Vaughn v. J.C. Penney Co.

822 F.2d 605

• Court: Court of Appeals for the Sixth Circuit
• Decided: June 24, 1987
• Docket: No. 86-3544
• Status: Published

Opinions

CONTIE, Senior Circuit Judge.

Ray Vaughn appeals from the district court’s order dismissing his claims or granting summary judgment as to each defendant. The district court held that Vaughn’s wrongful death claims, brought on behalf of his wife and daughter pursuant to Ohio Rev.Code Ann. § 2125.01, were barred by the one-year statute of limitations applicable to wrongful death claims filed in Tennessee, Tenn.Code Ann. § 28-3-104. For the reasons which follow, we affirm the judgment of the district court.

I.

The complaints involved in this appeal arose out of the deaths of Edna Yvon Vaughn and Jackie Lee Vaughn on December 28, 1983. Ray Vaughn, on behalf of the estates of Edna, his wife, and Jackie, his daughter, filed several suits. The instant appeal stems from two separate lawsuits. One of the lawsuits was filed on December 20, 1985, in the United States District Court for the Southern District of Ohio against J.C. Penney Company, Inc. and Anderson County, Tennessee. The other lawsuit was filed on December 23, 1985, in the Common Pleas Court in Brown County, Ohio, against Pennzoil Company and Underwriters Laboratories, Inc. On January 21, 1986, defendants in the state action petitioned the court to have their case removed to federal court, and on March 7, 1986, the two cases were consolidated.¹

The complaints alleged that on December 28, 1983, Ray, Edna and Jackie Vaughn, residents and citizens of Ohio, were driving through Anderson County, Tennessee on Interstate 75 when a severe ice storm developed, forcing them to pull off the road and take shelter in their pick-up truck which had a camper top. To stay warm, a kerosene heater was used, and it is alleged that Edna and Jackie died as a result of inhaling noxious fumes emitted from the heater. The complaint asserted that the kerosene space heater was purchased from J.C. Penney Company in Ohio, and that J.C. Penney Company had failed to adequately warn of the dangers involved with such space heaters. Further, appellant alleged that Pennzoil Company had negligently sold defective kerosene which was unsafe either because of inadequate labeling or poor quality, and that Underwriters Laboratories was negligent in recommending an inadequate warning to be placed on the kerosene heaters. The kerosene was purported to have been purchased in Ohio. Finally, the complaint asserted that Anderson County was likewise responsible for the deaths of Edna and Jackie Vaughn because it was negligent in failing to clear the roadway, failing to warn the defendants of the closing of the roadway, and failing to render aid to the Vaughns. Anderson County’s conduct, of course, occurred in Tennessee.

Between January 31, 1986, and April 1, 1986, each defendant filed either a motion to dismiss or a motion for summary judgment, asserting as a common ground for dismissal that the wrongful death actions were barred by the applicable statute of limitations. Defendants asserted that the Ohio wrongful death statute upon which the complaints were based, Ohio Rev. Code Ann. § 2125.01, expressly adopts the statute of limitations of the state in which the action accrued. Defendants maintained that since the deaths occurred in Tennessee, the actions accrued in that state; and since Tennessee provides for a one-year statute of limitations for wrongful death actions and this claim was not filed within that time period, the claims were time-barred. The district court adopted defendants’ reasoning and held that appellant failed to state a claim upon which relief could be granted under Fed.R.Civ.P. 12(b)(6). Accordingly, the court granted defendants’ various motions for dismissal or summary judgment. This timely appeal followed.

II.

In diversity cases, federal courts must apply the law of the forum state, including the forum state’s conflict of law principles. Tele-Save Merchandising Co. v. Consumers Distributing Co., 814 F.2d 1120, 1122 (6th Cir.1987). In the absence of a controlling decision on the issue at hand, federal courts must attempt to predict how the state courts will act in the future, Filley v. Kickoff Publishing Co., 454 F.2d 1288, 1291 (6th Cir.1972), and4a district court’s interpretation of state law is given considerable weight by courts of appeals. Wright v. Holbrook, 794 F.2d 1152, 1155 (6th Cir.1986); Martin v. Joseph Harris Co., 767 F.2d 296, 299 (6th Cir.1985). We find that the district court’s interpretation of section 2125.01 is not only a permissible interpretation, but the correct one.

In Ohio, the right to bring an action for wrongful death is a statutorily-created right, not a common law right. Rubeck v. Huffman, 54 Ohio St.2d 20, 22, 374 N.E.2d 411 (1978) (per curiam); Taylor v. Black & Decker Mfg. Co., 21 Ohio App.3d 186, 188, 486 N.E.2d 1173 (1984). Section 2125.01 of the Ohio Revised Code, which is the present version of the statute creating this right, provides in pertinent part:

When the death of a person is caused by wrongful act, neglect, or default which would have entitled the party injured to maintain an action and recover damages if death had not ensued, the person who would have been liable if death had not ensued, or the administrator or executor of the estate of such person, as such administrator or executor, shall be liable to an action for damages, notwithstanding the death of the person injured and although the death was caused under circumstances which make it aggravated murder, murder, or manslaughter____

When death is caused by a wrongful act, neglect, or default in another state or foreign country, for which a right to maintain an action and recover damages is given by a statute of such other state or foreign country, such right of action may be enforced in this state. Every such action shall be commenced within the time prescribed for the commencement of such actions by the statute of such other state or foreign country____

(Emphasis added). The second paragraph of section 2125.01 contains a “borrowing” provision — or its own conflict of laws provision — directing Ohio’s courts to apply the statute of limitations of another state under certain circumstances. See Restatement (Second) of Conflict of Laws § 142(1) comment f (1971) (relating to borrowing statutes). Since the borrowing provision is only triggered by wrongful death actions which are brought pursuant to the second paragraph of section 2125.01, we must determine whether the right to file the instant wrongful death claim is created by the first or second paragraph of section 2125.01.

Appellant maintains that the borrowing provision is only triggered when the wrongful acts themselves as well as the death resulting therefrom occur outside the state of Ohio; he asserts that the provision is not triggered if the death occurred in a foreign state as a result of wrongful conduct which occurred in Ohio. Therefore, under his theory, his right to bring a wrongful death claim is created by the first paragraph of section 2125.01. In support of his contention, appellant argues that the first sentence of the second paragraph of section 2125.01 — “[w]hen death is caused by a wrongful act, neglect, or default in another state or foreign country” — clearly focuses on the place where the wrongful acts occurred, not the place where the death resulting from those acts occurred. He asserts that the acts of negligence in the instant case, in particular the sale and purchase of the kerosene heater and the kerosene, occurred within the state of Ohio. Accordingly, the statutory provision adopting the foreign state’s statute of limitations would not be triggered.² In the absence of a statutory mandate to apply another state’s statute of limitations, appellant asserts that the trial court should have applied Ohio’s statute of limitations because Ohio has a stronger interest in the litigation than does Tennessee. We reject this analysis.

Although Ohio courts have not directly addressed which statute of limitations applies when a death occurs in another state as a result of a negligent act precipitated in Ohio, we are not without guidance in determining under which paragraph of section 2125.01 such an action lies. Early cases analyzing the predecessor statutes to section 2125.01 establish that the statute as originally enacted did not provide a cause of action for wrongful acts which resulted in death outside the state of Ohio. See Baltimore & O.R.R. v. Chambers, 73 Ohio St. 16, 24-26, 76 N.E. 91 (1905), aff'd, 207 U.S. 142, 28 S.Ct. 34, 52 L.Ed. 143 (1907). The statute as originally enacted is presently codified as the first paragraph of section 2125.01. To provide for a right to pursue a wrongful death claim for injuries sustained in a foreign state, the Ohio legislature enacted a second statutory provision, which is presently codified as the second paragraph of section 2125.01. The Ohio Supreme Court has stated that without this subsequent enactment, a wrongful death action could not have been maintained in Ohio if the decedent, as a result of a wrongful act, sustained injuries in another state which resulted in death. See Baltimore & O.R.R., 73 Ohio St. at 26, 76 N.E. 91 (stating that without this statutory modification, “no action could be maintained in Ohio to recover damages for wrongful death occurring in another state”); Wabash R.R. v. Fox, 64 Ohio St. 133, 141, 59 N.E. 888 (1901) (the statute did not “extend to wrongful acts causing death outside of this state”). In fact, as a prerequisite to being able to maintain a cause of action in Ohio for a wrongful death occurring in a foreign state, this amendment to the wrongful death statute requires that the foreign state must permit wrongful death claims to be filed in its own courts. Baltimore & O.R.R., 73 Ohio St. at 26, 76 N.E. 91; Fox v. Morrison Motor Freight, Inc., 25 Ohio St.2d 193, 196, 267 N.E.2d 405; cert. denied, 403 U.S. 931, 91 S.Ct. 2254, 29 L.Ed.2d 710 (1971). The Ohio Supreme Court has accordingly observed that the Ohio statute provides for the enforcement, rather than the creation, of “a right to sue for an alleged wrongful death occurring in another state.” Morrison Motor Freight, 25 Ohio St.2d at 200, 267 N.E.2d 405 (emphasis added).

We believe that these cases establish that the focus of the wrongful death statutes was on the state in which the injuries were sustained or the death occurred, not the state in which the wrongful act occurred. In reaching this conclusion, we note that the first paragraph of section 2125.01 only refers to “death ... caused by wrongful act, neglect, or default” without referring to the place of the wrongful act or the place of the injury. We believe this is indicative of a legislative intent to create a wrongful death action for those actions which accrued in Ohio — i.e., for those actions where injuries resulting in death were sustained in Ohio as a result of a wrongful act — without regard to where that wrongful act occurred. This interpretation is consistent with the lex loci delicti concept, which was firmly entrenched in Ohio law at the time this statute was enacted and interpreted, and which focuses on the state in which the injury occurred. We believe it is clear that the Ohio statute as originally enacted would provide a wrongful death action for an Ohio citizen who was injured in Ohio even if the product was negligently manufactured in another state, just as he would have a common law tort action for his injuries in Ohio if death had not ensued. We conclude, therefore, that the right to bring a wrongful death action in Ohio courts for a death resulting from injuries sustained in a foreign state is derived from the second paragraph of section 2125.01 even if the wrongful acts allegedly occurred in Ohio.³

While we recognize that the cases interpreting the predecessor statutes, as well as the present statute, arguably refer to a “wrongful act” occurring outside the state,⁴ it must be kept in mind that “wrongful act” is often thought to be synomous to the term “injury.” It has been recognized in Ohio law, for instance, that a cause of action generally accrues when the wrongful act is committed. See O’Stricker v. Jim Walter Corp., 4 Ohio St.3d 84, 87, 447 N.E.2d 727 (1983) (“In general, a cause of action exists from the time the wrongful act was committed.”); Richard v. Staehle, 70 Ohio App.2d 93, 97, 434 N.E.2d 1379 (1980) (“A cause of action for negligence accrues when the negligent act is committed.”). However, when an injury does not result immediately, the cause of action does not accrue until actual injury or damage ensues. See O’Stricker, 4 Ohio St.3d at 87, 447 N.E.2d 727; Velotta v. Leo Petronzio Landscaping, Inc., 69 Ohio St.2d 376, 379, 433 N.E.2d 147 (1982). Therefore, in determining when an action accrues, the Ohio courts focus on when the wrongful act is committed, unless the wrongful act does not give rise to injury immediately. Likewise, in determining where a cause of action accrues, Ohio law focuses on the state in which the wrongful act occurs, unless the injury results in a different state. In other words, it is established that the proper focus is on the state in which the cause of action accrues, and a cause of action is generally thought to accrue when a wrongful act is committed. However, in a case such as the instant one where the wrongful act is not presently harmful, the cause of action did not accrue until injury was sustained; since injuries were sustained in Tennessee, the cause of action accrued in that state.⁵

To illustrate our point, we note that the Ohio Supreme Court in Fox v. Morrison Motor Freight refers to the doctrine of lex loci delicti as both “the law of the place of the wrong” and “the law of the place of the injury.” 25 Ohio St.2d at 196, 198, 199, 267 N.E.2d 405. In a strict sense, of course, lex loci delicti refers only to the place of the injury since that is where an action accrues. However, since a wrongful act is often thought to be the same as the injury, courts have occasionally used the terms interchangeably. Therefore, when analyzing such cases and their use of the term wrongful act, we are mindful of this phenomenon — the ease of equating injury with wrongful act — as well as the fact that the courts were not faced with the same fact pattern which confronts us today. The wrongful death cases involving death outside of Ohio all involved situations where the wrongful act and injury occurred at the same time. The references to wrongful acts occurring outside the state of Ohio, therefore, do not in any way foreclose us from reaching the interpretation of the statute that we reach here.

We conclude that appellant’s right to bring these wrongful death actions in Ohio stems from the second paragraph of section 2125.01 because the deaths occurred in a foreign state. Further, since the state of Tennessee provides a cause of action for wrongful death, see Tenn.Code Ann. §§ 20-5-106, -109, that right can be enforced in Ohio pursuant to this second paragraph.

Given that the injury occurred in Tennessee but the action was brought in the state of Ohio, the trial court must determine which state’s law to apply, including which statute of limitations controls. Under Ohio law, however, the trial court does not have to weigh the competing state interests or consider which conflict of law principles apply in determining which statute of limitations controls. Rather, we conclude that section 2125.01 adopts the statute of limitations of the state in which the wrongful death occurs.⁶ Since Tennessee provides for a one-year statute of limitations in wrongful death actions, see Collier v. Memphis Light, Gas & Water Div., 657 S.W.2d 771, 774 (Tenn.App.1983); Jones v. Black, 539 S.W.2d 123 (Tenn.1976); Tenn. Code Ann. § 28-3-104, and since this action was filed nearly two years after the deaths occurred, the district court appropriately concluded that the actions were time-barred.

Appellant’s reliance on Ohio cases which have rejected a strict adherence to the lex loci delicti principle is misplaced. See, e.g., Moats v. Metropolitan Bank, 40 Ohio St.2d 47, 319 N.E.2d 603 (1974); Schiltz v. Meyer, 29 Ohio St.2d 169, 280 N.E.2d 925 (1972); Morrison Motor Freight, 25 Ohio St.2d 193, 267 N.E.2d 405. Were there no statutory guidance for choosing which statute of limitations to apply, we agree that those cases should be considered. However, we are confronted with an express borrowing statute in which the state itself has established a choice of law rule that is binding on the courts. Accordingly, we are not free to adopt our own choice of law principle and reject the choice made by the Ohio legislature.

Inasmuch as the complaint on its face is barred by the applicable statute of limitations, we AFFIRM the judgment of the district court.

1 . A third case naming Matsushita Housing Products as the defendant was also at one time consolidated with these two cases, but that case is not before this court on appeal. Two other lawsuits relating to the same underlying facts were filed against a different defendant, AMCA International, on December 26 and 27, 1984, nearly one year before the instant lawsuits were filed. Those cases were eventually consolidated in federal court, were resolved before trial, and are also not before this court on appeal.

2 . We note that this analysis ignores the fact that Anderson County’s alleged misconduct occurred solely in the state of Tennessee and that appellant fails to put forth any argument that would render the Ohio statute of limitations applicable to Anderson County. Further, it assumes that all wrongful acts are associated with the sate of defective kerosene and heater, when in fact the claim may hinge on the refining of the kerosene or the testing of the kerosene heater. While we will assume for the sake of argument that all these acts occurred in Ohio, that is a disputed matter and we can certainly conceive of a multiparty situation where negligent acts were committed in many different states.

3 . We again note that a different reading of this statute could result in confusion, as the district court recognized. In a multi-party product liability case such as this, alleged wrongful acts could occur in many states — the state in which the product was tested, the state in which the product was manufactured, etc. Additionally, when there are allegedly more than one cause for an individual’s death — such as a defective product and another party’s failure to clear the roadways — two different statute of limitations would almost inevitably apply. Therefore, =>n evidentiary hearing would be necessary to determine which statute of limitations will apply in each case or as to each defendant; and, as the district court noted, this task alone could be difficult because it may not be readily apparent as to which law to apply in reaching the statute of limitations determination.

4 . See, e.g., Baltimore & O.R.R., 73 Ohio St. at 24, 76 N.E. 91 (the statute as originally enacted gave "no right of recovery in those cases where the wrongful act which caused the death, occurred outside of the state of Ohio”); Morrison Motor Freight, 25 Ohio St.2d at 196, 267 N.E.2d 405 (section 2125.01 "provides a right of action for death caused by a wrongful act in another state”).

5 . Appellant admitted as much before the district court, and wisely so. If appellant had argued that the wrongful death action had accrued at the time the allegedly wrongful acts were committed, this action would clearly have been barred even under Ohio law since the heater and kerosene were purchased before the Vaughns drove to Tennessee.

6 . This is supported by the dicta in one Ohio case, Morrison Motor Freight, 25 Ohio St.2d at 200, 267 N.E.2d 405, where the Ohio Supreme Court noted that the Ohio legislature "did, in effect, incorporate the statute of limitations of the situs state ...” when it enacted the second paragraph in section 2125.01.