Petition for Writ of Certiorari — Maddox v. American Airlines, Inc.

Supreme Court brief2003

Ask Donna

What actually matters in this document.

Text

‘)\ -- Supreme Court, U.S.

FILED

\

X

O02 940 DEC 16 2002

No. OFFICE OF THE CLERK

In the

Supreme Court of the Anited States

KRISTIN MADDOX,

i Petitioner,

V.

AMERICAN AIRLINES, INC.,

Respondent.

On PETITION For Writ OF CERTIORARI

To Tue UnitTep States Court Or APPEALS

For Tue Eicuts Circuit

PETITION FOR WRIT OF CERTIORARI

RoBERT R. BoDOIN

Counsel of Record

Bopoin, BuRNSIDE & BurcE, P.C.

6115 Camp Bowie BOULEVARD

SulrE 290 .

Fort Wortu, TX 76116

(817) 377-4886

Counsel for Petitioner

—~_

BECKER GALLAGHER LEGAL PUBLISHING, INC.,

CINCINNATI, OHIO 800-890-5001

a \ \

QUESTIONS PRESENTED

a Whether, absent a directive by Congress to the

contrary, federal courts are obligated to apply federal choice

of law rules in all cases where the federal courts’ jurisdiction

is based upon a federal question.

a. Whether, under this Court’s holding in

Zicherman v. Korean Air Lines Co., 516 U.S. 217 (1996), a

federal court with federal question jurisdiction over an

aviation case under the Warsaw Convention is obligated to (a)

follow federal choice of law rules in all cases, as held by the

Sixth Circuit (b) follow the choice of law rules of the state in

which suit was filed in all cases, as held by the Second and

Ninth Circuits, or (c) follow either federal choice of law rules

or forum state choice of law rules based on the facts of each

case, as held by the Eighth Circuit below.

3. Whether, in the face of an enforceable choice

of law stipulation by the parties as to damages issues, a

federal court can apply a different law for prejudgment

interest than the stipulated law applied to other damages

issues, aS did the Eighth Circuit below, splitting with the

Second and Tenth Circuits.

(

PARTIES TO THE PROCEEDING

Petitioner

Petitioner is Kristin Maddox, an individual citizen of

the United States. At the time her claims arose, Petitioner

was a domiciliary of Oklahoma; she currently resides in New

York. Petitioner has no corporate affiliations. Petitioner

Kristin Maddox was the Plaintiff in the District Court and the

Appellant in the Eighth Circuit Court of Appeals.

Respondent

Respondent American Airlines, Inc. is a wholly-owned

subsidiary of AMR Corporation, which is publicly traded.

Petitioner is unaware of any publicly held company owning

ten percent (10%) or more of AMR Corporation’s stock.

Respondent American Airlines was the Defendant in the

District Court and the Appellee in the Eighth Circuit Court of

Appeals.

li

TABLE OF CONTENTS

UO eck c cre cecccce, i

Parties to the Proceeding..................... li

oa ili

Table of Cited Authorities .................... Vv

Ss ok ke ooh ck ob ev Ce eccncue ]

Statement of Jurisdiction ..................... 1

ee fy 5k sg be kk u's eae 1

Statement of the Case ....................... ]

Reasons for Granting the Petition ............... 3

I. A Split among the Circuits Exists

Concerning the Interpretation and

Application of this Court’s Holding in

Zicherman v. Korean Air Lines Co. .... 3

II. The Decision of the Eighth Circuit is

Incorrect because Federal Choice of

Law Rules Apply in Federal Question

seek ho oko bee wk a 7

ii

III. |The Decision of the Eighth Circuit is

Incorrect and Splits with Decisions of

the Second and Tenth Circuits

Concerning the Effect of Parties’

Choice of Law Stipulations ......... 13

IV. The Questions Presented are Important

for Maintaining a Uniform Choice of

Law Analysis in Warsaw Convention

Cases and Other Federal Question

ee re era te eee 16

oo ree ry oar Cee ee eee eee 20

Appendix

Appendix A

Court of Appeals Order Denying Petitions for

oo er ae rere la

Appendix B

Court of Appeals Opinion, 8/1/02 .......... 2a

Appendix C

District Court Order, 9/25/00 ............ 14a

TABLE OF CITED AUTHORITIES

Cases:

American Home Assurance Co. v. L&L

Marine Serv., Inc..,

153 F.3d 616 (8th Cir. 1998) ........... 8, 10

Bickel v. Korean Air Lines Co.,

83 F.3d 127 (6th Cir. 1996),

vacated in part on separate issue, 96 F.3d 151,

cert. denied, 519 U.S. 1093 (1997) ...... passim

Brink’s Ltd. v. South African Airways,

93 F.50 1022 (and Cir. 1996)... ees 6

Brotherhood of Locomotive Engineers v.

Springfield Terminal Ry. Co.,

210 F.3d 18 (1st Cir. 2000),

cert. denied, 531 U.S. 1014 (2000) ......... 8

Cappello v. Duncan Aircraft Sales of Florida, Inc.,

79 F.3d 1465 (6th Cir. 1996),

cert. denied, 519 U.S. 980 (1996) .......... 14

Carney v. State Farm Mut. Auto. Ins. Co.,

ee eee | er rer 12

Caruolo v. John Crane, Inc.,

226 F.3d 46 (2nd Cir. 2000) ............. 14

Chuidian v. Philippine Nat’! Bank,

976 F.2d 561 (9th Cir. 1992) ........... 8, 10

ee a —_———

Detroit Edison Co. v. Pacific Ins. Co.,

742 F.Supp. 287 (M.D.N.C. 1990) ......... 8

Duncan v. Cessna Aircraft Co. ,

665 S.W. 2d 414 (Tex. 1964)........cc000- 18

Eastern Airlines, Inc. v. Floyd,

ge a ere a ee 19

Edelmann v. Chase Manhattan Bank,

861 F.2d 1291 (1st Cir. 1988) .......... 9, 10

El Al Israel Airlines, Ltd. v. Tseng,

Bie || Pee ee ree 19, 20

Erie R.R. Co. v. Tomkins,

pe et eee re rer re 6,9

Fleming v. Baptist Gen. Convention of Okla.,

ro fe Fes Oe. Peer rr ere 12

Gluck v. Unisys Corp..,

960 F.2d 1168 (3rd Cir. 1992) .......... 8, 10

Hystro Products, Inc. v. MNP Corp.,

16 F.3d 13566 C7 Cie. TPS) onc ccc cccesee 11

In re Holiday Airlines Corp.,

620 F.2d 731 (9th Cir. 1980),

cert. denied, 449 U.S. 900 (1980) .......... 8

In re Kaiser Steel Corp.,

87 B.R. 154 (Bankr. D. Colo. 1988) ........ 12

vi

ee ee

In re Lindsay,

59 F.3d 942 (9th Cir. 1995),

cert. denied, 516 U.S. 1074 (1996) ......... 8

Insurance Co. of North America v.

Federal Express Corp.,

189 F.3d 914 (9th Cir. 1999) ........ 5-7, 9, 19

Johnson v. Continental Airlines Corp..,

964 F.2d 1059 (10th Cir. 1992) ........ 14-16

Klaxon Co. v. Stentor Elec. Mfg. Co..,

ge | eee eee 6, 7,9, 18

a

Maddox v. American Airlines, Inc..,

115 F. Supp.2d 993 (E.D. Ark. 2000) ....... l

Maddox v. American Airlines, Inc.,

298 F.3d 694 (8th Cir. 2000) ............. 1

Monessen Southwestern Ry. Co. v. Morgan,

SRR Ee 13-14

Pescatore v. Pan Am. World Airways, Inc.,

; 97 F.3d 1 (2nd Cir. 1996) ......... 5-7, 17, 19

Pfizer Inc. v. Elan Pharmaceutical Research Corp.,

812 F. Supp. 1352 (D. Del. 1993).......... 8

Richards v. U.S.., .

oe SG ee ee ee ee 10

Van Dusen v. Barrack,

pS ee er 18

Vii

Vasina v. Grumman Corp.,

644 F.2d 112 (2nd Cir. 1981). .-........ 15, 16

Winter v. Cerro Gordo Co. Conservation Bd.,_ -

925 F.2d 1069 (8th Cir. 1991) ............ 14

Zicherman v. Korean Air Lines Co.,

oe ere eee passim

Statutes:

ae BP ee ee eee ee l

err ae re rr a 2

49 U.S.C. § 40105 Re mn 1

Other:

Convention for the Unification of Certain Rules Relating

to International Transportation by Air,

concluded at Warsaw, Poland on October 12,

1929 (“Warsaw Convention”), 49 Stat. 3000

(1934), T.S. No. 876, 137 L.N.T.S. 11

(1934), reprinted at note following U.S.C. §

i er eee passim

Restatement (Second) of Conflict of FO) eee 10

Restatement (Second) of Conflict of Laws § 122 .. 11, 12

Restatement (Second) of Conflict of Laws § 188 ..... 10

Petitioner respectfully petitions for a Writ of Certiorari

to review the judgment of the Eighth Circuit Court of Appeals

in this case.

OPINIONS BELOW

The Eighth Circuit opinion (App. B at 2a) is reported

at 298 F.3d 694 (8th Cir. 2002). The District Court opinion

(App. C at 14a) is reported at Maddox v. American Airlines,

Inc., 115 F. Supp. 2d 993 (E.D. Ark. 2000).

STATEMENT OF JURISDICTION

The judgment of the Eighth Circuit Court of Appeals

was entered on August 1, 2002. The Court of Appeals

- entered an order denying a timely petition for rehearing en

banc and rehearing by the panel on September 16, 2002 (App.

A at la).

The jurisdiction of this court is invoked pursuant to 28

U.S.C. § 1254(1).

TREATY INVOLVED

This case involves the Convention for the Unification

of Certain Rules Relating to International Transportation by

Air, concluded at Warsaw, Poland on October 12, 1929

(“Warsaw Convention”), 49 Stat. 3000 (1934), T.S. No. 876,

137 L.N.T.S. 11 (1934), reprinted in note following 49

U.S.C.A. § 40105 (1997).

STATEMENT OF THE CASE

Kristin Maddox brought this action against American

Airlines, Inc. after sustaining injuries in the crash of

l

American Airlines Flight 1420 in Little Rock, Arkansas, on

June 1, 1999. The district court had federal question

jurisdiction based on 28 U.S.C. § 1331 because, at the time

-of the crash, Maddox was a passenger on an international

flight whose claims arose under the Warsaw Convention, as

supplemented by agreements incorporated into American’s

tariffs and conditions of carriage.

In its tariffs, American incorporated an agreement that

required that “recoverable compensatory damages” in this

case be determined by reference to the law of Oklahoma,

Maddox’s domicile (the “Agreement”). Additionally, prior

to trial, American stipulated that “Oklahoma law applies to

damages issues in this lawsuit” (the “Stipulation”).

The district court entered judgment in favor of

Maddox on the jury verdict, awarding the compensatory

damages found by the jury under Oklahoma law. Maddox

moved to amend the judgment, in part, to award prejudgment

interest in accordance with Oklahoma law. American urged

the district court that Arkansas choice of law rules and

Arkansas substantive law applied to the issue of prejudgment

interest regardless of the parties’ stipulation, and that, under

Arkansas law, prejudgment interest is not recoverable in

personal injury cases. The district court agreed with

American and denied Maddox’s motion.

Maddox appealed the district court decision to the

United States Court of Appeals for the Eighth Circuit.

Maddox argued that the district court erred in conducting a

choice of law analysis in the first place because the

Agreement and the Stipulation had chosen the applicable law

for prejudgment interest. Maddox further argued that,

assuming arguendo a choice of law analysis was necessary,

the district court erred in applying Arkansas choice of law

2

rules instead of federal choice of law rules. Under federal

choice of law rules which apply to federal question cases and

track the Restatement (Second) of Conflict of Laws, Maddox

would clearly have been entitled to prejudgment interest

provided for by Oklahoma law, because Oklahoma law

governed the damages on which the interest accrued.

The three-judge panel assigned to the case ruled

against Maddox. The panel found that the district court was

correct in conducting a choice of law analysis, and the panel

split with other circuits and found that the district court was

correct in applying Arkansas’s choice of law rules rather than

federal choice of law rules to the issue of prejudgment

interest.

Maddox timely petitioned the Eighth Circuit for

rehearing en banc, and her Motion was denied on September

16, 2002.

REASONS FOR GRANTING THE PETITION

I. A Split among Circuits Exists Concerning

the Interpretation and Application of this

Court’s Holding in Zicherman v. Korean Air

Lines Co.

In Zicherman v. Korean Air Lines Co., 516 U.S. 217,

231 (1996), this Court concluded that “Articles 17 and 24(2)

of the Warsaw Convention permit compensation only for

legally cognizable harm, but leave the specification of what

harm is legally cognizable to the domestic law applicable

under the forum’s choice-of-law rules.”

A split among the circuits exists concerning the

interpretation of the foregoing holding in Zicherman. The

Sixth Circuit has interpreted Zicherman as requiring the

consistent application of federal choice of law rules in

Warsaw Convention cases; the Second and Ninth Circuits

have interpreted Zicherman as requiring the consistent

application of choice of law rules of the state in which the

Warsaw case was first filed; and, the Eighth Circuit below has

now interpreted Zicherman as calling for federal courts to

apply state choice of law rules in some Warsaw cases, but

federal choice of law rules in other Warsaw cases, based upon

the facts of the case.

In Bickel v. Korean Air Lines Co., 83 F.3d 127 (6th

Cir. 1996), vacated in part on separate issue, 96 F.3d 151,

cert. denied, 519 U.S. 1093 (1997), the Sixth Circuit

explained:

To answer the choice of law question

presented by these [i.e., Warsaw Convention]

cases, we apply a federal choice of law rule.

In doing so, we are mindful that there is “no

federal general common law.” The Warsaw

Convention, however, embodies a concrete

federal policy of uniformity and certainty

which would be undermined by the use of state

choice of law rules. Consequently, we are of

the view that these cases present precisely the

type of situation in which it is appropriate to

craft a special federal rule which, in these

cases, is a choice of law rule.

Id. at 130 (citations omitted). See also id. at n.2 (“Nothing

in the Supreme Court’s recent Zicherman opinion suggests

that crafting a special federal choice of law rule in these cases

4 :

NEN En ERT

is inappropriate. Indeed, the Zicherman Court did not have —

to address this question because of the parties’ stipulation . .

. Zicherman’s ruling . . . lends weight to our conclusion

that the use of state choice of law rules is not appropriate. ”)

(citations omitted).

In Pescatore v. Pan American World Airways, Inc. , 97

F.3d 1 (2nd Cir. 1996), the Second Circuit, after

acknowledging the general rule that federal courts are to apply

federal choice of law rules in federal question cases,

nonetheless held:

In this case, because the Warsaw Convention

functions as a “pass-through, authorizing us to

apply the law that would govern in [the]

absence of the Warsaw Convention,” we

believe that application of the forum state’s

choice of law principles rather than the federal

common law rule better effectuates the

Convention’s overall intent.

Id. at 12-13 (citations omitted). See also id. at 9, quoting

Zicherman, 516 U.S. at 229 (“The Supreme Court has now

held that the Warsaw Convention provides no independent

authority for the imposition of a special federal rule: ‘The

Convention itself contains no rule of law governing the

present question; nor does it empower us to develop some

common-law rule--under cover of general admiralty law or

otherwise--that will supersede the normal federal

disposition.’”) In Insurance Company of North America v.

Federal Express Corporation, 189 F.3d 914 (9th Cir. 1999),

the Ninth Circuit also construed Zicherman to require that the

forum state’s choice of law rules be applied in Warsaw cases

“because the Supreme Court has ‘admonished lower courts to

refrain from developing federal common law ‘under cover’ of

5

advancing the goal of uniformity in Warsaw Convention

cases.’” Id. at 920-21, quoting Brink’s Ltd. v. South African

Airways, 93 F.3d 1022, 1029 (2nd Cir. 1996) (quoting

Zicherman, 516 U.S. at 229). Thus, the Ninth Circuit

admonished that Zicherman requires federal courts to follow

the Erie doctrine and Klaxon by applying the choice of law

rules of whatever state the lawsuit was filed in originally, thus

treating a Warsaw Convention case more like a diversity

jurisdiction case instead of a federal question case. /d. at

919-20 (citing Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78

(1938), & Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S.

487, 496 (1941).).

The Eighth Circuit below followed neither approach,

instead holding that, under Zicherman, application of federal

choice of law rules is required in some cases, but that

application of forum state choice of law rules is required in

others, depending on the facts of the case. As applied to the

facts of Ms. Maddox’s case, the Eighth Circuit determined

that application of state choice of law rules was required. The

Eighth Circuit denied the existence of a circuit split,

Suggesting that “[t]he ‘contrary’ Sixth Circuit case [i.e.,

Bickel] simply presented a different factual scenario.” App.

B at 10a.

Contrary to the Eighth “ircuit’s suggestion below,

neither the Sixth Circuit in Bickel, the Second Circuit in

Pescatore, nor the Ninth Circuit in /nsurance Company of

North America stated anything other than irreconcilable

bright-line rules. None of the prior decisions can be

construed as holding that federal choice of law rules are

required in some cases, while the state choice of law rules

applicable under Klaxon are required in others. To the

contrary, the Sixth Circuit held that, under Zicherman, federal

choice of law rules must be applied to Warsaw Convention

cases--period. Bickel, 83 F.3d at 130-31. And, the Second

and Ninth Circuits held that, under Zicherman, state choice of

law rules applicable under K/axon must be applied to Warsaw

Convention cases--period. Pescatore, 97 F.3d at 4-5, 12-13;

see also Insurance Co. of North America, 189 F.3d 920-21.

There is no logical way to reconcile this split of

authority among the Sixth Circuit, the Second and Ninth

Circuits, and, now, the Eighth Circuit. This choice of law

issue in Warsaw Convention cases is important, because it

impacts “all international transportation of persons, baggage

or goods performed by aircraft for hire” and “appl[ies]

equally to gratuitous transportation by aircraft performed by

an air transportation enterprise.” WARSAW CONVENTION, art.

1. The way in which the United States of America applies the

Warsaw Convention is by necessity an issue with worldwide

implications for air travel and international commerce.

Il. The Decision of the Eighth Circuit is

Incorrect because Federal Choice of Law

Rules Apply in Federal Question Cases.

The Eighth Circuit’s decision was incorrect in holding

that application of the forum state’s [i.e., Arkansas’s] choice

of law rules--as opposed to federal choice of law rules--was

appropriate in this case under this Court’s holding in

Zicherman, as interpreted by the Sixth Circuit in Bickel. The

issue of when federal courts are or are not to apply federal

choice of law rules is an important matter of federal procedure

that can only be resolved by this Court.

As noted above, this Court held that “Articles 17 and

24(2) of the Warsaw Convention permit compensation only

for legally cognizable harm, but leave the specification of

what harm is legally cognizable to the domestic law applicable

7

under the forum’s choice of law rules.” Zicherman, 516 U.S.

231 (emphasis added). Maddox would submit that the Sixth

Circuit correctly interpreted Zicherman to require the

application of federal choice of law rules in Warsaw cases,

see Bickel, 83 F.3d at 130, consistent with scores of other

federal courts that have applied federal choice of law rules in

non-Warsaw federal question cases.

In non-Warsaw cases where federal jurisdiction is

based on a federal question rather than on diversity, “federal

choice of law rules determine which state’s substantive law

should apply” to the case. American Home Assurance Co. v.

L&L Marine Serv., Inc. 153 F.3d 616, 618 (8th Cir. 1998)

(admiralty case); see also Bickel, 83 F.3d t 131 (Warsaw

Convention case); Brotherhood of Locomotive Engineers v.

Springfield Terminal Ry. Co., 210 F.3d 18, 25 (ist Cir.

2000), cert. denied, 531 U.S. 1014 (2000) (Railway Labor

Act case); Chuidian v. Philippine Nat’! Bank, 976 F.2d 561,

564 (9th Cir. 1992) (Federal Sovereign Immunities Act case);

Edelman v. Chase Manhattan Bank, 861 F.2d 1291, 1294 (1st

Cir. 1988) (“In making our choice, we are guided by conflict

of law principles that are themselves a matter of federal

common law. This is so, as the district court correctly

determined, because our jurisdiction in this case is based on

the presence of a federal question.”) (Edge Act case); Gluck

v. Unisys Corp., 960 F.2d 1168, 1179 (3rd Cir. 1992)

(ERISA case); In re Lindsay, 59 F.3d 942, 948 (9th Cir.

1995), cert. denied, 516 U.S. 1074 (bankruptcy case); Jn re

Holiday Airlines Corp., 620 F.2d 731, 734 (9th Cir. 1980),

cert. denied, 449 U.S. 900 (1980) (Federal Aviation Act

case); Detroit Edison Co. v. Pacific Ins. Co., 742 F. Supp.

287, 289 (M.D.N.C. 1990) (“[F]ederal courts, not sitting in

diversity, should apply a federal common law of conflicts to

select the proper state law.”) (CERCLA case); Pfizer Inc. v.

Elan Pharmaceutical Research Corp., 812 F. Supp. 1352,

8

-1359 (D. Del. 1993) (patent infringement case) (“In federal

question cases, federal courts are directed to apply a federal

common law choice of law rule to determine which

jurisdiction’s substantive law should apply.”).

Zicherman should logically require, as the Sixth

Circuit so held, the uniform application of federal choice of

law rules in a Warsaw case. This Court noted that the

Warsaw Convention functions as a “pass-through,”

authorizing the application of “the law that would govern in

the absence of the Warsaw Convention.” 516 U.S. at 229.

And, this Court further noted that the Warsaw Convention

does not empower courts to develop a common law rule that

will supersede “the normal federal disposition.” Jd. There

is no question but that the “normal federal disposition” of a

federal question jurisdiction case that also involves state law

includes the application of federal choice of law rules. For

that reason, the Sixth Circuit in Bickel obeyed the letter and

the spirit of this Court’s pronouncement in Zicherman by

treating the choice of law analysis exactly like any other

federal question case by applying the federal choice of law

rules. Bickel 83 F.3d at 130. Courts like the Ninth Circuit

in Insurance Company of North America, and the Eighth

Circuit below, actually violate this Court’s pronouncement in

Zicherman. These courts improperly have created a new

federal common law by grafting the Erie doctrine and the

Klaxon rule from diversity jurisdiction cases onto federal

question cases to which they have never applied. See, e.g.

Insurance Co. of North America, 189 F.3d at 919-20 (relying

on Erie and Klaxon).

As a general principal, federal court cases arising

under federal question jurisdiction follow federal choice of

law rules that track the Restatement (Second) of Conflict of

Laws. See, e.g., Edelmann, 861-F.2d at 1295 (finding that

9

“in the absence of guidance from Congress” the First Circuit

will “turn to the Restatement (Second) of Conflict of Laws”);

Bickel, 83 F.3d at 130 (“In the absence of any established

body of federal choice of law rules, we begin with the

Restatement (Second) of Conflict of Laws. . . .”); Chuidian,

976 F.2d at 564 (“Federal common law follows the approach

of the Restatement (Second) of Conflict of Laws”); American

Home Assurance, 153 F.3d at 618-19 (“The parties agree that

the ‘most significant relationship test’ established in

Restatement (Second) of Conflict of Laws § 188 provides the

modern analysis as to which contacts should be taken into

account. ”).

Exceptions to the application of the Restatement exist,

for example, where Congress has provided a choice of law

rule, or where federal courts must simply apply the

substantive federal law and have no option to choose state

law. See, e.g., Richards v. United States, 369 U.S. 1, 10-13,

82 S. Ct. 585, 591-93, 7 L. Ed. 492 (1962) (“We conclude

that Congress has, in the Tort Claims Act, enacted a rule

which requires federal courts, in multistate tort cases, to look

in the first instance to the law [including the choice of law

rules] of the place where the negligence took place.”); Gluck,

960 F.2d at1179-86 (looking to federal Treasury Regulations

to determine the federal choice of law rule in an ERISA case);

cf. RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 6(1) (“A

court, subject to constitutional restrictions, will follow a

statutory directive . . . on choice of law.”).

In this case, the difference between the application of

Arkansas’s choice of law rules and the federal choice of law

rules was outcome-determinative. Applying Arkansas’s

choice of law rules to this case, the courts below concluded

that they were required to apply Oklahoma law on

prejudgment interest only if prejudgment interest would be

10

characterized as “procedural” rather than “substantive.”

App. C at 18a; App. B at 1la. The courts below found that

prejudgment interest was “procedural” and, therefore, refused

to award prejudgment interest in accordance with Oklahoma

law. App. C at 18a-20a; App. B at 11a.

Had the courts below properly applied the federal

choice of law rules embodied in the Restatement, they

necessarily would have concluded that Maddox was entitled

to prejudgment interest provided Oklahoma law because

Oklahoma law applied for determining the damages on which

the interest accrued. While the courts below relied on the

“procedural” label in refusing to award prejudgment interest,

the federal/Restatement approach specifically disavows use of

the “substantive” and “procedural” labels as a means for

determining when to apply (or not to apply) the law of a

non-forum state. RESTATEMENT (SECOND) OF CONFLICT OF

LAWS § 122, Comment b.

The correct inquiry for the courts below under a

federal choice of law analysis would have been to determine

whether prejudgment interest is a matter “prescribing how

litigation shall be conducted”:

A court usually applies its own local law rules

prescribing how litigation shall be conducted

even when it applies the local law rules of

another state to resolve other issues in the

case.

RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 122. Thus,

rather than looking to whether a matter has been labeled

“procedural” as does the Arkansas rule, the federal choice of

law analysis looks to whether or not the matter prescribes how

litigation shall be conducted. See Hystro Products, Inc. v.

11

MNP Corp., 18 F.3d 1384, 1387 (7th Cir. 1994) (“The

Second Restatement of Conflicts has abandoned the

‘substantive/procedural’ dichotomy in favor of a rule

generally favoring application of the forum law on issues

concerning the conduct of litigation . . . .”); Jn re Kaiser Steel

Corp., 87 B.R. 154, 159 (Bankr. D. Colo. 1988) (“[T]he

approach of the Restatement (Second) [ ] eliminates the

‘substantive’ vs. ‘procedural’ dichotomy and instead focuses

directly on the particular issue or type of action in deciding

the conflict of laws question before the Court. ”).

Thus, under the Restatement approach, prejudgment

interest would have been part and parcel of the otherwise

applicable Oklahoma law. The courts below would certainly

not determine that prejudgment interest is a matter that

prescribes “how litigation shall be conducted.” RESTATEMENT

§ 122. Rather, Oklahoma cases expressly recognize that, far

from dealing with “judicial administration” or “how litigation

shall be conducted,” the purpose of prejudgment interest is to

compensate a wronged party:

Prejudgment interest compensates the plaintiff

for the loss of use of his compensatory

damages from the time the cause of action

accrued until the date of judgment; money to

which the plaintiff is entitled.

Carney v. State Farm Mut. Automobile Ins. Co., 877 P.2d

1113, 1118 (Okla. 1994) (quoting Fleming v. Baptist Gen.

Convention of Okla., 742 P.2d 1087, 1096 (Okla. 1987))

(emphasis added). Prejudgment interest has nothing to do

with the means or manner by which Oklahoma state courts

conduct their litigation. Indeed, this Court has also

recognized the same fact in federal litigation, and has

implicitly adopted the approach of the Restatement. See

12

Monessen v. Southwestern Ry. €o. v. Morgan, 486 U.S. 330,

335-36 (1988) (“Prejudgment interest is normally designed to

make the plaintiff whole and is part of the actual damages

sought to be recovered. . . . ([P]rejudgment interest

constitutes too substantial a part of a defendant’s potential

liability under the FELA for this Court to accept a State’s

Classification of a provision . . . as a mere ‘local rule of

procedure.’”).

For these reasons, it was error for the Eighth Circuit

to have applied Arkansas choice of law rules and not the

federal rules. The error committed by the Eighth Circuit will

be multiplied in future federal question cases unless this Court

grants certiorari and defines the proper choice of law analysis

for federal courts in these cases.

Ill. The Decision of the Eighth Circuit is

Incorrect and Splits with Decisions of the

Second and Tenth Circuits Concerning the

Effect of Parties’ Choice of Law

Stipulations.

In this case, American stipulated that “Oklahoma law

applies to damages issues in this lawsuit” (the “Stipulation”).

Although the district court awarded damages in accordance

with Oklahoma law, it refused to award prejudgment interest

in accordance with Oklahoma law.

The decision of the Eighth Circuit is incorrect to the

extent that it found that a choice of law analysis was necessary

in the first place, and the decision is in direct conflict with

decisions of the Second and Tenth Circuits. Under this

Court’s holding in Monessen, the question of what constituted

the proper measure of damages under Oklahoma law

necessarily included the question of whether prejudgment

13

interest should be awarded under Oklahoma law. 486 U.S. at

335 (“The question of what constitutes ‘the proper measure of

damages’ under the FELA necessarily includes the question

whether prejudgment interest may be awarded to a prevailing

FELA plaintiff.”). See also Zicherman, 516 U.S. at 229

(stating that this Court was “spared” the choice of law issue

because the parties had stipulated United States federal law

applied to damages); see also Bickel, 83 F.3d at 130 n.2

(“[T]he Zicherman Court did not have to address this issue

[i.e., the choice between federal or forum state choice of law

rules] because of the parties’ stipulation that United States law

applied.”).

Prejudgment interest is clearly a “damages issue”

within the meaning of the Stipulation filed by American in

federal court. Monessen, 486 U.S. at 335; Johnson, 964 F.2d

at 1063 (“To the contrary, we find it significant that the

Restatement expressly couples prejudgment interest with the

broader damages issue.”); see also Caruolo v. John Crane,

Inc. , 226 F.3d 46, 59 (2nd Cir. 2000) (“Prejudgment interest,

like other damages issues, is an aspect of loss-allocation.”);

Cappello v. Duncan Aircraft Sales of Florida, Inc., 79 F.3d

1465, 1476 (6th Cir. 1996) (“We have carefully reviewed the

two damages issues raised by plaintiffs that the district court

erred . . . in refusing to award prejudgment interest.”);

Winter v. Cerro Gordo County Conservation Bd., 925 F.2d

1069, 1072 n.5 (8th Cir. 1991) (“Here, we need not address

the damage issue other than in our remand of the prejudgment

interest claim . . .”). Therefore, the decision of the Eighth

Circuit below conflicts with this Court’s and lower federal

courts’ treatment of prejudgment interest as a “damages

issue.”

The decision of the Eighth Circuit most directly

conflicts with the decisions of two other circuits that have

14

addressed the identical issue in this case in similar contexts.

The case of Vasina v. Grumman Corp. involved the crash of

a Navy airplane manufactured by Defendant. 644 F. 2d 112,

114 (2nd Cir. 1981). At trial, Defendant stated that it was

“happy” with the application of New York law “as to the

measure of damages.” /d. at 118. On appeal from a judgment

that included an award of prejudgment interest under New

York law, however, Defendant argued that Oregon law should

apply to the issue of prejudgment interest. Jd. The Second

Circuit rejected Defendant’s argument:

[Defendant] explicitly accepted the application

of New York law respecting damages. And as

[Defendant] concedes in its brief on appeal,

New York law “specifically provides for

prejudgment interest.” [Defendant] seems to

want to pick and choose between the laws of

Oregon and New York to suit its own

advantage. We reject this “smorgasbord”

approach.

Id, at 119.

Johnson v. Continental Airlines involved the crash of

Continental Flight 1713 in Denver, Colorado. 964 F.2d

1059, 1060 (10th Cir. 1992). At issue on appeal was which

State’s law governed the availability of prejudgment interest

‘where, by consent, a particular state’s (Idaho’s) law governed

compensatory damages. /d. Plaintiffs had consented to the

application of Idaho law on “compensatory damages issues,”

but, on appeal, argued for application of Colorado law for

purposes of prejudgment interest. /d. at 1064. The Tenth

Circuit determined that, “[IJogically, the same law should

govern all issues related to compensating a plaintiff for the

15

Se

injury suffered.” /d. at 1063. And, citing Vasina, the court

rejected Plaintiffs’ argument:

[W]e reject Plaintiffs’ attempt to pick and

choose prejudgment interest law in the present

case. Plaintiffs agreed Idaho law would

govern compensatory damages issues.

Id. at 1064.

The issue presented in this case is indistinguishable

from the issue presented in Vasina and Johnson, and the

Eighth Circuit’s decision is incorrect and in conflict with

those circuits. This Court should grant certiorari to resolve

the split, and clarify whether parties in fedei.! court can rely

upon choice of law stipulations, or whether those stipulations

are subject to second guessing by a remorseful litigant. A

decision by this Court would be useful guidance for lower

courts in dealing with stipulations generally.

IV. The Questions Presented are Important for

Maintaining a Uniform Choice of Law

Analysis in Warsaw Convention Cases and

Other Federal Question Cases.

The Eighth Circuit’s decision below has further

complicated the choice of law issue in Warsaw Convention

cases by creating a three-way circuit split on the issue. The

circuit split will lead to tremendous uncertainty as to the

application of choice of law rules. In future Warsaw cases,

federal courts are now left to wonder whether to (a) apply

federal choice of law rules in all cases; (b) apply forum state

choice of law rules in all cases; or (c) apply federal choice of

law rules in some cases, and state choice of law rules in

others.

16

In Zicherman, this Court observed that, although “it

was a primary function of the Warsaw Convention to foster

uniformity in the law of international air travel, but . . . this

[i.e., creating a federal rule of damages] is not an area in

which the imposition of uniformity was found feasible.” 516

U.S. at 230. The Second Circuit appears to have

misperceived Zicherman (which reversed the Second Circuit)

as proscribing an attempt at uniformity for choice of law rules

in Warsaw Cases. See Pescatore, 97 F.3d at 11. Indeed,

neither the Ninth Circuit’s decision nor the Eighth Circuit’s

decision below interpreted Zicherman in a manner that

promotes uniformity.

A brief hypothetical based on the facts of this case may

serve to illustrate why reliance on state choice of law rules

undermines the uniformity intended by the Warsaw

Convention. Assume that an American Airlines jet crashes in

Arkansas, injuring among its international-flight passengers

two domiciliaries of Oklahoma. The Judicial Panel on

Multidistrict Litigation orders all of the federal cases

consolidated in the Eastern District of Arkansas, just as in this

case. Passenger A, recognizing that her case will ultimately

be heard in the Eastern District, files her suit a federal district

court in Little Rock. Passenger B, however, files his original

complaint in the Northern District of Texas, where

American’s principal office is located. Passenger B’s case is

promptly transferred to the Eastern District of Arkansas and

consolidated with the other Multidistrict Litigation.

Both Passenger A’s and Passenger B’s cases are tried

before a Little Rock jury two years later, but Oklahoma law

is applied to determine damages in each passenger’s case since

the passengers are Oklahoma residents. Having similar

injuries, each passenger is awarded an equal sum of damages.

17

—

What will happen if the two passengers both request the

prejudgment interest provided under Oklahoma locai law?

If the choice of law rules of the state in which suit is

filed must be followed--as has been held by the Eighth Circuit

below and the Ninth Circuit--Arkansas choice of law rules

will apply to Passenger A’s case but not Passenger B’s case.

Passenger A will receive no prejudgment interest, despite the

fact that an Oklahoma court would have awarded it as

compensation. Arkansas choice of law rules declare

prejudgment interest to be “procedural,” and thus will follow

the Arkansas forum’s law that does not provide for the

interest.

Passenger B, though also an Oklahoma resident with

similar injuries, would obtain a better outcome because he

engaged in forum-shopping by filing his original complaint in

Texas, even though it was immediately transferred to the

federal court in Arkansas. If the trial court is obligated to

apply the Klaxon and Van Dusen rules, Passenger B’s case

will be governed by Texas choice-of law rules. See Van

Dusen v. Barrack, 376 U.S. 612, 635-37 (1964) (applying

Klaxon v. Stentur Elec. Mfg. Co., 313 U.S. 487 (1941) to

cases of venue transfer). Texas is a state that follows the

Restatement (Second) of Conflict of Laws. See e.g. Duncan

v. Cessna Aircraft Co., 665 S.W. 2d 414 (Tex. 1984). The

Restatement approach rejects the substantive/procedural

distinction used in Arkansas. Thus, the court would

determine that prejudgment interest is not a matter

“prescribing the conduct of litigation.” Therefore, the Texas

choice of law rule would mandate that Oklahoma’s

prejudgment interest law be applied to the judgment.

In sum, Passenger A and Passenger B, though both

Oklahoma residents with similar injuries and similar jury

18

awards of damages from jury trials governed by the same

substantive law in the same court from the same airline crash,

would receive decidedly non-uniform treatment under the

Warsaw Convention. The disparate treatment serves no valid

public policy purpose, and indeed would penalize Passenger

A for not having forum-shopped for more favorable choice of

law rules. Put another way, federal law has now encouraged

future forum shopping by having specially rewarded

Passenger B for his efforts.

Under the Sixth Circuit’s better reading of Zicherman,

there is no anomaly of case results because of differences in

Choice of lew rules. All Warsaw Convention cases, being

decided by the federal courts under federal question

jurisdiction, are subject to the same federal choice of law

rules. The Bickel court specifically stated that “[t]he Warsaw

Convention . . . embodies a concrete federal policy of

uniformity and certainty which would be undermined by the

use of state choice of law rules,” and that “[nJothing in the

Supreme Court’s recent Zicherman opinion suggests that

crafting a special federal choice of law rule in these cases is

inappropriate.” Bickel, 83 F.3d at 130 & n.2 (citations

omitted). As among the decisions in Bickel, Pescatore,

Insurance Company of North America, and the Eighth

Circuit’s decision below, surely Bickel best advances the letter

and the spirit of this Court’s holding in Zicherman.

As this Court has observed more recently, “The

cardinal purpose of the Warsaw Convention . . . is to ‘achieve

uniformity of rules governing claims arising from

international air transportation.’” El Al‘ Israel Airlines, Ltd.

v. Tseng, 525 U.S. 155, 169 (1999) (citing Eastern Airlines,

Inc. v. Floyd, 499 U.S. 530, 552 (1991)); see also id. at 169

(“The Court of Appeals looked to our precedent for guidance

on this point, but it misperceived our meaning. It misread our

19

decision in Zicherman to say that the Warsaw Convention

expresses no compelling interest in uniformity that would

warrant preempting an otherwise applicable body of law, here

New York tort law.”) (citations omitted).

While the imposition of a uniform federal damages law

in international air travel might not be feasible, Zicherman,

516 U.S. at 230, surely the application of uniform and

predictable choice of law rules in Warsaw cases filed in

federal courts is not only feasible, but also advances “the

predictability that adherence to the treaty has achieved

worldwide.” El Al Israel, 525 U.S. 171. A grant of

certiorari in this case would do much to advance the policy

favoring predictability in Warsaw Convention cases, and

would also give this Court an opportunity to clarify when the

application of federal choice of law rules is appropriate.

CONCLUSION

For the reasons set forth above, the Petition for a Writ

of Certiorari should be granted.

Respectfully submitted,

Robert R. Bodoin

Counsel of Record for Petitioner

John C. Burnside

Mark Edwin Burge

BODOIN, BURNSIDE & BURGE, P.C.

6115 Camp Bowie Blvd., Suite 290

Fort Worth, Texas 76116

Phone: (817) 377-1654

Fax: (817) 377-1213

20

Kristin Maddox,

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 00-3715

[Filed September 16, 2002]

Appellant,

v.

American Airlines, Inc.,

Appellee.

Nee Oe eee eee

ORDER DENYING PETITION FOR REHEARING

AND FOR REHEARING EN BANC

The petition for rehearing en banc is denied. The

petition for rehearing by the panel is also denied.

(5128-010199)

September 16, 2002

Order Entered at the Direction of the Court:

Clerk, U.S. Court of Appeals, Eighth Circuit

la

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 00-3715

[Filed August 1, 2002]

Kristin Maddox,

Appellant,

Vv.

American Airlines, Inc.,

a Delaware Corporation,

Appellee.

Nee Neel ae lee SS”

Appeal from the United States District Court

for the Eastern District of Arkansas

JUDGES:

Before McMILLIAN, BEAM, and HANSEN,’ Circuit

Judges.

| Judge David R. Hansen became Chief Judge of the

United States Court of Appeals for the Eighth Circuit on February

1, 2002.

2a

OPINION

HANSEN, Circuit Judge.

A federal jury awarded Kristin Maddox over

$11,000,000 in damages for personal injuries she suffered

while she was a passenger on an American Airlines

international flight that crashed in Little Rock, Arkansas. She

now appeals, challenging the district court’s rulings regarding

prejudgment and postjudgment interest rates. We affirm with

the exception of one minor issue on which the parties agree.

-

I.

Kristin Maddox, a resident of Oklahoma, was a

passenger on American Airlines Flight 1420 when it crashed

after running out of runway while landing at Little Rock,

Arkansas, on June 1, 1999. Eleven people died as a result of

the crash and many, like Ms. Maddox, were severely injured.

Prior to the crash, Ms. Maddox had been a music major with

an emphasis in vocal operatic performance and a minor in

piano performance at Ouachita Baptist University. On the

night of the crash, she was returning from Europe where she

had been touring and performing with her college choir. Ms.

Maddox suffered severe smoke and toxic fume inhalation that

damaged her lungs and vocal chords, destroying her ability to

sing. She also suffered severe burns to her hands and arms,

impairing her ability to play a keyboard instrument of any

kind.

Ms. Maddox filed suit in federal court in Arkansas

seeking damages for her injuries. Prior to trial, American

Airlines made payments to Maddox for medical expenses

totaling $134,453. American Airlines conceded liability,

3a

Eighth Circuit Opinion - 8/1/02

leaving the amount of damages due as the only issue for trial,

and it does not cross appeal the jury’s damage award.

Because Maddox had been a passenger on an

international flight, her claims are governed by the Warsaw

Convention. See Convention for the Unification of Certain

Rules Relating to International Transportation by Air,

concluded at Warsaw, Poland, Oct. 12, 1929 (Warsaw

Convention), 49 Stat. 3000, 3014 (1934), reprinted in note

following 49 U.S.C. § 40105 (1994). [HN1] Article 17 of the

Warsaw Convention governs the liability of international air

carriers for accidents in which a passenger: is wounded on an

international flight. El Al Israel Airlines, Ltd. v. Tsui Yuan

Tseng, 525 U.S. 155, 162, 142 L. Ed. 2d 576, 119S. Ct. 662

(1999). Article 22 creates monetary liability limits on damage

awards—against an international airline. /d. at 163 n.7.

Recognizing that the liability limits of the Warsaw

Convention, signed in 1929 and amended in 1955, are now

inadequate in most countries, a group of international airlines, —

including American Airlines, has taken action to waive the

Convention’s liability limits through a series of agreements.

See Lloyd v. Am. Airlines, Inc., 291 F.3d 503, 506 n.2 (8th

Cir. 2002). Among the agreements supplementing the

Warsaw Convention is the International Air Transport

Association Intercarrier Agreement on Passenger Liability

(the IATA Intercarrier Agreement). (Appellee’s Add. at 3.)

With listed exceptions for certain routes which do not apply

to this case, the measures implementing the IATA Intercarrier

Agreement impose absolute liability on an international

carrier to the extent of 100,000 Special Drawing Rights

4a

Eighth Circuit Opinion - 8/1/02

(SDRs).? (/d. at 5.) For claims exceeding this amount, limited

defenses are available to the airlines under the Warsaw

Convention, but [HN2] in all cases in which a passenger has

been wounded in an accident, the IATA Intercarrier

Agreement waives the Warsaw Convention’s limitation of

liability “on recoverable compensatory damages . . . so that

recoverable compensatory damages may be determined and

awarded by reference to the law of the domicile of the

passenger.” (/d. at 3.) The provisions are implemented in the

carrier’s tariffs and the contract of carriage between the

carrier and its passenger. The passenger’s domicile in this

case is Oklahoma, and prior to trial, American Airlines

stipulated that “Oklahoma law applies to damages issues in

this lawsuit.” (J.A. at Tab 6.)

Following trial, the jury returned a general verdict

form fixing damages at $11,015,000. The district court

entered judgment in favor of the plaintiff in this amount and

ordered that the judgment bear postjudgment interest at the

rate of 6.375% pursuant to federal statute. Maddox moved to

amend the judgment, requesting prejudgment interest in

accordance with Oklahoma law and requesting that the

judgment bear postjudgment interest at Oklahoma’s rate of

2 SDRs are a type of international monetary reserve

currency or accounting system created in 1968 by the International

Moenetaeary Fuoad =, See

http://www.encyclopedia.com/articles/12191.html, which is a

specialized agency of the United Nations that determines the value

of SDRs relative to the currencies of the five largest exporting

nations, see http://www.encyclopedia.com/articles/23338.html. The

parties agree that American Airlines’ advance payment of $134,453

was the equivalent of 100,000 SDRs.

Sa

Eighth Circuit Opinion - 8/1/02

8.73% as opposed to the federal rate of 6.375%. Also, both

parties agreed that the judgment should be amended to deduct

from the total damage award the pretrial SDR payments made

by American Airlines to Maddox in the amount of $134,453.

The district court granted in part and denied in part the

motions to amend the judgment. Maddox v. Am. Airlines,

Inc., 115 F. Supp. 2d 993, 996 (E.D. Ark. 2000).

Specifically, the district court denied Maddox’s request for

any prejudgment interest on the damage award, denied

Maddox’s request for postjudgment interest at the Oklahoma

rate, and granted the joint request to credit the judgment with

American Airlines’ pretrial SDR payment of $134,453. The

district court also credited interest on that payment in the

amount of $4,051.93, although neither party had requested

this further reduction. Ms. Maddox appeals.

Il.

Ms. Maddox first contends that the district court erred

by applying Arkansas’s choice of law rules to determine

whether to award prejudgment interest because the parties had

agreed by stipulation and the IATA Intercarrier Agreement

that Oklahoma law would govern the damages issue. [HN3]

“We review the district court’s choice of law determinations

de novo.” Inacom Corp. v. Sears, Roebuck & Co., 254 F.3d

683, 687 (8th Cir. 2001). Similarly, we apply de novo review

to the district court’s determinations of state law. Salve

Regina Coll. v. Russell, 499 U.S. 225, 231-32, 113 L. Ed. 2d

190, 111 S. Ct. 1217 (1991).

Because actions under the Warsaw Convention, an

international treaty, present federal law questions, a federal

6a

Eighth Circuit Opinion - 8/1/02

forum is available, but the Convention itself does not include

a choice of law provision. The Supreme Court has indicated

that Article 17 of “the Warsaw Convention permit[s]

compensation only for legally cognizable harm, but leave[s]

the specification of what harm is legally cognizable to the

domestic law applicable under the forum’s choice of law

rules.” Zicherman v. Korean Air Lines Co., 516 U.S. 217,

231, 133 L. Ed. 2d 596, 116 S. Ct. 629 (1996). Thus, Article

17 is a “pass-through” provision which, absent special federal

legislation applicable to Warsaw Convention cases, provides

nothing more than an authorization to apply whatever law

would govern in the absence of the Warsaw Convention. /d.

at 229; see also Ins. Co. of N. Am. v. Fed. Express Corp.,

189 F.3d 914, 920 (9th Cir. 1999); Brink’s Ltd. v. S. African

Airways, 93 F.3d 1022, 1029 (2d Cir. 1996), cert. denied,

519 U.S. 1116, 136 L. Ed. 2d 845, 117 S. Ct. 959 (1997).

While ordinarily the choice of law rules of the forum

would apply to determine the applicable law that governs

what harm is legally cognizable, the IATA Intercarrier

Agreement and its implementing provisions make an express

choice of law applicable to this case, stating that “recoverable

compensatory damages” will be determined by reference to

the law of the passenger’s domicile or permanent residence,

which is Oklahoma in this case. (Appellee’s Add. at 3, 5.)

Also, American Airlines agreed in a pretrial stipulation that

the “damages issues” in this lawsuit should be governed by

Oklahoma law. (J.A. at Tab 6.) Accordingly, the district

court properly chose to apply Oklahoma’s law on damages

generally. Ms. Maddox argues that prejudgment interest [**9]

is within the meaning of “recoverable compensatory

damages” under the IATA Intercarrier Agreement and its

implementing provisions or within the term “damages issues”

7a

Eighth Circuit Opinion - 8/1/02

as used in the stipulation, and therefore prejudgment interest

should have been awarded according to Oklahoma law, and

not denied under Arkansas law.

The applicable agreements do not define the terms

“recoverable compensatory damages” or “damages issues.”

Thus, we look to Oklahoma law to determine whether

prejudgment interest may be characterized as within their

meanings. By [HNS5] statute, Oklahoma law requires

prejudgment interest to be added to a personal injury

judgment from the date when the lawsuit was filed, Okla.

Stat. tit. 12, § 727(E), but prejudgment interest is not itself

a measure of compensatory damages. The courts of Oklahoma

have expressly stated that “prejudgment interest under § 727

is not of the substance of the right of action.” Shoemaker v.

First Nat’l Bank & Trust, 2000 OK CIV APP 97, 11 P.3d

1265, 1267 (Okla. Civ. App. 2000). Oklahoma courts

consider prejudgment interest to be procedural only, and not

a substantive right. Fields v. Volkswagen of Am., Inc., 1976

OK 106, 555 P.2d 48, 63 (Okla. 1976) (holding that

prejudgment interest is procedural only so the statute applies

to a case even where the suit was filed before the legislation

became effective). Because prejudgment interest is

recoverable by statute as a cost of litigation, it is not an

element of damages under Oklahoma law. Benson v. Blair,

1973 OK 102, 515 P.2d 1363, 1365 (Okla. 1973) (addressing

the retrospective application of the statute). Even though the

Oklahoma courts indicate that prejudgment interest is

mandated as a monetary recovery that is intended to

compensate for the lost use of the money awarded as

damages, prejudgment interest does not itself rise to the level

of an element of damages in the personal injury claim.

Carney v. State Farm Mut. Auto. Ins. Co., 1994 OK 72, 877

8a

Eighth Circuit Opinion - 8/1/02

P.2d 1113, 1118 (Okla. 1994); Fleming v. Baptist Gen.

Convention, 1987 OK 54, 742 P.2d 1087, 1096 (Okla. 1987);

see also Burwell v. Okla. Farm Bureau Mut. Ins. Co., 1995

OK CIV APP 50, 896 P.2d 1195, 1199 n.4 (Okla. Ct. App.

1995) (noting that an award of interest “is a sum added toa

judgment--not part of the judgment”).

Ms. Maddox argues that a recently decided case from

the Supreme Court of Oklahoma indicates that the Oklahoma

courts now consider prejudgment interest as “recoverable

compensatory damages” or as a “damages issue” because the

court expressly states that prejudgment interest is “an item of

damages owed for the delayed satisfaction of an obligation.”

McDonald v. Schreiner, 2001 OK 58, 28 P.3d 574, 577

(Okla. 2001). We disagree with her assertion that this

statement renders prejudgment interest an element of damages

in a personal injury case. The court noted that prejudgment

interest may be characterized as “damages” owed for the

delay in use of the money judgment, but the court also goes

on to clearly state that this delay “constitutes an expense

incident to the chosen course of litigation.” Jd. (emphasis

omitted). In other words, prejudgment interest remains a cost

of litigation. See id.

Because prejudgment interest is not characterized as an

element of damages or as “recoverable compensatory

damages” under Oklahoma law, the issue of prejudgment

interest is not governed by the choice of law provision of the

IATA Intercarrier Agreement or the pretrial stipulation in this

case. But see Johnson v. Cont’l Airlines Corp., 964 F.2d

1059, 1064 (10th Cir. 1992) (holding under Idaho law that

prejudgment interest is not subject to an independent choice

of law analysis apart from the issue of compensatory

9a

Eighth Circuit Opinion - 8/1/02

damages). Absent an express choice of law, the Warsaw

Convention leaves “the specification of what harm is legally

cognizable to the domestic law applicable under the forum’s

choice-of-law rules.” Zicherman, 516 U.S. at 231. Ms.

Maddox argues that the district court erred by not applying

the federal choice-of-law rules, asserting a split in the circuits

regarding whether to interpret “forum” as referring to the

federal court or the state in which the court sits. In Pescatore

v. Pan Am. World Airways, 97 F.3d 1, 9 (2d Cir. 1996), and

Ins. Co. of N. Am. v. Fed. Express Corp., 189 F.3d 914, 920

(9th Cir. 1999), each court concludes that the forum state’s

choice of law rules should apply. The courts reason that the

state law governs because Zicherman declared Article 17 to

be a pass-through provision, which merely authorizes courts

to apply the law that would govern in its absence. Pescatore,

97 F.3d at 9; Fed. Express Corp., 189 F.3d at 920. The

“contrary” Sixth Circuit case simply presented a different

factual scenario. In Bickel v. Korean Air Lines Co., 83 F.3d

127, 130-31 (6th Cir. 1996), vacated in part on separate

issue, 96 F.3d 151 (6th Cir. 1996), the case did not involve

citizens of different states but of different countries.

Similarly, in Zicherman, the accident occurred on the high

seas, and the choice of law was first a choice between foreign

law or the laws of the United States, making federal forum

choice-of-law rules applicable.

The present case is more akin to the Second and Ninth

Circuit cases in which no federal statute furnished a rule of

law with respect to damages. The accident clearly occurred in

Arkansas, and state-law personal injury damages were at

issue, not federal substantive law. Thus, federal choice-of-law

rules were not implicated.

10a

Eighth Circuit Opinion - 8/1/02

We conclude that the district court correctly

considered and applied Arkansas’s choice-of-law rules to the

issue of prejudgment interest. The district court determined

that Arkansas’s choice-of-law rules dictated that it should

apply the substantive law of Oklahoma. However, because

Oklahoma considers prejudgment interest as procedural only

and not substantive, Arkansas law, the law of the forum,

would apply to the prejudgment interest issue, and

prejudgment interest would not be allowed under Arkansas

law. We find no error in the district court’s application of

Arkansas’s choice of law principles, and Ms. Maddox

challenges only the choice of the law applied by the district

court; she does not assert that the district court incorrectly

concluded that she is not entitled to prejudgment interest

under Arkansas law as it presently exists.

Il.

Ms. Maddox next argues that she is entitled to

postjudgment interest on the verdict at the rate prescribed by

Oklahoma law, rather than the rate prescribed by federal law

as applied by the district court because the parties’ choice of

law to govern damages issues also extends to the issue of

postjudgment interest. We disagree. A federal statute

prescribes the relevant postjudgment interest rate and dictates

that [HN6] “interest shall be allowed on any money judgment

in a civil case recovered in a district court.” 28 U.S.C.A. §

1961(a) (1994). We have specifically held that, [HN7] unless

a case is expressly exempt from the scope of this statute, the

federal postjudgment interest rate applies to cases adjudicated

in federal court, regardless of whether the basis for

jurisdiction was federal question or diversity. See, e.g.,

Happy Chef Sys., Inc. v. John Hancock Mut. Life Ins. Co.,

lla

Eighth Circuit Opinion - 8/1/02

933 F.2d 1433, 1435 (8th Cir. 1991) (“In a diversity action,

state law governs prejudgment interest; federal law governs

postjudgment interest.”); Merrill Lynch, Pierce, Fenner &

Smith, Inc. v. Knudsen, 749 F.2d 496, 497 (8th Cir. 1984)

(holding that because § 1961(a) does not exempt diversity

actions from its scope, “federal, not state law, determines the

interest rate in such actions”); Weitz Co. v. Mo-Kan Carpet,

Inc., 723 F.2d 1382, 1385-86 (8th Cir. 1983). Accordingly,

the district court properly applied the federal rate of

postjudgment interest.

Finally, both parties agree that the district court should

not have deducted from the verdict an amount representing

interest on the pretrial SDR payments in light of the court’s

refusal to add prejudgment interest on the judgment. We

agree, and accordingly, we reverse the portion of the district

court’s judgment that reduces the verdict by an amount

representing interest on the SDR payments ($4,051.93). The

verdict should have been reduced only by the actual amount

of payments made as SDRs.

IV.

Accordingly, we reverse the district court’s decision

to deduct from the verdict interest on the SDR payments, and

we remand for entry of an amended judgment that reduces the

verdict only by the actual amount of the SDR

payments-$134,453. In all other respects, we affirm the

judgment of the district court. Finally, we overrule American

Airlines’ motion to strike both the appellant’s Rule 28(j) letter

and her response to American’s Rule 28(j) citation.

12a

—————— =<

|

Eighth Circuit Opinion - 8/1/02

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS,

EIGHTH CIRCUIT.

13a

APPENDIX C

IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF ARKANSAS

WESTERN DIVISION

NO. 4:00CV00135 HW

[Filed September 25, 2000]

KRISTIN MADDOX )

Plaintiff

Vv.

AMERICAN AIRLINES,

INC.

Defendant

Nee eee eee es”

ORDER

Plaintiff Kristin Maddox (“Maddox”) has filed a

motion to amend the judgment. See Document 72. Defendant

American Airlines, Inc. , (“American”) has also filed a motion

to alter or amend the judgment. See Document 74. The Court

has reviewed the motions and finds that they should be, and

are, granted in part and denied in part.

It is undisputed that on August 28, 2000, the Court, on

the basis of the jury’s verdict, entered judgment for Maddox

in the amount of $11,015,000.00. The judgment also

contained the following provision: “This judgment shall bear

14a

District Court Order - 9/25/00

interest thereon at the legal rate of 6.375% as provided by

law until paid.” See Document 74, Exhibit 1. The judgment

did not contain an award of pre-judgment interest nor did it

contain a credit to American in an amount equal to the special

drawing rights (“SDR”) payment made to Maddox pursuant

to the terms of the Warsaw Convention.

Following the entry of judgment, Maddox filed her

motion to amend. In the motion, she asked that the judgment

be amended in the following respects:

(a) that, in accordance with Oklahoma law,

prejudgment interest be added to her damage

award; (b) that certain sums heretofore paid by

[American] be deducted from her damage

award; and, (c) that the Judgment bear post-

judgment interest at the rate of 8.73% as ;

provided by Oklahoma law, until paid.

See Document 72 at 1. American thereafter filed its motion to

alter or amend the judgment. American, in its motion, asked

that the judgment be amended to reflect the SDR payment

made to Maddox. American specifically alleged the following

in its motion:

At the hearing conducted immediately

prior to the beginning of that in this matter,

the Court ruled from the bench that the

Defendant would be given a credit against any

Judgment in an amount equal to the special

drawing rights (SDR) payment made to the

Plaintiff pursuant to the terms of the Warsaw

Convention Treaty. |

15a

District Court Order - 9/25/00

The present Judgment ... does not

reflect this SDR credit.

Documentation of the SDR credit in the

amount of One Hundred Thirty Four Thousand

Four Hundred Fifty Three Dollars

($134,453.00) was admitted into evidence as

Plaintiff's Exhibit “126", without objection.

However, consistent with the Court’s ruling,

this exhibit was not made available to the

jury...

In light of this Court’s ruling that the

SDR payment would be credited against any

Judgment rendered against the Defendant and

the fact that the present Judgment does not

reflect said credit, the Defendant moves the

Court to alter or amend the Judgment to reflect

a credit of $134,453.00. |

See Document 74 at 1-2. American also submitted a response

to the motion to amend filed by Maddox. Its response was

two-fold. First, although American acknowledged that

Oklahoma law provides for pre-judgment interest, the law is

procedural and therefore not binding on the Court. Second,

American took the position that the Court had applied the

proper post-judgment interest rate, ie., the federal rate of

post-judgment interest.

Turning to the matters addressed in the motions, the

Court finds that two of the three matters are easily resolved.

First, the Court previously determined, and the parties agree,

that American is entitled to a credit for its SDR payment to

l6a

District Court Order - 9/25/00

Maddox in the amount of $134,453.00. American is also

entitled to a credit equal to the interest on the SDR payment,

that being, $4,051.93. The judgment will be so amended,

specifically, the amount of the judgment will be reduced to

$10,876,495.07.' Maddox’s motion to amend is granted in

this one respect; American’s motion to alter or amend is

granted.

Second, with respect to the rate of post-judgment

interest, the Court will not apply the Oklahoma rate but will

instead apply the federal rate. The prevailing view in the

Eighth Circuit is that federal law-28 U.S.C. 1961(a)--governs

an award of post-judgment interest in a case arising out of

federal court, even if federal court jurisdiction is based upon

diversity of citizenship. See Weitz Company, Inc. v. Mo-Kan

Carpet, Inc., 723 F.2d 1382 (8"Cir. 1983). Maddox’s motion

to amend is denied in this respect.

The matter of pre-judgment interest is not as easily

resolved. In considering the matter, the Court is guided by the

United States Supreme Court decision in Zicherman v. Korean

Airlines Co., 516 U.S. 217 (1996). It provides that in cases

governed by the Warsaw Convention, the specification of

what damages are legally cognizable is left to the domestic

law applicable under the forum’s choice-of-law rules as if the

Warsaw Convention was inapplicable.

1 The amended amount of $10,876,495.07 is arrived at by

subtracting $134,453.00 (the SDR payment) and 4,051.93 (the

interest on the SDR payment) from $11,015,000.00.

17a

District Court Order - 9/25/00

Maddox, a resident of Oklahoma, commenced the case

at bar in Arkansas pursuant to the provisions of the Warsaw

Convention. Thus, Arkansas is the forum in this case. The

Arkansas choice-of-law rules require the application of

another state’s law only if the relevant law would be

characterized as substantive rather than procedural. See Doan

v. Consumer Testing labs, Inc., 2 F.Supp.2d 1209 (W.D.Ark.

1998) (Waters, J.) [citing Sentry Insurance Co. v. Stuart, 246

Ark. 680,439 S.W.2d 797 (1969) and American Physicians

Insurance. Co. v. Hruska, 244 Ark. 1176, 428 S.W.2d 622

(1968)].

The parties in the case at bar agreed that Oklahoma

law would be applied. In accordance with that agreement, the

Court gave the Oklahoma damage instruction requested by

both parties. See Oklahoma Uniform Jury Instruction 4.1. It

was Clearly proper to do so because the instruction was part

of the Oklahoma substantive law. Is the Oklahoma statute

governing pre-judgment interest part of the Oklahoma

substantive law or is it one of procedure? The Court finds that

it is one of procedure and, for that reason, it will not be

followed.

The measure of damage is typically treated as a

substantive matter, see Robert A. Leflar, American Conflicts

Law, section 126 (4th ed. 1986), and there is support for the

proposition that pre-judgment interest is an element of damage

awarded to provide full compensation by converting time-of-

demand damage into time-of-verdict damage, see Simeone v.

First Bank National Association, 73 F.3d 184 (8" Cir. 1996).

Oklahoma, however, does not so construe its pre-judgment

interest statute. First, the Oklahoma Supreme Court construes

the statute as a procedural matter and not a substantive matter.

18a

District Court Order - 9/25/00

See Fields v. Volkswagen of America, Inc., 555 P.2d 48

(Okla. 1976); Benson v. Blair, 515 P.2d 1363 (Okla. 1973).

Second, the Oklahoma Supreme Court does not consider

interest to be an element of damage in a personal injury

action. See Fleming v. Baptist General Convention of

Oklahoma, 742 P.2d 1087 (Okla. 1987). In Fleming, the state

Supreme Court provided the following:

Interest is not an element of damages in a

personal injury action. [Citations omitted]. The

fact that interest is not an element of damages

under Oklahoma law is discoverable from the

statutory scheme of 12 O.S. Supp. 1979

[section] 727(2) in that that section specifies

when a verdict for damages by reason of

personal injuries is accepted by the that court,

the court shall then add interest in rendering

judgment. Clearly then, the legislature did not

specifically classify or imply that interest was

an element of damages. [Citation omitted].

See Id. 1096. Although the Court is not bound by the

construction given the pre-judgment statute by the Oklahoma

Supreme Court, see Doan v. Consumer Testing Laboratories,

Inc, 2 F.Supp. at 1213, the manner in which the statute is

construed by the highest court of Oklahoma is entitled to

considerable weight. It is also at least worth noting that pre-

judgment interest would not be available in this instance had

the case been tried in accordance with Arkansas law. See

Woodline Motor Freight v. Troutman Oil Company, Inc. , 327

District Court Order - 9/25/00

Ark. 448, 938 S.W.2d 565 (1997).? Because the Oklahoma

pre-judgment interest statute is procedural, it will not be

followed. Maddox’s motion to amend is denied in this

respect.

In summary, Maddox’s motion to amend is granted in

one respect; American’s motion to alter or amend is granted.

The judgment will be amended to reflect the SDR payment to

Maddox and interest on the SDR payment, specifically, the

amount of the judgment will be reduced to $10,876,495.07.

Maddox’s motion to amend is denied in all other respects.

The Court wilt apply the federal rate of post-judgment interest

from August 28, 2000; the Court will not apply the Oklahoma

pre-judgment interest statute.

IT IS SOORDERED this 25"day of September, 2000.

/s/

Henry Woods, U.S. District Judge

2 In that case, the Arkansas Supreme Court noted that the

award of pre-judgment interest is not dependent upon whether the

action is in contrac or in tort. “Prejudgment interest is allowable

where the aitwunt of damages is definitely ascertainable by

mathematical computation, or if the evidence furnishes date that

makes it possible to compute the amount without reliance on

opinion or discretion.” See Id. 938 S.W.2d at 568.

20a

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

A word about cookies

We need a few to keep you signed in and the library working. The rest help us see which pages people use and where they get stuck. They stay off unless you say yes.