IN THE SUPERIOR COURT OF THE STATE OF DELAWARE IN AND FOR KENT COUNTY NOAH YODER and : SADIE YODER, his wife, : : Plaintiffs, : : v. : : DELMARVA POWER & LIGHT : COMPANY, a Delaware corporation : and MR. LONG ARM, INC., a : Missouri corporation, : : Defendants. : Submitted: August 7, 2003 Decided: Upon Consideration of Plaintiffs Motion to Apply Delaware s Law of Comparative Negligence. DENIED. Upon Consideration of Defendant s Motion to Apply Maryland Law to All Liability and Damage Issues. GRANTED IN PART; DENIED IN PART. William D. Fletcher, Jr., Esquire of Schmittinger & Rodriguez, P.A., Dover, Delaware; Joseph F. Roda, Esquire and Daniel N. Gallucci, Esquire of Roda & Nast, P.C., Lancaster, Pennsylvania. Attorneys for the Plaintiffs. Somers S. Price, Jr., Esquire of Potter Anderson & Corroon, LLP, Wilmington, Delaware and Lisa Cresci McLaughlin, Esquire of Phillips Goldman & Spence, P.A., Wilmington, Delaware. Attorneys for Defendant DP&L. William J. Cattie, III, Esquire of Cattie & Fruehauf, P.A., Wilmington, Delaware. Attorneys for Defendant Mr. Long Arm, Inc. VAUGHN, Resident Judge
ORDER Noah Yoder was a self-employed handyman. On October 7, 1999 he was applying sealant to the roof of a residence located at 376 Cypress Street, Millington, Maryland, using an Alumiglass extension pole to roll the sealant on the roof. As he backed down an extension ladder, the pole, which he was holding, came into contact with a high voltage, overhead power line owned and maintained by defendant Delmarva Power & Light Company ( DP&L ). Mr. Yoder was shocked and received severe and extensive injuries to his brain and many other parts of his body. He and Sadie Yoder, his wife, have filed a motion asking the Court to determine that Delaware s law of comparative negligence applies to the issue of Mr. Yoder s negligence, if any. Defendant DP&L has filed a motion asking the Court to determine that the law of the State of Maryland applies to all liability and damage issues arising from the plaintiffs claims. The Plaintiffs allege that DP&L was negligent by having an uninsulated power line more than three feet too close to the house in violation of the National Electric Code s requirement for horizontal clearances and DP&L s internal standard. There are two significant differences between Maryland and Delaware law which create the choice of law issues which the parties raise. One is that Maryland is still governed by the common law doctrine of contributory negligence, under which a plaintiff s contributory negligence bars the plaintiff from any recovery at 2
all, 1 whereas Delaware has adopted comparative negligence, under which a plaintiff s contributory negligence does not bar a recovery unless the plaintiff s negligence is greater than the negligence of the defendant. 2 Secondly, Maryland has enacted a statutory cap on the non-economic damages which an injured plaintiff may recover in the amount of $350,000, 3 whereas Delaware has no such cap. 4 FACTS Noah Yoder and his wife lived in Maryland at the time of the accident. He was a licensed contractor in that state. The owner of the house in Millington contracted him to apply sealant to the roof. Millington is a small town on the 1 Union Memorial Hospital v. Dorsey, 724 A.2d 1272, 1275 (Md. Ct. Sp. App. 1999); Campbell v. Baltimore Gas and Electric Co., 619 A.2d 213 (Md. Ct. Sp. App. 1993) (finding aluminum siding installer contributorily negligent when his equipment made contact with overhead wires), Harrison v. Montgomery County Board of Educ., 456 A.2d 894, 904-05 (Md. 1983) (Court deferred to legislature on issue of whether Maryland should adopt comparative negligence stating that the legislature was better equipped to consider, debate and articulate Maryland s policy given the numerous considerations that would go into the debate). 2 10 Del. C. 8132. Where there is more than one defendant, the plaintiff s negligence is compared to the combined negligence of all defendants against whom recovery is sought. Any damages awarded, however, must be diminished in proportion to the amount of negligence attributed to the plaintiff. 3 MD CODE ANN., COURTS AND JUDICIAL PROCEEDINGS 11-108. 4 A potential third issue may be created by the existence of a Maryland High Voltage Line statute. That statute appears to impose obligations upon any person responsible for the performing of any activity within ten feet of a high voltage line. The Plaintiff s position is that consideration of that statute in the context of these motions is unnecessary since that statute, if applicable, goes only to the issue of the Plaintiff s negligence, not the contributory versus comparative negligence issue. I infer from this that Plaintiffs agree that for purposes of choice of law the Maryland statute would apply to activity in Maryland, or not apply, according to the statute s terms. 3
eastern shore of Maryland, a short distance from the Delaware-Maryland line. Each party has set forth facts in support of their respective contentions as to which state has the most significant relationship with the facts of the case. The Plaintiffs set forth that DP&L is (and was at the time of the accident) a Delaware corporation with its principal place of business in Wilmington, Delaware; that at the time of the accident DP&L was a wholly-owned subsidiary of Conectiv, also a Delaware corporation; that DP&L developed and maintained, in Delaware, the safety standards that apply to its operations in Maryland; that DP&L took the evidence from Mr. Yoder s accident to its office in New Castle County, Delaware; that John Petito, the claims adjuster who responded to the accident scene for DP&L, was responsible for claims territory that included Delaware; that on the way to the accident scene, Mr. Petito called Larry Bishop, Conectiv s claims coordinator for areas including Delaware, at Mr. Bishop s office in Wilmington, Delaware; that Doug Walton, another Conectiv claims adjuster who investigated the accident, was based in Wilmington, Delaware; that DP&L employee David Young responded to the accident scene from DP&L s office in Christiana, Delaware; that DP&L employee Ron Murry also responded to the accident scene from DP&L s office in Christiana, Delaware; that Mrs. Yoder spent 50 percent of her time at work in Delaware; that Mr. Yoder performed work in Delaware; that the Yoders attended church and their children attended school at Central Mennonite Christian Church School in Dover, Delaware; that the Yoders did almost all of their shopping in Delaware; that the dentist for two of the Yoders children was in Dover, Delaware; 4
that Mr. Yoder was treated for his injuries at Christiana Care Rehabilitation in Newark, Delaware, and at Meadow Woods in New Castle, Delaware; and that in June 2000, Mr. Yoder was involuntarily committed by the State of Delaware to the Delaware Psychiatric Center in New Castle, Delaware because of the brain injuries that he sustained in the accident. In addition to the fact that the Yoders were Maryland residents and the injury occurred in Maryland, Defendant DP&L sets forth that Mr. Yoder s business license was issued in Maryland; that the contract between Mr. Yoder and the owner of the house was made in Maryland; that Mr. Yoder bought the Alumiglass extension pole in Maryland; that the accident was investigated by Maryland authorities; that Mr. Yoder was taken from the scene by Maryland emergency services and his initial care took place at the Johns Hopkins Bayview Burn Unit in Baltimore, Maryland; that although Mr. Yoder has received medical treatment in several states since the accident, the primary state of his post-accident medical care was Maryland, with additional treatment occurring primarily in Pennsylvania and New Jersey; that by late 2000 his primary care was provided by doctors in Easton and Chestertown, Maryland; that DP&L maintains extensive electric service operations in Maryland, including 3 office buildings, 197,000 electric meters, 6525 miles of circuits, 652 miles of high voltage transmission lines, and 187,000 Maryland customers; that DP&L is regulated in Maryland by the Public Service Commission of that state; that the Delaware Public Service Commission does not regulate DP&L s operations in Maryland; that DP&L employed hundreds of 5
employees in Maryland at the time of the accident and currently employs 388 people there; and that DP&L pays extensive Maryland state taxes, including franchise taxes, real estate taxes, sales taxes and regulatory taxes. DISCUSSION It is well established that Delaware decides choice of law questions based upon the most significant relationship test set forth in the Restatement (Second) of Conflict of Laws ( Restatement ). 5 The most significant relationship test is a flexible doctrine which requires each case to be decided on its own facts. 6 Restatement 6 lists a number of relevant factors which should be considered in the absence of a statutory directive on choice of law. They are as follows: (a) the needs of the interstate and international systems; (b) the relevant policies of the forum; (c) the relevant policies of other interested states and the relative interests of those states in the determination of a particular issue; (d) the protection of justified expectations; (e) The basic policies underlying the particular field of law; 38 (1991). 5 Turner v. Lipshultz, 619 A.2d 912 (Del. 1992); Travelers Indem. Co. v. Lake, 594 A.2d 6 Lake, 594 A.2d at 48. 6
(f) certainty, uniformity, and predictability of result; and (g) ease in the determination and application of the law to be applied. General principles concerning choice of law in tort cases are set forth in Restatement 145 as follows: (1) The rights and liabilities of the parties with respect to an issue in tort are determined by the local law of the state which, with respect to that issue, has the most significant relationship to the occurrence and the parties under the principles stated in 6. (2) Contacts to be taken into account in applying the principles of 6 to determine the law applicable to an issue include: (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 place where the relationship, if any, between the parties is centered. These contacts are to be evaluated according to their relative importance with respect to the particular issue. The contacts and factors set forth above are not to be applied simply by counting up 7
the interests on each side, but rather evaluated according to their relative importance with respect to the particular issue. 7 In addition, if warranted, the law of one state may be found to apply to some issues, while the law of another state may be found to apply to others. 8 With respect to personal injury cases in particular, Restatement 146 provides as follows: In an action for a personal injury, the local law of the state where the injury occurred determines the rights and liabilities of the parties, unless, with respect to the particular issue, some other state has a more significant relationship under the principles stated in 6 to the occurrence and the parties, in which event the local law of the other state will be applied. Therefore, since the injury occurred in Maryland, the law of that state should apply unless Delaware has a more significant relationship with respect to the particular issues involved. And, finally, with respect to the issue of contributory negligence, Restatement 164 should also be considered. It provides as follows: (1) The law selected by application of the rule of 145 determines whether contributory fault on the part of the plaintiff precludes his recovery in whole or in part. 7 Lake, 594 A.2d at 48, n.6 (quoting Restatement 145). 8 Pittman v. Maldania, 2001 WL 1221704 (Del. Super.); Marks v. Messick & Gray Construction, Inc., 2000 WL 703657 (Del. Super.). 8
(2) The applicable law will usually be the local law of the state where the injury occurred. A. Contentions of the Parties The Plaintiffs contend that the relevant conduct on the part of DP&L occurred in Delaware, because that is where DP&L made its decisions about placing the utility pole and its high voltage wires where they were and about insulating or not insulating the wire. They also emphasize that DP&L is incorporated in Delaware, has its primary place of business here, and is the wholly-owned subsidiary of another Delaware corporation. They also contend that the Plaintiffs have significant contacts with Delaware, as set forth above; that the relationship of the parties is not centered in either state, as the parties had no relationship before the accident; that Delaware has a clear public policy in favor of comparative negligence, while Maryland does not have a clear public policy in favor of its adherence to the doctrine of contributory negligence; that Delaware s clear public policy in favor of comparative negligence should apply to DP&L because it operates its business from within Delaware s borders and made all of its safety decisions, or failed to make safety decisions, in Delaware; that Delaware has a strong interest in ensuring that corporations that seek the protection of its laws for purposes of incorporation and business operations not escape the consequences of their negligent conduct emanating from Delaware merely because some other state in which they conduct business adopts a cap on non-economic damages or follows the law of contributory negligence; that the Delaware statute establishing comparative negligence expressly 9
provides that [i]n all actions seeking damages for personal injury, without exception, comparative negligence shall apply, and contributory negligence shall not bar recovery (emphasis added); 9 that the overwhelming trend in tort law supports the application of comparative negligence, which has been adopted in all but four states; and that the application of Delaware law will promote harmony between jurisdictions, will protect justified expectations, and will promote certainty, predictability and uniformity of result. With respect to damages, the Plaintiffs also contend that a cap on noneconomic damages violates the Delaware constitution; that any damages awarded in this case will not implicate the availability of affordable insurance for the Plaintiffs as Maryland residents; that DP&L is self-insured in an amount which exceeds Maryland s $350,000 cap; and there is no evidence in the record to suggest that any judgment which may be entered against DP&L might affect the affordability or stability of insurance in Maryland. They also contend that Delaware s law on this issue is consistent with the goal of tort law to fully compensate a deserving plaintiff, whereas Maryland s cap is not. DP&L contends that all conduct involved, on the part of either party, occurred in Maryland; that the Restatement 145(2) factors strongly favor application of Maryland law; that Maryland has established a clear policy favoring a cap on non-economic damages; that Maryland also has a clear public policy favoring contributory negligence; that the Plaintiffs have no justifiable expectation 9 10 Del. C. 8132 10
that Delaware law would apply to their claims, whereas DP&L has a justifiable expectation that Maryland law would apply; and that application of Maryland law would best promote certainty, predictability, and uniformity of result. B. Contributory Negligence Although the Plaintiffs argue that conduct on the part of the Defendant which occurred in Delaware contributed to the accident, no specific acts in Delaware are identified. While some management decisions made in Delaware may have relevance to the accident, the act on the part of the Defendant which allegedly caused the accident, that is, the placement of an uninsulated high voltage wire close to the house, occurred in Maryland. I conclude that the conduct which caused the accident, whether Plaintiff s conduct or Defendant s conduct, occurred in Maryland. Although the Plaintiffs had numerous contacts with Delaware, none seem to bear any relationship to the accident in Maryland, with the exception of the postaccident fact that Mr. Yoder is hospitalized at the Delaware Psychiatric Center. While Delaware has a strong public policy in favor of comparative negligence, due regard should be given to the public policy of Maryland which favors the doctrine of contributory negligence. Although that doctrine is now disfavored in most jurisdictions, it remains, nonetheless, the public policy of that state. The Plaintiffs argument that Delaware s comparative negligence statute applies in all actions based upon negligently caused death or injury has plausibility because of the statute s literal reference to all actions, without any distinction as 11
to place of injury or domicile of the parties. I am not persuaded, however, that this language alone is a controlling statutory directive which overrides choice of law principles. The Plaintiffs cite the case of J.S. Alberici Construction Company, Inc. v. Mid-West Conveyor Company, Inc. 10 That case involved a contract which contained an indemnification provision permitting a party to contract away liability for its own negligence. The contract provided that it would be governed by the law of Kansas. In Kansas, such a provision was enforceable. The Delaware Supreme Court refused to apply that provision in litigation in Delaware, however, holding that it was against the public policy of this state and void and unenforceable. In that case, however, a Delaware statute specifically provided that such provisions were against public policy and void and unenforceable. No such express statutory provision exists in this case. Other cases cited by the Plaintiffs are factually distinguishable. After considering these and all other relevant factors, I conclude that Maryland has the most significant relationship to the occurrence and the parties as to this issue. C. Damages This Court has previously observed that the policy behind Maryland s cap on non-economic damages is to ensure that Maryland citizens will be able to obtain 10 750 A.2d 518 (Del. 2000). 12
insurance at an affordable rate. 11 The cases recognizing this policy have refused to apply the Maryland cap on non-economic damages where accidents occurred in Maryland but none of the parties involved were Maryland residents. 12 Here, although the Plaintiffs are Maryland residents, the policy behind the cap on noneconomic damages does not seem to be implicated. No evidence has been presented to suggest that the availability or affordability of insurance for residents and businesses in Maryland will be affected by the amount of any judgment which might be entered against the Defendant in this case, or that the Defendant s insurance as it relates to its operations in Maryland will be affected. A cap on non-economic damages would be contrary to Delaware s public policy, however, which favors no cap on such damages. After considering all of the relevant factors, I conclude that qualitatively Delaware s policy against any cap on non-economic damages overcomes any countervailing factors and that Delaware has the most significant relationship to the occurrence and the parties as to this issue. Accordingly, the Maryland cap on noneconomic damages will not apply in this proceeding. CONCLUSION The Maryland law of contributory negligence will be applied in this case. The Maryland cap on non-economic damages will not apply. Therefore, the 11 Marks v. Messick & Gray Construction, Inc., 2000 WL 703657 (Del. Super.); Judge Trucking Co., Inc. v. Cooper, 1994 WL 680029 (Del. Super). 12 Id. 13
Plaintiffs motion is denied. The Defendant s motion is granted in part and denied in part. 13 IT IS SO ORDERED. JTVJr:dmh oc: Prothonotary xc: Order Distribution File /s/ James T. Vaughn, Jr. Resident Judge 13 Another defendant, Mr. Long Arm, Inc., has not participated in these motions. This order is effective only as between the Plaintiffs and DP&L. 14