The opinion of the court was delivered by: Legge, District Judge.
Defendants have made motions for judgment on the pleadings and for
partial summary judgment. Plaintiffs oppose the motions, and have also
requested additional discovery under Rule 56(f) of the Federal Rules of
Civil Procedure. The motions have been briefed, argued and submitted for
decision. The court has reviewed the moving and opposing papers, the
record of
the case, the arguments of counsel and the applicable authorities, and
rules as follows:
Defendant Alaska*fn1 moves for judgment on the pleadings regarding the
claims of the representatives of the passengers killed in the crash.
Alaska seeks a determination that the cases brought on behalf of the
passengers are subject to the Warsaw Convention; and that their claims for
punitive damages and for pre-impact emotional distress are barred by the
Warsaw Convention.
It is clear, and indeed the parties do not dispute, that the Warsaw
Convention as modified by the Montreal Protocol No. 4 provides the
exclusive basis for the passengers' claims against Alaska. See Convention
for the Unification of Certain Rules Relating to International
Transportation by Air, October 12, 1929, 49 Stat. 3000, T.S. No. 876
(1934) (the "Warsaw Convention"). See also El Al Israel Airlines, Ltd.
v. Tseng, 525 U.S. 155, 119 S.Ct. 662, 142 L.Ed.2d 576 (1999) (holding
that the Warsaw Convention is the passengers exclusive remedy against an
international carrier). Alaska is also a signatory to the International
Air Transportation Authority ("IATA") Intercarrier Agreement on Passenger
Liability. Under the IATA agreement, a carrier such as Alaska assumes
liability for an injury caused by an accident within the meaning of the
Warsaw Convention unless it can prove that it took all necessary measures
to avoid the accident. See Cortes v. American Airlines, 177 F.3d 1272,
1281-82 n. 5 (11th Cir. 1999).
The Warsaw Convention, however, does not allow all possible claims
against an air carrier. At issue here are the Convention's prohibitions
against punitive damages and against emotional distress claims. All
claims which are allowed by the Convention are then evaluated under the
standards of the applicable domestic law. The United States Supreme Court
has said that the Warsaw Convention provides "nothing more than a pass
through, authorizing [a court] to apply the law that would govern in the
absence of the Warsaw Convention." Zicherman v. Korean Air Lines,
516 U.S. 217, 229, 116 S.Ct. 629, 133 L.Ed.2d 596 (1996). If a claim is
permitted by the Convention, the analysis of the claim is then governed by
the law of the forum, including the forum's choice of law rules. See
Insurance Company of North America v. Federal Express Corporation,
189 F.3d 914, 919-20 (9th Cir. 1999). As the Ninth Circuit said in that
case: "Although an international treaty governs the liability between the
parties in the instant dispute, our choice of law analysis under the
Warsaw Convention is no different than it would be under the familiar
Erie doctrine. This is so because the Supreme Court has "admonished lower
courts from developing federal common law under cover of advancing the
goal of uniformity in Warsaw Convention cases.'" Id.
Since the Warsaw Convention governs the claims between Alaska and its
passengers, the first substantive question is whether the Convention
permits awards of punitive damages. If the Convention does not allow such
damages, then the claim is barred regardless of the law of a particular
jurisdiction.
This court is of the opinion that the right to recover from the
carrier, Alaska, under the Convention is limited to compensatory
damages, and does not include punitive damages. That conclusion is
supported
by numerous cases. In re Korean Air Lines Disaster of September 1, 1983,
932 F.2d 1475, 1485-90 (D.C.Cir.), cert. denied, 502 U.S. 994, 112 S.Ct.
616, 116 L.Ed.2d 638 (1991); In re Air Disaster at Lockerbie, Scotland on
December 21, 1988, 928 F.2d 1267, 1284 (2d Cir.) cert. denied 502 U.S. 920,
112 S.Ct. 331, 116 L.Ed.2d 272 (1991); Floyd v. Eastern Airlines, Inc.,
872 F.2d 1462, 1483 (11th Cir. 1989), rev'd on other grounds, 499 U.S. 530,
111 S.Ct. 1489, 113 L.Ed.2d 569 (1991); In re Air Crash Disaster at
Gander, Newfoundland on Dec. 12, 1985, 684 F. Supp. 927, 931 (W.D.Ky.
1987); Pescatore v. Pan American World Airways, Inc., 97 F.3d 1, 14 (2d
Cir. 1996); Laor v. Air France, 31 F. Supp.2d 347, 350 (S.D.N.Y. 1998);
Jack v. Trans World Airlines, 854 F. Supp. 654, 663 (N.D.Cal. 1994);
Harpalani v. Air-India, Inc., 634 F. Supp. 797, 799 (N.D.Ill. 1986); In
re Aircrash Disaster Near Roselawn, Indiana on October 31, 1994,
960 F. Supp. 150, 153 (N.D.Ill. 1997).
Although those reported cases do not include decisions by the Ninth
Circuit, this court has no reason to believe that, in the face of this
overwhelming body of law, the Ninth Circuit's decision would be any
different.
Plaintiffs argue that the rule so clearly established by those cases
has been changed by the Zicherman decision. Plaintiffs contend that
Zicherman's "pass through" language authorizes a court to apply the law
that would govern in the absence of the Warsaw Convention, including
punitive damages if the law of the forum provides for them. However, this
court does not believe that Zicherman has such a sweeping impact. The
court is of the opinion that the Supreme Court's "pass through" language
was discussing only those claims that were not otherwise barred by the
Warsaw Convention, and that the Court did not mean to overrule the
prohibitions established by the Convention. Several courts have rejected
plaintiffs' arguments. As one post Zicherman court stated, "the case law
denying punitive damages in Warsaw Convention claims remains
fundamentally sound." In re Aircrash Disaster Near Roselawn, Indiana,
960 F. Supp. 150, 153 (N.D.Ill. 1997). This court agrees.
IT IS THEREFORE ORDERED that judgment on the pleadings is GRANTED in
favor of Alaska and against the representatives of the passengers on
their claims for punitive damages.
The Warsaw Convention also precludes claims for purely emotional
distress. Eastern Airlines Inc. v. Floyd, 499 U.S. 530, 111 S.Ct. 1489,
113 L.Ed.2d 569 (1991). As the Supreme Court there stated, "An air
carrier cannot be liable under [the Warsaw Convention] when an accident
has not caused a passenger to suffer death, physical injury, or physical
manifestation of injury." Id. at 552, 111 S.Ct. 1489. And claims for
physical injury purely descended from emotional distress are also
prohibited by the Convention. See El Al Israel Airlines, Ltd. v. Tseng,
525 U.S. 155, 172, 119 S.Ct. 662, 142 L.Ed.2d 576 (1999).
Alaska therefore contends that the representatives of the passengers
cannot recover for pre-impact terror, because those claimed injuries are
purely emotional in nature. Plaintiffs argue that they are not seeking
recovery for purely emotional injuries. They contend that they are
seeking recovery for emotional distress arising out of physical injuries
to the passengers. This type of emotional distress claim is permited by
the Warsaw Convention. See Jack v. Trans World Airlines, 854 F. Supp. 654,
669 (N.D.Cal. 1994) (collecting the cases holding that emotional distress
is cognizable under the Warsaw Convention permitted by the Warsaw
Convention
if the emotional distress arises out of a physical injury).
Plaintiffs argue that during the approximately half hour before the
crash, the passengers experienced a violent ride that caused them
physical injuries, which can serve as the predicate for their emotional
distress claims. Because of the destruction of the plane and the physical
evidence caused by the crash, the only evidence which plaintiffs ...