Simon v. United States

Opinions of the United

2003 Decisions States Court of Appeals

for the Third Circuit

8-20-2003

Simon v. USA

Precedential or Non-Precedential: Precedential

Docket No. 02-2945P

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PRECEDENTIAL

Filed August 20, 2003

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 02-2945

LOUIS SIMON; HOWARD ASHER;

HENRY F. MILLER; SUZANNE PETERSON,

EXECUTORS OF THE ESTATE

OF B. KENIN HART, DECEASED,*

Appellant

v.

UNITED STATES OF AMERICA

*(Amended in accordance with Clerk’s Order

dated 8/27/02)

(D.C. Civil No. 01-cv-05671)

Nos. 02-3996, 02-3997

MARY SCHALLIOL, AS PERSONAL

REPRESENTATIVE OF THE ESTATE

OF DENNIS SCHALLIOL, DECEASED

v.

JOHN FARE, JR., AS PERSONAL

REPRESENTATIVE OF THE ESTATE

OF JOHN FARE;

HART DELAWARE CORPORATION;

UNITED STATES OF AMERICA

2

Mary Schalliol,

Appellant in 02-3996

John Fare, Jr.,

Appellant in 02-3997

(D.C. Civil No. 01-cv-00224)

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

District Judge: Honorable Marvin Katz

Argued June 23, 2003

Before: SLOVITER, AMBRO, and BECKER, Circuit Judges

(Filed: August 20, 2003)

ARTHUR G. RAYNES, ESQ.

STEPHEN E. RAYNES, ESQ.

Raynes, McCarty, Binder,

Ross & Mundy

1845 Walnut Street, Suite 2000

Philadelphia, PA 19103

AARON S. PODHURST

JOEL S. PERWIN (Argued)

MICHAEL OLIN

Podhurst, Orseck, Josefsberg, Eaton,

Meadow, Olin & Perwin, P.A.

25 West Fagler Street, Suite 800

Miami, FL 33130

Attorneys for Appellants Louis Simon,

Howard Asher, Henry F. Miller, and

Suzanne Peterson, Executors of the

Estate of B. Kenin Hart, Deceased

in 02-2945

3

ROBERT D. McCALLUM, JR.

Assistant Attorney General

JEFFREY S. BUCHOLTZ

Deputy Assistant Attorney General

PATRICK L. MEEHAN

United States Attorney

TERENCE M. HEALY

VICTOR M. LAWRENCE

RODNEY PATTON (Argued)

Trial Attorneys

Torts Branch, Civil Division

U.S. Department of Justice

P.O. Box 14271

Washington, D.C. 20044-4271

Attorney for Appellee United States

HARRY A. WILSON, JR. (Argued)

D. BRUCE KEHOE

Wilson Kehoe and Winingham

2859 North Meridian Street

P.O. Box 1317

Indianapolis, IN 46206-1317

DANIEL S. WEINSTOCK

Feidman Shepherd Wohlgelernter

Tanner

25th Floor

1845 Walnut Street

Philadelphia, PA 19103

Attorneys for Appellant Mary

Schalliol in 02-3996

J. ARTHUR MOZLEY (Argued)

Mozley, Finlayson & Loggins, LLP

5605 Glenridge Drive

Suite 900

Atlanta, GA 30342-1380

Attorney for Appellee

Hart Corporation/Delaware Division

in 02-3996 & 02-3997

4

JOSEPH M. LAMONACA

Suite 303

Route 202 & 1

G & M Building

Chadds Ford, PA 19317

Attorney for John Fare, Jr.,

Appellee in 02-3996 & Appellant in

02-3997

OPINION OF THE COURT

BECKER, Circuit Judge.

The threshold question presented by this interlocutory

appeal, 28 U.S.C. § 1292(b), is whether Indiana’s or

Pennsylvania’s choice-of-law rules govern a suit against the

United States by the estates of passengers killed in the

crash of a small private aircraft. Two of the decedents lived

in Pennsylvania, another worked in Pennsylvania, the plane

was hangared in Pennsylvania, and the corporation that

owned it was incorporated in Pennsylvania. The plane

crash, which occurred during a landing at a Kentucky

airport in inclement weather, resulted from: (1) the

Government’s publication in Washington, D.C. of a chart

incorrectly showing that a long-inactive instrument landing

approach at the airport was active; and (2) the negligence of

Indiana-based federal air traffic controllers in relying on

that chart, in neglecting to monitor the radar during the

flight’s landing approach, and in failing to respond to the

pilot’s last-minute radio communications.

In a multistate tort action, the Federal Tort Claims Act

(“FTCA”) requires a federal court to apply the whole law of

the place where the acts of negligence occurred, including

its choice-of-law rules. 28 U.S.C. §§ 1346(b), 2674; Richards

v. United States, 369 U.S. 1 (1962). In a pretrial ruling, the

District Court determined that because acts of negligence

were committed in both Indiana and the District of

Columbia (“D.C.”), those jurisdictions’ choice-of-law rules

were candidates to govern the case. In order to determine

whether it was necessary to choose between the two, the

5

Court first had to determine whether there was a true

conflict between their choice-of-law rules. It concluded that

there was a true conflict because, unlike the District of

Columbia, Indiana law does not recognize the doctrine of

depeçage, i.e., conducting separate choice-of-law analyses

for different issues within a single theory of recovery, such

as liability and damages. To determine which jurisdiction’s

rules applied, the District Court employed the methodology

set forth in Gould Electronics, Inc. v. United States, 220 F.3d

169 (3d Cir. 2000), where we described five different

approaches to choice-of-law conflicts. Concluding that

these factors on balance favored Indiana, the District Court

utilized Indiana’s choice-of-law rules to determine whether

to apply Indiana’s or Pennsylvania’s substantive law.

Turning to the question whether Indiana’s choice-of-law

rules would apply Pennsylvania or Indiana’s substantive

law to the case (no party urged the application of D.C. or

Kentucky substantive law), the District Court first

determined that there was a true conflict between the two

jurisdictions’ damages regimes, as Pennsylvania’s damages

law (urged by Plaintiffs) allows for more generous

compensation of tort victims than Indiana’s (urged by the

Government). The Court concluded that the Indiana

Supreme Court would choose Indiana substantive law over

that of Pennsylvania. Reasoning that the choice-of-law

issue would likely be outcome determinative, however, the

Court certified the choice-of-law question to us under 28

U.S.C. § 1292(b). The papers are not entirely precise, but it

is clear from their tenor that the District Court decided

both choice-of-law issues and that they have been

presented by this appeal.

We are unsure about the correctness of the District

Court’s threshold ruling — that a true conflict exists

between Indiana and D.C.’s choice-of-law rules. Because

the Indiana Supreme Court has not addressed the question

whether Indiana courts may apply depeçage, we will vacate

the District Court’s conclusion that the Indiana Supreme

Court would not permit them to do so, and certify that

question to the Indiana Supreme Court itself pursuant to

Rule 64 of the Indiana Rules of Appellate Procedure.1 In the

1. We are not constrained by the final judgment rule since this is an

interlocutory appeal.

6

ordinary case, that would be sufficient for now. But if the

Indiana Supreme Court holds that Indiana does not

recognize depeçage, meaning that there is a true conflict

between Indiana and D.C. law, we will then be obliged to

decide which jurisdiction’s choice-of-law rules to apply, and

if we choose Indiana, another question looms — whether

Indiana would apply its own substantive law or

Pennsylvania’s to the case.2 This is an extremely difficult

question, and we are doubtful of the correctness of the

District Court’s resolution of the issue. Evaluating the

Indiana three-pronged test for determining which state’s

law it would apply would seem to result in a “tie” between

two factors, the third being largely neutral. This question

too would therefore benefit from a determination by the

Indiana Supreme Court as to how it would apply the factors

and break the tie.

While logically we might make the initial certification to

the Indiana Supreme Court and await its results (which

might or might not render it necessary for us to proceed

further), we are reluctant to risk the necessity of a second

certification to the Indiana high court, especially in view of

2. It is possible that Indiana’s and D.C.’s choice-of-law rules might

conflict even if Indiana embraces depeçage, for Indiana has adopted a

modified lex loci delicti test, which looks first to the place where the tort

occurred, which is Kentucky in this case. Since Kentucky bears little

relation to the action, however, Indiana’s lex loci test examines: (1) the

place where the conduct causing the injury occurred; (2) the residence

and place of incorporation and place of business of the parties; and (3)

the place where the parties’ relationship is centered. Hubbard, 515

N.E.2d at 1073. In contrast, D.C. employs a government interest test,

under which government interest is determined by considering: (1) the

place where the conduct causing the injury occurred; (2) the place where

the conduct causing the injury occurred; (3) the domicile, residence,

place of incorporation and place of business of the parties; and (4) the

place where the relationship is centered. Raflo v. U.S., 157 F. Supp. 2d

1, 5 (D.C. Cir. 2001).

Viewing the modified lex loci and government interests tests as whole,

however, we do not discern a meaningful difference between them under

the facts of this case. We therefore conclude that the existence of a true

conflict between Indiana’s and D.C.’s choice-of-law rules turns on

whether Indiana employs depeçage.

7

the fact that this case was fully ready for a four-week trial

when the District Court made its § 1292(b) certification.

Avoiding the spectre of a two-step certification requires

that we assume that Indiana may decide that it does not

recognize depeçage, in which case: (1) there will be a true

conflict between Indiana and D.C. choice-of-law principles;

and (2) this Court will have to decide which applies. To do

this, we must clarify our reasoning in Gould Electronics

since that opinion did not establish a general rule. We

synthesize the Gould approaches into a single inquiry that

chooses the rules of the jurisdiction containing the last

significant negligent act or omission relevant to the FTCA.

Since we conclude that the air traffic controllers in Indiana

committed the last significant act, we will apply Indiana’s

choice-of-law rules. As noted above, under the Indiana

Supreme Court’s three-part choice-of-law test set forth in

Hubbard Manufacturing Co., Inc. v. Greeson, 515 N.E.2d

1071, 1073 (Ind. 1987), one factor is indeterminate, one

favors Indiana substantive law, and one favors

Pennsylvania substantive law. Since Hubbard gives no

indication of how to break such a tie, we will also certify

this question to the Indiana Supreme Court. Upon receipt

of the answers to both certified questions, the trial court

can proceed to trial with certainty as to the law.

I.

These cases arise out of a fatal plane crash in Somerset,

Kentucky, in January of 2000. Dennis Schalliol, a

Pennsylvania resident, was employed as a salesman by

Hart National, a Pennsylvania Corporation with its principal

place of its national real estate business in Pennsylvania.

B. Kenin Hart, also a Pennsylvania resident, was the sole

owner, chairman, and CEO of Hart National. In 1998, Hart

National established a subsidiary, Hart Delaware, whose

main job it was to operate the aircraft in question.

(Although called Hart Delaware, it is based in

Pennsylvania.) Hart Delaware had but one employee, John

Fare, a New Jersey resident and pilot, who was hired to fly

the airplane. The airplane was hangared and operated out

of the Northeast Philadelphia Airport for the primary

8

purpose of transporting employees of Hart National from

Pennsylvania to related business sites.

In January of 2000, the airplane departed from Northeast

Philadelphia Airport bound for Ohio State University

Airport, via Cincinnati, with pilot Fare and passengers

Schalliol and Hart on board. After picking up a broker, Loy

Thompson, in Cincinnati, the plane traveled to Ohio State

University Airport in Columbus and remained there

overnight. The next morning, pilot Fare received a weather

briefing indicating that there were bad conditions at the

scheduled destination of Somerset, Kentucky. Such

conditions required an instrument flight rules (IFR) landing.

While en route to Kentucky, pilot Fare communicated with

federal air traffic controllers at the Indianapolis Air Route

Traffic Control Center who cleared the flight for the SDF

(Simplified Directional Facility) runway 4 approach at the

Somerset airport. The SDF system is a group of

instruments that guides a plane horizontally onto the

runway. Together with an altimeter, it allows a plane to

land “blind.” As it turns out, the SDF approach had been

out of service since 1995, a fact reflected in the Airport

Facility Directory (“AFD”) published by the Federal Aviation

Administration (“FAA”), although pilot Fare was unaware of

that condition.

The plane’s last radio contact with the air traffic

controllers occurred when it was about 30 miles north of

the Somerset airport. As it descended, weather conditions

made it impossible to see the surrounding terrain. With no

further contact from the air traffic controllers, pilot Fare

relied on the Instrument Approach Procedure (“IAP”), a

document compiled and published in Washington, D.C.

that lists navigable IFR approaches to various airports

around the country, to guide the landing. If operational, the

SDF would have guided the plane safely onto the runway,

but instead the plane drifted off course and struck a guy

wire from a radio communications tower approximately 3.3

miles from the Somerset airport. The resulting crash killed

everyone on board.

The personal representatives of the decedents brought

suit in the District Court for the Eastern District of

Pennsylvania. Plaintiffs’ amended complaint under the

9

Federal Tort Claims Act, 28 U.S.C.A. §§ 1346(b), 2671 et al.

(“FTCA”), alleged that the U.S. was negligent in publishing

the IAP for the SDF approach to Somerset when in fact that

approach had been out of service for five years at the time

of the crash.3 It further alleged that the air traffic

controllers in Indiana acted negligently by issuing a

clearance for an approach that was out of service, failing to

monitor radar scopes after clearance was given, failing to

conduct proper briefings, and failing to issue a safety alert

to pilot Fare.

Plaintiff Mary Schalliol, as personal representative of the

estate of Dennis Schalliol, not only brought a claim of

negligence against the United States under the FTCA, but

also sued the estate of pilot Fare (alleging his negligence)

and Fare’s employer, Hart Corporation/Delaware Division.

The estate of pilot Fare, through separate counsel, has also

brought a cross-claim of negligence against the United

States. In a separate action that has been consolidated on

appeal, four personal representatives of the estate of B.

Kenin Hart, his three children and his mother (collectively,

the “Simon Plaintiffs”), have brought claims against the

United States. The United States filed separate motions for

determinations of the applicable choice of law in each of the

cases, and each motion sought the application of Indiana

substantive law to the claims pled against it under the

FTCA. Plaintiff Schalliol, defendants Fare and Hart

Delaware, and the Simon Plaintiffs each responded

separately seeking the application of Pennsylvania

substantive law, which is far more favorable to tort victims.

As explained supra, the District Court found a true

conflict between Indiana and D.C.’s choice-of-law rules, so

it employed the choice-of-law procedure set forth in Gould

Electronics to determine which jurisdiction’s rules apply.

Gould delineates five common approaches in choosing

between competing choice-of-law regimes, although it does

not express a preference for any of the five because, under

the facts of that case, one of the approaches was

inapplicable and the remaining four yielded the same

3. As their arguments are substantively identical, this opinion will refer

to all claimants against the United States as “Plaintiffs.”

10

outcome. Applying the approaches to the facts in this case,

the Court found the first one, “when the injury can be

parsed by the acts or omissions in the different states, . . .

applying the relevant state’s choice of law rules for each act

or omission,” 220 F.3d at 182, inapplicable because the

injury — death in a plane crash — cannot be parsed. It

concluded that the second approach, “elect[ing] the choice

of law rules of the place of the last act or omission having

a causal effect,” id., clearly favored Indiana, the location of

the air traffic controllers.

The District Court likewise determined that the third

approach, electing the rules of “the place of the last act or

omission having the most significant causal effect,” id.,

favored Indiana because a direct nexus exists between the

conduct of the controllers and the crash. The fourth

approach, “select[ing] the choice of law rules of the state in

which ‘physical acts’ could have prevented the injury,” id.

at 183, was found to be indeterminate because just as the

air traffic controllers in Indiana could have given different

instructions, the federal employees in D.C. could have

published an accurate IAP. Finally, the fifth approach,

choosing “based on where the ‘relevant’ act or omission

occurred,” id., was found to be indeterminate because there

were two independent acts of negligence, each of which

could have been fatal in its own right. In sum, the District

Court concluded that of the five Gould approaches, one was

inapplicable, two favored Indiana, and two were

indeterminate, so it applied Indiana’s choice-of-law rules to

choose between Indiana and Pennsylvania substantive law.4

4. Although on these facts an argument might have been made for D.C.

or perhaps even Ohio or Kentucky substantive law, no party urges such

a result. When such a situation arises in a diversity case, the laws of

each unpleaded jurisdiction are presumed to be identical to the law of

the forum (Pennsylvania) on all issues. See, e.g., National Ass’n of

Sporting Goods Wholesalers, Inc. v. F.T.L. Marketing Corp., 779 F.2d

1281, 1285 (7th Cir. 1985) (“Stated in another manner, unless the

parties argue otherwise, it is assumed that the law of the forum and the

laws of the applicable jurisdiction are in substance the same.”). As this

case arises under federal question rather than diversity jurisdiction,

however, we assume analogously that the laws of unpleaded jurisdictions

are identical to those of the jurisdiction whose substantive law is

11

Indiana employs a modified lex loci delicti test, which

applies the substantive law of the jurisdiction where the

tort was committed. Hubbard, 515 N.E. 2d at 1073.

Generally, in Indiana wrongful death or injury cases, the

place where the death occurred is the site of the tort’s

commission or of the “last event necessary,” see, e.g.

Lambert v. Yellowbird, Inc., 496 N.E.2d 406, 409 (Ind. Ct.

App. 1986), which in this case is Kentucky, the site of the

crash and resulting deaths. As the District Court explained,

however, the Indiana inquiry does not end here:

In those instances where the place of the tort bears

little connection to the legal action, this Court will

permit the consideration of other factors such as: 1)

the place where the conduct causing the injury

occurred; 2) the residence or place of business of the

parties; and 3) the place where the relationship is

centered. These factors should be evaluated according

to their relative importance to the particular issues

being litigated.

Hubbard, 515 N.E.2d at 1073 (quoting Restatement

(Second) of Conflicts of Laws § 145(2) (1971)).

The District Court concluded that Kentucky “has little

connection to the legal action” concerning the FTCA claims

against the United States’s air traffic controllers and chart

publishers, so it turned to the three supplemental Hubbard

factors. It found that the first, “the place where the conduct

causing the injury occurred,” favored Indiana because

although negligence also occurred in D.C., “the conduct

most directly affecting the plane’s landing clearly occurred

in Indiana.” For example, the Indiana controllers were the

only actors with direct contact with and control over the

pilot and plane.

ultimately selected. In essence, there is presumed to be no conflict

between the laws of Pennsylvania, D.C., and Kentucky, and as the

Restatement (Second) explains: “When certain contacts involving a tort

are located in two or more states with identical local law rules on the

issue in question, the case will be treated for choice-of-law purposes as

if those contacts were grouped in a single state.” § 145, Comment i

(1975).

12

As to the second Hubbard factor, “the residence or place

of business of the parties,” they are various — Indiana

(plantiff Schalliol), Pennsylvania (three of the four Simon

plaintiffs and passenger Hart), New York (fourth Simon

plaintiff), Delaware (defendant Fare/Cross-plaintiff Fare and

defendant Hart Delaware), and, with respect to the

defendant United States, all states or no state.5 The District

Court concluded that this factor favored no state, so it

apparently gave that factor relatively little weight. Finally,

the District Court concluded that the third Hubbard factor,

“the place where the relationship is centered,” could

likewise point to any of several locations since none of the

parties was ever located in the same state as any adverse

party.

Based on these three factors, the District Court

concluded that Indiana bears the “edge” as the jurisdiction

with the most significant contacts to the negligence claims

against the United States. However, the District Court

recognized that such a decision would effectively dictate the

case’s outcome, which is essentially a question of damages

— it is hard to envision a successful defense to the

Government’s liability. Because the choice-of-law issues are

so critical, the Court certified them for our immediate

review pursuant to 28 U.S.C. § 1292(b), which requires

that: (1) the issue involve a controlling question of law; (2)

as to which there are substantial grounds for difference of

opinion; and that (3) an immediate appeal of the order may

materially advance the ultimate termination of the

litigation. This being a clear case for § 1292(b) certification,

we accepted it and, under Rule 5 of the Federal Rules of

Appellate Procedure, requested briefing and heard oral

argument.

The District Court had diversity jurisdiction over the

Simon and Schalliol suits pursuant to 28 U.S.C. § 1332. It

had jurisdiction over Fare’s cross-claim against the United

States by virtue of the Federal Tort Claims Act, 28 U.S.C.

§§ 1346(b) and 2671 et seq. We exercise jurisdiction

5. The District Court did not accurately state the location of Hart

Delaware which, despite its misleading name, is incorporated in and

does business primarily in Pennsylvania. Also, although Plaintiff Fare

lived in Delaware, he worked exclusively in Pennsylvania.

13

pursuant to 28 U.S.C. § 1292(b). Because choice-of-law is a

purely legal determination, our review is plenary.

II.

The Federal Tort Claims Act waives sovereign immunity

against persons suing the federal government for

commission of various torts. In a multi-state tort action, it

requires a federal court to apply the law of the place where

the acts of negligence occurred. 28 U.S.C.A. §§ 1346(b),

2674. The Supreme Court, however, has expressly rejected

the argument that the law of the place of injury should

apply where negligence occurs in one state and results in

injury or death in another. Richards v. U.S., 369 U.S. at 1.

Richards dictates that either Indiana or D.C.’s choice-of-law

rules must apply, for those are the two places where

government negligence allegedly occurred — the air traffic

controllers were based in Indiana, and the faulty IAP was

published in D.C. Although each of the key questions will

be certified, for the benefit of the Indiana Supreme Court

and the parties, it is important that we lay out the factual

and legal background reasoning that animates our decision.

In choosing between Indiana and D.C.’s choice-of-law

regimes, we must first determine whether there exists a

“true conflict” between them. Gould, 220 F.3d at 179, 181.

The parties disagree as to whether Indiana and D.C.’s rules

differ in any material respect. Indiana’s choice of law

utilizes a modified lex loci delicti test. Hubbard, 515 N.E.2d

at 1073. It begins with the presumption that the

substantive law of the place where the tort was committed

governs the case. Id. However, if the place of the tort bears

little connection to the legal action, Indiana follows the

“most significant relationship” test detailed in the

Restatement (Second) Conflicts of Laws. Id. at 1074. The

parties agree that Kentucky, the location of the tort, has

little connection to the litigation since the plane merely

crashed there. Therefore, in this case Indiana law defaults

to the “most significant relationship” test, in which it

considers three factors: (1) the place where the conduct

causing the injury occurred; (2) the residence and place of

incorporation and place of business of the parties; and (3)

the place where the parties’ relationship is centered.

14

In comparison, D.C. implements a hybrid of the

“governmental interest” and Restatement (Second)

methodologies that identifies the governmental policies

underlying the applicable laws and determines which

state’s policy would be most advanced by having its laws

applied to the facts of the case. Raflo v. United States, 157

F. Supp.2d 1, 4 (D.D.C. 2001). The stronger state interest

is found by examining: (1) the place where the injury

occurred; (2) the place where the conduct causing the

injury occurred; (3) the domicile, residence, place of

incorporation and place of business of the parties; and (4)

the place where the relationship is centered. Id. at 5.

Although D.C.’s analysis also takes into account

government policies, plaintiffs contend that the factors D.C.

considers do not differ meaningfully from those Indiana

considers, and therefore that there is merely a false conflict

between D.C. and Indiana law.

The United States disagrees, asserting that a true conflict

exists. It points out that Indiana did not adopt the policy

component of § 6 of the Second Restatement. See, e.g.,

Hubbard, 515 N.E.2d at 1074 (declining to balance

competing interests of states by identifying policies

underlying their differing laws); In re Bridgestone/Firestone,

Inc., Tires Prods. Liab. Litig., 155 F. Supp.2d 1069, 1083

n.10 (S.D. Ind. 2001) (noting that interests of each state are

not determinative or generally even considered by Indiana

courts). It notes that academic commentators agree that

Indiana eschews such policy considerations. See, e.g.,

Symeon C. Symeonides, The Judicial Acceptance of the

Second Conflicts Restatement: A Mixed Blessing, 56 Md. L.

Rev. 1248, 1252, 1268 & n.136, & 1272 n.159 (1997)

(“[Indiana’s] significant-contacts approach differs from

section 6 of the Restatement (Second) in that it calls for a

consideration of the factual contacts alone, rather than a

set of policies in light of the factual contacts as does the

Restatement (Second).” (emphasis added). Plaintiffs,

however, assert that Indiana courts do consider state

policies in their analysis. See, e.g., In Re the Estate of

Bruck, 632 N.E.2d 745, 749 (Ind. Ct. App. 1994) (holding

on the specific point at issue that, although Indiana law

would otherwise apply, “only under Ohio law can the

distribution fulfill the essential purpose of the damages,

15

which is to benefit the immediate survivors regardless of

dependency”).

It is of course possible that even if D.C. considers policy

while Indiana does not, the two schemes would present a

false conflict because they would ultimately select the same

state’s substantive law. But, the United States argues, the

conflict in choice-of-law regimes goes deeper than mere

consideration of policy, for D.C.’s choice-of-law rules

recognize the concept of depeçage while Indiana’s do not.

Depeçage is “the process whereby different issues in a

single case arising out of a single set of facts are decided

according to the laws of different states.” Broome v. Antlers’

Hunting Club, 595 F.2d 921, 923 n.5 (3d Cir. 1979). In the

case at bar, depeçage would enable a court to apply one

state’s laws to assess liability and another’s to assess

damages. It is clear that D.C.’s choice-of-law rules permit

depeçage, see, e.g., Stutsman v. Kaiser Foundation Health

Plan of the Mid-Atlantic States, Inc., 546 A.2d 367, 373

(D.C. App. 1988), so a critical question for “true conflict”

purposes is whether Indiana’s do as well.

Plaintiffs identify several Indiana decisions that allegedly

employ depeçage, including Allen v. Great American Reserve

Ins. Co., 766 N.E.2d 1157, 1162 (Ind. 2002) (“In analyzing

each of the counts of the plaintiffs’ complaint, it is first

necessary to determine which state’s law applies to that

count. The answer may differ for different counts and may

differ between defendants as to a single count.”); Cap

Gemini America, Inc. v. Judd, 597 N.E.2d 1272, 1281 (Ind.

Ct. App. 1992) (undertaking separate choice-of-law

analyses on liability and damages); Estate of Sullivan v.

United States, 777 F. Supp. 695 (N.D. Ind. 1991) (applying

Arizona law to the medical malpractice action and Indiana

law to the wrongful death claim). None of these cases,

however, establishes that Indiana law embraces depeçage.

Allen was a routine application of different choice-of-law

analyses to different counts, as opposed to different issues

within a single count. Cap Gemini conducted a choice-of-

law analysis for damages purposes, but there were actually

two distinct claims at stake in that case, the second of

which involved only a question of damages — the liability

and damages issues involved different theories of recovery.

16

Finally, although Estate of Sullivan did employ depeçage,

the Indiana court in that case was applying Arizona’s

choice-of-law rules, not Indiana’s.

Viewing Indiana’s caselaw as a whole, the closest an

Indiana court has come to employing depeçage is in In re

the Estate of Bruck, 632 N.E.2d 745 (Ind. Ct. App. 1994).

There the court said in dictum that, if it had found a true

conflict, it would have applied a New York decision stating

that “the recovery and distribution aspects of wrongful

death cases may be separated when choice-of-law questions

arise.” Id. at 749. But as the District Court correctly noted,

Bruck’s dictum is not very valuable here, especially since no

Indiana case has explicitly employed depeçage and the

dictum itself is from an intermediate appellate court.

Plaintiffs offer one slightly different rationale in favor of

depeçage: that many Indiana cases adopt § 145 of the

Restatement, which in turn incorporates the general criteria

of § 6 of the Restatement. See Hubbard, 632 N.E. 2d at

1073-74 (Ind. 1987). Because § 6 endorses depeçage,

plaintiffs submit that depeçage has been incorporated

indirectly into Indiana law. However, given the possibility

that Indiana has adopted only part of the Restatement, we

are unwilling to conclude that Indiana has embraced

depeçage based only on such roundabout reasoning.

In sum, we find no evidence that Indiana courts employ

the concept of depeçage, and absent depeçage it is clear

that there is a true conflict between Indiana and D.C.’s

choice-of-law rules. We nevertheless note that the Indiana

Supreme Court has not definitively resolved the matter, and

we believe that a question of such importance is best left to

that Court’s authoritative disposition. We will therefore

certify the issue to the Indiana Supreme Court pursuant to

Rule 64 of the Indiana Rules of Appellate Procedure.

III.

In a multistate tort action, the FTCA requires a federal

court to apply the law of the place where the acts of

negligence occurred. 28 U.S.C. §§ 1346(b), 2674; Richards,

369 U.S. at 1. We must therefore apply either Indiana’s or

D.C.’s choice-of-law rules, but we need only choose between

17

them if they conflict. For the reasons outlined above, we

will assume arguendo that Indiana does not embrace the

concept of depeçage, and therefore that a true conflict

exists. In Gould, 220 F.3d at 169, we addressed the matter

of how to resolve such a conflict. Our opinion surveyed the

caselaw and literature on the subject and identified five

common approaches: (1) applying different rules to different

theories of liability; (2) choosing the place of the last

allegedly-wrongful act or omission; (3) determining which

asserted act of wrongdoing had the most significant effect

on the injury; (4) choosing the state in which the United

States’ physical actions could have prevented injury; and

(5) determining where the “relevant” act or omission

occurred. Under Gould’s facts, however, the first approach

was inapplicable and the final four pointed toward the

same state, so we declined to adopt any one approach.

The case at bar is much closer, and the approaches yield

conflicting results. The parties agree that the first

approach, applying different rules to different theories of

liability, is inapplicable because there is only one theory of

liability — negligence. The second approach, choosing the

place of the last allegedly-wrongful act or omission, seems

clearly to favor Indiana. Although it is true that the IAP

published in D.C. incorrectly depicted as operational an

SDF approach that had been out of service for five years,

(Plaintiffs’ Stipulation of Facts, A96), the air traffic

controllers’ negligence postdated the chartmakers’

negligence. Plaintiffs’ pretrial memorandum alleges that the

controllers: (1) failed to review various Area and Hazard

binders which would have revealed that the SDF approach

was out of service; (2) cleared the flight for landing on an

out-of-service approach; (3) failed to monitor the plane on

radar during the approach, a safeguard which would have

revealed that the plane was off course; (4) failed to issue a

low altitude safety advisory; and (4) failed to respond to

pilot Fare’s radio communication after his first pass by the

runway. (Report of Expert J. Gary Parham, Schalliol

Appendix at 104A).

The plaintiffs, however, submit that the air traffic

controllers’ last-in-time negligence is relatively unimportant

because their location in Indiana was a mere fortuity —

18

they could have been anywhere, and Indiana as a

jurisdictional entity had nothing to do with the plane crash.

They therefore argue that this factor should be given

relatively little weight, and cite to In re Aircrash Disaster

Near Roselawn, Indiana on October 31, 1994, 926 F. Supp.

736, 743 n.9 (N.D. Ill. 1996) (“The manner in which federal

air traffic controllers choose to partition air space has no

bearing on the litigation of the decedent’s injuries or the

interests of the several states in this litigation.”).

The United States disagrees that the flight controllers’

location was fortuitous, because the plane’s flight plan

ensured that it would traverse the controllers’ airspace,

where they would communicate with the pilot. It also

argues that the Aircrash Disaster case is inapposite, for in

that case no party had sued the United States alleging air

traffic controller negligence, so the location of the

controllers themselves was not a factor.

We are satisfied that this “last wrongful act” approach

favors Indiana law even if the air traffic controllers’ location

was to some degree fortuitous. It certainly is not entirely

fortuitous, for the federal government has undoubtedly

positioned air traffic controllers strategically so as to create

manageable regions of airspace. Indeed, the publication of

the IAP in Washington, D.C. was at least as fortuitous, for

there is no reason why its contents could not have been

compiled and distributed in any jurisdiction.

The third Gould approach, determining which asserted

act of wrongdoing had the most significant effect on the

injury, is quite close. The District Court concluded that this

test favored Indiana, where the acts of negligence assertedly

had the most “direct nexus” to the crash. The Plaintiffs

disagree, arguing that this concept of “direct nexus” flirts

dangerously close to the second factor, which is the place

of the most recent act. In their view, “most significant

cause” is not synonymous with “proximate cause,” and they

argue that this factor actually favors D.C. because the

chartmakers in D.C. committed a (in fact, “the”) major sin

of commission by producing a defective product. The air

traffic controllers, on the other hand, merely relied upon

this inaccurate map, making their negligence less

significant.

19

As explained supra, however, it is clear that the air traffic

controllers’ negligence went beyond passive reliance on a

faulty chart; among other things, they failed to review

mandatory binders, failed to monitor the flight’s approach

on radar, and failed to respond to the pilot’s radio

communications. The Government does not meaningfully

challenge these points — although it maintains that the air

traffic controllers were not negligent, this position is

undermined by its concession at oral argument that: “the

air traffic controllers cleared the pilot for an approach; the

navigational aid for that approach was out of service, [and]

they knew it was out of service but forgot.” We therefore

conclude that with clear negligence by the air traffic

controllers counter-balancing that of the chart makers, this

third approach is also indeterminate. Each act of negligence

might fairly be termed a “but for” cause of the crash, and

reasonable minds could disagree on which cause (if any)

was most significant.

The fourth approach, choosing the state in which the

United States’s physical actions could have prevented

injury, seems likewise to be indeterminate. The air traffic

controllers could have given correct instructions and been

more attentive during the plane’s approach, and the chart

makers could have produced an accurate chart. No one

physical act seems to be the clear cause of the accident.

The fifth and final Gould approach, determining where

the “relevant” act or omission occurred, seems to us to add

nothing unique to the inquiry. Indeed, it seems

indistinguishable from the third approach of identifying the

“most significant” act of negligence. We therefore conclude

that this approach is also indeterminate.

Of the five Gould approaches, then, one is inapplicable,

three are indeterminate, and one favors Indiana. Although

Gould might therefore counsel choosing Indiana law insofar

as it “outscores” D.C. law, the approaches overlap to such

an extent that it would not seem judicious to resolve the

question in so simplistic a fashion. At all events, Gould

itself does not compel that outcome, and we are unwilling

to endorse a system that requires an ad hoc balancing of

vague and overlapping approaches each time we choose

among choice-of-law regimes. Indeed, it is unclear that one

20

method of picking a choice-of-law regime is superior to

another ex ante.

Jurisdictions’ interests — their policy concerns — are

safeguarded by their substantive laws, so there is much at

stake in choosing a substantive regime in a case. Likewise,

because jurisdictions’ choice-of-law regimes differ and

might therefore affect which substantive law applies, each

jurisdiction has an interest in applying its choice-of-law

rules to a case. There is, however, no compelling reason for

a federal court to prefer one method to another for choosing

among competing jurisdictions’ choice-of-law regimes. For

example, it is unclear whether a federal court’s adoption of

a “last act” approach would yield more desirable final

outcomes than a “most significant contact” approach, for

once the “last act” jurisdiction is identified, its choice-of-law

rules might in turn employ a “last act” approach, a “most

significant contacts” approach, or another approach

entirely.

We therefore conclude that clarity is the most important

virtue in crafting a rule by which we choose a jurisdiction.

In that sense, Gould’s methodology is far from desirable, for

it lists several often-conflicting and overlapping approaches

without providing any guidance as to which approach

should be given the most weight. Today we refine Gould by

adopting a single approach to resolving choice-of-law

disputes in FTCA cases: we will apply the choice-of-law

regime of the jurisdiction in which the last significant act or

omission occurred. This has the salutary effect of avoiding

the selection of a jurisdiction based on a completely

incidental “last contact,” while also avoiding the conjecture

that “most significant act” inquiries often entail.

In this case, the “last significant act” approach clearly

points to Indiana, the location of the air traffic controllers’

negligence. We should therefore apply Indiana’s choice-of-

law rules to determine whether Indiana’s or Pennsylvania’s

substantive laws apply.

IV.

Indiana law first looks to determine whether there is a

true conflict between the competing jurisdictions’

21

substantive law. Assuming that depeçage does not exist,

see supra, we must look at the negligence cause of action

as a whole. This case is essentially about damages, for

liability does not seem difficult and it is clear that

Pennsylvania and Indiana allow very different degrees of

recovery. Pennsylvania allows joint-and-several liability and

right of contribution, while Indiana does not. See 42

Pa.C.S.A. § 8322, 8324; I.C. § 34-51-2-12. Moreover,

although both states maintain survival statutes that allow

recovery of survival damages for the decedent’s personal

injuries and consequent damages, Indiana does not permit

recovery for both wrongful death and survival damages.

Cahoon v. Cummings, 715 N.E. 2d 1 (Ind. App. 1999).

Lastly, unlike Indiana, Pennsylvania damages include the

decedent’s conscious pain and suffering from the moment

of injury to the time of death. It is clear that a true conflict

exists.

In the case of a true conflict, Indiana applies the law of

the place of the tort, unless that place “bears little

connection to the legal action.” Hubbard, 515 N.E.2d at

1073-74. Kentucky is the place of the tort, and the parties

agree that it has little relevance; in such instances, Indiana

employs a three-part test to determine which state’s

substantive laws apply, under which it considers: “(1) the

place where the conduct causing the injury occurred; (2)

the residence or place of business of the parties; and (3) the

place where the relationship is centered.” Id. Each of these

factors must be evaluated “according to their relative

importance to the particular issues being litigated.” Id.

The first factor, “the place where the conduct causing the

injury occurred,” clearly favors Indiana because no

negligence occurred in Pennsylvania. The second factor,

“the residence or place of business of the parties,” seems to

favor Pennsylvania. Hart Delaware, which owned the plane,

was incorporated in Pennsylvania, and plaintiff Fare worked

in Pennsylvania. Although plaintiff Schalliol lived in

Indiana, three of the four Simon plaintiffs lived in

Pennsylvania. While the air traffic controllers presumably

lived in Indiana, they are not the defendants — the United

States is the defendant, and it is assumed to reside in all

states or no state. Compare Clawans v. United States, 75 F.

22

Supp. 2d 368, 374 (D.N.J. 1999) (noting that U.S. is not a

resident of a particular state), with United States v.

Whitcomb, 314 F.2d 415, 417 (4th Cir. 1963) (finding that

the United States is a resident of every state). On balance,

the “residence or place of business of the parties” seems to

favor Pennsylvania.

The third factor, “the place where the parties’ relationship

is centered,” is somewhat difficult to conceptualize on these

facts. At no time were the parties located in the same state

— their only relationships involved reliance on a map and

communication over a radio, neither of which seems

“centered” in a particular place.

Surveying the three Hubbard factors, the first points to

Indiana, the second to Pennsylvania, and the third is

indeterminate. Like our decision in Gould, Hubbard gives

no guidance as to which factor is most important or how to

“break a tie,” so any decision by this court on which

substantive law Indiana would apply would be little more

than a guess. We will therefore certify this issue to the

Indiana Supreme Court under Rule 64 of the Indiana Rules

of Appellate Procedure.

V.

For the above reasons, we will certify the following

questions to the Indiana Supreme Court: (1) whether a true

conflict exists between Indiana’s and D.C.’s choice-of-law

rules; and (2) if there is a true conflict and Indiana’s choice-

of-law rules therefore control per our “last significant act”

test, how to resolve a split among the Hubbard factors in

choosing a jurisdiction’s substantive law when one factor

points toward Indiana, another toward Pennsylvania, and

the third is indeterminate, and what substantive law

Indiana would choose under these facts.6

6. Pilot Fare, who is being sued by the Plaintiffs in a Pennsylvania court,

makes one argument that concerns only his cross-claim:

As a matter of equity, it is unfair to judge [Fare’s] alleged negligent

acts or omissions as a Defendant under Pennsylvania law, and then

23

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

judge any alleged comparative negligent acts or omissions by Fare

as a Cross-Claimant (Plaintiff) according to a different state’s

substantive law. As a result, regardless of the various state’s

interests in the application of their substantive law, Pennsylvania

law should apply. To hold otherwise would put the Estate of Fare in

the tenuous position of being judged by two different standards.

We find this argument to be without merit.