United States District Court, E.D. New York
March 9, 2004.
IN RE AIR CRASH NEAR NANTUCKET ISLAND, MASSACHUSETTS, ON OCTOBER 31, 1999; MARK KOWALSKY, Personal Representative of the Estates of Larry and Edith Kowalsky, Plaintiff, -against- EGYPTAIR, Defendant; BERNARD SHAPIRO, Personal Representative of the Estates of Norman and Joan Shapiro, -against- Plaintiff, EGYPTAIR, Defendant
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.
FINDINGS OF FACT
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.
CONCLUSIONS OF LAW
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 prejudgment
interest is appropriate, and the method for determining present value
1. Present Value Discounting
It is established law in this circuit that awards for non-pecuniary
losses should be discounted to present value, but that this discounting
should not be conducted with the statistical precision used for
discounting future earnings. See Oliveri v. Delta Steamship
Lines, 849 F.2d 742, 751 (2d Cir. 1988) ("all that is required for
awards of non-pecuniary future damages is that the time value of money be
taken into account . . . without any precise mathematical adjustments").
See also Ramirez v. New York City Off-Track Betting Corp.,
112 F.3d 38, 42 n. 5 (2d Cir. 1997) (noting that the "standard for
discounting when future non-pecuniary damages are involved . . . appears
to be lenient"). Although abjuring a precise statistical calculation, the
Court has taken into account the time value of money in the calculation
of its damage awards.
2. Prejudgment Interest
There is no bar to prejudgment interest under the Warsaw Convention if
such damages are allowed by relevant local damages law. See Pescatore
v. Pan Am World Airways, Inc., 97 F.3d 1, 20-21 (2d Cir. 1996).
Since DOSHA actions, which come under the umbrella of the Warsaw
Convention, are deemed to be "in admiralty," 46 U.S.C.S. Appx. §
761(a), admiralty law governs the award of such interest.
"To make an injured party whole, prejudgment interest should be awarded
in admiralty cases absent exceptional circumstances." Jones v.
Spentonbush-Redstar Co., 155 F.3d 587, 593 (2d Cir. 1998).
"[P]rejudgment interest is not awarded as a penalty; it is merely an
element of just compensation." City of Milwaukee v. Cement Division,
National Gypsum Co.,
515 U.S. 189, 197 (1995). EgyptAir acknowledges that prejudgment
interest is within the discretion of the Court, but argues that
exceptional circumstances barring prejudgment interest exist because: 1)
only non-pecuniary damages are extant, 2) there has not been a liability
finding against EgyptAir (although EgyptAir has acknowledged that it is
not contesting liability), and 3) that on October 27, 2000, EgyptAir made
advance payments of $600,000 to each family. The Court has considered
each of these arguments, but in the exercise of its discretion will
nonetheless award prejudgment interest.
A. For the Adult Children
In calculating damages, the Court must reconcile two factors. On the
one hand, there can be little doubt that both the Kowalsky and Shapiro
families were extraordinarily loving and close. On the other hand, all
four decedents were of advanced years, and their children were productive
and accomplished adults at the time of their parents' deaths.
The parties are far apart. The Kowalskys and Shapiros ask that each
family be awarded $2,500,000 for the death of each parent, together with
prejudgment interest. This equates to the principal sum of $625,000 per
Kowalsky child and $833,333 per Shapiro child.
EgyptAir submits that damages should be assessed at $75,000 for each
child per parent, amounting to total damages of $600,000 for the
Kowalskys and $450,000 for the Shapiros.
"Damage awards in analogous cases provide an objective frame of
reference, but they do not control [the Court's] assessment of individual
circumstances." Moore v.
Angela MV, 353 F.3d 376, 384 (5th Cir. 2003) (quotation
omitted). See also Waering v. United States, 943 F. Supp. 1504,
1543 (S.D. Fla. 1996) ("Because of the necessarily subjective
nature of non-economic damages, courts have often found guidance by
reference to analogous cases involving similar injuries."). Cf.
Ismail v. Cohen, 899 F.2d 183, 186 (2d Cir. 1990) (in reviewing a
jury's damages award, "[r]eference to other awards in similar cases is
proper"). Case law provides a wide range of damage awards in non-DOSHA
cases providing for non-pecuniary damages for wrongful death. As its best
case, plaintiffs cite to McAsey v. United States Dept. of the
Navy, 201 F. Supp.2d 1081, 1100 (N.D. Cal. 2002), where the adult
children of a fifty-five year-old man were each awarded non-economic
damages of $1,000,000 for the loss of "comfort, society, and protection"
pursuant to the Federal Tort Claims Act ("FTCA").*fn2 For its best case,
EgyptAir cites to Pietrantonio v. United States, 827 F. Supp. 458,
461 (W.D. Mich. 1993), where the adult children of a sixty-four
year-old man were each awarded non-economic damages of $30,000 for "loss
of companionship" pursuant to the FTCA.
These cases, and others cited by the parties, represent the respective
extremes of awards, and demonstrate the wide range of compensation that
has been awarded for non-economic damages arising from a parent's death.
The Court finds more instructive the awards given in Oldham v, Korean
Airlines Co., Ltd., 127 F.3d 43 (D.C. Cir. 1997) and In re Air
Crash Near Cerritos, California, On August 31, 1986, 982 F.2d 1271
(9th Cir. 1992). In Oldham, a jury granted "loss of society"
damages of $100,000 per parent to a twenty-nine year-old who
lost sixty-four and fifty-five year-old parents under the
pre-amended DOSHA.*fn3 Although remanding the non-economic damage awards
for present value discounting, the Court in In re Air Crash
approved, without discussion, the district court's awards of $100,000,
$125,000 and $200,000 in non-economic damages to adult children for the
loss of "comfort, care and society" from the death of a parent pursuant
to the FTCA. The Court's decision does not reveal the ages of either the
decedents or the adult children, and neither In re Air Crash nor
Oldham discusses the closeness of the familial
In making its awards, the Court, while treating the loss to each child
to be of identical value considering the unity of the families and the
close integration of each child into the family fabric, has taken into
account the parents' varying life expectancies; furthermore, the Court
believes that the awards should reflect the dual loss of both sets of
parents during their life expectancies, since the collective loss of both
parents obviously has a heightened impact over the loss of a single
parent. Consequently, the awards vary. As previously noted, the Court has
also considered the time value of money.
The Court awards Steven, Howard, Mark and Jeffrey Kowalsky $180,000
each for the death of Larry Kowalsky, and $200,000 each for the death of
Edith Kowalsky. The Court awards Robert, Larry and Helen Shapiro $190,000
each for the death of Norman
Shapiro, and $210,000 each for the death of Joan Shapiro.
B. For the Parents of Joan and Norman Shapiro
There was scant evidence put forward at trial regarding the loss of
care, comfort and companionship suffered by Joseph and Blanche Shapiro
and Frances Bonner, all of whom passed away after the crash. Nonetheless,
their estates are entitled to some compensation for their non-pecuniary
loss for the short time they lived after the death of their children. The
Court awards the estates of Blanche and Joseph Shapiro $10,000 each, and
the estate of Frances Bonner $25,000.
The total awards for the children of each family $1,520,000 for
the Kowalsky family and $1,200,000 for the Shapiro family will
be paid to the respective plaintiffs in their trust capacities for
distribution to each child. In addition, plaintiff Bernard Shapiro will
be paid the sums due to the estates of Joseph Shapiro, Blanche Shapiro
and Frances Bonner, to be remitted to the executors of the estates. By
agreement of the parties, prejudgment interest will be calculated at a
rate of 5%. Such interest will run on the full amount of the damages for
the children from October 31, 1999, the date of the crash, to October
27, 2000, at which time Egypt Air made payments of $600,000 to each
family equaling $150,000 per Kowalsky child and $200,000 per
Shapiro child. For the time period from October 27, 2000 to the date
judgment is entered, prejudgment interest should be calculated on the
remaining sums due the plaintiffs in accordance with this decision.
Prejudgment interest will run on the sums due
to the Shapiro and Bonner estates from October 31, 1999 to the date
of entry of judgment.