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Herbert v. District of Columbia

October 17, 2002

TONI HERBERT, PERSONAL REPRESENTATIVE OF THE ESTATE OF DAWON HERBERT, DECEASED, APPELLANT,
v.
DISTRICT OF COLUMBIA, APPELLEE.



Appeal from the Superior Court of the District of Columbia (CA-6617-95) (Hon. Wendell P. Gardner, Jr., Trial Judge)

Before Wagner, Chief Judge, and Terry and Reid, Associate Judges.

The opinion of the court was delivered by: Wagner, Chief Judge

Argued January 10, 2001

Appellant, Toni Herbert, personal representative of the estate of Dawon Herbert, deceased, appeals from a judgment in an action brought under the District of Columbia's Wrongful Death Act to challenge the trial court's ruling that the law of the District of Columbia governs the award of damages. Appellant argues that Maryland law should control the issue of damages 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 circumstances of this case, is governed by the law of the District of Columbia. Therefore, we affirm.

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 officer 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 attended school. The day he was shot, decedent had come into the District to attend a festival. The decedent's mother, Toni Herbert, filed a complaint under the District of Columbia's Wrongful Death Act, D.C. Code § 16-2701 (1998) and Survival Act, D.C. Code § 12-101 (1998). The parties dismissed the actio n under the Survival A ct by s tipulatio n. During discovery, appellant represented that she was not 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. *fn1 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. Proc. § 3-904 (1998). Prior to trial, the trial court denied appellant's request to apply Maryland law on damages and ruled that District of Columbia law applied to the damages phase of the action under the D istrict of Columbia Wrongful Death Act. See D.C. Code § 16-2701.

At trial, liability was contested, but the parties stipulated that under District of Columbia law, the only damages recoverable would be the amount of funeral and burial expenses, since appellant elected to forego other allowable pecuniary losses under the Wrongful Death Act. *fn2 The jury found the District liable for the decedent's death, and judgment was entered in the amount of $1,511.00 for funeral and burial expenses, as stipulated by the parties. Appellant appealed, challenging only the application of District of Columbia 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 circumstances, the District has no interest in applying its compensation scheme over Maryland law and that an analysis of the relevant factors favors application of Maryland law on damages. *fn3 The District argues that the governmental interests analysis favors application of District of Columbia law. Further, it contends that recoverable damages are an integral part of the Wrongful Death Act and therefore, liability and damages should be determined under the same law.

This Court reviews choice of law questions de novo. Atkins v. Industrial Telecomms. Ass'n, 660 A.2d 885, 888 (D.C. 1995); 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 applies another state's law w hen (1) its interest in the litigation is substantial, and (2) "application of District of Columbia law would 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" analysis to determine whether to apply District of Columbia law. Id. (citing Williams v. Williams, 390 A.2d 4, 5 (D.C. 1978)(other citations omitted)). Under this analysis, "'[w]hen the policy of one state would be advanced by application of its law, and that of another 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 conflict arises when both states have an interest in applying their own laws to the facts of the case, in which case the law of the forum "will be applied unless the foreign state has a greater interest in the controversy." Id. (citing Biscoe, 238 U.S. App. D.C. at 214, 738 F.2d at 1360) (other citations omitted). In order to facilitate the gov ernmental interests analysis, we consider four factors, enumerated in the RESTATEMENT (SECOND) OF CONFLICT OF LAWS (1971) § 145, C omment 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 place where the relationship 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 ...


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