Petition for A Writ of Certiorari — Forth Corp. v. Allegheny Airlines, Inc. (No. 74-1060)

IN THE '

Supreme Court of the United State

Ocrosper Term, 1974

no. __€4-1060

FortH CorporaTION AND

Lee LeMay, ApMINISTRATOR OF THE EstaTE

oF Rosert W. Carey, DecEAsED,

Petitioners,

vs.

ALLEGHENY AIRLINES, INC. AND

Unitep States or AMERICA,

Respondents.

JOINT PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

James E. Rocap, Jr. Fioyp W. Burns

Txomas P. LepcERwoop Ricuarp R. McDoweE.i

Attorneys for Forth James S. Downine

Corporation Attorneys for Estate

of Carey

Rocap, Rocap, REESE Capick, Burns, Duck

& Youne & NEIGHBOURS

708 Union Federal 800 Union Federal

Building Building

Indianapolis, Indiana Indianapolis, Indiana

46204 46204

Of Counsel Of Counsel

oooo——————————"=]{]{][]]={[Eq[_———————]—_—_—_—-—_—__—_—_—_—_—_—_->=]=__—_—_-=

C. E. Pauley & Co., Inc., Indianapolis

TABLE OF CONTENTS

PAGE

RES RITESIOEN REOhr ie SOTA le So IN hance aR 1

SSRIS Se Oey Ses ae ec RO aI tr ER 1

LESLIE PALATE 2

es 2

a SS CL 2

Factual Background .....000........... SSE ereeae ee 2

Proceedings in the District Court 0... 3

Proceedings in the Court of Appeals 5

Reasons For Granting the Writ 2.00.0..0..0.--ceccccsecce-ceeceeceeseees 6

1. The decision of the Court below to apply a fed-

eral common law rule in an aviation tort case

in which federal jurisdiction is based upon

diversity of citizenship and the Federal Tort

Claims Act is in conflict with the decisions of

other Courts of Appeal and of this Court .......... 6

2. By creating and applying a federal rule of

contribution and indemnity in aviation cases,

the Court below has decided an important ques-

tion of federal law which has not been directly

decided by this Court but is in conflict with

principles announced in prior decisions of this

pny BE ETE 1 SE ELLE ALE OR OT 9

3. The decision of the Court of Appeals is directly

in conflict with the applicable law of the State

IEE pocrrctetaiein he etc coinkie cn Sc, 14

ENCUENTRA Oe ee a 15

Appendix A—Opinion of the Court of Appeals .............. Al

Appendix B—Judgment of the Court of Appeals ........ All

Appendix C—Denial of Petition for Rehearing ............ Al3

Appendix D—Statutes involved 2200000000 Ald

1

CITATIONS

CasEs Pace

Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938)....6, 7, 15

Executive Jet Aviation v. Cleveland, 409 U.S. 249

UEAIE co isla io cise aatticenchemreaaedica tanbioceaiate shaldenpercecRelale shadows 10, 11

Gatenby v. Altoona Aviation Corporation, 407 F.2d

Ry I TUNE ck cteiccicsehadas cakecscccasonandacedannsd ceaks 7

In re Mid-Air Collision Near Fairland, Indiana, 309

Oe TR RE ID aie cedctirntsctacrclitinorenersesentiesen 3

Ingham v. Eastern Airlines, Inc., 373 F.2d 227 (2d Cir.

>t rn ‘ Bis Se = bs

Lobel v. American Air Lines, Inc., 192 F.2d 217 (2d Cir.

BEI dazectnekcseucabeenicstetloed Saseiniasln a chanscidichephansscsdaicia dpacieadipasiee 7

McClish v. Niagara Machine & Tool Works, 226 F.

Supp. 987 (S.D. Ind. 1967) Saldincaai tabla Nie seein 14

McCord v. Dixie Aviation Corporation, 450 F.2d 1129

Se EI cng phd peta tscteansdccoeta pi anesnelarcatioloincacen 9

Morris v. Uhl & Lopez Engineers, Inc., 442 F.2d 1247

CII Gy GRIF ci casechenlakcitan seria thicetncnccticacntelinomacecs 8

O’Neill v. United States, 450 F.2d 1012 (3rd Cir. 1971)... 8

Richards v. United States, 369 U.S. 1 (1962) 0.0... 12

Rogers v. Ray Gardner Flying Service, Inc., 435 F.2d

1389 (5th Cir. 1970), cert. denied, 401 U.S. 1010

i Lb Sean RO AAS GA SE DE MTOR OD CES 8

United States v. State of Arizona, 214 F.2d 389 (9th

ee SI “eke shiedsenintiaevionnoen easiness 8

United Air Lines, Inc. v. Weiner, 335 F.2d 379 (9th Cir.

BUD csechchccthscasamerdiesakic ucionas tg cecatenietigasbnacs ticiieniiiconisioianke 7

United States v. Yellow Cab Co., 340 U.S. 543 (1951)....7, 12

ii

ili

FeperaL StTaTuTEs Pace

Be Rat SE Scenics conciecenrnnecnnnnnion sie 2

Rs I I occa erat nent iaceerteenacind cleaned 2,12

Se Ns TE GRID acpi cncesclotbadsiapherensishaopatsarhcesnsnsiabenenhbaiiabae 4

Se IE MI secticacsicascanicceachunsenlachicecclatcecanciasnenimennandicabichosictl 3,13

i! ae Reese emer ; 8,11

NS Fea cee ne ene RE eC a Oe 2, 8,11

a es Te I oc etrrcestinccens team 2,8,11

State Statutes

Ind. Ann. Stat. Code § 8-21-4-5 (Burns 1973) .................. 2,14

Ind. Ann. Stat. Code § 8-21-4-6 (Burns i973) .................. 2,14

IN THE

Supreme Court of the United States

October Term, 1974

No.

FortH CorPoraTION AND

Lez LeMay, ApMINISTRATOR OF THE EsTATE

or Rosert W. Carey, DecEaseED,

Petitioners,

vs.

ALLEGHENY ArRLines, Inc. aND

Unirep States or AMERICA,

Respondents.

e

JOINT PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

Petitioners pray that a Writ of Certiorari be issued to

review the judgment of the United States Court of Appeals

for the Seventh Circuit entered in this case on September

20, 1974.

OPINION BELOW

The opinion of the Court of Appeals for the Seventh

Circuit, Cause Nos. 73-1392 and 73-1393, is reported in 504

F.2d 400. A copy of the opinion is attached hereto as

Appendix A.

JURISDICTION:

The judgment of the Court of Appeals for the Seventh

Cirenit was entered on September 20, 1974. A copy. of that

judgment is attached hereto as Appendix B. A joint peti-

2

tion for rehearing was denied by the Court of Appeals on

November 26, 1974. A copy of the order denying the peti-

tion is attached hereto as Appendix C. The jurisdiction of

this Court is invoked under 28 U.S.C. § 1254(1).

QUESTIONS PRESENTED

1. Did the Court of Appeals err in holding that a federal

common law rule should be applied in diversity cases to

claims for contribution and indemnity arising out of avia-

tion accidents?

2. When the United States is sued under the Federal

Tort Claims Act for damages arising out of an aviation

accident, should its claims for contribution and indemnity

be governed by federal common law or state law?

3. If a federal common law rule is created to apply to

claims for contribution and indemnity in aviation cases,

should that rule permit contribution or indemnity and, if

so, on what basis?

4. Whether the District Court correctly dismissed the

claims for contribution and indemnity by Allegheny and

the United States for failure to state a claim upon which

relief could be granted under Indiana law.

STATUTES INVOLVED

- The federal statutes involved are 28 U.S.C. § 1346(b),

49 U.S.C. § 1506 and § 1508(a). The legislative acts of the

Indiana legislature involved are Ind.: Ann. Stat. Code

§§ 8-21-4-5 and 8-21-4-6 (Burns 1973). These statutes are

set forth in Appendix D.

STATEMENT OF THE CASE

Factual Background

This case arises out of a mid-air collision which occurred

on September 9, 1969, in the airspace over Fairland, Indi-

3

ana, between an Allegheny Airlines DC-9 jet aircraft and

a Piper Cherokee aircraft being flown by Robert Carey.

The Piper Cherokee was owned by Forth Corporation, a

wholly owned subsidiary of Brookside Corporation. All

occupants of both aircraft were killed in the accident.

At the time of the mid-air collision, the Allegheny DC-9

was being operated under an instrument flight rules clear-

ance from Cincinnati, Ohio to Indianapolis, Indiana and

was receiving air traffic control directions from the Federal

Aviation Administration facilities located at Weir Cook

Airport in Indianapolis. The Piper Cherokee aircraft was

being operated under visual flight rules on a cross-country

flight from Brookside Airport, McCordsville, Indiana, to

Bakalar Air Force Base, Columbus, Indiana.

After the accident, personal representatives of all persons

killed in the accident, except one passenger and one Alle-

gheny crewmember, commenced wrongful death actions in

the federal court system. Jurisdiction in suits against Alle-

gheny, Brookside, Forth and the estate of Carey were

based upon diversity of citizenship. Suits against the

United States were brought under the Federal Tort Claims

Act. In addition, property damage suits were commenced

in federal court to recover damages for the destruction of

the two aircraft. Some of the wrongful death actions were

commenced in Indiana while some were commenced in

other states. The Judicial Panel on Multidistrict Litigation

assumed jurisdiction over those actions commenced out-

side Indiana and pursuant to 28 U.S.C. § 1407 transferred

them to the United States District Court for the Southern

District of Indiana to supervise pre-trial discovery pro-

ceedings. In re Mid-Air Collision Near Fairland, Indiana,

309 F.Supp. 621 (JPML 1970).

Proceedings In The District Court

After all cases had been transferred to Indiana under

§ 1407, extensive discovery proceedings were undertaken

4

by all parties involved. Eventually the District Court or-

dered all cases transferred to the Southern District of

Indiana for trial pursuant to 28 U.S.C. § 1404 (A. 257-270,

277-298, 305-310). Thereafter, one group of the passenger

wrongful death cases was assigned for trial on February

22, 1972.

By the time of trial Allegheny and the United States had

filed either cross-claims or third-party complaints against

Brookside, Forth and the estate of Carey seeking contribu-

tion and indemnity. The District Court severed the cross-

claims and third-party complaints from the issues to be

considered at the February trial and deferred resolution

of all claims for contribution and indemnity until a future

date (A. 262).

Shortly after the February trial commenced, the United

States and the insurers of Allegheny reached agreement on

a pro-rata formula to be utilized between them in disposing

of all wrongful death claims, whether by settlement or

judgment (A. 471-472). Brookside, Forth and the estate

of Carey were not parties to this agreement. A compromise

was reached between the plaintiffs in the February trial

and Allegheny and the United States and the trial was

then terminated. Thereafter, Allegheny’s insurers and the

United States proceeded to settle the remaining wrongful

death cases.

After all of the wrongful death claims had been settled,

the District Court dismissed all cross-claims and third-

party complaints by Allegheny and the United States for

contribution and indemnity against Forth and the estate

of Carey for failure to state a claim upon which relief

could be granted by application of Indiana law (A. 448-449).

In addition, the District Court granted summary judgment

on the defenses of Forth and the estate of Carey to those

claims on the grounds that the settlements paid by Alle-

gheny and the United States constituted an accord and

5

satisfaction and were voluntary payments (A. 452-456).

The claims by Allegheny and the United States against

Brookside for contribution and indemnity were dismissed

on the basis of the District Court’s ruling that Brookside

could not be held liable for the torts of its subsidiary Forth.

Proceedings In The Court of Appeals

Allegheny and the United States both appealed from the

dismissal of their claims for contribution and indemnity

against Brookside, Forth and the estate of Carey. The

Court of Appeals affirmed the dismissal of the claims as

to Brookside, but reversed the decision of the District

Court with respect to the dismissal of the claims against

Forth and the estate of Carey. It held there should be a

federal law of contribution and indemnity governing mid-

air collisions such as the one in this case. The basis for

its holding was what the Court perceived to be the predomi-

nant interest of the federal government in regulating the

nation’s airways and the desirat | ty of eliminating incon-

sistent results due to the application of different state laws

on contribution and indemnity.

In support of its conclusion that there should be federal

preemption of aviation tort litigation, the Court relied on

the Federal Aviation Act, the fact that the United States

was a party to the action and that pre-trial discovery had

been subject to the supervision of the Judicial Panel on

Multidistrict Litigation. The Court did note that it felt

the Federal Tort Claims Act, which requires application

of state law to claims against the United States, would not

be an obstacle to the application of federal common law

to the claim for contribution and indemnity made by the

United States. The Court did not comment on the faci

that the United States had conceded in its brief that Indiana

law was applicable to its claims (U.S. Brief p. 5, Nos.

73-1392 and 73-1393).

Having concluded that a federal common law rule of in-

— v P o>. POLIT ERE A TA BIOL cay —_

’ aye

6

demnity and contribution should be fashioned to apply in

aviation cases, the Court then stated it considered the

better rule to be one permitting contribution and indemnity

on a comparative negligence basis.

The Court disagreed with the contentions of Forth and

the estate of Carey that the settlements paid by Allegheny

and the United States were voluntary payments. It said

that the voluntary nature of the settlement would simply

be a factor to be taken into consideration by the trier of

fact as to whether the settlements were reasonable in

amount.

The case was heard before a three judge panel consisting

of Chief Judge Luther M. Swygert, Circuit Judge Roger J.

Kiley and Senior District Judge Julius J. Hoffman. Judge

Kiley heard oral argument in the case, but died before he

considered the Court’s opinion. A joint petition for a re-

hearing in banc was filed by Forth and the estate of Carey.

The petition was denied on November 26, 1974, with three

of the seven active members of the court voting to grant

the petition for rehearing im banc.

REASONS FOR GRANTING THE WRIT

I

THE DECISION OF THE COURT BELOW TO APPLY

A FEDERAL COMMON LAW RULE IN AN AVIA-

TION TORT CASE IN WHICH FEDERAL JURIS-

DICTION IS BASED UPON DIVERSITY OF CITI-

ZENSHIP AND THE FEDERAL TORT CLAIMS

ACT IS IN CONFLICT WITH THE DECISIONS

OF OTHER COURTS OF APPEAL AND OF THIS

COURT.

With regard to aviation accident litigation, the opinion

of the Court of Appeals for the Seventh Circuit is the most

significant and far-reaching case since Erie Railroad Co. v.

a a i a LEI TN SERD ELI 9 WAS PS RIPE et ROR IRI Ren omrnceRnt CEE Bttes:

7

Tompkins, 304 U.S. 64 (1938). The decision of the Court

below to apply a federal common law rule for contribution

and indemnity in this case is unprecedented and completely

without foundation under existing statutory or decisional

law.

The decision conflicts with two basic legal principals es-

tablished by this Court and which have been applied con-

sistently by other Courts of Appeal. By preempting state

law and fashioning a federal law of contribution and in-

demnity the Court below has completely ignored the Erie

doctrine which requires that state substantive law be ap-

plied in diversity cases. Secondly, the decision conflicts

with the principle that claims by the United States for

contribution and indemnity arising in suits brought under

the Federal Tort Claims Act are also governed by state

law. United States v. Yellow Cab Co., 340 U.S. 543 (1951).

The Erie doctrine is so well established that few courts

have discussed its applicability. Customarily other Courts

of Appeal have applied state substantive law in aviation

tort litigation without comment where federal jurisdiction

has been based on diversity of citizenship. The Court of

Appeals for the Ninth Circuit applied the state law of

Nevada in an aviation case to claims for contribution and

indemnity between the airline involved and the United

States. United Air Lines, Inc. v. Wiener, 335 F.2d 379 (9th

Cir. 1964). Under similar circumstances, the Court of Ap-

peals for the Second Circuit applied the state law of New

York to resolve claims for contribution and indemnity be-

tween an airline and the United States. Ingham v. Eastern

Air Lines, Inc., 373 F.2d 227 (2d Cir. 1967). In other avia-

tion cases not involving the specific issue of contribution

and indemnity state substantive law has also been applied.

Lobel v. American Air Lines, Inc., 192 F.2d 217 (2d Cir.

1951) ; Gatenby v. Altoona Aviation Corporation, 407 F.2d

443 (3rd Cir. 1968).

PER ST TIE IE IR TE POLI ERG MLA TE LLG SLL GOEL, LG ARE OL hey POR ae

Pere, We, Se ee NE NN PEM ee

The decision of the Court below also presents a decided

conflict with the decisions of other Courts of Appeal with

regard to its holding that federal law should govern the

claim of the United States. When the United States has

been sued under the Federal Tort Claims Act, its claims for

contribution and indemnity have consistently been governed

by state substantive law. O’Neill v. United States, 450 F.2d

1012 (3rd Cir. 1971); United States v. State of Arizona,

214 F.2d 389 (9th Cir. 1954); Morris v. Uhl & Lopez Engi-

neers, Inc., 442 F.2d 1247 (10th Cir. 1971).

The Court below was persuaded to apply a federal com-

mon law rule in this case by what it perceived to be the

predominant interests of the federal government in regu-

lating the affairs of the nation’s airways. In so doing, the

Court relied on what it considered to be the intent of Con-

gress as expressed in the Federal Aviation Act of 1958, 49

U.S.C. §§ 1301, et seq. and in particular section 1108 of the

Act, 49 U.S.C. § 1508(a). However, the Court failed to

note that the Act expressly provides in 49 U.S.C. § 1506

that none of the provisions of the Act ‘‘shall abridge or

alter the remedies now existing at common law or by stat-

ute.’? Nor did the Court consider opinions by the Courts

of Appeal for the Fifth Circuit and the Tenth Circuit which

have expressly rejected the claim that the Federal Aviation

Act preempts state law with regard to aviation tort liti-

gation.

In Rogers v. Ray Gardner Flying Service, Inc., 435 F.2d

1389 (5th Cir. 1970), cert. denied, 401 U.S. 1010 (1971), the

Court of Appeals for the Fifth Circuit expressly rejected a

claim that the Federal Aviation Act granted a right of

action in tort under the facts of that particular case and

applied state substantive law. In rejecting the federal pre-

emption argument, the Court observed that the Act made

no provision for its application to tort liability and in fact

expressly provided that existing common law or statutory

9

remedies should not be abridged or altered by anything

contained in the Act. The Court further said that if Con-

gress had intended to alter existing tort law, which has

historically been left to the states, it would have done so in

a more direct fashion.

In a similar case, the Court of Appeals for the Tenth

Circuit in McCord v. Dixie Aviation Corporation, 450 F.2d

1129 (10th Cir. 1971), also rejected the argument that the

Federal Aviation Act was intended to preempt state tort

laws. The Court could find no compelling federal interests

which would justify the creation and application of a fed-

eral common law rule and that to do so would constitute

abusive judicial law-making. It said that the arguments

for federal preemption should be directed to the lawmaking

power of Congress and not to the adjudicative power of

the courts.

The unique view of the Court below that federal common

law should be applied in aviation cases, at least as to claims

for contribution and indemnity, clearly conflicts with the

foregoing decisions of other Courts of Appeal. Further-

more, it is readily apparent from the Court’s opinion that

the rule of federal preemption will not be limited to claims

for contribution and indemnity, but will be applied to all

issues arising in aviation cases. As a result of this decision,

one may reasonably expect federal common law to be ap-

plied in aviation accident cases arising in the Seventh Cir-

cuit, including claims for contribution and indemnity, while

state substantive law will be applied in other Courts of

Appeal.

This present conflict of whether to apply federal or state

law in aviation cases must be resolved by this Court.

I

BY CREATING AND APPLYING A FEDERAL RULE

OF CONTRIBUTION AND INDEMNITY IN AVIA-

10

TION CASES, THE COURT BELOW HAS DECIDED

AN IMPORTANT QUESTION OF FEDERAL LAW

WHICH HAS NOT BEEN DIRECTLY SETTLED BY

THIS COURT, BUT IS IN CONFLICT WITH PRIN-

CIPLES ANNOUNCED IN PRIOR DECISIONS OF

THIS COURT.

The Court of Appeals decided in this case that a federal

common law rule should be applied because of what it

considered to be the predominant interest of the federal

government in regulating the affairs of the nation’s air-

ways and for the purpose of eliminating inconsistent results

in similar aviation accidents occurring in states which may

have differing substantive laws.

While uniform results in aviation litigation arising any-

where in the United States may arguably be desirable, it

is an extremely broad innovation which should more prop-

erly be instituted by Congress and not by the courts. In

Executive Jet Aviation v. Cleveland, 409 U.S. 249 (1972),

the petitioner urged that federal admiralty law should

apply in that particular case, arguing that aviation tort

cases should be governed by uniform substantive and pro-

eedural laws, and that by invoking admiralty jurisdiction

such actions could be heard in federal courts to avoid di-

vergent results and duplicitous litigation in multi-party

cases. This Court rejected the argument for uniformity

and stated:

“If federal uniformity is the desired goal with

respect to claims arising from aviation accidents,

Congress is free under the Commerce Clause to

enact legislation applicable to all such accidents,

whether occurring on land or water, and adapted to

the specific characteristics of air commerce.’’ 409

U.S. at 274.

Uniformity of results may be desirable in this type of

litigation, but Congress alone should determine whether

11

the legitimate interests of the various states concerning

aviation accidents occurring within their jurisdiction should

be preempted by universally applied federal law. The

highly specialized and technical nature of modern aviation

requires that any regulation of that activity must be care-

fully adapted to its specific needs. Resolution of these

matters involves a careful balancing of technical and public

policy considerations which is a proper function for the

legislative branch of government, not the judicial.

Congress has exercised its power under the Commerce

Clause to control aviation by the enactment of the Federal

Aviation Act, 49 U.S.C. §§ 1301, et seq. in which it declared

complete national sovereignty in the air space above the

United States. 49 U.S.C. § 1508(a). However, the objective

of that Act, as evidenced by the Act itself and the regula-

tions issued thereunder by the Federal Aviation Adminis-

tration, is to control the movement of air traffic and to pro-

vide for the certification of aircraft and airmen. The Act

makes no provision for any tort litigation arising out of

aviation accidents, and in fact, expressly states that nothing

contained in the Act ‘‘shall in any way abridge or alter

the remedies now existing at common law or by statute

. .’ 49 U.S.C. § 1506. Even though Congress has exer-

cised its power under the Commerce Clause to regulate air-

craft in flight, clearly it intended to retain the status quo

between federal and state law regarding remedies avail-

able to litigants in aviation cases. Much as this Court ob-

served in Executive Jet, Congress could have enacted a

federal law of contribution and indemnity to apply in avi-

ation cases, but it chose not to do so. In the absence of any

intent by Congress to federally preempt aviation tort litiga-

tion, and in view of its express requirement that existing

common law or state statutory remedies should not be al-

tered by the Federal Aviation Act, state substantive law

presently controls aviation tort litigation.

12

The Court of Appeals also considered the presence of

the United States in this case as a factor favoring imposi-

tion of a federal law. It did so even though the United

States conceded that the state law of Indiana should control

its claims for contribution and indemnity against the peti-

tioners. The Court said it considered the Federal Tort

Claims Act as being no obstacle to the imposition of federal

common law.

Jurisdiction over the United States in this case was ob-

tained pursuant to the Federal Tort Claims Act which ex-

pressly provides that liability of the United States is to

be determined ‘‘in accordance with the law of the place

where the act or omission occurred.’’ 28 U.S.C. § 1346(b).

Under this provision of the Tort Claims Act state law must

be applied to claims asserted against the United States. If

petitioners had asserted claims for contribution and indem-

nity against the United States, then clearly Indiana law

would have been applied to resolve those claims because

the alleged acts and omissions of negligence on behalf of

the United States all occurred within that state. Certainly

it seems fair that the same law should be applied to claims

by the United States against the petitioners. Whether fed-

eral or state substantive law is applied to the claim should

not be determined by which party is asserting the claim.

This principle was recognized by this Court in United

States v. Yellow Cab Co., 340 U.S. 543 (1951). Further-

more, this Court has also applied state substantive law in

aviation cases brought pursuant to the Federal Tort Claims

Act. In Richards v. United States, 369 U.S. 1, (1962) per-

sonal representatives of airline passengers killed in an air-

line crash brought wrongful death actions against the

United States under the Federal Tort Claims Act. This

Court was called upon to decide a conflict of laws question

concerning the applicability of either Missouri or Oklahoma

law. In resolving that question, this Court said that the

\ 13

federal courts, in multi-state tort actions, are required to

look to the law of the place where the negligence occurred.

This Court did not attempt to fashion a federal common

law, but instead followed the requirements of the Federal

Tort Claims Act as enacted by Congress and applied state

law. This Court also observed that a suit\against the air-

line involvad would be governed by state law.

Contrary to the reasoning of the Court below, the pres-

ence of the\United States as a party to the litigation does

not favor the application of federal common law. Because

of the requirements of the Federal Tort Claims Act, the

presence of the United States mandates application of state

substantive law.

Also, the Court of Appeals considered the fact that this

litigation was\subject to supervision by the Judicial Panel

created by the Multi-District Litigation Adt, 28 U.S.C.

§ 1407 as favoring application of a federal law. But that

Act has no relevance to the application of federal substan-

tive law. The \Act pertains only to the consolidation of

claims for pre-trial discovery proceedings. Its impact is

procedural, not\substentive.

The federal interests involved in this litigation are mini-

mal. While it is true the federal government has an in-

terest in the management and control of aircraft moving

through the natiohal airspace, this federal interest has no

relevance to the outcome of litigation brought against the

Indiana petitioners for contribution and indemnity arising

out of settlements paid as a result of an aircraft accident.

Indiana has a far more compelling interest in the rights and

liabilities of its citizens. By fashioning and applying fed-

eral common law in\this case, the Court below has entirely

subverted these legitimate state interests.

The Court below hy s completely ignored the role of Con-

gress in these matic by imposing federal preemption in

f

14

aviation cases and by constructing a specific federal rule

permitting contribution on a comparative negligence basis.

As a result, this Court is now presented with an exceptional

opportunity to resolve an important question of federal

law which affects the entire field of aviation litigation.

iil.

THE DECISION OF THE COURT OF APPEALS IS.

DIRECTLY IN CONFLICT WITH THE APPLI-

CABLE LAW OF THE STATE OF INDIANA.

The Court below has ignored the applicable statutory

and decisional law of the State of Indiana and has ren-

dered an opinion which is totally in conflict with the laws

of that state.

The Indiana legislature has clearly expressed its inten-

tion that aviation accidents occurring in that state shall be

governed by the laws of Indiana. The legislature provided.

in Ind. Ann. Stat. Code § 8-21-4-5 (Burns 1973) that lia-

bility arising out of an aviation accident, such as the one

in this case, shall be determined by the rules of law appli-

cable to torts occurring on land. Furthermore, Ind. Ann.

Stat. Code § 8-21-4-6 (Burns 1973) provides that any torts

committed while in flight in Indiana shall be governed by

the laws of Indiana. Under the mandate of these statutes,

the District Court quite properly looked to the law of

Indiana to determine if Allegheny or the United States

could state a claim for contribution and indemnity arising

out of this particular aircraft accident.

Indiana has long followed the common jaw rule that there

is no right to contribution or indemnity among joint tort-

feasors. An exhaustive analysis of the Indiana law of in-

demnity and contribution is stated in McClish v. Niagara

Machine & Tool Works, 266 F.Supp. 987 (S.D. Ind. 1967)

wherein the District Court held that Indiana follows the

15 \

general rule that there can be no contribution or indemnity

as between joint tortfeasors.

The decision of the Court of Appeals is totaily contrary

to the general common law rule denying contribution and

indemnity among joint tortfeasors as applied in Indiana.

The Court instead has fashioned a federal rule of contribu-

tion based on comparative negligence. This new federal

rule is unsupported by any statutory or decisional au-

thority.

This Court should grant review in order to restore the

Erie doctrine in the Seventh Circuit and to implement the

intent of Congress expressed in the Federal Tort Claims

Act and the Federal Aviation Act. .

CONCLUSION

For the foregoing reasons, the Joint Petition for a Writ

of Certiorari should be granted.

Respectfully submitted,

James EK. Rocap, Jr. Fioyp W. Burns

Tuomas P. LepcERwoop Ricuarp R. McDoweu.

Attorneys for Forth | James S. Downtne

Corporation , Attorneys for Estate

' of Carey

Rocap, Rocap, REEsE Capicx, Burns, Duck

& Youne & NEIGHBOURS

708 Union Federal 800 Union Federal

Building | Building

Indianapolis, Indiana - Indianapolis, Indiana

46204. 46204

Of Counsel Of Counsel