246 Va. 3, 431 S.E.2d 33
Court of Virginia.
ASSOCIATES, INC., et al.
Administrator of pilot's estate
in Virginia court against airplane's owner and maintenance firm, for
resulting from pilot's death in Florida plane crash. The Circuit Court,
Washington County, Charles H. Smith, Jr., J., held that action
was barred by
Virginia's one year "catch all" limitations period.
appealed. The Supreme Court, Carrico, C.J., held that Florida's two-year wrongful death statute of
limitations, not Virginia's one-year statute of limitations, applied.
Reversed and remanded.
Carrico, Chief Justice.
This appeal involves a conflict of laws in the context of a
death case. The conflict stems from the death in Florida of Ben A.
a Virginia resident, who was killed when the plane he was
crashed on takeoff from Pompano Beach. [Footnote 1]
1] A passenger in the plane was
also killed. Her death was the subject of an earlier appeal to this
v. R.S. Jones & Assoc., 242 Va.
79, 406 S.E.2d 34 (1991).
The fatal crash occurred on October
12, 1987. On October 5,
1989, almost two years later, Charlotte
Jones, administrator of Ben Jones' estate (the plaintiff), filed a
judgment in the Circuit Court of Lee County seeking damages for the
death. Named as defendants were R.S. Jones and Associates, Inc. (Jones
the owner of the plane, and Piedmont Aviation, Inc. (Piedmont), a Roanoke firm that performed maintenance on the plane
from time to
Inc. objected to venue in Lee County. In addition, both Jones Inc. and Piedmont
filed pleas of the statute of limitations.
The case was transferred to the Circuit Court of Washington County. That court held the plaintiff's cause of
subject to the one-year period specified by Virginia's "catch all" limitations statute for bringing
personal actions with respect to which no limitation is otherwise
Va.Code § 8.01-248. Because the plaintiff had not filed the cause
within one year of the date of Ben Jones' death, the court sustained
of the statute of limitations and dismissed the plaintiff's motion for
v. McMillan, 219 Va. 1127, 253 S.E.2d 662 (1979), we declined an
to adopt the so-called "most significant relationship" test,
recommended by Restatement (Second) of Conflicts of Laws
§§ 145, 146
(1971), for resolving conflicts of laws arising in multistate tort
Va. at 1129, 253 S.E.2d at 663. We said that we
to the lex loci delicti, or place of the wrong, standard that had been
"the settled rule in Virginia." Id. at 1128, 253 S.E.2d at 663. According to the
"the lex loci will govern as to all matters going to the basis
the right of action itself, while the lex fori controls all
connected merely with the remedy." Maryland v. Coard, 175 Va. 571, 580-81, 9 S.E.2d 454, 458 (1940) (quoting
5 R.C.L. 917 (1914)). In
other words, in this case, we apply the substantive law of Florida, the place of the wrong, and the procedural law
Jones Inc. and Piedmont
(collectively, the defendants) contend that the trial court properly
the one-year limitation prescribed by Va.Code § 8.01- 248. On the
the plaintiff contends that she is entitled to a two-year limitation,
determined by applying either Va.Code § 8.01-244 or Fla.Stat.Ann.
95.11(4)(d), both of which relate to actions for wrongful death.
parties agree that this is the proper rule, but they disagree about
substantive and what is procedural. Specifically, the disagreement is
over Florida's statute of limitations concerning wrongful
with the plaintiff contending the statute is substantive and,
applicable to the present case, and the defendants saying it is
hence, inappropriate here.
Because no right of action for
existed at common law, statutes that created the right usually
"built in" limitation prescribing the time within which the action
must be brought. Although the Florida statute that originally created the state's
action for wrongful death had a "built in" limitation, the statutory
provisions relating to the cause of action and those relating to the
have been separated for many years.
Florida's present wrongful death act consists of
768.16 through 768.27. The limitation is found in Fla.Stat.Ann. §
Actions other than for recovery of real property shall be
(4) Within two years.--
(d) An action for wrongful death.
So far as our research discloses,
Court of Florida has not addressed the precise question whether that
wrongful death limitation is substantive or procedural. In Colhoun
Greyhound Lines, Inc., 265 So.2d 18 (Fla.1972), the Court stated
"[s]tatutes of limitations traditionally have been considered
matters; as such, the limitation of action law of the forum is
applicable." Id. at 20. However, this statement was made in the
a personal injury suffered in a bus crash in Tennessee and a resulting action filed in Florida sounding both in tort and contract. The Florida wrongful death limitation, in issue here, was
implicated in any way. [Footnote 2]
2] Interestingly, a United
district judge has ruled that Florida's
wrongful death limitation is " 'procedural,'
rather than 'substantive.' " See Tennimon v. Bell Helicopter
Inc., 823 F.2d 68, 71 (5th Cir.1987). The correctness of this
not reached on appeal. Id.
at 71 n. 2. Another district judge has
held that Florida's
wrongful death limitation is substantive. See Tomlin v.
Boeing Co., 650 F.2d 1065, 1067 (9th Cir.1981). The Court of
reversed on other grounds without resolving the substantive-procedural
dichotomy, but did observe that "[o]ne could well conclude that the Florida
statute is procedural." Id.
Citing Davis v. Mills,
194 U.S. 451, 24 S.Ct. 692, 48 L.Ed. 1067 (1904), Jones
that, while it may not be essential that the limitation period is an
"part of the section ... which creates the liability," the limitation
must refer "to [the liability] section in terms" which make it
unmistakable that the limitation "is as much a part of [the section] as
it had been contained [therein]." Jones Inc. points out that the Florida limitation provision "in no way 'refers to the
[wrongful death] section in terms.' " Jones Inc., joined by Piedmont,
points out that, by contrast, Virginia's wrongful death statute, Code
8.01-50, specifically cross-references the two-year limitation
contained in §
8.01-244 and that, in turn, § 8.01-244 cross-references §
conflict-of-laws context, the United States Supreme
Court stated the following in Davis v. Mills:
[T]he fact that the limitation is
the same section or the same statute is material only as bearing on
construction. It is merely a ground for saying that the limitation goes
right created and accompanies the obligation everywhere. The same
would be reached if the limitation was in a different statute, provided
directed to the newly created liability so specifically as to warrant
that it qualified the right.
194 U.S. at 454, 24 S.Ct. at 694 (emphasis added).
We think the limitation contained in
Fla.Stat.Ann. § 95.11(4)(d) is directed so specifically to the
right of action
provided by the state's wrongful death act as to warrant saying that
limitation qualifies the right. Indeed, if the limitation is not so
one is constrained to ask, to what else could it possibly be pointed?
"[a]n action for wrongful death ... shall be commenced ... [w]ithin two
years," is, to borrow from Davis v. Mills, "so specific that
it hardly can mean anything else [than a qualification upon the newly
liability]." 194 U.S. at 455, 24 S.Ct. at 694. Hence, we find the
substantive and applicable to provide the plaintiff a two-year period
filing of her action.
The presence of such a specific
distinguishes the present case from Sherley v. Lotz, 200 Va. 173, 104 S.E.2d 795 (1958), which, the
defendants say, is controlling,
in their favor. In that case, a passenger, who was injured in an
accident in Tennessee on June 5, 1953,
died from the injuries on November 15, 1953. A motion for judgment seeking damages for the
death was based upon Tennessee statutes which "preserve[d] from abatement or
extinguishment the right of action which a person dying from the
of another would have had against the wrongdoer had death not ensued." Id. at 175, 104 S.E.2d at 797. These statutes
specific period of limitation for bringing an action, but, as our
notes, "[t]he Tennessee court has consistently held that the general
statute of limitations of one year from date of injury applies to all
personal injuries in that state." Id.
said that these facts brought the limitation
question within the rule recognized in Norman v. Baldwin, 152
805, 148 S.E. 831, 833 (1929), where we quoted 7 William M.
Fletcher Cyclopedia of the Law of Private Corporations § 4244
"Where the statute imposing the
and creating the remedy does not itself limit the time within which an
to enforce it must be brought, but leaves the matter to be governed by
statute of limitations, the laws of the forum will govern in
whether an action brought in [the forum state] is barred, since general
statutes of limitation relate to the remedy and have no
(Emphasis added.) Sherley,
200 Va. at 175, 104 S.E.2d at 797. This Court then
ruled that the one-year
limitation from the date of the accident, contained in Virginia's
all" statute, now Code § 8.01-248, rather than the one-year
from the date of the death, contained in the wrongful death statute,
8.01-50, barred the plaintiff's claim. Id. at 177-78, 104 S.E.2d at 798-99.
While this Court in Sherley
involve itself in the substantive-procedural dichotomy, or even mention
there is no doubt the Tennessee limitation was considered procedural rather
substantive. This is made clear from the reference to the Tennessee court's application of its "general statute of
limitations," id. at 175, 104 S.E.2d at 797, and from the
to Norman v. Baldwin and its emphasis on "general statutes of
We think this Court in Sherley
correctly considered the Tennessee limitation procedural rather than substantive.
was contained in Tenn.Code Ann. § 8595, which provided that
libel, for injuries to the person, false
imprisonment, malicious prosecution, criminal conversation, seduction,
of marriage promise, and statutory penalties, [shall be brought] within
year after [the] cause of action accrue[s].
In our opinion, the Tennessee statute lacked the specificity that Davis
propounds as the test for "saying that [a limitation provision]
[a newly created] right." 194 U.S. at 454, 24 S.Ct. at 694.
For the reasons
assigned, we will
reverse the judgment of the trial court, reinstate the plaintiff's
judgment, and remand the case for further proceedings.
Reversed and remanded.