Braniff Airways, Inc., Phillip Addabbo, and Morton D. Stein, as of the Estate of Maurice Berg, Deceased v. Curtiss-Wright Corporation

Second Circuit

Braniff Airways, Inc., Phillip Addabbo, and Morton D. Stein, as of the Estate of Maurice Berg, Deceased v. Curtiss-Wright Corporation

424 F.2d 427, 1970 U.S. App. LEXIS 9735

CourtCourt of Appeals for the Second Circuit

DecidedApril 16, 1970

Docket32884-32887_1

StatusPublished

Cited by30 cases

This text of 424 F.2d 427 (Braniff Airways, Inc., Phillip Addabbo, and Morton D. Stein, as of the Estate of Maurice Berg, Deceased v. Curtiss-Wright Corporation) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Braniff Airways, Inc., Phillip Addabbo, and Morton D. Stein, as of the Estate of Maurice Berg, Deceased v. Curtiss-Wright Corporation, 424 F.2d 427, 1970 U.S. App. LEXIS 9735 (2d Cir. 1970).

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Opinions

HAYS, Circuit Judge

(concurring and dissenting):

I agree with the majority’s determination that reconsideration of our original decision at this time is required by the authorities and that Braniff’s claim for implied warranty should be reinstated. However, I would also reinstate Berg’s [432]*432and Addabbo’s claims for implied warranty.

The majority finds it “highly doubtful” that the New York courts would permit the Florida accrual at discovery rule to govern. I do not agree. The New York courts have rejected a mechanical jurisdiction selecting rule.

“Justice, fairness and ‘the best practical result’ * * * may best be achieved by giving controlling effect to the law of the jurisdiction which, because of its relationship or contact with the occurrence or the parties has the greatest concern with the specific issue raised in the litigation.” Bab-cock v. Jackson, 12 N.Y.2d 473, 481, 240 N.Y.S.2d 743, 749, 191 N.E.2d 279 (1963) [citation omitted],

Florida has adopted its accrual rule to encourage the prevention of injury in that state caused by “the latently defective condition of * * * product[s],” Creviston v. General Motors Corp., Fla., 225 So.2d 331, 333 (1969), and to deal with a well-founded sense of outrage that because of “blameless ignorance” (id. at 334) plaintiffs should go uncompensated for invasions of their legal rights.

Thus Florida, by its accrual at discovery rule, has placed a greater burden than has New York¹ on manufacturers who may cause injury within that state. The additional standard of care imposed by Florida is not unlike a “rule of the road” about which the court in Babcock said:

“In such a ease, it is appropriate to look to the law of the place of the * * [injury] so as to give effect to that jurisdiction’s interest in regulating conduct within its borders, and it would be almost unthinkable to seek the applicable rule in the law of some other place.” 12 N.Y.2d at 483, 240 N.Y.S.2d at 750-751, 191 N.E.2d at 284.

The time of sale rule is applied grudgingly by the New York courts. See Schwartz v. Heyden Newport Chemical Corp., 12 N.Y.2d 212, 217-219, 237 N.Y.S.2d 714, 717-719, 188 N.E.2d 142 (dicta) (and dissenting opinion of Chief Judge Desmond, 12 N.Y.2d at 219, 237 N.Y.S.2d at 719, 188 N.E.2d at 145), modified, 12 N.Y.2d 1073, 239 N.Y.S.2d 896, 190 N.E.2d 253, cert. denied, 374 U.S. 808, 83 S.Ct. 1697, 10 L.Ed.2d 1032 (1963). An exception has recently been fashioned by the Court of Appeals. Flanagan v. Mount Eden General Hospital, 24 N.Y.2d 427, 301 N.Y.S.2d 23, 248 N.E.2d 871 (1969). In the light of their dissatisfaction with the time of sale rule, the New York courts would be likely to welcome an opportunity to avoid extending that rule, while at the same time taking proper account of Florida’s legitimate interests.

The cases cited by the majority to show that, when the New York courts apply a foreign statute of limitations, they also apply the pertinent foreign tolling provision are not relevant to the present problem. A tolling provision is closely akin to a statute of limitations— indeed an integral part of such a statute. The time an action accrues imports “notions of substantive law,” 1 Weinstein-Korn-Miller, New York Civil Practice § 203.01, at 2-39.2 (1969). See First Nat’l Bank v. Marcher, 179 Misc. 258, 38 N.Y.S.2d 774 (Sup.Ct.1942); Bicknell v. Central Hanover Bank & Trust Co., 169 Misc. 7, 6 N.Y.S.2d 704 (Sup.Ct.), aff’d 255 App.Div. 956, 8 N.Y.S.2d 668 (1st Dep’t 1938); Zuck v. Interstate Publishing Corp., 317 F.2d 727, 735 (2d Cir. 1963); Baron Tube Co. v. Transport Ins. Co., 365 F.2d 858, 860 (5th Cir. 1966).²

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HAYS, Circuit Judge

(concurring and dissenting):

I agree with the majority’s determination that reconsideration of our original decision at this time is required by the authorities and that Braniff’s claim for implied warranty should be reinstated. However, I would also reinstate Berg’s [432]*432and Addabbo’s claims for implied warranty.

The majority finds it “highly doubtful” that the New York courts would permit the Florida accrual at discovery rule to govern. I do not agree. The New York courts have rejected a mechanical jurisdiction selecting rule.

“Justice, fairness and ‘the best practical result’ * * * may best be achieved by giving controlling effect to the law of the jurisdiction which, because of its relationship or contact with the occurrence or the parties has the greatest concern with the specific issue raised in the litigation.” Bab-cock v. Jackson, 12 N.Y.2d 473, 481, 240 N.Y.S.2d 743, 749, 191 N.E.2d 279 (1963) [citation omitted],

Florida has adopted its accrual rule to encourage the prevention of injury in that state caused by “the latently defective condition of * * * product[s],” Creviston v. General Motors Corp., Fla., 225 So.2d 331, 333 (1969), and to deal with a well-founded sense of outrage that because of “blameless ignorance” (id. at 334) plaintiffs should go uncompensated for invasions of their legal rights.

Thus Florida, by its accrual at discovery rule, has placed a greater burden than has New York¹ on manufacturers who may cause injury within that state. The additional standard of care imposed by Florida is not unlike a “rule of the road” about which the court in Babcock said:

“In such a ease, it is appropriate to look to the law of the place of the * * [injury] so as to give effect to that jurisdiction’s interest in regulating conduct within its borders, and it would be almost unthinkable to seek the applicable rule in the law of some other place.” 12 N.Y.2d at 483, 240 N.Y.S.2d at 750-751, 191 N.E.2d at 284.

The time of sale rule is applied grudgingly by the New York courts. See Schwartz v. Heyden Newport Chemical Corp., 12 N.Y.2d 212, 217-219, 237 N.Y.S.2d 714, 717-719, 188 N.E.2d 142 (dicta) (and dissenting opinion of Chief Judge Desmond, 12 N.Y.2d at 219, 237 N.Y.S.2d at 719, 188 N.E.2d at 145), modified, 12 N.Y.2d 1073, 239 N.Y.S.2d 896, 190 N.E.2d 253, cert. denied, 374 U.S. 808, 83 S.Ct. 1697, 10 L.Ed.2d 1032 (1963). An exception has recently been fashioned by the Court of Appeals. Flanagan v. Mount Eden General Hospital, 24 N.Y.2d 427, 301 N.Y.S.2d 23, 248 N.E.2d 871 (1969). In the light of their dissatisfaction with the time of sale rule, the New York courts would be likely to welcome an opportunity to avoid extending that rule, while at the same time taking proper account of Florida’s legitimate interests.

The cases cited by the majority to show that, when the New York courts apply a foreign statute of limitations, they also apply the pertinent foreign tolling provision are not relevant to the present problem. A tolling provision is closely akin to a statute of limitations— indeed an integral part of such a statute. The time an action accrues imports “notions of substantive law,” 1 Weinstein-Korn-Miller, New York Civil Practice § 203.01, at 2-39.2 (1969). See First Nat’l Bank v. Marcher, 179 Misc. 258, 38 N.Y.S.2d 774 (Sup.Ct.1942); Bicknell v. Central Hanover Bank & Trust Co., 169 Misc. 7, 6 N.Y.S.2d 704 (Sup.Ct.), aff’d 255 App.Div. 956, 8 N.Y.S.2d 668 (1st Dep’t 1938); Zuck v. Interstate Publishing Corp., 317 F.2d 727, 735 (2d Cir. 1963); Baron Tube Co. v. Transport Ins. Co., 365 F.2d 858, 860 (5th Cir. 1966).²

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