Opinions of the United
2000 Decisions States Court of Appeals
for the Third Circuit
7-31-2000
Gould Elec Inc v. United States
Precedential or Non-Precedential:
Docket 99-1893
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Filed July 31, 2000
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 99-1893
GOULD ELECTRONICS INC.,
f/k/a GOULD INC.; AMERICAN
PREMIER UNDERWRITERS, INC.,
v.
UNITED STATES OF AMERICA
Gould Electronics Inc.
American Premier Underwriters, Inc.
Appellants
Appeal from the United States District Court
For the Eastern District of Pennsylvania
(D.C. Civil No. 99-cv-01130)
District Judge: Honorable Thomas N. O'Neill, Jr.
Argued: June 19, 2000
BEFORE: GREENBERG and WEIS, Circuit Judges,
and SCHWARTZ, District Judge*
(Filed July 31, 2000)
_________________________________________________________________
* Hon. Morton I. Greenberg, Circuit Judge, assumed senior status on
6/30/00. Hon. Murray M. Schwartz, Senior United States District Judge
for the District of Delaware, sitting by designation.
Joel D. Gusky (Argued)
Harvey, Pennington, Cabot, Griffith
& Renneisen, Ltd.
11 Penn Center, 29th Floor
1835 Market Street
Philadelphia, PA 19106
Attorney for Appellant
Gould Electronics Inc.
Richard L. Kremnick (Argued)
Blank Rome Comisky & McCauley
LLP
One Logan Square
Philadelphia, PA 19103
Attorney for Appellant
American Premier Underwriters,
Inc.
Steven M. Talson (Argued)
Senior Trial Counsel
Torts Branch, Civil Division
United States Department of Justice
P.O. Box 340, Ben Franklin Station
Washington, DC 20044
Attorney for Appellee
OPINION OF THE COURT
SCHWARTZ, Senior District Judge
I. INTRODUCTION
Plaintiffs/appellants Gould Electronics, Inc. ("Gould") and
American Premier Underwriters, Inc. ("APU") were co-
defendants in a toxic tort case captioned Cheryl Allen, et al.
v. Marathon Battery Co., et al., No. 1074/90 (N.Y. Sup. Ct.)
(the "Allen case"). The Allen case arose out of personal
injuries and property damage allegedly caused by air and
water pollution from a battery manufacturing plant in Cold
Spring, New York. The plant was designed, constructed,
owned, and operated by the United States Army, via its
office in Philadelphia, Pennsylvania, and owned and
2
operated by Gould and APU, and their predecessors, at
various times. The Army was not a party to the Allen
litigation. Gould and APU settled the Allen case for $4.5
million.
Gould and APU filed a Complaint against
defendant/appellee United States of America ("United
States"), in the Eastern District of Pennsylvania, seeking
contribution and indemnity because of their entry into the
Allen case settlement, pursuant to the Federal Tort Claims
Act ("FTCA"), 28 U.S.C. SS 1346(b), 2671 et seq. The District
Court granted the United States' Motion to Dismiss for lack
of subject matter jurisdiction, pursuant to Fed. R. Civ. P.
12(b)(1) ("Rule 12(b)(1)"), holding: (1) under Pennsylvania
choice of law rules, New York contribution and indemnity
law governs the FTCA jurisdictional inquiry; (2) the court
lacks jurisdiction over the contribution claim because the
United States would not be liable for contribution under
N.Y. Gen. Oblig. Law S 15-108(c), which bars settling
parties from bringing contribution claims against non-
settling parties (hereinafter "S 15-108(c)"); and (3) the court
lacks jurisdiction over the indemnification claim because
the United States would not be liable for indemnification
under New York law, which bars indemnification when the
plaintiff is at least partially at fault.
Gould and APU contend the District Court erred by: (1)
misapplying the standards governing a motion to dismiss
under Rule 12(b)(1); (2) holding New York, rather than
Pennsylvania, contribution and indemnity law governs the
jurisdictional inquiry, under Pennsylvania choice of law
rules; (3) holding the United States would not be liable for
contribution under S 15-108(c) because the United States
waived the protection of S 15-108(c); and (4) holding the
United States would not be liable for indemnity under New
York law.
We find the District Court properly applied the standards
used for analyzing a Rule 12(b)(1) motion to dismiss, but
erred in determining New York contribution and indemnity
law controls the outcome. Rather we hold that Ohio law
governs the jurisdictional inquiry and, under Ohio law, the
United States would be liable for contribution, but not
3
indemnity.1 As such, the District Court has subject matter
jurisdiction over Gould/APU's FTCA claim for contribution,
but not for indemnity. The District Court's ruling is
AFFIRMED IN PART and REVERSED IN PART and the case
is REMANDED for proceedings consistent with this opinion.2
II. FACTS
The plaintiffs/appellants are Gould, an Ohio corporation
with its principal place of business in Ohio, and APU, a
Pennsylvania corporation with its principal place of
business in Ohio (hereinafter "Gould/APU").
Defendant/appellee is the United States.
In 1951, the Signal Corps of the United States Army
("Army"), through its office in Philadelphia, Pennsylvania,
entered into a Letter Contract and Facilities Contract with
Sonotone Corp. ("Sonotone"), a predecessor corporation to
Gould. Pursuant to these contracts, the United States
agreed to design and construct a battery manufacturing
plant to be located on government property in Cold Spring,
New York. Sonotone was to assist in the design of the plant
and then operate the plant on a contract basis to produce
batteries for the government. However, the United States
retained ultimate supervision and control over the day-to-
day operations of the plant.
Between 1951 and 1952, the Army designed the plant,
including its industrial waste water disposal and air
emissions systems. For waste water disposal, Sonotone
recommended a closed system to allow removal of
hazardous material before releasing waste water from the
_________________________________________________________________
1. Because of our disposition it is unnecessary to reach the third and
fourth points of error raised by Gould/APU.
2. Gould/APU asserted jurisdiction of the District Court pursuant to 28
U.S.C. S 1346(b). This Court has jurisdiction over an appeal from a
dismissal for lack of jurisdiction pursuant to 28 U.S.C. S 1291. In this
case, we use the word "jurisdiction" not in the usual subject matter
context, but rather to refer to the extent of the sovereign immunity
waiver in the Federal Tort Claims Act. As the Supreme Court explained
in Smith v. United States, 507 U.S. 197, 201 (1993), "by its terms [28
U.S.C. S 1346(b)] is more than a choice-of-law provision: It delineates
the
scope of the United States' waiver of sovereign immunity."
4
plant. The Army rejected the closed design, opting for an
open system which did not remove hazardous material from
the waste water. By January, 1953, the Army had caused
the construction of the plant, including the waste water
and air emission systems.
From 1953 to 1962, Sonotone acted as contractor-
operator of the plant, which produced nickel-cadmium
batteries. During this time period, according to the
Complaint, the Army owned and retained ultimate
supervision and control over the plant, including:
(a) Title to all real and personal property remained
with the government;
(b) All equipment was to be installed by the
government;
(c) Title to all materials, supplies, work-in-process and
other property vested with the government;
(d) The Plant was to be used solely to fulfill
government contracts for an initial five year period;
(e) The government was to reimburse Sonotone for all
repairs, replacements and restorations "in excess
of normal requirements for maintenance and in
excess of fair wear and tear." Such reimbursed
expenditures were required to be pre-approved by
the government;
(f) The government was provided with access to the
Plant at all times;
(g) The Plant and facilities were to be erected, made
available, delivered and installed by the
government;
(h) The government reserved to itself the right to
dismantle, remove and ship the Plant and facilities
when deemed in the best interest of the
government to do so; and
(i) The government reserved to itself the right to
terminate use of the facility when the government
determined it was in its best interests to do so.
5
Complaint P 19. During this time, the plant discharged
industrial waste water into Foundry Cove and the Hudson
River and discharged contaminated dust and vapors into
the air surrounding the plant.
In 1962, the Army sold the plant to Sonotone. From 1962
to 1969, Sonotone continued to operate the plant as a
battery manufacturing plant and continued to discharge
industrial waste water into Foundry Cove.3 In 1969,
Sonotone sold the plant to Business Funds, Inc., which
through a series of corporate mergers over the next several
years, became Marathon Battery Co. and then plaintiff
APU. From 1969 to 1979, APU owned and operated the
plant, continued to produce batteries, and continued to
discharge industrial waste water into Foundry Cove. 4 In
1979, APU sold the plant to Merchandise Dynamics, Inc.,
which ceased manufacturing batteries at the plant.
In 1990, residents of Cold Spring, New York filed the
Allen lawsuit against, inter alia, Gould/APU in the Supreme
Court of New York. The Allen plaintiffs alleged negligence
and strict liability claims arising out of injuries caused by
air and water pollution released from the plant. The United
States was not named as a defendant and could not be
joined as a co-defendant because of its sovereign immunity
in state court. Gould/APU attempted to remove the case to
the United States District Court for the Southern District of
New York in order to join the United States as a defendant,
but the request was denied.
In 1991, the United States Environmental Protection
Agency ("EPA") listed the plant and surrounding area (the
"Site") on the National Priorities List for the Federal
Superfund Program under the Comprehensive
Environmental Response, Compensation, and Liability Act
_________________________________________________________________
3. In 1967, Sonotone became a wholly owned subsidiary of Clevite
Corporation and in 1969, Clevite merged with Gould. For simplicity, we
use the name Sonotone to refer to the owner-operator of the plant from
1962 to 1969.
4. Between 1969 and 1979, Business Funds, Inc. became Marathon
Battery Co. which eventually became APU. For simplicity, the name APU
is used to refer to the relevant owner/operator of the plant from 1969 to
1979.
6
("CERCLA"), 42 U.S.C. S 9601 et seq . In 1991, the EPA
entered into a first consent decree ("First CERCLA Consent
Decree") with Gould/APU and the Army providing for clean
up of the Site. The First CERCLA Consent Decree contained
a provision providing:
N. All Parties reserve all rights and legal obligations
with respect to any toxic tort claims including, but not
limited to, all claims asserted in Cheryl Allen, et al. v.
Marathon Battery Co., et al., Index No., 1074/90 (N.Y.
Sup. Ct.).
Joint Appendix ("App.") 648a.
In 1993, the EPA entered into a second consent decree
("Second CERCLA Consent Decree") with Gould/APU and
the Army covering the Site. The Second CERCLA Consent
Decree contained, inter alia, two provisions providing:
5. Settling Parties specifically reserve and do not
hereby waive any defenses which they may have with
respect to any asserted liability related to the Site.
Settling Parties reserve all rights, defenses, and legal
contentions with respect to any third party claims,
including, but not limited to, all claims asserted in
Cheryl Allen et al. v. Marathon Battery Co., et al. . . . .
. . . .
108. Settling Parties reserve, and this Consent Decree
is without prejudice to, (i) claims in the nature of
contribution among Settling Parties which may arise
from toxic tort claims, including those related to the
pending action in Cheryl Allen et al. v. Marathon
Battery Co., et al. . . . (iv) actions against the United
States based on negligent actions taken directly by the
United States . . . that are brought pursuant to any
statute other than CERCLA and for which the waiver of
sovereign immunity is found in a statute other than
CERCLA.
App. 549a-550a, 628a-629a.
In 1997, Gould/APU settled the Allen litigation for $4.5
million. In 1998, Gould/APU filed administrative claims
with the Army seeking contribution and indemnity for the
7
$4.5 million settlement. After these claims werefinally
denied, Gould/APU filed this lawsuit against the United
States.
III. STANDARD OF REVIEW
The standard of review is plenary where the District
Court dismisses for lack of subject matter jurisdiction. See
Dresser Industries, Inc. v. Underwriters at Lloyds of London,
106 F.3d 494, 496 (3d Cir. 1997).
IV. DISCUSSION
A. Standards for a Rule 12(b)(1) Motion
Gould/APU contend the District Court erred in applying
the standards for evaluating a Rule 12(b)(1) motion by: (1)
considering evidence outside of the pleadings; (2)
dismissing the case on an inadequate factual record; and
(3) improperly treating the Rule 12(b)(1) motion as a Fed. R.
Civ. P. 12(b)(6) ("Rule 12(b)(6)") motion, for failure to state
a claim, and ruling on the merits of the case.5 We find the
District Court did not err in any of these three respects.
1. Considering Evidence Outside of the Pleadings
Gould/APU argue "[b]ecause there were no affidavits,
depositions, or testimony from which the district court
could adduce facts outside of the Complaint, it should have
accepted as true the facts set forth in the Complaint and
not looked beyond them." Brief of Appellants at 7. A Rule
12(b)(1) motion may be treated as either a facial or factual
challenge to the court's subject matter jurisdiction. See
Mortensen v. First Fed. Sav. and Loan Ass'n, 549 F.2d 884,
891 (3d Cir. 1977). In reviewing a facial attack, the court
must only consider the allegations of the complaint and
documents referenced therein and attached thereto, in the
light most favorable to the plaintiff. See id. ; PBGC v. White,
_________________________________________________________________
5. Gould/APU also challenge the application of standards on a Rule
12(b)(1) motion by arguing the Complaint alleges a claim for contribution
and indemnity under the law of both New York and Pennsylvania. This
argument relates to the substance of the District Court's conflict of laws
analysis and is addressed in Section IV.B, infra.
8
998 F.2d 1192, 1196 (3d Cir. 1993).6 In reviewing a factual
attack, the court may consider evidence outside the
pleadings. See Gotha v. United States, 115 F.3d 176, 178-
79 (3d Cir. 1997) (citing Mortensen, 549 F.2d at 891).
Although not explicitly stated in its opinion, the District
Court treated the United States' motion as a factual attack.
In addition to the allegations in the Complaint and the
documents referenced in the Complaint and attached
thereto, the District Court considered the CERCLA Consent
Decrees, which were not referenced in or attached to the
Complaint. By treating the motion as a factual attack, the
District Court properly considered evidence beyond the
pleadings.
2. Adequacy of Factual Record
In a closely related argument Gould/APU contend the
District Court erred by ruling on an inadequate factual
record instead of allowing Gould/APU "to develop the
record and introduce additional relevant facts supporting
jurisdiction." Brief of Appellants at 8. In International Ass'n
of Machinists & Aerospace Workers v. Northwest Airlines,
Inc., this Court outlined procedures for ensuring that a
ruling on a Rule 12(b)(1) factual attack be based on an
adequate factual record. See 673 F.2d 700, 711-12 (3d Cir.
1982). If the defendant raises no challenge to the facts
alleged in the pleadings, the court may rule on the motion
by accepting the allegations as true. See id. at 711. If the
defendant contests any allegations in the pleadings, by
presenting evidence, the court must permit the plaintiff to
respond with evidence supporting jurisdiction. See id. at
711-12. The court may then determine jurisdiction by
weighing the evidence presented by the parties. See id.
However, if there is a dispute of a material fact, the court
must conduct a plenary trial on the contested facts prior to
making a jurisdictional determination. See id. at 712.
_________________________________________________________________
6. PBGC held, in evaluating a Rule 12(b)(6) motion, the court may
consider documents attached to the complaint. See PBGC, 115 F.3d at
178-79. We can think of no principled reason why a court, in resolving
a Rule 12(b)(6) facial attack should not also consider documents
attached to the complaint.
9
As to all issues, except for waiver of S 15-108(c), the
United States did not challenge the truthfulness of any of
the allegations in the Complaint or the attached
documents. See App. 436a ("it appears that, based on
Gould/APU's own allegations, their case is not within this
Court's jurisdiction"); id. at n.1 ("This statement of facts . . .
is taken entirely from the Gould/APU Complaint"). As to all
issues, except for waiver of S 15-108(c), the District Court
based its decision on accepting as true the allegations in
the Complaint and the documents attached thereto. Since
no facts were disputed, except waiver of S 15-108(c), the
Court properly accepted as true all allegations of the
Complaint and documents attached thereto and ruled on
an adequate factual record.
As to the waiver issue, Gould/APU asserted the Second
CERCLA Consent Decree operated as a waiver, by the
United States, of the bar against contribution claims under
N.Y. Gen. Oblig. Law S 15-108(c).7 Gould/APU attached to
its answering brief filed in the District Court a copy of a
portion of the Second CERCLA Consent Decree. In its reply
brief, the United States attached a copy of both CERCLA
Consent Decrees in their entirety. The District Court
considered the CERCLA Consent Decrees in evaluating
whether it had jurisdiction.
The District Court properly considered the CERCLA
Consent Decrees and did not need to take any additional
evidence on the waiver issue. The allegations in the
Complaint and attached documents did not relate to this
issue. The CERCLA Consent Decree did not put into issue
any of the allegations of the Complaint, but merely
supplemented them. In addition, there was no dispute of
any material fact in the CERCLA Consent Decrees. Rather,
both parties agreed on the content of the CERCLA Consent
Decrees, leaving the District Court to merely interpret the
meaning of the relevant provisions. Finally, Gould/APU did
not proffer any additional evidence relevant to this issue in
the District Court. Accordingly, the Court evaluated the
_________________________________________________________________
7. Section 15-108(c) provides: "A tortfeasor who has obtained his own
release from liability shall not be entitled to contribution from any
other
person." Id.
10
waiver issue based on an adequate factual record,
consisting of the allegations in the Complaint, the
documents attached thereto, and the CERCLA Consent
Decrees.
Finally, Gould/APU's request for additional discovery was
properly denied as unnecessary and unwarranted because
the United States did not contest the allegations in the
Complaint. Moreover, while Gould/APU have argued to this
Court that they be allowed to supplement the factual
record, they failed to do so before the District Court,
thereby waving the issue at the appellate level.
3. Treating a Rule 12(b)(1) Motion as a Rule 12(b)(6)
Motion
Gould/APU contend the District Court improperly treated
the Rule 12(b)(1) motion to dismiss for lack of subject
matter jurisdiction as a Rule 12(b)(6) motion to dismiss for
failure to state a claim by improperly considering the merits
of the case instead of assessing the court's jurisdiction.
This Court has previously cautioned against treating a Rule
12(b)(1) motion as a Rule 12(b)(6) motion and reaching the
merits of the claims. See Kehr Packages, Inc. v. Fidelcor,
Inc., 926 F.2d 1406, 1409 (3d Cir. 1991). This concern
arises because the standard for surviving a Rule 12(b)(1)
motion is lower than that for a Rule 12(b)(6) motion. See id.
In a Rule 12(b)(6) motion, the court evaluates the merits
of the claims by accepting all allegations in the complaint
as true, viewing them in the light most favorable to the
plaintiffs, and determining whether they state a claim as a
matter of law. See In re Burlington Coat Factory Securities
Litigation, 114 F.3d 1410, 1420 (3d Cir. 1996). The
defendant bears the burden of showing no claim has been
stated. See Kehr Packages, 926 F.2d at 1409. In contrast,
in a factual attack under Rule 12(b)(1), the court may
consider and weigh evidence outside the pleadings to
determine if it has jurisdiction. See Mortensen , 549 F.2d at
891. The plaintiff has the burden of persuasion to convince
the court it has jurisdiction. See Kehr Packages , 926 F.2d
at 1409. A claim may be dismissed under Rule 12(b)(1) only
if it "clearly appears to be immaterial and made solely for
the purpose of obtaining jurisdiction" or is"wholly
11
insubstantial and frivolous." Id. (internal quotations
omitted).
This claim under the FTCA is somewhat unique because
the merits of the case are closely intertwined with the
jurisdictional proof -- both are determined by evaluating
whether the United States would be liable "in accordance
with the law of the place where the act or omission
occurred." 28 U.S.C. S 1346(b)(1). However, when the merits
and jurisdiction are closely related, a court may determine
subject matter jurisdiction without reaching the merits, so
long as the court "demand[s] less in the way of
jurisdictional proof than would be appropriate at a trial
stage." Mortensen, 549 F.2d at 891 (permitting evaluation of
jurisdiction for claim under Sherman Act where merits and
jurisdiction closely intertwined); see also Gotha, 115 F.3d at
178-79.
In Gotha, the defendant asserted the court lacked
jurisdiction under the FTCA because the claim fell under
the discretionary function exception to the FTCA. See
Gotha, 115 F.3d at 178-79. This case involves a
determination of jurisdiction under the FTCA based on
whether the United States would be liable "in accordance
with the law of the place where the act or omission
occurred." 28 U.S.C. S 1346(b)(1). Although a different
provision of the FTCA is implicated, we see no principled
reason to distinguish between a jurisdictional
determination based on the discretionary function
exception and one based on a conflict of law analysis.
Indeed, the Second Circuit Court of Appeals has allowed
jurisdictional determinations, apart from merits
consideration, based upon S 1346(b)(1). See Marakova v.
United States, 201 F.3d 110, 113 (2d Cir. 2000). Adhering
to our precedent, a court may determine subject matter
jurisdiction over an FTCA claim, involving a conflict of laws
analysis, so long as it demands less in the way of
jurisdictional proof than it would for a ruling on the merits.
The District Court did just that. First, it rehearsed the
standards for a Rule 12(b)(1) motion and performed its
analysis under these standards.8 Next, the District Court
_________________________________________________________________
8. In contrast, in Growth Horizons, Inc. v. Delaware County, Pa., this
Court reversed the District Court's purported dismissal under Rule
12
performed a conflict of laws analysis under the FTCA by
weighing the evidence before it, accepting as true all
allegations in the Complaint, the documentary evidence
attached thereto, and the CERCLA Consent Decrees.
Finally, the District Court did not demand an inordinate
amount of jurisdictional proof. Having done precisely what
is required, the District Court did not err by implicitly
treating the Rule 12(b)(1) motion as a Rule 12(b)(6) motion.
B. Conflict of Laws
The FTCA waives sovereign immunity and grants district
courts jurisdiction over tort claims against the United
States "under circumstances where the United States, if a
private person, would be liable to the claimant in
accordance with the law of the place where the act or
omission occurred." 28 U.S.C. S 1346(b)(1) (emphasis
added). In order to determine whether it has jurisdiction,
the court must evaluate whether the United States would
be liable under the "whole law" of the state in which the act
or omission occurred. See Richards v. United States, 369
U.S. 1, 11 (1962); Small v. United States, 333 F.2d 702, 704
(3d Cir. 1964). When a case involves multiple alleged acts
or omissions occurring in more than one state, the FTCA,
as construed by Richards, requires the District Court to
engage in a complex conflict of laws analysis to determine
which state law governs the jurisdictional inquiry. The
Complaint alleges acts or omissions occurring in New York
and Pennsylvania.9
_________________________________________________________________
12(b)(1) as being, in essence, a 12(b)(6) dismissal, in part, because the
District Court failed to mention or apply the standards for a Rule
12(b)(1)
motion. See 983 F.2d 1277, 1281 (3d Cir. 1993).
9. The Complaint alleges the United States committed the following acts
or omissions in New York: ownership of the property where the plant was
located; construction of the plant; ownership of the plant; and
installation of equipment in the plant. In addition, whether or not
performed by the United States, the following acts or omissions allegedly
occurred in New York: operation of the plant; discharge of hazardous
waste into the water and air; and personal injuries and property damage
to the Allen plaintiffs. Finally, the underlying Allen case was filed in
New
York and settled in New York.
The Complaint alleges the United States committed the following acts
or omissions in Pennsylvania: entering into Letter Contract and Facilities
Contract with Sonotone to allow Sonotone to operate the plant; entering
into lease agreements with Sonotone; and selling the plant to Sonotone.
13
The District Court determined that most of the acts or
omissions occurred in New York, but it noted that even if
some occurred in Pennsylvania, its choice of law rules
would indicate that New York had the more significant
interest in the outcome of the litigation and, therefore, New
York contribution and indemnity law should govern the
jurisdictional inquiry. See id. at 4-5. Gould/APU contend
the District Court erred in determining New York, and not
Pennsylvania, contribution and indemnification law governs
the jurisdictional inquiry, under Pennsylvania choice of law.10
Thus, in the District Court and as originally briefed before
this Court, the litigants differed over application of
Pennsylvania choice of law rules, rather than addressing
which state's choice of law governs.11
Because Richards interpreted the "law of the place where
the act or omission occurred" to mean the "whole law" of
the state where the act or omission occurred, including that
state's choice of law rules, a two step choice of law analysis
is required when multiple acts or omissions have occurred
in more than one state. First, the court must select between
the states' respective choice of law rules. See Richards, 369
U.S. at 11; Ducey v. United States, 713 F.2d 504, 509 n.2
(9th Cir. 1983); Bowen v. United States, 570 F.2d 1311,
1318 (7th Cir. 1978); James A. Shapiro, Choice of Law
Under the Federal Tort Claims Act: Richards and Renvoi
_________________________________________________________________
10. Gould/APU also argue the District Court erred in conducting any
choice of law analysis. Gould/APU contend, because contribution and
indemnification law is procedural, not substantive, the District Court
was bound to choose the contribution and indemnification law for the
state in which it sits, Pennsylvania. We disagree. While there is a
procedure/substance distinction for a conflict of laws analysis when, as
here, the District Court determines jurisdiction pursuant to the FTCA.
The FTCA requires application of the relevant state's "whole law,"
without making a distinction between procedure and substance. See 28
U.S.C. S 1346(b)(1); Richards, 369 U.S. at 11.
11. Prior to oral argument, the litigants were requested to file
supplemental briefs addressing, inter alia, the following question:
Under the Federal Tort Claims Act, how should a court choose
between conflicting choice of law provisions when the acts or
omissions occurred in more than one state? See Richards v. United
States, 369 U.S. 1, 11 (1962).
14
Revisited, 70 N.C.L.Rev. 641, 669-75 (1992). Second, the
court must apply that state's choice of law rules to
determine which state's substantive tort law applies. See
Richards, 369 U.S. at 11; Tyminski v. United States, 481
F.2d 257, 265 (3d Cir. 1973). Because of this bifurcated
analysis, the state whose choice of law rules are selected in
the first step may or may not be the same state whose
substantive law is chosen in the second step.
Before proceeding to the conflict of laws analysis, it is
prudent to ensure that there is not a "false conflict" in the
underlying choice of law rules or the underlying
contribution and indemnity law making it unnecessary to
engage in this complex bifurcated analysis. See Williams v.
Stone, 109 F.3d 890, 893 (3rd Cir. 1997). In thefirst step,
Pennsylvania and New York, the two possible jurisdictions
where acts or omissions occurred, differ in their choice of
law rules. Pennsylvania employs an interest analysis,12
while New York uses so-called Neumeier rules which focus
on the parties' domiciles.13 In the second step, four possible
jurisdictions' substantive law may apply: New York (where
acts or omissions occurred), Pennsylvania (where acts or
omissions occurred), Ohio (domicile of Gould and APU), and
the District of Columbia (possible domicile of the United
States). As to the contribution claim, there is a conflict
between New York law on one hand and Pennsylvania,
Ohio, and District of Columbia law on the other hand,
_________________________________________________________________
12. See Laconis v. Burlington County Bridge Comm'n, 583 A.2d 1218,
1222 (Pa. Super. Ct. 1990). In an interest analysis, the court determines
which jurisdiction is most intimately concerned with the outcome of the
action, considering four factors:
(1) the place where the injury occurred; (2) the place where the
conduct causing the injury occurred; (3) the domicile, residence,
nationality, place of incorporation, and place of business of the
parties; and (4) the place where the relationship between the
parties
is centered.
Id. at 1222-23.
13. See Padula v. Lilarn Properties, Corp. , 84 N.Y.2d 519, 521-22 (N.Y.
1994); Cooney v. Osgood Mach., 612 N.E.2d 277, 280 (N.Y. 1993);
Neumeier v. Kuehner, 286 N.E.2d 454, 457-58 (N.Y. 1972); see also,
infra, Section IV.B.2.
15
which necessitates a conflict of laws analysis. Compare N.Y.
Gen. Oblig. Law S 15-108(c)14 (barring contribution claims
by settling tortfeasors against non-settling joint tortfeasors)
with 42 Pa. Cons. Stat. Ann. S 8324; 15 Swartz v.
Sunderland, 169 A.2d 289, 291 (Pa. 1961) (allowing
contribution claims by settling tortfeasors against non-
settling tortfeasors); Ohio Stat. S 2307.31; 16 Metrohealth
Medical Center v. Hoffmann-LaRoche, Inc., 685 N.E.2d 529,
532 (Ohio 1997) (same); District of Columbia v. Washington
_________________________________________________________________
14. See, supra, note 7.
15. 42 Pa. Cons. Stat. Ann. S 8324 provides:
(a) General rule.--The right of contribution exists among joint
tort-
feasors.
(b) Payment required.--A joint tort-feasor is not entitled to a
money
judgment for contribution until he has by payment discharged the
common liability or has paid more than his pro rata share thereof.
(c) Effect of settlement.--A joint tort-feasor who enters into a
settlement with the injured person is not entitled to recover
contribution from another joint tort-feasor whose liability to the
injured person is not extinguished by the settlement.
16. Ohio Stat. S 2307.31 provides, in pertinent part:
(A) Except as otherwise provided in this section or section 2307.32
of the Revised Code, if two or more persons are jointly and
severally
liable in tort for the same injury or loss to person or property or
for
the same wrongful death, there is a right of contribution among
them even though judgment has not been recovered against all or
any of them. The right of contribution exists only in favor of a
tortfeasor who has paid more than his proportionate share of the
common liability, and his total recovery is limited to the amount
paid by him in excess of his proportionate share. No tortfeasor is
compelled to make contribution beyond that tortfeasor's own
proportionate share of the common liability. There is no right of
contribution in favor of any tortfeasor who intentionally has
caused
or intentionally has contributed to the injury or loss to person or
property or the wrongful death.
(B) A tortfeasor who enters into a settlement with a claimant is
not
entitled [sic] recover contribution from another tortfeasor whose
liability for the injury or loss to person or property or the
wrongful
death is not extinguished by the settlement, or in respect to any
amount paid in a settlement which is in excess of what is
reasonable.
16
Hosp. Ctr., 722 A.2d 332, 342 & n. 12-14 (D.C. 1998) (and
cases cited therein) (although leaving question unresolved,
would likely allow contribution claims by settling
tortfeasors against non-settling tortfeasors). However, there
is no conflict between the indemnification law of New York,
Pennsylvania, Ohio, and the District of Columbia. Each
bars indemnification where the party seeking
indemnification is partially at fault. See Rosado v. Proctor &
Schwartz, Inc., 484 N.E.2d 1354, 1356-57 (N.Y. 1985);
Builders Supply Co. v. McCabe, 77 A.2d 368, 371 (Pa.
1951); Motorists Mut. Ins. Co. v. Huron Road Hospital, 653
N.E.2d 235, 238 (Ohio 1995); Quadrangle Development
Corp. v. Otis Elevator Co., 748 A.2d 432, 435 (D.C. 2000).
Accordingly, we conduct the conflict of laws analysis to
determine only which state's contribution law governs.
1. Step 1: Selection of Choice of Law Under FTCA
Where Acts or Omissions Occurred in More Than
One State
Because multiple acts or omissions are alleged to have
occurred in New York and Pennsylvania, the Court must
elect between Pennsylvania and New York choice of law
rules. The FTCA, as interpreted by Richards, requires the
Court to select the choice of law rules of the state where the
"acts or omissions" occurred, not where the injury
occurred. See 28 U.S.C. S 1346(b)(1) (United States liable
for "injury or loss of property . . . in accordance with the
law of the place where the act or omission occurred")
(emphasis added); Richards, 369 U.S. at 11-13. Neither the
text of the FTCA nor Richards provides any guidance on
how to choose between conflicting choice of law rules when
the alleged acts or omissions occur in more than one state.
Moreover, the legislative history of the FTCA sheds no light
on this problem. The selection of what choice of law rules
to apply at the first step of the analysis has been largely
undeveloped. However, where courts have spoken, they
have adopted five approaches.
In the first approach, when the injury can be parsed by
the acts or omissions in the different states, one court
applied the choice of law rules on an act-by-act basis,
applying the relevant state's choice of law rules for each act
or omission. See United States v. Kohn, 591 F.Supp. 568,
17
572 (E.D.N.Y. 1984). In Kohn, the plaintiffs sued the United
States Army for emotional distress caused by acts or
omissions occurring in Kentucky and New York, relating to
the treatment of a family member's corpse. See id. at 571.
In Kentucky, plaintiffs alleged the Army performed an
unauthorized autopsy, failed to return organs to the body
for burial, embalmed the body, and cremated missing
organs. See id. In New York, plaintiffs alleged the Army
communicated inaccurate and misleading information
about the circumstances of the death, and failed to provide
an honor guard at the burial. See id. Because each act by
the Army was a distinct tort that, absent the others, could
have caused an emotional distress injury, the Court applied
Kentucky choice of law to the acts in Kentucky and New
York choice of law to the acts in New York. See id. at 572.
The Kohn approach is unworkable in this case because the
Allen plaintiffs' injuries are indivisible and cannot be parsed
based on the alleged acts by the United States.
A second and a third approach were outlined in Bowen,
supra, which held the court should elect the choice of law
rules of "the place of the last act or omission having a
causal effect" or "the place of the act or omission having the
most significant causal effect." Bowen, 570 F.2d at 1318.17
In Bowen, an airplane en route from Arkansas to Indiana
crashed in Indiana because of ice on its wings. See id. at
1314. The plaintiff sued the Federal Aviation Administration
for failure to advise the pilot of icy conditions at various
points along the route in Arkansas, Illinois, and Indiana.
See id. While expressing a preference for the latter "most
significant causal effect approach," the court declined to
decide which approach to take because both the last act
having causal effect and the act with the most significant
causal effect occurred in Indiana, where the plane crashed.
See id. at 1318 & n.14. Accordingly, the court applied
Indiana choice of law rules. See id. at 1318.
In this case, either of the two Bowen criteria result in the
selection of New York choice of law rules. Under thefirst
_________________________________________________________________
17. In Andrulonis v. United States, the Court utilized that latter Bowen
approach. See 724 F.Supp. 1421, 1471 (N.D.N.Y. 1989) (citing Bowen,
570 F.2d at 1318).
18
Bowen approach, the last act or omission which caused the
Allen plaintiffs' injuries was the operation of the plant
resulting in discharge of hazardous waste into the water
and air. It is undisputed that the operation and discharge
occurred in New York.18 It follows, under the first Bowen
approach, the Court should apply New York choice of law
rules.
Under the second Bowen approach, the acts or omissions
having the most significant causal effect on the Allen
plaintiffs' injuries were either constructing the plant or
operating the plant to discharge hazardous waste into the
water and air. According to the undisputed allegations in
the Complaint, the United States constructed the plant in
New York. Also, the United States operated the plant
causing the discharge of hazardous waste, in New York.
See, supra, note 18 and accompanying text. Since both of
_________________________________________________________________
18. Although the United States contracted with Sonotone for operation of
the plant, it is still deemed to have been operating the plant by virtue
of
the control it retained over the operations. Cf. FMC Corp. v. United
States
Dep't of Commerce, 29 F.3d 833, 843 (3d Cir. 1994) (en banc). In FMC,
a CERCLA case, this Court determined the United States was an
operator of a plant even if it contracted out the operation, so long as it
retained substantial control over the facility and has active involvement
in the activities there. See id. In FMC , the United States was held to be
an operator of a plant because it:
determined what product the facility would manufacture, controlled
the supply and price of the facility's raw materials, in part by
building or causing plants to be built near the facility for their
production, supplied equipment for use in the manufacturing
process, acted to ensure that the facility retained an adequate
labor
force, participated in the management and supervision of the labor
force, had the authority to remove workers who were incompetent or
guilty of misconduct, controlled the price of the facility's
product,
and controlled who could purchase the product.
Id. Similarly, the United States was an operator of the Cold Spring
battery plant because it owned all real and personal property, installed
all equipment, owned all materials and supplies, controlled what the
plant would produce, had access to the plant at all times, reserved the
right to dismantle or repair the plant, reserved the right to shut down
the plant, and had the ability to exercise day-to-day control over the
operations of the plant, and, through contracts, set the price terms for
products produced by the plant.
19
the "most significant" acts occurred in New York, under this
approach, it is appropriate to apply New York choice of law
rules.
Under a fourth approach, the court selects the choice of
law rules of the state in which "physical acts" could have
prevented the injury. See Ducey, 713 F.2d at 509 n.2. In
Ducey, plaintiffs brought an FTCA claim alleging injuries
arising from the United States' failure to place warning
signs and erect fences at a park in Nevada, stemming in
part from decisions made at a government office in
California. See id. The Court elected Nevada choice of law
rules because the injury could have been prevented by
physical acts in Nevada. See id. Likewise, the Allen
plaintiffs' injuries were caused by the discharge of
hazardous waste at a plant in New York, which the United
States owned, constructed, and controlled its operation,19
stemming from decisions made at a government office in
Pennsylvania. Under this approach, application of New York
choice of law rules is appropriate because New York is
where physical acts could have prevented the injuries.
A fifth approach was taken by the District of Columbia
Circuit Court of Appeals, which made a choice of choice of
law based on where the "relevant" act or omission occurred.
See Hitchcock v. United States, 665 F.2d 354, 359 (D.C. Cir.
1981). In Hitchcock, the plaintiff was injured by a vaccine
administered by a government nurse in Virginia, but where
the protocol for its use was developed by government
officials in the District of Columbia. See id. The Court
applied District of Columbia choice of law because,
although the vaccine was administered in Virginia, no
relevant act occurred in Virginia. The nurse was the only
staff member at the Virginia facility and was given no
instructions about the protocol for administering the
vaccine or the risks from administration. See id. According
to Hitchcock, the only relevant negligent acts and omissions
were the development of the protocol for administration
performed by officials in the District of Columbia. See id. In
_________________________________________________________________
19. As discussed in note 18, supra, the United States is deemed to have
operated the plant in New York by virtue of the control it exercised over
the plant's operations.
20
contrast, in this case, the relevant acts of ownership,
construction, and control over operation of the plant were
performed by the United States Army in New York. Under
this approach, it is appropriate to select the choice of law
rules of New York.
In conclusion, there are five approaches to the election of
choice of law. The Kohn approach is unworkable. However,
the Court need not decide whether to adopt the second,
third, fourth, or fifth approach because each leads to
application of New York choice of law rules. Under these
approaches, the last causal act, the most significant causal
act, physical acts to prevent injury, and the relevant acts
all occurred in New York. It follows, the District Court
should have applied New York choice of law rules.
2. Step 2: Application of New York Choice of Law
Rules
New York choice of law rules differ depending on whether
the underlying substantive law is conduct regulating or loss
allocating. See Padula v. Lilarn Properties Corp., 84 N.Y.2d
519, 521-22 (N.Y. 1994). Conduct regulating law has"the
prophylactic effect of governing conduct to prevent injuries
from occurring." Id. at 522. Loss allocating law "prohibit[s],
assign[s], or limit[s] liability after the tort occurs." Id.
Contribution law is loss allocating because it assigns or
limits liability after the tort occurs. See id. (citing Cooney v.
Osgood Mach., 612 N.E.2d 277, 280 (N.Y. 1993)); Ray v.
Knights, 605 N.Y.S.2d 536, 538 (N.Y.App. 1993). 20
_________________________________________________________________
20. The United States asserts that loss allocating law relates only to the
parties' expectations before torts are committed. It argues the S 15-
108(c)
bar against contribution claims is not loss allocating because it does not
relate to prior expectations of tort liability. Rather, the United States
contends S 15-108(c) is "a mechanism to influence and control the
conduct of litigation in its jurisdiction." United States Letter Brief
(June
9, 2000) at 4.
This argument fails. In New York, like most jurisdictions, contribution
claims were generally not recognized at common law. See Gleason v.
Holman Contract Warehousing, Inc., 649 N.Y.S.2d 647, 649-50 (N.Y. Sup.
Ct. 1996). Rather, New York, like most states, enacted a statute
providing for contribution among joint tortfeasors. Section 15-108 is a
portion of New York's contribution statute. See S 15-108. Since New York
courts have held contribution law to be loss allocating, see Padula, 84
N.Y.2d at 522, section 15-108(c) must be loss allocating.
21
Under New York choice of law, there are three rules for
choosing between loss allocating law, all keyed to the
domicile of the litigants. See Neumeier v. Kuehner, 286
N.E.2d 454, 457-58 (N.Y. 1972); Cooney, 612 N.E.2d at
281. First, when the plaintiff and defendant share a
common domicile, the law of that state controls. Second,
when the plaintiff and defendant are not domiciled in the
same state (a "split domicile"), the states have conflicting
law, and the tort occurs in one of the domiciles, the law of
the state where the tort occurred controls. Third, in all
other situations where there is a split domicile, the law of
the state where the tort occurred controls, unless"it can be
shown that displacing that normally applicable rule will
advance the relevant substantive law purposes without
impairing the smooth working of the multistate system or
producing great uncertainty for litigants." Neumeier, 286
N.E.2d at 458. Originally developed for guest statutes,
these three Neumeier rules have been extended to choice of
law for all loss allocating law. See Cooney, 612 N.E.2d at
281; Schultz v. Boy Scouts of Am., Inc., 480 N.E.2d 679,
684 (N.Y. 1985).
The New York choice of law analysis is performed in two
steps. First, in order to choose the correct Neumeier rule,
we determine the domicile of the parties. Second, based on
the domiciles of the parties, we choose and apply the
appropriate Neumeier rule.
a. Domicile of the Parties
For purposes of New York choice of law, a corporation is
domiciled where it has its principal place of business.21 See
Schultz, 480 N.E.2d at 682; Morgan Guar. Trust Co. of N.Y.
v. Garrett Corp., 625 F.Supp. 752, 754, 760 & n.11
(S.D.N.Y. 1986); In re DES Cases, 789 F.Supp. 552, 590
_________________________________________________________________
21. In general, for purposes of other areas of New York law, the domicile
of a corporation is the state in which it is incorporated. See Sease v.
Central Greyhound Lines, Inc., 117 N.E.2d 899 (N.Y. 1954); Comer v.
Titan Tool, Inc., 875 F.Supp. 255, 259 (S.D.N.Y. 1995). A person,
including a corporation, can have a different domicile for purposes of
applying different laws. See Gladwin v. Power , 249 N.Y.S.2d 980, 982
(N.Y.App. 1964).
22
(E.D.N.Y. 1992). Gould, an Ohio corporation with its
principal place of business in Ohio, is domiciled in Ohio.
APU, a Pennsylvania corporation with its principal place of
business in Ohio, is also domiciled in Ohio.
There are three possibilities for the domicile of the United
States, for purposes of New York choice of law. First, the
parties and the District Court assumed the United States is
domiciled in all 50 states. See United States v. Whitcomb,
314 F.2d 415 (4th Cir. 1963) (under Maryland law, United
States domiciled in all states) (citing Helvering v.
Stockholms Enskilda Bank, 293 U.S. 84, 91-93 (1934);
Vaughn v. Northup, 40 U.S. 1, 6 (1841)), but see Ward
Electronic Services, Inc. v. Property & Cas. Ins. Guar. Corp.,
599 A.2d 81, 84 (Md. 1991) (the United States is not
domiciled in all 50 states under Maryland law). However,
neither Helvering nor Vaughn supports the United States
being domiciled in all 50 states. See Helvering , 293 U.S. at
91-93 (holding United States has residence, not domicile, in
all states); Vaughn, 40 U.S. at 6 ("[t]he United States, in
their sovereign capacity, have no particular place of
domicile, but possess, in contemplation of law, an ubiquity
throughout the Union . . . .") (emphasis added). Finally, and
most importantly, for present purposes, the United States
being domiciled in all 50 states runs counter to New York's
rule that a person may have only one state of domicile. See
In re Strobel's Estate, 109 N.Y.S.2d 848, 850 (N.Y. Sur. Ct.
1951); 49 N.Y.Jur.2d, Domicile & Residence S 1 (1985).
Therefore, under New York choice of law, it is unlikely the
United States would be considered domiciled in all 50
states.
The second possibility is the United States is domiciled
nowhere. See Vaughn, 40 U.S. at 6 ("[t]he United States, in
their sovereign capacity, have no particular place of domicile
. . . .") (emphasis added); O'Rourke v. Eastern Airlines, 730
F.2d 842, 851 n.12 (2d Cir. 1984) (without citation, under
New York choice of law, "[t]he United States, of course, is
neither incorporated nor domiciled in any one state");
Foster v. U.S., 768 F.2d 1278, 1284 (11th Cir. 1985)
(without citation, under Florida choice of law,"the United
States is obviously a domiciliary of neither [Florida nor
Illinois]"); Clawans v. U.S., 75 F.Supp.2d 368, 373-74
23
(D.N.J. 1999) (without citation, under New Jersey choice of
law, the United States is not domiciled in New Jersey).
However, this position is not as iron clad as itfirst appears.
Each of the cited cases lack citation to authority. See id.
Also, none of these cases is from a New York state court
determining the domicile of the United States under New
York choice of law. See id. Indeed, O'Rourke, Clawans, and
Foster merely state the United States is not domiciled in the
state under discussion without mention of where the
United States is domiciled. See O'Rourke, 730 F.2d at 851
n.12; Foster, 768 F.2d at 1284; Clawans , 75 F.Supp.2d at
373-74. Nonetheless, it is possible the United States is not
domiciled in any state.
The third possibility is the United States is domiciled in
the District of Columbia. See Fisher v. Fisher , 165 N.E.2d
460, 462 (N.Y. 1918); Hitchcock v. United States , 665 F.2d
354, 360 (D.C.Cir. 1981) (without citation, under District of
Columbia choice of law, "[i]t is thus useful to analogize the
Government in this case to a corporation of national scope,
headquartered in Washington"). In Fisher, the highest court
of New York applied New York choice of law and determined
the United States is domiciled in the District of Columbia.
See Fisher, 165 N.E.2d at 463.22 The Fisher position runs
counter to Vaughn and O'Rourke, discussed supra. Also,
the Fisher decision is quite old and predates modern New
York choice of law rules. Nonetheless, because Fisher is the
only decision from a New York court applying New York
choice of law to the question of domicile of the United
States, it is possible a New York state court would consider
the United States to be domiciled in the District of
Columbia.
In conclusion, there is some authority supporting the
mutually exclusive positions of the United States being
domiciled in all 50 states, in the District of Columbia, or
nowhere. We need not select among these positions
_________________________________________________________________
22. The Court needed to determine the domicile of the United States as
an owner of a ship. See id. at 462. The Court first determined the United
States is not domiciled in New York. See id. Next, the Court found the
agency that owned the ship was domiciled in the District of Columbia,
making the United States domiciled there. See id. at 463.
24
because the result under New York choice of law rules will
be the same.
b. Application of Neumeier Rules
(1) Assuming United States Domiciled in All 50
States
If the United States is domiciled in all 50 states, the first
Neumeier rule applies.23See Neumeier, 286 N.E.2d at 458
(when parties share common domicile, the law of that state
controls). Assuming the United States is domiciled in all 50
states, the United States, Gould, and APU share the
common domicile of Ohio and Ohio contribution law would
govern.
(2) Assuming United States Domiciled in the
District of Columbia or Nowhere
If the United States is domiciled in the District of
Columbia or nowhere, there is a "split-domicile" between
Gould/APU and the United States, requiring application of
the second or third Neumeier rules. Under the second rule,
when the plaintiff and defendant are not domiciled in the
same state, the states have conflicting law, and the tort
occurs in one of the domiciles, the law of the state where
the tort occurred controls. See Neumeier, 286 N.E.2d at
458. The locus of the tort is the state where "the last event
necessary to make the actor liable" occurred. Schultz, 480
N.E.2d at 682-83. In Schultz, plaintiffs' children, New
Jersey residents, were sexually abused by defendants at a
camp in New York. See id. at 681. The Court held the locus
of the tort was New York, the place where the injuries
occurred. See id. at 683. In this case, the last event which
caused injuries to the Allen plaintiffs was the release of
hazardous waste from the plant in New York, making New
_________________________________________________________________
23. The United States argues, if the United States is domiciled in all 50
states, the second Neumeier rule applies because Gould/APU are
domiciled in Ohio and the United States is domiciled in New York,
creating a split-domicile situation. However, thefirst Neumeier rule
applies whenever the parties "share a common domicile." Cooney, 612
N.E.2d at 281.
25
York the locus of the tort, for purposes of the Neumeier
rules. Regardless of whether the United States is domiciled
in the District of Columbia or nowhere, the locus of the tort
was not one of the parties' domiciles. Therefore, the second
Neumeier rule does not apply.
The third Neumeier rule provides that in all other
situations with a split domicile, the law of the locus of the
tort governs, unless "it can be shown that displacing that
normally applicable rule will advance the relevant
substantive law purposes without impairing the smooth
working of the multistate system or producing great
uncertainty for litigants." Neumeier, 286 N.E.2d at 458.
Regardless of whether the United States is domiciled
nowhere or in the District of Columbia, New York
contribution law governs unless there is an exception
allowing displacement of New York law ("locus law") with
Ohio law, the law of the plaintiff 's domicile ("domiciliary
law"). It is appropriate to displace the locus law with
domiciliary law when the plaintiff 's domicile has a strong
interest in protecting the rights of its domiciliary and
displacement will not interfere with the interests of the
locus state. See Schultz, 480 N.E.2d at 687.
The purpose of this exception is to achieve New York's
strong preference for using domiciliary law as the loss
allocating law. See Comer v. Titan Tool Inc., 875 F.Supp.
255, 259 (S.D.N.Y. 1995); Hamilton v. Accu-Tek , 47
F.Supp.2d 330, 337 (E.D.N.Y. 1999). In Comer, the Court
explained:
When the law in conflict is loss allocating, the law of
the state where at least one of the parties is domiciled
generally applies. See Padula v. Lilarn Properties Corp.,
84 N.Y.2d 519, 620 N.Y.S.2d 310, 311-12, 644 N.E.2d
1001, 1002-03 (1994); Schultz, 491 N.Y.S.2d at 94, 480
N.E.2d at 683; Neumeier v. Kuehner, 31 N.Y.2d 121,
335 N.Y.S.2d 64, 286 N.E.2d 454 (1972). . . .
A state has a strong interest in enforcing its own loss-
allocating rules, see Schultz, 491 N.Y.S.2d at 96, 480
N.E.2d at 685, especially in cases where such rules
would serve to protect one of its own domiciliaries who
was injured outside of the state. See id., Neumeier, 31
26
N.Y.2d 121, 335 N.Y.S.2d 64, 67, 286 N.E.2d 454, 455-
56. In cases in which none of the parties share
domicile (so-called "split-domicile" cases) the law of the
domicile of at least one of the parties ought to apply.
Neumeier, 31 N.Y.2d 121, 335 N.Y.S.2d 64, 67, 286
N.E.2d 454, 455-56. . . .
Comer, 875 F.Supp. at 259 (emphasis added).
Courts have been more willing to displace locus law with
domiciliary law when one or more of the following factors
are present: (1) the plaintiff 's and defendant's domiciliary
law is similar, see Tkaczevski v. Ryder Truck Rental Inc., 22
F.Supp.2d 169, 173 (S.D.N.Y. 1998); (2) the purpose of the
domiciliary law is superior to and does not interfere with
the purpose of the locus law, see Schultz, 480 N.E.2d at
687; (3) the locus of the tort is not one of the plaintiff 's or
defendant's domiciles, see, e.g., id.; (4) plaintiff 's and
defendant's contacts with the locus state were a matter of
fortuity, happenstance, or randomness, and not voluntary
action, see, e.g., Hamilton v. Accu-Tek, 47 F.Supp.2d 330,
341 (E.D.N.Y. 1999); (5) displacement will not encourage
forum shopping, see, e.g., Aboud v. Budget Rent a Car
Corp., 29 F.Supp.2d 178, 182 (S.D.N.Y. 1998); and (6)
displacement will not create the appearance of favoring
local litigants, see id. An evaluation of these factors, in light
of the purpose of the exception, dictates that New York
contribution law should be displaced with Ohio
contribution law.
(a) Similarity of Domiciles' Laws
First, courts are more likely to displace the locus law
with domiciliary law when the domiciliary law of the
plaintiff and defendant is similar. See Tkaczevski, 22
F.Supp.2d at 173. Three reasons have been articulated in
support of this principle: (i) New York choice of law prefers
domiciliary law to apply in loss allocating situations; (ii)
neither party can complain about upset expectations when
its own domiciliary law, or the equivalent, is applied; and
(iii) the locus of the tort is only to be used as a tie breaker.
See id. Further, there should be no difference in result
where the plaintiff and defendant have the same domicile
27
(where the first Neumeier rule governs and the law of the
common domicile applies), and the plaintiff and defendant
have a split domicile but with the same domiciliary law
(where the third Neumeier rule governs).
Ohio contribution law permits contribution claims by
settling tortfeasors against non-settling joint tortfeasors.
See Ohio Stat. S 2307.31; Metrohealth , 80 Ohio St.3d at
214, 685 N.E.2d at 532. If the United States is considered
to be domiciled nowhere, then it has no domiciliary law to
compare to Ohio contribution law. However, since
Gould/APU's domiciliary law and the United States lack of
domiciliary law are not in conflict, this factor weighs
towards displacing New York law with Ohio law.
If the United States is considered to be domiciled in the
District of Columbia, the District of Columbia will most
likely permit contribution claims by settling tortfeasors
against non-settling joint tortfeasors. See District of
Columbia v. Washington Hosp. Ctr., 722 A.2d 332, 342 & n.
12-14 (D.C. 1998) (en banc) (and cases cited therein).24 To
the extent each party expected application of its own
contribution law, it will not upset expectations to now apply
Ohio law in place of New York law. Since the District of
Columbia's contribution law is similar to that of Ohio, this
factor weighs towards displacing New York contribution law
with Ohio contribution law.
_________________________________________________________________
24. The recent decision in Washington Hosp. Ctr. explicitly left this
issue
unresolved. See 722 A.2d at 342. The case law cited in Washington Hosp.
Ctr. reveals the District of Columbia uniformly allows such a claim. See
Taylor v. Tellez, 610 A.2d 252, 254 (D.C. 1992) (settling defendant may
bring contribution claim against non-settling joint tortfeasor); Early
Settlers v. Schweid, 221 A.2d 920, 922 (D.C. 1966) (same). The
purported contrary authority cited by the Washington Hosp. Ctr. court
involves different types of contribution claims. In Hall v. George A.
Fuller
Co., the court held a settling tortfeasor may not obtain contribution from
another settling tortfeasor because the court could not determine if they
were jointly liable. See 722 A.2d 332, 342-43 (D.C. 1998). In Rose v.
Associated Anesthesiologists, the court held a settling tortfeasor may not
obtain contribution from non-settling tortfeasor who is found solely
liable. See 501 F.2d 806, 808-10 (D.C. Cir. 1974). In contrast
Gould/APU seek contribution against a non-settling joint tortfeasor,
whose joint liability can be determined and who has not been adjudged
solely liable.
28
(b) Purposes of Domiciles' Laws
Courts are more likely to displace locus law with
domiciliary law when the purpose of the domiciliary law is
superior to and does not interfere with the purpose of the
locus law. See Schultz, 480 N.E.2d at 687; McCann v.
Somoza, 933 F.Supp. 362, 366 (S.D.N.Y. 1996). In Schultz,
the plaintiff was domiciled in New Jersey, the defendant
was domiciled in Ohio, and the tort occurred in New York.
See Schultz, 65 N.Y.2d at 201. The court displaced the
charitable immunity law (loss allocating law) of New York
with the charitable immunity law of New Jersey because
New Jersey had a strong interest in protecting the
charitable immunity of its domiciliary and New York had no
significant interest in applying its charitable immunity law
to non-domiciliaries. See id. Since New Jersey had a
superior interest to New York which did not conflict with
the purpose of the New York law, the court displaced New
York law with New Jersey law. See id.25
Similarly, in this case, the purpose of Ohio contribution
law is superior to and does not interfere with the purpose
of New York contribution law. Ohio contribution law allows
settling tortfeasors to claim contribution from non-settling
joint tortfeasors. See Ohio Stat. S 2307.31; Metrohealth, 685
N.E.2d at 532. The purpose of Ohio's contribution law is "to
make contribution readily available between joint
tortfeasors" without exposing any joint tortfeasor to
potential double liability. Metrohealth, 685 N.E.2d at 532.
The purpose of New York Gen. Oblig. Law S 15-108 is
"encouraging settlements, fully compensating injured
victims and equitably allocating liability among tortfeasors."
Didner v. Keene, 593 N.Y.S.2d 238, 243 (N.Y. App. 1993).
To achieve this purpose, S 15-108 contains three
_________________________________________________________________
25. In contrast, in McCann, the plaintiff was domiciled in New Jersey, the
defendant was domiciled in New York, and the tort occurred in
Connecticut. See McCann, 933 F.Supp. at 365. The court refused to
displace Connecticut law with New Jersey or New York law because the
three states had conflicting loss allocating law with irreconcilable
purposes. See id. at 367. The court sought to promote certainty by
utilizing the locus of the tort as a "tie-breaker" because the laws of the
domiciles conflicted. See id.
29
subsections which: (a) reduce plaintiff 's recovery against a
non-settling tortfeasor by the amount obtained in a
settlement with a joint tortfeasor; (b) bar a non-settling
joint tortfeasor from obtaining contribution from a settling
joint tortfeasor; and (c) bar a settling joint tortfeasor from
obtaining contribution from a non-settling joint tortfeasor.
See S 15-108(a)-(c); Makeun v. State , 471 N.Y.S.2d 293, 296
(N.Y. App. 1984). The purpose of subsections (a) and (b) is
"to encourage settlements by altering or eliminating certain
rules of prior law which had an inhibiting effect on the
settlement process." Makeun, 471 N.Y.S.2d at 296 (quoting
Rock v. Reed-Prentice Div. of Package of Mach. Co. , 346
N.E.2d 520, 523 (N.Y. 1976)); N.Y. State Legis. Annual, 15
(1974). On the other hand, the purpose of subsection (c) is
two-fold. First, it acts as a "quid pro quo" preventing a
settling tortfeasor from obtaining contribution when he is
insulated from contribution. See id. (citing McDermott v.
City of New York, 406 N.E.2d 460, 464 (N.Y. 1980); Rock,
346 N.E.2d at 524). Second, to the extent a settling
tortfeasor pays more than his share, this section"may be
justified on the ground that he is a volunteer as to the
excess paid by him." Id. (quoting Codling v. Paglia, 327
N.Y.S.2d 978, 986 (N.Y. App. 1978)).
At the same time, New York has "no interest in applying
its [contribution] laws for the benefit of nonresidents and to
the detriment of its residents." Brewster v. Baltimore & Ohio
Railroad Co., 585 N.Y.S.2d 647, 648 (N.Y. App. 1992). In
Brewster, the court refused to give contribution claim
defendants the benefit of New York contribution law when
they were both domiciled in other states. See id. at 648-49.
On the present facts, New York has no interest in extending
the protection of its contribution law to the United States,
assuming it is domiciled in the District of Columbia or
nowhere. By the same token, New York has no interest in
inhibiting the contribution rights of Gould/APU,
domiciliaries of Ohio. Finally, the Allen plaintiffs, the only
New York domiciliaries related to this case, have been
compensated by virtue of the underlying tort settlement
and are not parties to this contribution claim.
New York's interest in achieving settlement of the Allen
claims has been satisfied. See Lang Tendons, Inc. v. Great
30
Southwest Marketing, Inc., 1994 WL 159014, at *4 (E.D.Pa.
1994).26 While subsections (a) and (b) achieve the purpose
of encouraging settlement, subsection (c) does not. See
Makeun, 471 N.Y.S.2d at 296. In fact, commentators have
argued subsection (c) acts as "a barrier to settlements,
rather than an aid." Id. at 297 (citing Green, General
Obligations Law, Section 15-108: An Unsettling Law , New
York State Bar Journal, 28 (Oct. 1983)). Accordingly, any
interest New York has in promoting settlement will not be
_________________________________________________________________
26. The decision in Lang Tendons is illuminating. In Lang Tendons, the
plaintiff, a Pennsylvania domiciliary, settled a tort claim in New York
federal court arising from a tort that occurred in Korea. The plaintiff
then brought a contribution claim against the defendant, a Texas
domiciliary. The defendant was a non-party to the prior litigation
because the New York federal court lacked personal jurisdiction over it.
The defendant sought application of the New York contribution law,
specifically the S 15-108(c) bar against contribution claims against non-
settling joint tortfeasors. The plaintiff sought application of
Pennsylvania
contribution law. See id. at *3.
The court conducted a choice of law analysis, applying Pennsylvania's
interest analysis, and concluded Pennsylvania had the greater interest in
the outcome of the litigation because: (i) Pennsylvania had a strong
interest in vindicating the interests of its domiciliary; (ii) New York's
interest had been satisfied by the settlement and had no interest in third
party contribution claims outside of New York; (iii) the locus of the tort
was not in New York; and (iv) there was a strong interest in not having
the defendant avoid all liability simply because it could not have been
joined as a co-defendant in the underlying tort suit.
In the present case, Ohio, the domicile of Gould/APU, has the stronger
interest in the outcome of this litigation. First, Ohio has a strong
interest
in protecting the rights of its domiciliaries to receive contribution from
joint tortfeasors. See Metrohealth, 685 N.E.2d at 532. Second, New
York's interest in encouraging settlement has been vindicated and New
York therefore no longer has an interest in whether contribution claims
are pursued in other jurisdictions. See Makeun , 471 N.Y.S.2d at 297.
Finally, the United States could not have been joined as a defendant in
New York state court because of sovereign immunity. Applying New York
contribution law would allow the United States to escape all liability
because the Allen plaintiffs sued in New York state court, where the
United States is shielded from liability.
31
advanced by application of S 15-108(c) to bar Gould/APU's
contribution claim against the United States.27
In contrast, Ohio has a strong interest in applying its
contribution law to protect its domiciliary's rights to obtain
contribution. Cf. Sullivan v. J.V. McNichols Transfer Co.,
638 N.Y.S.2d 260, 262 (N.Y. App. 1996) (New York has no
interest in applying New York loss allocation law to Ohio
domiciliary). Because Ohio's interest in protecting the
contribution rights of Gould/APU is superior to and does
not interfere with the purpose of New York's contribution
law, this factor weighs in favor of displacing New York law
with Ohio law.
(c) Locus State Not Domicile of Any Party
Third, courts are more likely to displace the locus law
when the locus state is not one of the plaintiff 's or
defendant's domiciles. Compare Schultz, 480 N.E.2d at 682-
83 (locus law displaced when locus not a domicile of any
party); Sheldon v. PHH Corp., 135 F.3d 848, 853 (2d Cir.
1998) (same) with LaForge v. Normandin, 551 N.Y.S.2d 142,
142 (N.Y.App. 1990) (locus law not displaced when locus is
_________________________________________________________________
27. The United States correctly indicates thatS 15-108(c) has been
applied to bar contribution claims by a settling tortfeasor against New
York state, even if New York had immunity in the underlying suit and
could not be impleaded as a third party defendant. See Makeun, 471
N.Y.S.2d at 298; Maryland Cas. Co. v. State, 411 N.Y.S.2d 706, 707 (N.Y.
App. 1978). However, neither Makeun nor Maryland Cas. Co. precludes
displacement of New York contribution law with Ohio contribution law.
Both cases involved contribution claims by New York domiciliaries
against New York State. See id. In both cases, the New York domiciliary
plaintiffs argued the S 15-108(c) bar against contribution did not apply
because New York State could not have been joined as a defendant in
the underlying action. See id. The New York court held S 15-108(c) does
not contain an exception for contribution claims against parties over
whom the court lacked jurisdiction in the underlying action. See id. In
contrast, this case involves a contribution claim by two non-New York
domiciliaries (Gould/APU) against a defendant (United States) which
could not have been joined in the underlying Allen lawsuit. The issue is
not whether S 15-108(c) provides an exception for a defendant who could
not be joined, but whether application of Gould/APU's Ohio contribution
law will be superior to and will not interfere with application of the
locus
contribution law of New York.
32
one party's domicile); Hamilton, 47 F.Supp.2d at 337
(E.D.N.Y. 1999) (same). If the United States is domiciled in
the District of Columbia or nowhere and Gould/APU are
domiciled in Ohio, neither party is domiciled in the locus of
New York. This factor favors displacement of New York law
with Ohio law.
(d) Fortuity of Contacts with Locus State
Fourth, courts are more likely to displace locus law with
domiciliary law when the parties have minimal contact with
the locus jurisdiction and the tort occurring there was due
to fortuity, happenstance, or randomness. Compare
Pescatore v. Pan Am. World Airways, Inc., 97 F.3d 1, 13 (2d
Cir. 1996) (Scottish law displaced by plaintiff 's domiciliary
law because plane crashing in Scotland was random);
Sheldon, 135 F.3d at 853 (Michigan law displaced by
domiciliary law because car accident occurring in Michigan
was fortuity); Stevens v. Shields, 499 N.Y.S.2d 351, 352
(N.Y. App. 1986) with Simons v. Marriott Corp., 1993 WL
410457, *7 (S.D.N.Y. 1993) (Texas law not displaced by
domiciliary law because defendant voluntarily built hotel in
Texas); Hamilton, 47 F.Supp.2d at 341 (California law not
displaced by domiciliary law because plaintiff voluntarily
came to California on business trip). There was nothing
random or fortuitous about Gould/APU and the United
States voluntarily building and operating a battery
manufacturing plant in the locus state of New York.
Therefore, the fortuity factor counsels against displacement
of New York law with Ohio law.
(e) Forum Shopping
Fifth, courts are hesitant to displace locus law with
domiciliary law if it encourages forum shopping. See, e.g.,
Aboud, 29 F.Supp.2d at 182. This concern is not present in
this case because the FTCA does not allow forum shopping.
Rather, under the FTCA, the court must apply the"whole
law" of the state where the act or omission occurred,
regardless of where the suit is filed. See Richards, 369 U.S.
at 11. Because there can be no forum shopping for
substantive law under the FTCA, this factor weighs in favor
of displacement of New York law with Ohio law.
33
(f) Favoring Local Litigants
Sixth, courts are hesitant to displace locus law with
domiciliary law if it causes the appearance of favoring local
litigants. See, e.g., Aboud, 29 F.Supp.2d at 182. This
concern is not present here because Gould and APU are
Ohio domiciliaries and not local litigants in Pennsylvania
federal court. Accordingly, this factor does not counsel
against displacement of New York law with Ohio law.
In sum, five of the six factors favor displacement of New
York law with Ohio law: the domiciles of Gould, APU, and
the United States have similar, or at least non-conflicting,
contribution law; Ohio's strong interest in protecting its
domiciliaries' rights to contribution is superior to and does
not interfere with New York's interest in achieving
settlement, which has already been satisfied; the locus of
the tort is not in the domicile of any party; and displacing
New York law will not encourage forum shopping or give the
appearance of favoring local litigants. Weighed against
these five considerations is the fortuity factor, which,
standing alone, is simply not enough to prevent
displacement of New York locus law with Ohio domiciliary
law. This result will advance the interests of Ohio without
upsetting the smooth working of a multi-state system or
causing uncertainty for litigants. It follows, if the United
States is domiciled in the District of Columbia or nowhere,
the exception to the third Neumeier rule applies and Ohio
contribution law governs the FTCA jurisdictional inquiry.
* * *
In conclusion, regardless of whether the United States is
domiciled in all 50 states, the District of Columbia or
nowhere, New York choice of law rules dictate that Ohio
contribution law governs the FTCA jurisdictional inquiry.
Ohio contribution law allows settling tortfeasors to claim
contribution from non-settling joint tortfeasors, so long as
the settlement extinguishes liability of the non-settling
party to the underlying plaintiff. See Ohio Stat. S 2307.31;
Metrohealth, 685 N.E.2d at 532. In the Release presented to
the District Court the Allen plaintiffs released "all other
persons including but not limited to the federal
government, the U.S. Army and/or other federal agencies or
34
entities from any and all . . . claims asserted or which
could have been asserted, in the action captioned Cheryl
Allen, et al. v. Marathon Battery Co., et al., .. . ." App. 705a.
Under Ohio law, the United States will be liable to
Gould/APU for contribution if the facts at trial call for that
result. Accordingly, the District Court's ruling it lacked
subject matter jurisdiction over the contribution claim must
be reversed.
C. Indemnification Under New York, Pennsylvania,
Ohio, and District of Columbia Law
Indemnification occurs when one person is held solely
liable for the acts of another person. See Rogers v.
Dorchester Assocs., 300 N.E.2d 403, 410 (N.Y. 1973);
Builders Supply Co. v. McCabe, 77 A.2d 368, 371 (Pa.
1951); Motorists Mut. Ins. Co. v. Huron Road Hospital, 653
N.E.2d 235, 238 (Ohio 1995); Quadrangle Development
Corp. v. Otis Elevator Co., 748 A.2d 432, 435 (D.C. 2000).28
One may obtain indemnification only if he is not
responsible in any degree for the harm caused. See Rosado,
484 N.E.2d at 1356-57 (N.Y.); Builders Supply Co., 77 A.2d
at 371 (Pa.); Motorists Mut. Ins. Co., 653 N.E.2d at 238
(Ohio); Quadrangle Development Corp., 748 A.2d at 435
(D.C.). If the party seeking indemnification is partially at
fault, it cannot receive indemnification from another. See
id.
The District Judge correctly decided Gould/APU would
not be entitled to indemnity from the United States because
they were at least partially at fault for the injuries to the
Allen plaintiffs. According to the Complaint, Gould's
predecessors operated the plant and discharged hazardous
waste under government contract from 1953 to 1962. From
1962 to 1969, Gould and its predecessors owned and
operated the plant and continued to discharge hazardous
waste. From 1969 to 1979, APU and its predecessors owned
and operated the plant and continued to discharge
hazardous waste. The Complaint alleges Gould/APU were
_________________________________________________________________
28. As discussed, supra, there is a false conflict between New York,
Pennsylvania, Ohio, and District of Columbia indemnification law,
making it unnecessary to perform a conflict of laws analysis for the
indemnification claim.
35
at least partially negligent and at fault for the Allen
plaintiffs' injuries. Accordingly, Gould/APU may not seek
indemnification from the United States.
Gould/APU argue, under New York law, the doctrine of
"partial indemnification" permits indemnification between
joint tortfeasors where one was primarily responsible for
the injuries. See Dole v. Dow Chemical Co., 282 N.E.2d 288,
291 (N.Y. 1972). However, Gould/APU concede Dole has
been superseded and clarified by N.Y. Gen. Oblig. Law S 15-
108, which allows a party who is partially at fault to seek
contribution, but not indemnification. See In re Brooklyn
Navy Yard Asbestos Litigation, 971 F.2d 831, 842 (2d Cir.
1992). Moreover, the Supreme Court of Pennsylvania, the
Supreme Court of Ohio, and the District of Columbia Court
of Appeals have squarely rejected similar partial
indemnification theories, instead allowing contribution from
a primarily, but not solely, liable joint tortfeasor. See
Builders Supply Co., 77 A.2d at 371 (Pa. 1951); Motorists
Mut. Ins. Co., 653 N.E.2d at 238; District of Columbia v.
Washington Hosp. Center, 722 A.2d 332, 340-41 (D.C.
1998). It follows, there is no doctrine of partial
indemnification that would permit Gould/APU to pursue an
indemnity claim against the United States.
Finally, Gould/APU assert that they are entitled to
indemnity for the Allen claim for abnormally dangerous
activity, a strict liability tort for which there is no fault. See
Doundalakis v. Town of Hempstead, 368 N.E.2d 24, 28
(N.Y. 1977) (strict liability for abnormally dangerous
activity); Diffenderfer v. Staner, 722 A.2d 1103, 1106 (Pa.
Super. Ct. 1999) (same); Brown v. County Commissioners,
622 N.E.2d 1153, 1159 (Ohio. App. 1993) (same); Beard v.
Goodyear Tire & Rubber Co., 587 A.2d 195, 201 (D.C. 1991)
(same). However, if two parties are jointly liable for a strict
liability tort, the appropriate remedy is contribution, not
indemnification, between the parties. See Doundalakis, 368
N.E.2d at 29 (N.Y.); Baker v. AC&S, Inc., 729 A.2d 1140,
1149 (Pa. Super. Ct. 1999) (citing Walton v. Avco Corp., 610
A.2d 454, 462 (Pa. 1992)); Hamilton v. RB&W Corp., 1998
WL 32777, at *2-*3 (Ohio. App. 1998) (citing Bowling v. Heil
Co., 511 N.E.2d 373, 380-81 (Ohio 1987)); Washington
Hosp. Center, 722 A.2d at 340-41 (D.C.). If Gould/APU
36
could prove the United States was jointly liable, the
appropriate remedy would be contribution, not
indemnification.
Under New York, Pennsylvania, Ohio, or District of
Columbia law, the United States would not be liable to
Gould/APU for indemnification. Accordingly, the District
Court's ruling it lacked subject matter jurisdiction over the
indemnity claim will be affirmed.
V. CONCLUSION
For the foregoing reasons, we conclude the District Court
has jurisdiction over the contribution claim but lacks
jurisdiction over the indemnification claim. The District
Court's ruling is AFFIRMED as to indemnification and
REVERSED as to contribution and REMANDED for
proceedings consistent with this opinion.
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit
37