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COMER v. TITAN TOOL

June 23, 1995

DELORES A. COMER and PATRICIA V. EDELSON, Individually and as Personal Representatives and Co-Administrators of the Estate of MICHAEL T. COMER, Deceased, Plaintiffs, against TITAN TOOL, INC., Defendant. TITAN TOOL, INC., Third-Party Plaintiff, - against - ROCK & WATERSCAPE SYSTEMS, INC., Third-Party Defendant.

ROBERT W. SWEET, U.S.D.J.


The opinion of the court was delivered by: ROBERT W. SWEET

Sweet, D.J.

 In this diversity action for wrongful death, third-party defendant moves, pursuant to Fed. R. Civ. P. 56, for an order granting summary judgment and dismissing the third party complaint. For the reasons set forth below, the motion will be denied.

 The Parties

 Plaintiffs Delores Comer ("Delores"), wife of Michael Comer ("Comer"), the deceased, and Patricia Edelson ("Edelson"), Comer's mother, bring this action individually and as Comer's personal representatives and co-administrators of his estate. Delores and Edelson are natural persons. Delores presently resides in British Columbia, Canada, and Edelson resides in New York State, where she has resided at all times relevant to this action.

 Defendant and third-party plaintiff Titan Tool, Inc. ("Titan"), a New Jersey corporation, is the manufacturer of the paint sprayer that Comer was using when he died, assertedly of electrocution.

 Prior Proceedings

 Plaintiffs filed their complaint in this action on February 24, 1993, and Titan answered and filed a third-party complaint, seeking contribution from R&W. During the latter half of 1993 and throughout 1994, discovery proceeded.

 In an opinion of February 15, 1995, R&W's motion for summary judgment on the basis of Florida's workman's compensation statute was denied, stating that under New York choice of law rules, because none of the parties are domiciled in Florida, Florida law was inapplicable. The February 15 opinion expressed no opinion on which state's law should apply, but noted that the choice was effectively limited to New York and California, the states of which Comer and R&W, respectively, are domicilliaries.

 R&W's papers in support of the instant motion request that this Court "reconsider" the question of thc applicability of Florida law. Treating this request as a motion for reargument, it will be denied as time-barred.

 R&W filed the instant motion on March 30, 1995, again seeking summary judgment and dismissal of Titan's third-party complaint. Titan filed its response on April 11, 1995 and oral argument was held on April 19, 1995.

 Facts

 Prior to his death, Comer was employed by R&W as a rock artist, engaged in sculpting artificial rock formations for animal habitats and other displays at zoos, aquariums, theme parks and resorts. Although this work was itinerant in nature, and Comer resided in numerous locations in the years prior to his death, he maintained his permanent address in New York City, and paid his ...


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