Toni Herbert, Personal Representative of the Estate of Dawon Herbert, Deceased, v. District of Columbia
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Notice: This opinion is subject to formal revision before publication in the Atlantic and Maryland Reporte rs. Users are requested to notify the clerk of the Court of any formal errors so that corrections may be made b efore the bound volumes go to press. DISTRICT OF COLUMBIA COURT OF APPEALS No. 99-CV-812 T ONI H ERBERT, P ERSONA L R EPRESENTATIVE OF THE ESTATE OF DAWON HERBERT, DECEASED, A PPELLANT, v. D ISTRICT OF C OLUMBIA , A PPELLEE. Appeal from the Superior Court of the District of C olumbia (CA-6617-95) (Hon. Wendell P. Gardner, Jr., Trial Judge) (Argued January 10, 2001 Decided October 17, 2002) Gregory A. Cotter for appella nt. Sheila Kaplan, Assistant Corporation Counsel, with whom Robert R. Rigsby, Corporation Counsel at the time the brief was filed, and Charles L. Reischel, Deputy Corporation Counsel, were on the brief, for appellee. Before W AGNER, Chief Judge, and TERRY and R EID , Associate Judges. W AGNER, Chief Judge: Appellant, Toni Herbert, personal representative of the estate of Dawo n Herbe rt, deceased , appeals from a judgment in an action brought under the District of Columb ia s Wron gful Dea th Act to ch allenge the tria l court s ruling that the law of the District of Columbia governs the award of damages. Appellant argues that Ma ryland law should control the iss ue of dam ages in the case of a Maryland resident fortuitously shot and killed by an off-duty Metropolitan police officer in the District. We conclude that a wrongful death claim arising from a death in the District of Columbia, under the circum stances of this case, is g overne d by the la w of th e Distric t of Co lumbia . There fore, w e affirm . 2 I. Factual and Procedural Background On August 27, 1994, Dawon Herbert was fatally shot in the District of Columbia by an off-duty District of Columbia police offic er who was responding to a disturbance involving the vehicle in which the decedent was riding. Prior to his death, the decedent was a resident of Maryland, where he resided with his mother and atte nded s chool. The day he was shot, decedent had come into the District to attend a festival. The decedent s mo ther, Toni Herbert, filed a complaint under the District of Columb ia s Wron gful Dea th Act, D.C. Code § 16-2701 (1998) and Survival Act, D.C. Code § 12-101 (1998). The parties dismissed the actio n under the S urvival A ct by stipulatio n. During dis covery, appellant represented that she was n ot making a claim for economic damages for lost support or services and that the only remaining pecuniary losses allowable under District law would be the cost of funeral and burial ex penses . See D.C. Code § 16-2701.1 However, appellant maintained that she was entitled to damages for the loss of her son s society under Maryland s wrongful death law. See Md. Code Ann., Cts . & Jud. Pr oc. § 3-904 (1998). Prio r to trial, the trial court denied appellant s request to apply Maryland law on damages and rule d that District of Columb ia law applied to the dama ges phase of the action under the D istrict of Colu mbia Wron gful D eath A ct. See D.C. Code § 16-2701. At trial, liabi lity was contested, but the parties stipulated that under District of Columb ia law, the only damages recoverable would be the amount of funeral and burial expenses, since appellant elected to forego other allowable pecunia ry losses under the 1 D.C. Code § 16-2701 provides that damages for wrongful death shall include the reas onable expen ses of la st illness a nd bur ial. 3 Wrongful Death A ct.2 The jury found the District liable for the decedent s death, and judgment was ente red in the amount of $1,511.00 for funeral and burial expenses, as stipulated by the parties. A ppellant ap pealed, cha llenging on ly the application of District of Columb ia law to the damages award. Appellant does not challenge the application of District of Columbia law to the liability determination. II. Appellant argues that, under the governmental interests analysis, Maryland law should control the issue of damages because the decedent was a Maryland resident, and the fortuity of his presence in the District at the time of his death has minimal significance. She contends that under the circumstan ces, the Distric t has no intere st in applying its compensation scheme over Maryland law and that an analysis of the relevant factors favors 2 The District of Columbia s Wrongful Death Act is designed to provide a remedy whereby close relatives of the deceased who might have expected maintenance or assistance from the deceased had he lived, may recover compensation from the wrongdoer commensurate with the loss sustained. District of Columbia v. Hawkins, 782 A.2d 293, 303 (D.C. 2001) (quoting Semler v. Psychiatric Inst. of Washington, D.C., 188 U.S. App. D.C. 41, 43-44, 575 F.2d 922, 924-25 (1978)). Recoverable damages under this Act include: (1) p ecuniary losses resulting from the loss o f financial support the decedent could have been expected to provide the next of kin had he lived; and (2) the value o f lost ser vices (e .g., care, e ducatio n, trainin g, and p ersona l advice ). Id. (citing Doe v. Binker, 492 A.2d 857, 863 (D.C. 1985)). Appellant chose not to seek such damages under the District s statute. 4 application of Maryland law on damages.3 The District argues that the governmental interests analysis favors application of D istrict of Columbia law. F urther, it contends that recoverab le damages are an integral part of the Wrongful Death Act and theref ore, liability and da mage s shoul d be de termine d unde r the sam e law. This Court reviews choice of law questions de novo. Atkins v. Industrial Telecomms. Ass n, 660 A.2 d 885, 88 8 (D.C. 19 95); Vaughan v. Nationwide Mut. Ins. Co., 702 A.2d 198, 200 (D.C. 1997) (citing Hercules & Co. v. Shama Rest. Corp., 566 A.2d 31, 40 (D.C. 1989 )). Under a choice of law analysis, this Court ap plies anothe r state s law w hen (1) its intere st in the litigation is substantial, and (2) application of District of Columb ia law wo uld frustrate the clearly articulated public policy of that state. Kaiser-Georgetown Cmty . v. Stutsman, 491 A.2d 502, 509 (D.C. 1985). In tort cases, we use a governmental interests ana lysis to determine whether to apply District o f Colu mbia la w. Id. (citing Williams v. Williams, 390 A.2d 4, 5 (D.C. 1 978)(othe r citations om itted)). Unde r this analysis, [w]hen the policy of one state would be advanced by application of its law, and th at of anoth er state would not be advanced by application of its law, a false conflict appears and the law of the interested state prevails. Id. (quoting Biscoe v. Arlington County , 238 U.S. App. D.C. 206, 214, 738 F.2d 1352, 1360 ( 1984) , cert. denied, 469 U.S. 1159 (1985)). A true conflic t arises whe n both states have an interest in applying their own laws to the facts of the case, in which case the 3 The M aryland wro ngful dea th statute prov ides that if a sp ouse or m inor child dies, the recovery of damages is not limited to pecuniary losses, but may include dam ages for m enta l ang uish , emo tional pa in an d suf ferin g, los s of s ocie ty, companionship, comfort, protection . . . . Biro v. Schombert, 398 A.2d 519, 523 (Md. Ct. Spe c. App . 1979) (citing M d. Cod e Ann ., Cts. & Jud. Pro c. § 3-90 4(d)), vacated, 402 A.2d 7 1 (Md . 1979) . Compare District of C olumbia v. Howe ll, 607 A.2d 501, 506 (D.C. 1992)(loss of parent-child consortium is not a basis for damages in the District of Columbia). 5 law of the forum will be applied unless the foreign state has a greater interest in the contro versy. Id. (citing Biscoe, 238 U.S. App. D.C. at 214, 738 F.2d at 1360) (other citations omitted ). In order to f acilitate the gov ernmenta l interests analysis, we consider four factors, enumerated in the RESTATEMENT (SECOND) OF CONFLICT OF LAWS (1971) § 145, C omm ent d.: a) the place where the injury occurred; b) the place where the conduct causing the injury occurred; c) the domicile, residence, nationality, place of incorporation and place of business of the parties; and d) the p lace w here the relation ship is ce ntered. District of Columbia v. Coleman, 667 A.2d 811, 816 (D.C. 1995) (citing Hercules & Co., 566 A.2d 31, 40-41 (D.C. 1989)). Applying these factors leads to the conclusion that the trial court did not err in applying District of Columbia law for purposes of determining damages in this case. First, the place of the injury and death was the District of Columbia. Second, the conduct which re sulted in dec edent s wrongful death occurred in the District. Third, the person responsible for the sho oting wh ich caused deceden t s death was employed at the time by the District s Metro politan Polic e Departm ent. Indeed , the District s res ponsibility is based upon the action of its employee in causing deceden t s death. Fou rth, the relationsh ip to the events is c entered clea rly in the District. Th us, the four- factor gov ernment in terests analysis overwhelmingly favors app lication of D istrict law. De cedent s res idence in Maryland is the only factor in this analysis weighing against an o therwise straightforward analysis favoring the application of District law. Ho wever, res idency is not disp ositive in this analysis. See Tramontana v. S.A. Empresa De Viacao Aerea Rio Grandense , 121 U.S. App. D.C. 338, 3 45, 350 F.2d 4 68, 475 (1965 ), cert. denied, 385 U.S. 943 (19 66). The court s 6 decision in Tramontana is instruc tive. At issue in Tramontana was the applicability of District of Columbia law, the forum jurisdiction, to a monetary damage limitation in the wrongf ul death statu te of Braz il, where the injury and death occurred. 121 U.S. App. D.C. at 338, 350 F.2d at 4 68. There, the deceden t, a member of the United States Navy Band traveling under Navy orders, was killed when an airplane, owned and operated by a Brazilian airline, collided with a Navy plane over Rio de Janeiro, Brazil. 121 U.S.App.D.C. at 338, 350 F.2d at 469. At the time, the plane was traveling fro m Arge ntina to Bra zil. The D.C . Circuit held that w hile the decedent was a Maryland resident who died in a Brazilian air collision, Brazil had a substantial and legitimate interest in the death and, therefore, Brazilian law should apply to the wrongful death action. Id. The D.C. Circuit s analysis was also supported by Maryland s wrongful death statute, which provided that courts should give effect to the rights and obligations created by and existing under the laws of the foreign jurisdiction in w hich the w rongful ac t, neglect or defa ult occu rred. 1 21 U.S .App.D .C. at 344, 3 50 F.2d at 473-74 (quoting Md. Ann. Code, art. 67 § 2 (195 7)). Enactment of this provision resulted in expos[ing] Maryland residents to suit at hom e for acts co mmitted o utside the state , with the survivors of Maryland residents killed aw ay from h ome d epend ent upo n foreig n law f or any righ ts of rec overy. 121 U.S.App.D.C. at 344, 350 F.2d at 474. In applying Brazilian law, the court reasoned further that . . .if a Maryland court would not disregard Brazilian law for the benefit of one of its own residents in a suit brought there, why should a court sitting in the District of Columbia do so at the expense of substantial and legitima te interests of Brazil? 121 U .S. App . D.C. a t 345, 35 0 F.2d at 475. 7 The case before us now is factually similar to Tramontana. Like the facts in Tramontana, appellant s decedent was a Maryland resident who was killed in another jurisdiction. Similarly, the M aryland wro ngful dea th statute in effect specifically provides that [i]f the wrongful act occurred in another state, the District of Columb ia, or a territory of the United States, a Maryland court shall apply the substantive law of that jurisdicti on. Md. Code Ann., Cts. & Jud. Proc. § 3-903(a) (1998) (emphasis added). Although this case is not before a Maryland court, the analysis and underlying principles are the same. As the wrongful act occurred outside of Maryland, the law of the state where the wrongful act which resu lted i n death should ap ply. Appellant s argument that the District of Columbia does not have an interest in the events surrounding the decedent s death in this case is unpersuasive. The decedent was shot and killed by a District of Columbia police officer in the District of Columbia. When a District officer comm its a tortious act within the District, the District has a strong policy interest in the matter, as well as the potential damages that the injured part y can recover. Moreover, the District of Columbia s wrongful death statute specifically applies to acts done or happening within the limits of the District . . . . D.C. Code § 16-2 701. Further, a review of this jurisdiction s wrongful death statute supports the trial court s conclusion that the issue of recoverable damage s is an intrinsic pa rt of the [Distric t s Wro ngful D eath] A ct . . . . Since appellant brought this action under the District s wrongful death statute, and as the District has a stronger policy interest, District of Columbia law should govern the recovery of damages in this case. For the foregoing reasons, the judgment appealed from hereby is affirmed. 8
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