Quinn v. Owen's Marine CV-93-247-JD 04/26/95 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Thomas G. Quinn, III, et al.

v. Civil No. 93-247-JD

Owen's Marine, Inc.

O R D E R

This case involves a July 3, 1990, boating accident in

Dunstable, Massachusetts. The plaintiffs allege that the

defendant, Owen's Marine, Inc., is liable for installing an

excessively powerful motor on a boat which collided with the boat

transporting the plaintiffs' decedent. By order of August 16,

1994 (document no. 57), the magistrate judge ruled that

Massachusetts law governs the substantive legal issues in this

case. Before the court is the defendant's objection to that

order (document no. 58).

Standard of Review

Rule 72 provides that

[a] magistrate judge to whom a pretrial matter not dispositive of a claim or defense of a party is referred shall . . . enter into the record a written order setting forth the disposition of the matter . . . . The district judge to whom the case is assigned shall consider [timely] objections and shall modify or set aside that portion of the magistrate judge's order found to be clearly erroneous or contrary to law. Fed. R. Civ. P. 72(a) (emphasis supplied); see

(b)(1)(West 1993); Quaker State Oil Ref, v. Garritv Oil,

(1st Cir. 1989); Blinzler v. Marriott Int'l,

Inc.,

(D.R.I. 1994).

A magistrate judge's factual finding is considered clearly

erroneous when it is contrary to the "clear weight of the

evidence or when the court has a 'definite and firm conviction

that a mistake has been committed.'" Blinzler,

(guoting Holmes v. Bateson,

(1st Cir. 1978)).

However, where a dissatisfied litigant objects to a magistrate

judge's legal ruling the court considers whether the ruling was

contrary to law. E.g., Bryant v. Hilst,

(D.

Kan. 1991). The court is empowered to modify or set aside any

factual or legal ruling of a magistrate judge which does not

survive application of the clearly erroneous or contrary to law

standard of Rule 72(a). E.g., Blinzler,

.

The magistrate judge's August 16, 1995, legal ruling that

Massachusetts law governs this action is not dispositive of a

"claim or defense of a party" and, thus, is subject to the

clearly erroneous standard or contrary to law standard of review.

Fed. R. Civ. P. 72(a); see Middleton v. Sutton, No. 92-589-B,

slip op. at 1-2 (D.N.H. Jan. 5, 1995) (guoting Fischer v.

McGowan,

(D.R.I. 1984)).

2 Background1

This case arises out of a boating accident which occurred on

July 3, 1990, on Lake Massapoag in Dunstable, Massachusetts. The

decedent, Norma L. Quinn, and plaintiff Susan Lee Yezzi were

passengers in a motorboat being operated by Thomas G. Quinn, III,

which was in a collision with a motorboat being operated by

William DeRouche. Norma L. Quinn died as a result of the

accident and Thomas G. Quinn, III, Susan Lee Yezzi, Carroll

Thomas Quinn, Mary Eileen Lavigne and Kathleen Mary Newcomb, her

children, were appointed co-administrators of her estate in

Massachusetts.

The defendant, Owen's Marine, Inc., is a New Hampshire

corporation with its principal place of business in Manchester,

New Hampshire. The outboard motor of the DeRouche boat was sold

by Owen's Marine, Inc., in New Hampshire. During the period

1982-85, about twenty percent (20%) of defendant's business was

done with Massachusetts residents. Norma L. Quinn, Thomas G.

Quinn, III and Mary Eileen Lavigne are residents of Massachu­

setts; Carroll Thomas Quinn is a resident of New Jersey; Susan

1The magistrate judge announced findings of fact in conjunction with his August 1994 order. The defendant has not objected to these findings and the court incorporates them verbatim.

3 Lee Yezzi is a resident of Connecticut and Kathleen Mary Newcomb

is a resident of Florida.

The Quinn boat and the DeRouche boat were registered in

Massachusetts and were owned by Massachusetts residents.

Discussion

The magistrate judge ruled that the only actual conflict of

law guestion before the court is whether to apply the New

Hampshire wrongful death statute,

,

or the Massachusetts statute, Mass. Gen. L. ch. 229:2, which

permits recovery for a wider array of damages. Quinn v . Owen's

Marine, No. 93-247-JD, pretrial order at 4, 5 (D.N.H. Aug. 16,

1994). The defendant has not objected to this legal ruling,

which is adopted herein. See Defendant's Objection.

_____ The parties do not dispute that the choice of law deter­

mination is governed by application of the factors announced by

the New Hampshire Supreme Court in Clark v. Clark,

,

(1966). However, the defendant asserts that the

magistrate judge incorrectly applied the Clark criteria and, as a

result, the legal ruling is contrary to law. Defendant's

Objection at 5 1. The plaintiff responds that the magistrate

judge properly applied the findings of facts to the Clark

criteria. Plaintiff's Brief Reply at 55 2 -7.

4 The court has considered the pleadings, memoranda, and

applicable law. Based on this review the court finds that the

magistrate judge's application of the New Hampshire choice of law

principles was contrary to law. Thus, the court must undertake

its own analysis consistent with Clark and other controlling

precedent.

New Hampshire has adopted five choice-influencing considera­

tions for use in determining which body of substantive law to

apply where there is an actual conflict between the substantive

law of two or more jurisdictions: (1) the predictability of

results; (2) the maintenance of reasonable orderliness and good

relationships among the states in the federal system; (3)

simplification of the judicial task; (4) the advancement of the

governmental interest of the forum; and (5) the court's

preference for what it regards as the sounder rule of law.

Sinclair v. Brill,

(D.N.H. 1993); Keeton v.

Hustler Magazine,

,

(1988)

(citing LaBountv v. American Ins. Co.,

,

(1982); Clark,

,

-

09). Although the court considers each of the Clark factors,

"[o ]bviously, some of them will be more relevant to some type of

cases, less to other types." Ferren v. General Motors Corp., 137

, 425,

(1993) (quoting Clark,

,

).

I. Predictability of Results

The first factor, predictability of results,

basically relates to consensual transactions, in which it is important that parties be able to know in advance what law will govern a transaction . . . Reliance upon a predictable choice of law protects the justifiable expectations of the parties[, and] . . . assures uniformity of decision regardless of forum.

Ferren,

,

-68 (quoting Clark,

,

). Application of this factor

"emphasizes the importance of applying to the parties' bargain or

other dealings the law which they agreed to rely at the outset."

Keeton,

,

. In Ferren, the court

ruled that a lead paint liability case brought by a New Hampshire

resident should be governed by Kansas law where the alleged

exposure occurred in the context of an employment relationship

"entered into and carried out in full" in Kansas.

,

(responding to question certified by federal

district court). Thus, for purposes of the predictability factor

the "underlying factual basis" of a lawsuit may command greater

weight than the long time residence of the plaintiff or the place

where the harm ultimately manifested itself. See

6 The defendant argues that the magistrate judge did not

adeguately address this factor. Defendant's Objection at 5 2.

The plaintiffs respond that the factor is inapplicable because

there is "no consensual transaction between plaintiffs and

defendant" and, alternatively, defendant should have foreseen

that it would be subject to Massachusetts law. Plaintiffs'

Memorandum of Law in Opposition to Defendant's Objection

("Plaintiffs' Memorandum") at 3-4.

The gravamen of the plaintiffs' lawsuit is that the defend­

ant is liable, under a variety of theories, for its conduct

relative to the sale of an overly powerful outboard motor for use

on the boat which collided with the decedent. Thus, although the

ultimate harm in this case manifested itself in Massachusetts and

involved residents of that and other states, the underlying basis

for this lawsuit -- the purchase and sale of goods -- is a

consensual transaction which was initiated and completed in New

Hampshire. New Hampshire merchants can reasonably and justi­

fiably predict that New Hampshire law will govern their actions,

particularly when conducted entirely in this state. The absence

of a written choice of law provision and the fact that twenty

percent of the defendant's customers were Massachusetts residents

does not seriously undermine this conclusion. The court finds

that the predictability of results factor, more than any other of

7 the Clark factors, strongly favors the application of New Hamp­

shire substantive law.

II. Maintenance of Reasonable Orderliness and Good Relationships Among the States in the Federal System

The second factor, reasonable orderliness and good rela­

tionships among the states, reguires the court to apply the

substantive law of a state which has a "substantial connection

with the total facts and with the particular issue being

litigated." Ferren,

,

(guoting

Clark,

,

); see Keeton,

,

. Implicit in the application of this factor

is that, depending on the circumstances, more than one state may

maintain a substantial connection with a case such as to satisfy

this factor. See

_____ The plaintiffs correctly argue that Massachusetts has a

substantial interest in the litigation of any case involving a

boating accident within her state borders which resulted in death

and harm to her residents. See Plaintiffs' Memorandum at 4.

However, the disputed issues in this lawsuit focus on the

business conduct of a New Hampshire merchant in New Hampshire.

New Hampshire has a substantial interest in monitoring and

regulating the business practices and potential liabilities of

its residents. See Ferren,

,

(Kansas has substantial connection with lawsuit based on con­

sensual relationship consummated in Kansas even where injuries

arose in New Hampshire). The court finds that New Hampshire has

a more substantial interest in the application of its law

notwithstanding the fact that Massachusetts may also have a

substantial interest. The court rules that the second Clark

factor also favors application of New Hampshire law.

III. Simplification of the Judicial Task

The third factor, simplification of the judicial task,

requires the forum court to determine whether it would be easier

"to apply its own substantive law than another state's law,

because it understands its own law better and therefore can do a

better job of administering justice under it." Clark,

,

.

The conflict of law in this case involves the question of

which state's wrongful death statute applies. Although the court

is naturally more familiar with the New Hampshire statute, there

is nothing particularly esoteric about its Massachusetts

analogue. The court finds that this Clark factor has little

significance as it could properly administer either statute.

See, e.g., Middleton, No. 92-589-B, slip op. at 9 (D.N.H. Jan. 5,

1995) .

9 IV. Advancement of Forum's Governmental Interest

The fourth factor, advancement of the forum state's govern­

mental interest, requires the court to examine the competing

bodies of substantive law and determine whether application of

another state's law would compromise or contravene New

Hampshire's interests and public policies. See, e.g., Ferren,

,

.

The plaintiffs correctly assert that in a general sense the

wrongful death statutes of both states "reflect the same policy

of providing compensation for wrongful death." Plaintiffs'

Memorandum at 5. However, the parties do not challenge the

magistrate judge's ruling that the states promote this common

goal in two different manners, with the Massachusetts statute

allowing both compensatory and punitive damages while the

"primary interest" of New Hampshire's statute is compensatory.

Quinn v. Owen's Marine, Inc., No. 93-247-JD, pretrial order at 6-

7 (D.N.H. Aug. 16, 1994).

In addition to providing compensation for wrongful death.

New Hampshire has a substantial interest in regulating the

business practices and potential liabilities of its commercial

residents. See discussion, supra, pp. 8-9. This interest is not

limited to the application of statutes directly regulating

10 commercial conduct, such as the Uniform Commercial Code, but also

extends to other laws which affect the rights and potential

liabilities faced by New Hampshire merchants in the course of

conducting business in this state. The application of the New

Hampshire statute serves two important state interests. First,

it would allow recovery for wrongful death. Second, it would

shield merchants from the expansive punitive damage theories of

other states in cases involving business dealings conducted

entirely in New Hampshire. The court finds that the fourth Clark

factor favors the application of New Hampshire law because this

will promote the forum's governmental interest without seriously

contravening that of Massachusetts.

V. The Court's Preference for the Sounder Rule of Law

The final factor, the sounder rule of law, reguires the

court to examine the competing bodies of substantive law and to

select the "better rule" to govern the case at bar. E.g., Clark,

,

. This factor encourages New

Hampshire courts to take advantage of a conflicts of law

situation to avoid application of "obsolete or senseless"

doctrine.

Massachusetts has adopted a statute which allows for broader

recovery than that permitted under New Hampshire law. Neither

11 statute, if applied, would yield a senseless or obsolete result.

The court does not consider the final Clark factor to be

significant in the chemistry of this choice of law analysis.

Conclusion

The court finds the magistrate judge's choice of law

analysis to be contrary to applicable law. The court has

undertaken its own analysis consistent with Clark v. Clark and

its progeny and rules that the substantive law of New Hampshire

should govern this lawsuit. The defendant's motion under Rule

72(a) (document no. 58) is granted and the magistrate judge's

August 16, 1994, legal rulings are set aside except where

consistent with this order.

SO ORDERED.

Joseph A. DiClerico, Jr, Chief Judge April 26, 1995

cc: John T. Broderick, Jr., Esguire Stephen L. Tober, Esguire Cheryl M. Hieber, Esguire

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