 454 (1972), which set forth certain general rules for choice-of-law analysis. Although Neumeier involved the applicability of Ontario's "guest statute" to an automobile accident involving an Ontario passenger and a New York driver, the court in Barkanic stated that it believed that the Court of Appeals now considers the Neumeier factors applicable "to all post-accident loss distribution rules, including rules that limit damages in wrongful death cases." Barkanic, 923 F.2d at 963.

 Employing the Neumeier analysis, then, I must consider the following three elements: the domicile of the plaintiff; the domicile of the defendant; and the place of the accident. When more than one of these is located in the same state, that state's law should ordinarily control. For example, if both parties are domiciled in the same state, that state's law will apply, regardless of where the accident occurred. If one of the ...

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