The opinion of the court was delivered by: FREDERIC BLOCK, District Judge
Plaintiffs Mark Kowalsky, personal representative of the estates of
Edith and Larry Kowalsky, and Bernard Shapiro, personal representative of
the estates of Joan and Norman Shapiro, have brought suit seeking
non-pecuniary damages pursuant to the Death on the High Seas Act
("DOHSA"), 46 U.S.C. § 761-768. The two cases were consolidated for
trial, which transpired on October 21, 2003. The following constitutes
the Court's findings of fact and conclusions of law.
On October 31, 1999, Edith and Larry Kowalsky and Joan and Norman
Shapiro were among the passengers on EgyptAir Flight 990, which was
scheduled to travel from New York City to Cairo, Egypt. The two couples
were traveling together on vacation. After departing from Kennedy
International Airport, the aircraft crashed into the Atlantic Ocean in
international waters, approximately sixty miles from Nantucket Island.
There were no survivors.
At the time of the crash, Larry Kowalsky was 74, Edith Kowalsky 68.
They were survived by four sons, Steven, Howard, Mark and Jeffrey, who
were then 46, 44, 41 and 33, respectively. Norman Shapiro was 70, Joan
Shapiro 64. They were survived by two sons and a daughter, Robert, Larry
and Helen, who were then 40, 38 and 34, respectively. In addition, Joan
Shapiro was survived by her mother, Frances Bonner, who passed away on
March 15, 2002; Norman Shapiro was survived by both of his parents,
Blanche and Joseph Shapiro, who
passed away on August 7, 2000 and September 29, 2000, respectively.
The parties agree that at the time of death Larry Kowalsky had a life
expectancy of 10.7 years, Edith Kowalsky 17 years, Norman Shapiro 13
years, and Joan Shapiro 20 years.
At issue is the sum of money each of the surviving children, as well as
the estates of the surviving parents of the Shapiros, are entitled to
recover under DOSHA for the loss of the "care, comfort and companionship"
of the decedents.
Based on the testimony of the witnesses and the exhibits, the Court
finds that the surviving children were extremely close to their parents.
For example, all of the Kowalsky sons lived within four miles of their
parents' home at the time of the crash. See Trial Transcript
("Tr.") at 44. Even as adults, they all continued to see their parents
almost every week. See Tr. at 30-33, 43-44, 67-68. Two of the
Shapiro children were living with their parents at the time of the crash.
See Tr. at 80. The closeness of each family unit was manifested
by the frequency of family get-togethers and the ubiquitous outpouring of
love and affection visited by the Kowalskys and Shapiros upon each of
their children. Given the closeness of all the children to their parents
and the almost daily intertwining of the children's lives with their
parents', there is no rational basis to distinguish between each child's
loss of care, comfort and companionship.
As for the Shapiros' parents, there was credible testimony from Norman
Shapiro's brother, Bernard, attesting to the loss of the care, comfort
and companionship suffered by the elderly parents of Joan and Norman
Shapiro during their few remaining years after their children died.
See Tr. at 99-103.
The parties agree that the Court has subject matter jurisdiction
pursuant to 28 U.S.C. § 1331 and 1333, treaty jurisdiction pursuant
to Article 28 of the Warsaw Convention, and that venue is appropriate
pursuant to 28 U.S.C. § 1391 (c).
The Court has previously discussed the damages available under DOSHA in
In re Air Crash Near Nantucket Island, Mass., On October
31, 1999, 2002 WL 32302598 (E.D.N.Y. 2002), to which the parties are
referred. As explained therein, prior to April of 2000, damages under
DOSHA were limited to pecuniary damages. DOSHA was then amended,
retroactive to deaths occurring after July 16, 1996, to also permit
recovery for "non-pecuniary damages for wrongful death."*fn1 The amended
statute defined non-pecuniary damages to mean "damages for loss of care,
comfort, and companionship." 46 U.S.C.S Appx. § 762(b)(2).
"Care, comfort and companionship" are not defined in DOHSA and no other
court has construed the scope of these terms. However, in analogous
maritime wrongful death actions, see 46 U.S.C.S. Appx. §
761(a) (DOSHA actions deemed to be "in admiralty"), the term "society" has
been defined to include "the range of mutual benefits each family member
receives from the other's continued existence, including love, affection,
care, attention, companionship, comfort, and protection." Sea-Land
Services, Inc. v. Gaudet, 414 U.S. 573, 585 (1974); see also
Giglio v. Farrell, 424 F. Supp. 927, 929 (S.D.N.Y. 1977) ("[L]oss
defined as "including love, affection, care, attention,
companionship, comfort and protection"). The Gaudet court made
clear that loss of society does not encompass mental anguish or grief.
See Gaudet, 414 U.S. at 585, n.17; see also Mobil Oil Corp.
v. Higginbotham, 436 U.S. 618, 623, n.17 (1978) ("The award
contemplated by Gaudet is especially difficult to compute, for
the jury must calculate the value of the lost love and affection without
awarding damages for the survivors' grief and mental anguish, even though
that grief is probably the most tangible expression of the survivors'
emotional loss."). The parties agree that "loss of society" and loss of
"care, comfort and companionship" should be interpreted as essentially
identical in meaning. See Plaintiff's Post-Trial Submission at
18; Defendant's Post-Trial Submission at 7.
In the case of pecuniary damages, DOSHA has been construed to permit
recovery for "[losses] sustained by the decedent's [spouse] . . . parent,
child or dependent relative." Oldham v. Korean Air Lines, Ltd.,
127 F.3d 43, 54 (D.C. Cir. 1997). Since non-pecuniary damages are
"additional compensation . . . for wrongful death of a decedent,"
46 U.S.C.S. Appx. § 762(b)(1), such damages should also extend to these
While the parties agree that damages for the loss of care, comfort and
companionship are warranted, they sharply dispute the appropriate amount
of compensation. The parties also disagree whether there is sufficient
evidence to support awarding such damages to the estates of the parents
of Joan and Norman Shapiro. They further dispute whether ...