author: GLASSER, District Judge:

text:
    Justo RICHARDS, Plaintiff, v. Thomas GISCOME, “John” Cordero, Kirk Bennett, Daniel Hays, “Jane” Di Mango, Hon. Joseph Lombardo, “John” Giovanniello, “John” Kohn, “John” Corbett, Defendants.
    No. 83 Civ. 1388.
    United States District Court, E.D. New York.
    July 31, 1984.
    Justo Richards, pro se.
    Elizabeth A. Bryson, Asst. Corp. Counsel, Randolph Volkell, Asst. Atty. Gen., New York City, Owen W. Daley, John Giovanniello, Brooklyn, N.Y., Emily Remes, Patterson, Belknap, Webb & Tyler, New York City, Leo Kimmel, Brooklyn, N.Y., for defendants.
   MEMORANDUM AND ORDER

GLASSER, District Judge:

Pro se plaintiff Justo Richards brings this action pursuant to 42 U.S.C. § 1983 and § 1985(3), alleging that defendants deprived him of various constitutional rights. Defendants Lombardo, Di Mango, Cordero, Giovanniello and Hays have, moved to dismiss the complaint. For the reasons set forth below, the complaint is dismissed in its entirety.

The Complaint

Plaintiff was convicted in the Supreme Court, Kings County, of second degree murder and criminal possession of a weapon in the second degree arising out of transactions involving a Panamanian lottery ticket. In the unnumbered paragraphs of his complaint, plaintiff alleges the following violations of his rights by defendants which occurred in connection with his conviction.

Plaintiff asserts that defendant Lombardo, the judge who presided over plaintiffs trial and sentencing, violated his rights by demonstrating bias at his trial. Specifically, plaintiff charges that Lombardo improperly admitted as evidence certain statements, determined that plaintiff had knowledge of the law, and engaged in conversation at the bench with defendant Giscome during a trial recess.

As to defendant Di Mango, an Assistant District Attorney who participated in plaintiffs prosecution, plaintiff alleges failure to aid plaintiff in obtaining an attorney. Plaintiff also states that Di Mango falsely testified that she did not know that the victim’s son was in the police station lineup.

Plaintiff alleges that defendant Bennett, another assistant prosecutor, improperly informed the Court that plaintiff was an interested witness, schooled witnesses to testify falsely against plaintiff, and used plaintiff’s prior convictions against him. It is also charged that Bennett was involved in having an improper indictment issued against plaintiff, and that he also slandered plaintiff.

As to defendant Hays, a reporter, plaintiff alleges that the newspaper Daily News slandered plaintiff by not setting forth the true facts surrounding plaintiff’s trial. Defendant Giscome, a private investigator, is alleged to have arrested a third person involved with the lottery ticket transactions without probable cause, schooled witnesses to testify falsely against plaintiff, altered evidence admitted during plaintiff’s trial and slandered plaintiff.

Defendant Cordero allegedly fraudulently aided and abetted plaintiff’s conviction by tampering with evidence, testifying falsely and taking plaintiff’s note pad and not returning it.

Defendants Giovanniello, Kohn and Corbett, all attorneys, are charged with depriving plaintiff of his right to adequate representation at trial. Most of plaintiff’s specific allegations in this connection are directed toward defendant Corbett, and complain of Corbett’s inattention to plaintiff’s case and allege additional improper conduct by Corbett.

As relief, plaintiff seeks to recover $2,750,000 in damages and the $5,000 allegedly due him as the winner of the Panamanian lottery ticket. In addition, plaintiff concludes the complaint by stating that he “is being held in various State detention institutions” in violation of the Constitution.

Discussion

It is fair to state, at the outset, that this is an action in which plaintiff has rather freely availed himself of the federal judicial process. In addition to filing the instant motion, plaintiff subsequently instituted two additional actions before me, with docket numbers 83 Civ. 3869 and 83 Civ. 5166. Both actions name a multiplicity of defendants, including court officials and courts themselves. In all three actions, plaintiff in effect complains of conduct surrounding his state criminal convictions. In each of these actions, plaintiff has not hesitated to file motions for judgment on the pleadings or for summary judgment (often without adherence to local motion rules) while earlier-filed motions by defendants were pending and to file demands for interrogatories and like discovery requests. Plaintiff has also responded, using various captions, to nearly every paper filed by any of the defendants; as to this, I have construed these pro se papers liberally as replies (to defendants’ answers) or as memoranda opposing the various motions made by defendants. See Robles v. Coughlin, 725 F.2d 12, 15 (2d Cir.1983) (example of liberal construction of plaintiff’s pro se § 1983 papers).

Mindful of this Circuit’s preference that pro se prisoner § 1983 complaints be served and not dismissed sua sponte, I ordered service of the complaint herein. Robles v. Coughlin, supra, 725 F.2d at 16. After examining the various motion papers and pleadings carefully, I find that although plaintiff seeks to recover damages in this action, his suit essentially challenges the fact of his imprisonment. See Matos v. Quealy, 524 F.Supp. 15 (S.D.N.Y.1981). The Matos court stated in relevant part:

The reasoning and policy of Preiser v. Rodriguez, 411 U.S. 475 [93 S.Ct. 1827, 36 L.Ed.2d 439] ... (1973) ... as well as the considerations of comity underlying Younger v. Harris, 401 U.S. 37 [91 S.Ct. 746, 27 L.Ed.2d 669] ... (1971) and Samuels v. Mackell, 401 U.S. 66 [91 S.Ct. 764, 27 L.Ed.2d 688] ... (1971), require that a federal court dismiss or stay a state prisoner’s civil rights suit for damages ... when its disposition would require the federal court to rule on the validity of the state conviction and the prisoner has not exhausted available state remedies.

Id. at 17 (citations omitted). The proper mode by which a prisoner should challenge a conviction is by petitioning the federal district court for a writ of habeas corpus in accordance with the requirements of 28 U.S.C. § 2254. It is clear from documents submitted in this action that plaintiff’s appeal of his state court conviction is currently still being adjudicated by the state courts. Thus, it is abundantly clear that this action should be dismissed based on the reasoning of Matos v. Quealy, supra, and Younger v. Harris, cited therein.

Conclusion

For the reasons set forth above, this action is dismissed as to all defendants. This dismissal is without prejudice to plaintiff’s right to petition the federal district court for. a writ of habeas corpus pursuant to 28 U.S.C. § 2254, after exhausting available state remedies.

SO ORDERED.

      . The allegations in 83 Civ. 5166 arise from the same state conviction discussed herein. The claims in 83 Civ. 3869 concern a state conviction on a different charge.

      . The only claim asserted by plaintiff not specifically challenging the fact of his conviction is his allegation of defamation on the part of defendant Hays, a reporter for the Daily News, who allegedly wrote an article entitled, "Lottery Ticket Killer Gets Maximum Term,” which appeared in the newspaper’s January 6, 1983 edition. Hays’ counsel correctly asserts that the reporter's alleged action is not actionable under § 1983 due to plaintiff’s failure to allege state action, and because injury to reputation, even . by a state actor, is not actionable under this section. Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976). Similarly, the alleged conduct of Hays is not actionable under § 1985(3). See infra note 3.

      . To the same effect, see Howard v. Koch, 575 F.Supp. 1299, 1304 (E.D.N.Y.1982) (Costantino, J.); Flaherty v. Nadjari, 548 F.Supp. 1127, 1129 (E.D.N.Y.1982) (McLaughlin, J.).

      . Plaintiff's § 1983(3) claims must also be dismissed. This is so because plaintiff has failed to allege any racial or class-based discriminatory animus behind defendants’ actions. Griffin v. Breckenridge, 403 U.S. 88, 102, 91 S.Ct. 1790, 1798, 29 L.Ed.2d 338 (1971).


source: Caselaw Access Project

author: ZAMPANO, Senior District Judge.

license: Public Domain

text:
    Margaret J. REED, Administratrix of the Estate of Francis A. Reed, Plaintiff, v. PACIFIC INTERMOUNTAIN EXPRESS COMPANY, Maislin Transport of Delaware, Inc. and Raymond L. Mattey, Defendants.
    Civ. A. No. B-83-502.
    United States District Court, D. Connecticut.
    Aug. 21, 1984.

      Nicola E. Rubino, Kathryn Calibey, William R. Davis, Riscassi & Davis, P.C., Hartford, Conn., for plaintiff.
    James J. Giulietti, Carl M. Porto, Parette, Porto & Párese, P.C., New Haven, Conn., Peter M. Nolin, John Crosskey, Day, Berry & Howard, Stamford, Conn., for defendants.
   RULING ON MOTION TO DISMISS

ZAMPANO, Senior District Judge.

This action, arising out of an automobile accident in which the plaintiffs husband was killed, is based on two causes of action. In the first count, the plaintiff, as administratrix, sues for damages on behalf of the estate of her husband pursuant to Connecticut’s wrongful death statute, Conn.Gen.Stat. § 52-555. The second count, brought by the plaintiff in her individual capacity, seeks a recovery for loss of consortium. Defendants now move to dismiss the claim for loss of consortium on the ground that it does not state a claim upon which relief can be granted under Fed.R.Civ.P. 12(b)(6).

In Hopson v. St. Mary’s Hospital, 176 Conn. 485, 408 A.2d 260 (1979), the Connecticut Supreme Court overruled Marri v. Stamford Street R. Co., 84 Conn. 9, 78 A. 582 (1911), and permitted recovery for loss of consortium by a married person whose spouse suffered personal injuries caused by the negligencé of a third party. However, that court has not yet addressed the question of whether a person may recover for loss of consortium when a spouse’s injuries result in death. This Court, therefore, “must make an estimate of what the state’s highest court would rule to be its law.” Cunninghame v. Equitable Life Assurance Soc. of the United States, 652 F.2d 306, 308 (2 Cir.1981). See also Commissioner v. Estate of Bosch, 387 U.S. 456, 465, 87 S.Ct. 1776, 1782, 18 L.Ed.2d 886 (1967).

Guidance is provided by the reasoning adopted by a number of lower state and federal courts that, have considered the issue. The majority of these courts have concluded that a loss of consortium claim cannot be maintained under the wrongful death statute because that statute requires a cause of action to be brought by an “executor or administrator”. This has been construed to preclude maintenance of an action under the statute by the deceased’s dependents in their own right, and to allow damages only on the basis of what the deceased could- have recovered had he or she survived. See McRae v. General Motors Corp., No. N-81-294, slip op. at 2 (D.Conn. Sept. 23, 1981); Hernandez v. Bristol Hospital, No. H-81-344, slip op. at 4 (D.Conn. Sept. 1, 1981); Leland v. Chawla, 39 Conn.Sup. 8, 11, 467 A.2d 439 (1983); Sullivan v. 43rd Aviation Flying Club, 9 Conn.Law Trib. No. 2 at 16 (Super.Ct. July 20, 1982); Demers v. Landry, 7 Conn.Law Trib. No. 9 at 15 (Super.Ct. Oct. 31, 1980); Nelson v. Innes Bros., Inc., 5 Conn.Law Trib. No. 21 at 15 (Super.Ct. May 3, 1979). But see Hinde v. Butler, 35 Conn.Sup. 292, 296, 408 A.2d 668 (1979) (damages for loss of consortium is within meaning of “just damages” under section 52-555). See generally Note, Wrongful Death and Loss of Consortium In Connecticut, 14 Conn.L.Rev. 631 (1982).

In the light of these formidable authorities, plaintiff concedes there is a serious doubt whether she can pursue her loss of consortium claim under Connecticut’s wrongful death statute. However, she argues that her second count is a viable cause of action based on common law, independent of the wrongful death statute. An impressive number of superior court decisions agree with this argument. Hesney v. Brensilver, No. 075737 (Conn.Super.Ct., Judicial District of New London June 15, 1984); Doak v. Ozenberger, No. 041018 (Conn.Super.Ct., Judicial District of Middlesex June 11, 1984); Torelli v. Hofbauer, No. 40577 (Conn.Super.Ct., Judicial District of Middlesex March 16, 1984); Hodgins v. Leach, No. 249601, (Conn.Super.Ct., Judicial District of Hartford December 7, 1981); Segretario v. Insurance Co. of North Am., No. 054872, (Conn.Super.Ct., Judicial District of Waterbury December 22, 1980); Panagos v. Wall, 6 Conn.Law Trib. No. 12 at 11 (Super.Ct. March 24, 1980); Newport v. Wall, No. 229616, (Conn.Super.Ct., Judicial District of Hartford September 4, 1979).

The rationale adopted by these courts in accepting a common law cause of action has appeal both in law and in logic. In Hopson, the Connecticut Supreme Court recognized that “ ‘[i]nvasion of the consortium is an independent wrong directly to the spouse so injured,’ ” and authorized the joinder of a spouse’s loss of consortium claim with that of the other spouse’s claim for personal injuries. Hopson, 176 Conn. at 492, 408 A.2d 260 (quoting Hitaffer v. Argonne Co., 183 F.2d 811, 815 (D.C.Cir.), cert. denied, 340 U.S. 852, 71 S.Ct. 80, 95 L.Ed. 624 (1950)). The court reasoned:

[i]t is a well-settled principle of law that a tortfeasor takes his victim as he finds him. Should the victim be married, it follows that the spouse may suffer personal and compensable, though not physical, injuries as a direct- result of the defendant’s negligence and that such injuries should not go uncompensated.

Id., 176 Conn., at 493, 408 A.2d 260. See also Restatement (Second) of Torts, § 693, comment g.

Moreover, fairness and common sense dictate that there should be no distinction between the harms of loss of consortium resulting from personal injury and loss of consortium caused by death. A recognition of a common law right to recover for loss of consortium would remove the existing inequity in a spouse recovering damages for nonfatal injuries but not for fatal injuries to the other spouse. See generally Gutman, A Separate Cause of Action for Loss of Consortium in Death Cases: Exorcising Ghosts of the Past, 43 Alb.L.Rev. 1, 36 (1978).

However, despite the compelling policy considerations in favor of ruling otherwise, this Court is constrained to find that the Connecticut Supreme Court would not extend the principles enunciated in Hopson to death cases. Historically, the common law permitted recovery in negligence cases for personal injuries but not for death. Foran v. Carangelo, 153 Conn. 356, 216 A.2d 638 (1966) (spouse and children may not recover for loss of consortium in death case); Lucier v. Hittleman, 125 Conn. 635, 7 A.2d 647 (1939) (prohibition against recovery for damages by one other than the deceased in death actions “thoroughly embedded” in common law). An action for death in Connecticut is based solely on its wrongful death statute with “just damages” measured by the loss sustained by the decedent. Conn.Gen.Stat. § 52-555; Katsetos v. Nolan, 170 Conn. 637, 657, 368 A.2d 172 (1976); Waldron v. Raccio, 166 Conn. 608, 616, 353 A.2d 770 (1974).

A careful review of Hopson indicates that the court allowed a spouse to maintain a separate cause of action for the recovery of loss of consortium as an additional element of damages flowing from the underlying tort of negligence; it did not establish that the loss of consortium constituted a separate and distinct tort in common law. Although it is true the court discussed the independent nature of the harm to the spouse not physically injured, it emphasized that “a consortium action is derivative of the injured spouse’s cause of action” and would be “barred when the suit brought by the injured spouse has been terminated by settlement or by an adverse judgment on the merits.” Hopson, 176 Conn. at 494, 408 A.2d 260.

In addition, it is doubtful that the Connecticut Supreme Court would find that the Legislature, in enacting the first Connecticut wrongful death statute in 1848, “left room” for the Judiciary to create new causes of action applicable to wrongful death. As noted by the California Supreme Court’s decision in Justus v. Atchison, 19 Cal.3d 564, 139 Cal.Rptr. 97, 103, 565 P.2d 122, 128 (1977), it is logical to assume that the passage of a wrongful death statute, creating a right of recovery unknown to the common law, was intended to preclude further judicial initiative. See also Mobil Oil Corp. v. Higginbotham, 436 U.S. 618, 625, 98 S.Ct. 2010, 2015, 56 L.Ed.2d 581 (1978). Over the years, the Legislature has failed to expand the class of beneficiaries in death actions, despite ample opportunities to do so. For example, in 1983, two amendments to the statute (House Bill 5826 and Senate Bill 834) were proposed in the Judiciary Committee of the Connecticut Legislature which would have added recovery for loss of consortium to the statute’s remedies, but neither one was voted upon by the Legislature.

Under these circumstances, this Court concludes that the Connecticut Supreme Court would not recognize a claim for loss of consortium in a wrongful death action, and that “[i]f a change should be made, it is for the Legislature, and not the courts, to make.” Liff v. Schildkrout, 49 N.Y.2d 622, 634, 427 N.Y.S.2d 746, 404 N.E.2d 1288 (1980). In so ruling, the Court is fortified by a recent “on all fours” federal decision in Bauer v. Johns-Manville Corp., 599 F.Supp. 33 (D.Conn. June 12, 1984) wherein Judge Blumenfeld stated he was “persuaded that the Connecticut Supreme Court would not permit the plaintiff to recover damages for loss of consortium resulting from her husband’s death.” Id. at 36. See also Leland (surviving spouse does not have a common law cause of action for loss of consortium in wrongful death action); Sullivan (same); Nelson (same).

Accordingly, the defendant’s motion to dismiss plaintiff’s cause of action for loss of consortium is hereby granted.

      . Conn.Gen.Stat. § 52-555 states:
      In any action surviving to or brought by an executor or administrator for injuries resulting in death, whether instantaneous or otherwise, such executor or administrator máy recover from the party legally at-fault for such injuries just damages together with the cost of reasonably necessary medical, hospital and nursing services, and including funeral expenses, provided no action shall be brought to recover such damages and disbursements but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered, and except that no such action may be brought more than three years from the date of the act or omission complained of.


author: KISER, District Judge.

text:
    VIRGINIA AGRICULTURAL GROWERS ASSOCIATION, INC., et al., Plaintiffs, v. Raymond J. DONOVAN, Secretary of Labor, et al., Defendants, and Sherman and Debra Paulk, Defendants-Intervenors. FREDERICK COUNTY FRUIT GROWERS ASSOCIATION, INC., et al., Plaintiffs, v. Raymond J. DONOVAN, Secretary of Labor, et al., and Cedrick Turner, Vincent Clark, and Gene R. Reeder, et al., Defendants-Intervenors.
    Civ. A. Nos. 83-0146-D, 83-0147-D.
    United States District Court, W.D. Virginia, Danville Division.
    Aug. 22, 1984.

      Albert D. Misler, Morris Kletzkin, S. Steven Karalekas, Washington, D.C., W. Carrington Thompson, Clement & Wheatley, Danville, Va., William A. Johnston, Harrison & Johnston, Winchester, Va., for plaintiffs.
    Dale M. Wiley, Va. Legal Aid Soc., Inc., Danville, Va., Edward J. Tuddenham, Inc., Migrant Legal Action Prog., Washington, D.C., Robert N. Moore, Farmworker Unit, Pine Tree Legal Assistance, Bangor, Maine, Robert Willis, NC Farm Worker’s Legal Services, Raleigh, N.C., of counsel, for def endants-intervenors.
    Thomas R. King, Jr., Asst. U.S. Atty., Roanoke, Va., Arthur Goldberg, Robert Damus, Dept, of Justice, Federal Programs Branch, Civil Div., Washington, D.C., for defendants.
   MEMORANDUM OPINION

KISER, District Judge.

Plaintiff, Virginia Agricultural Growers Association, Inc. (“VAGA”), is an incorporated association of agricultural producers consisting primarily of tobacco growers located in Virginia. VAGA’s sole place of business is in South Boston, Virginia. Plaintiff Frederick County Fruit Growers Association, Inc. (“FCFGA”), is a Virginia corporation with headquarters in Winchester, Virginia. FCFGA has 67 members who are small apple growers operating in Frederick County and surrounding counties in the Commonwealth of Virginia. The remaining Plaintiffs are cooperative associations whose members are apple growers located in the states of Maryland and New York. All Plaintiffs in these two consolidated actions employ significant numbers of domestic and temporary foreign farm-workers.

Defendant, Raymond J. Donovan, is the Secretary of the United States Department of Labor. Defendant United States Department of Labor (“DOL”) is an executive department of the United States. Defendant-Intervenors are Cedrick Turner, Vincent Clark, Gene R. Reeder and Sherman and Debra Paulk, all of whom are domestic, migrant seasonal farmworkers.

These actions arise under the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(15)(H)(ii) and 8 U.S.C. § 1184(c) and the regulations promulgated thereunder, including 8 C.F.R. § 214.2(h)(3) (1983) and 20 C.F.R. §§ 655.0 through 655.212 (1983). DOL is responsible for the issuance of labor certifications pursuant to these statutes and regulations in the operation of the temporary foreign labor program (hereinafter referred to as the “H-2 program”). These cases also arise under the review provisions of the Administrative Procedure Act, 5 U.S.C. § 706(2)(A) (1982).

I.

Plaintiffs brought this action in September, 1983, seeking invalidation of 20 C.F.R. § 655.207(b) as amended by Defendants on August 31, 1983, at 48 Fed.Reg. 40,168 (Sept. 2, 1983). Plaintiffs have asserted that subpart (b) is arbitrary and capricious in violation of the Administrative Procedure Act (APA), 5 U.S.C. § 706.

As amended on August 31, 1983, subpart (b) of Section 655.207, captioned “Adverse effect rates,” provides:

(b)(1) For agricultural employment (except sheepherding) in the States listed in paragraph (b)(2) of this section, and for Florida sugar cane work, the adverse effect rate for each year shall be computed by adjusting the prior year’s adverse effect rate by the percentage change (from the second year previous to the year previous) in the ES-202 report’s aggregate average weekly wage rates for the appropriate group of agricultural workers. The appropriate group of workers shall be those U.S. agricultural workers employed by establishments in Standard Industrial Classification (SIC) Code Nos. 013, 016, 017, 019, 071 and 072 within that State (except that for purposes of age movement, but not actual adverse effect rates, New York, Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont shall be considered as one State, and Maryland, Virginia, and West Virginia shall be considered as one State). The Administrator shall publish, in each calendar year, on a date he shall determine, adverse effect rates calculated pursuant to the paragraph (b) as a notice in the Federal Register.
(2) List of States. Arizona, Colorado, Connecticut, Florida (other than sugar cane work), Maine, Maryland, Massachusetts, New Hampshire, New York, Rhode Island, Texas, Vermont, Virginia, and West Virginia. Other States may be added as appropriate.
(3) Transition. Notwithstanding paragraph (b)(1) and (2) of this section, the 1983 adverse effect rate shall be computed by adjusting the 1981 adverse effect rate by the percentage change in appropriate ES-202 average weekly wages from 1980 to 1982. The adverse effect rate for a State, set by this paragraph (b), shall be the highest of the rate computed by this methodology in paragraph (b) or the rate applied in the State in 1981 or 1982. Pursuant to the Order in NAACP, Jefferson County Branch v. Donovan, Civil Action No. 82-2315 [566 F.Supp. 1202] (D.D.C. June 28, 1983), the 1982 adverse effect rate for West Virginia was $4.24.

48 Fed.Reg. 40,168, 40,175 (Sept. 2, 1983).

The administrative action that is being challenged by Plaintiffs began when DOL published a Notice of Proposed Rulemaking in the Federal Register on July 22, 1983, 48 Fed.Reg. 33,684, pursuant to an order of the United States District Court for the District of Columbia in NAACP, Jefferson County Branch v. Donovan, 566 F.Supp. 1202 (D.D.C.1983), that required the DOL to establish a methodology for setting hourly agricultural adverse effect wage rates (AEWR) for the 1983 harvest season, and to publish those rates no later than July 29, 1983. See 48 Fed.Reg. 33,-684.

The AEWR is a minimum hourly wage guarantee intended to neutralize any “adverse effect” on domestic workers occasioned by the employment of temporary foreign workers. DOL’s authority to establish the AEWR is limited to establishing a wage rate necessary to preclude an “adverse effect” on the wages of similarly employed domestic workers. See 20 C.F.R. § 655.207. DOL has for decades set wage rates which growers must agree to pay domestic field workers before DOL will certify that the admission of aliens to work in the growers’ field will not adversely affect the wages and working conditions of U.S. workers similarly employed. See 48 Fed.Reg. 33,684 (July 22, 1983) and 48 Fed.Reg. 40,168. Between 1968 and 1981 for most states and crops (and between 1975 and 1981 for Florida sugar cane), DOL computed adverse effect rates by adjusting the previous year’s rates by the same percentage change as the annual percentage change (from the second preceding year to the preceding year) in average work rates for field and livestock workers as reflected by survey data of the United States Department of Agriculture (USDA). Id.

In April 1981, the USDA ceased conducting quarterly surveys of wages paid to field and livestock workers, and instead began conducting one annual survey of wages paid to such workers during one week in July. The first such annual survey was conducted in July, 1982. Farmworkers in four states sued DOL objecting to DOL’s failure either to devise a new AEWR methodology or to set individual AEWRs for 1982. That litigation resulted in a court order requiring DOL to establish a new AEWR methodology and to set AEWRs for 1982 for the four states involved in that litigation (Maine, Vermont, Florida, and West Virginia). Bragg v. Donovan, No. 82-2361 (D.D.C. August 23, 1982). In response, DOL calculated a 1982 AEWR limited to the states involved in the suit and extended the 1981 AEWR into 1982 for all other states.

DOL’s continued failure to devise a new methodology for indexing AEWRs generally resulted in a second court order in another proceeding. NAACP, Jefferson County Branch v. Donovan, 566 F.Supp. 1202 (D.D.C.1983). Because more than two years had passed since USDA announced the curtailment of its quarterly survey, and because during that period DOL had failed to act, a second court order was issued giving DOL until July 29, 1983, to propose a methodology for setting AEWRs for the 1983 harvest season for all states in which H-2 workers would be employed.

On July 22, 1983, in response to the court order in the NAACP case, DOL published a notice of proposed rulemaking which set forth for the first time the ES-202-based AEWR methodology. 48 Fed.Reg. 33,684 (July 22, 1983). This rule proposed to index the AEWR by the percentage change in the annual average weekly earnings statistic derived from the ES-202 program. Thus, to determine the 1984 AEWR for a particular state, DOL would apply-the percentage change in the average weekly earnings statistic between 1982 and 1983 to the existing 1983 AEWR for that state. 48 Fed.Reg. 40,170 (September 2, 1983). Each year’s average weekly earnings statistic is estimated from the data collected by the ES-202 program.

The ES-202 data are reported to state employment security agencies by those agricultural employers who are covered by unemployment insurance. All covered employers are required by law to file these reports. Since 1978, all agricultural firms employing at least 10 workers in 20 weeks or having a $20,000 quarterly payroll, are covered by unemployment insurance. Each state agency receives quarterly reports from each covered employer reflecting both the total wages paid every three months and the number of domestic workers employed on the 12th of each month by that employer. The state agencies, in turn, report this data to Bureau of Labor Statistics (BLS). 48 Fed.Reg. 33,685. The data collected by the ES-202 program are grouped according to Standard Industrial Classification (“SIC”) Codes. For purposes of indexing the AEWR, data from the following six (6) three-digit SIC codes are used: 013 (field crops), 016 (vegetables and melons), 017 (fruit and tree nuts), 019 (general farms), 071 (soil preparation services), and 072 (crop services). 48 Fed.Reg. 40,-169 (September 2, 1983).

DOL received a total of 206 comments on its proposed rule. Comments were received from congressional sources, farm-worker representatives, employers, employer representatives, and federal, state, and county agencies. See Administrative Record, submitted with DOL’s first Motion for Summary Judgment (December 8, 1983) (“Administrative Record”). The overwhelming majority of the comments criticized the proposed methodology. Id. The United States Sugar Corporation, among others, submitted with its comments a report prepared by Dr. James S. Holt, dated August 18, 1983. (Holt Report I). Dr. Holt’s report analyzed the proposed ES-202 methodology and concluded that such methodology was totally inappropriate to index AEWRs as (i) the year-to-year movements in annual earnings produced by the ES-202 program is an inappropriate measure of year-to-year movements in hourly wage rates needed to set the AEWR; (ii) the ES-202 data base itself is inappropriate in that it is not representative of agricultural employment generally, does not measure “similarly employed” workers, and the data is not subject to adequate quality control; and (iii) the methodology has computational and methodological flaws including the untimeliness of the data and the possibility of completely artificial statistical results.

Representatives of some farm workers submitted comments advocating use of the ES-202 data. Growers submitted comments to DOL stating that the July USDA data, not the ES-202 data, should be used to calculate the percentage increases in the AEWRs from 1981 to 1983. The USDA commented that USDA rather than ES-202 data should be used, or that some totally new survey should be conducted to gather data.

On September 2, 1983, DOL published a final rulemaking which adopted the ES-202-based AEWR indexing methodology as originally proposed, with only minor modification. 40 Fed.Reg. 40,168 (September 2, 1983).

II.

The Plaintiffs substantively attack the AEWR regulation as having no rational basis, and that, therefore, DOL’s action was “arbitrary and capricious” in violation of the Administrative Procedure Act (APA).

The applicable standard of review, § 706(2)(A) of the APA, provides:

... that the reviewing court shall hold unlawful and set aside agency action, findings, and conclusions found to be (A) arbitrary and capricious, an abuse of discretion or otherwise not in accordance with law ...

Camp v. Pitts, 411 U.S. 138, 142, 93 S.Ct. 1241, 1244, 36 L.Ed.2d 106 (1973). This standard is a highly deferential one. It presumes agency action to be valid. Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971). This is not to say, however, that the Court must rubber-stamp the agency decision as correct. To do so would render the review process superfluous. Ethyl Corp. v. Environmental Protection Agency, 541 F.2d 1, 34 (D.C.Cir.1976). Therefore, the Court must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment. Citizens to Preserve Overton Park, supra. Although the Court is not permitted to substitute its judgment for that of the agency, it must make a substantial inquiry into the facts to insure that the agency demonstrates a rational connection between the facts found and the choice made. Id., see also United States Lines, Inc. v. Federal Maritime Commission, 584 F.2d 519 (D.C.Cir.1978). Furthermore, the validity of the agency’s action must be sustainable on the administrative record made. Camp v. Pitts, supra, 411 U.S. at 143, 93 S.Ct. at 1244; Almay, Inc. v. Califano, 569 F.2d 674, 681 (D.C.Cir.1977).

Although this Court is not to undertake de novo review of this agency action, neither is it realistic or wise to “ ‘straightjacket’ the reviewing court with the administrative record” in all situations. Asarco, Inc. v. United States E.P.A., 616 F.2d 1153 (9th Cir.1980). As the court in Asarco, Inc., supra, held:

If the reviewing court finds it necessary to go outside the administrative record, it should consider evidence relevant to the substantive merits of the agency action only for background information ... or for the limited purposes of ascertaining whether the agency considered all the relevant factors or fully explicated its course of conduct or grounds of decision.
It will often be impossible, especially when highly technical matters are involved, for the court to determine whether the agency took into consideration all relevant factors unless it looks outside the record to determine what matters the agency should have considered but did not. Id. at 1160.

DOL maintained that there should not have been a trial in this matter. However, I believe that the trial was necessary in order to determine whether DOL considered all relevant factors and in order to discharge properly my duty to engage in “substantial inquiry” as to whether the process employed by DOL to reach its decision took into consideration all the relevant factors. With this limited scope of review in mind, I have searched the rulemaking record and considered other background information and can find no rational basis for the regulation for three primary reasons.

A.

DOL has stipulated that the public record which was filed with its Motion for Summary Judgment on December 8, 1983, constitutes the entire administrative record relied on by DOL as the basis for promulgation of the September 2, 1983, AEWR rule. The administrative record contains (i) the proposed and final rules for 1982, 47 Fed.Reg. 52,198-99 (November 19, 1982) and 48 Fed.Reg. 234-35 (January 4, 1983), and 29 comments received by DOL, and (ii) the proposed and final rules for 1983, 48 Fed.Reg. 33,684-87 (July 22, 1983) and 48 Fed.Reg. 40,168-75 (September 2, 1983) and 206 comments received by DOL and DOL’s responses thereto. The record as it stands contains no studies, no analysis, no memoranda and no empiracal evaluation of the ES-202 methodology, or any other methodology studied by DOL. In short, from the record, I cannot determine why DOL chose this method.

It is clear from the record itself that DOL was notified in 1981 that the USDA was no longer going to publish quarterly rates and thus a new methodology would need to be established. Painfully clear, too, is the fact that DOL simply sat on its hands until Judge Richey ordered DOL to publish new AEWRs no later than July 29, 1983-. Any “time constraints” placed on DOL in adopting a new method were self-imposed by DOL’s own failure to act quickly when notified of USDA’s plan to move from quarterly to yearly surveys. “[A]n order____to consider a matter expeditiously is not a mandate to be arbitrary, capricious, irrational or sloppy ...” Puerto Rico Maritime Authority v. Federal Maritime Commission, 678 F.2d 327, 336 (D.C.Cir.), cert. denied, 459 U.S. 906, 103 S.Ct. 210, 74 L.Ed.2d 167 (1982) (referring to time constraint placed on agency by order of Congress).

Dr. Leo Polopolus, an agricultural economist and witness for the Plaintiffs, indicated that in early 1981 when DOL first knew a change would have to be made, DOL had many alternatives which could have been developed or which existed. These include (i) the prevailing wage rate survey data; (ii) use of a stratified random sample of employers in affected states and affected commodities; and (iii) use of the annual USDA data. It is not my duty to select one of these methodologies over the ES-202 data. However, when the record is essentially bare as to the agency’s inquiry, its analysis, and its reasoning in selecting the ES-202 data, I must conclude that such a decision does not constitute reasoned decision-making.

DOL argues that it has “broad discretion” to set AEWRs in accordance with “any number of reasonable formulas _____” Florida Sugar Cane League, Inc. v. Usery, 531 F.2d 299, 303-04 (5th Cir.1976); Rowland v. Marshall, 650 F.2d 28 (4th Cir.1981). In Rowland v. Marshall, supra, the Fourth Circuit, however, pointed out that:

There is ample evidence in the record to support [the] conclusion [that the methodology used to calculate the AEWR is not arbitrary and capricious], including evidence that the Department of Labor reviewed the AEWR methodology in 1977 by testing it against other possible methodologies. Using the various methodologies studied in 1977 with the 1980 data, the Department of Labor found that the AEWR methodology currently used produced results comparable to those produced by the other .potential methodologies. Rowland v. Marshall, supra at 30 n. 3.

Although DOL does have discretion to choose among reasonable formulas, there simply is no evidence in the administrative record before me that DOL tested this methodology against others and studied its consequences and effects. The ES-202 methodology was simply published, and there is just not one iota of information in the record which clearly and adequately discloses the grounds upon which DOL acted in selecting this methodology. The paucity of any reasoning in support of the ES-202 methodology over some other alternative indicates to me that DOL had chosen this method prior to receiving public comment to satisfy the Court’s Order in the NAACP case and that the public comment process was simply a formalistic exercise.

B.

Secondly, a most troublesome aspect of the ES-202 methodology is that it is an invalid measure of the AEWR. In Holt Reports I and II and in his testimony at trial, Dr. Holt identified and explained in detail seven crucial defects in the ES-202 methodology. After his own analysis of the ES-202 methodology and of Dr. Holt’s work criticizing that methodology, Dr. Polopolus, a second agricultural economist, agreed with each of the seven defects in the ES-202 methodology identified by Dr. Holt and with Dr. Holt’s overall conclusion that the ES-202 program data provides an invalid mechanism for indexing changes in AEWRs. Dr. Jerome M. Staller, an economist and witness for Defendant-Intervenors’, also generally concurred with Dr. Holt’s criticisms of the ES-202-based AEWR methodology.

Dr. Holt’s first criticism of DOL’s ES-202 methodology is fundamental to the methodology itself: The average weekly earnings statistic derived from the data collected by the ES-202 program is a totally inappropriate proxy for calculating changes in the AEWR, which by definition is an hourly wage rate standard. DOL admits that the ES-202 program produces no hourly wage data.

The regulation would annually adjust the AEWR by the percentage change in an estimate of average weekly earnings. Average weekly earnings are estimated in the rule by dividing total annual payroll by an estimate of annual work weeks of employment aggregated over the relevant SIC classifications. Thus the DOL rule indexes an hourly wage rate by year-to-year movements in an estimate of average weekly earnings.

Dr. Holt indicated that a change in hourly wage rates is only one of the factors influencing year-to-year changes in annual earnings and the average weekly earnings figure estimated from that figure. Year-to-year changes in average weekly earnings can and do commonly occur in agriculture for reasons wholly unrelated to changes in hourly compensation rates. These reasons include variations in crop size, in the length of the work week, and the length of the season, variations in productivity, changes in labor supply and/or labor management practices, and changes in the composition of the agricultural work force.

Because year-to-year changes in per employee annual earnings of seasonal agricultural workers are likely to be influenced far more by changes in the amount of employment than by changes in hourly wage rates, and the year-to-year movements in average weekly earnings produced by the ES-202 data for the six three-digit SIC codes used to index the AEWRs are highly erratic. See Plaintiffs’ Trial Exhibit 7; Holt Report I, at p. 7; Holt Report II, at p. 26.

In its commentary accompanying the final rulemaking, DOL attempted to counter the criticism that factors causing changes in average weekly earnings are unrelated to changes in compensation rates and result in independent movements in average weekly earnings and average hourly wages over the same time period. DOL asserted that “it is anticipated that these factors would cancel each other out ... and that over time productivity and earnings would change at a steady rate.” 48 Fed.Reg. 40,170 (September 2, 1983). According to Dr. Holt, this assertion is neither true nor relevant for three reasons: (i) the AEWR is not a measure of productivity or earnings; (ii) the ES-202 data used in indexing the AEWR show no evidence of “cancelling out” overtime; and (iii) since the AEWR is changed from one year to the next year (and a grower employing H-2 labor must pay each year’s AEWR for that year), the overall cumulative change in the yearly statistic used to measure the AEWR is meaningless.

A further criticism presented by Dr. Holt was that the six three-digit SIC codes used to index the AEWR contain significant amounts of non-agricultural employment. See Holt Report I, at pp. 15-19; Holt Report II, at pp. 32-35; Tr. at 70-81 (Holt). Examples of such employment include non-production employees, such as bookkeepers and supervisors. According to Dr. Holt the inclusion of such employment undermines the usefulness of the ES-202 data in measuring characteristics of “similar employment”. In addition, wage movements of non-agricultural workers are likely influenced by different factors than those of agricultural workers.

In the commentary accompanying its final rulemaking, DOL stated that inclusion of non-similarly employed workers in the ES-202 data base did not “significantly affect” the outcome of the new AEWR methodology because “DOL has not been persuaded” that wages of agricultural workers move differently from the wages of non-agricultural workers. 48 Fed.Reg. 40,-171 (September 2, 1983). It is clear from the record, however, that prior to issuing the final rule, DOL performed no analysis of the effect of the inclusion of non-agricultural workers in the ES-202 data base on the validity of the methodology.

Another criticism leveled by Dr. Holt was in the notice of proposed rulemaking DOL cited uses of the ES-202 data by other agencies as a justification for the proposed methodology. 48 Fed.Reg. 33,684 (July 22, 1983).

Public comments on the proposed rule disclosed that the other agency uses of ES-202 data cited by DOL were not related to the manner in which DOL proposed to use the ES-202 data. Those comments also noted that major users of ES-202 data specifically excluded the agricultural ES-202 data.

In publishing the final rule, DOL responded to the criticism that the other uses of the ES-202 data cited by DOL as justification for use of that data to index the AEWR were, in fact irrelevant to the proposed methodology by stating that “[w]hile the agricultural portion of the ES-202 data series has not yet attained as wide currency as other portions of the data series, this is in part due to the relatively recent unemployment compensation coverage of agricultural workers.” 48 Fed.Reg. 40,170 (September 2, 1983). In the final rule, DOL repeated these same uses of the data series in support of its use of the ES-202 data asserting that the “data are recognized by competent statistical authorities as being valid ...” 48 Fed.Reg. 40,169 (September 2, 1983). However, the record does not reveal that DOL conducted any investigation as to the validity of the corn-mentors’ concerns.

A most serious flaw, I feel,’ is that the data is untimely. The final rule established the following method for determining the AEWR for 1984 and subsequent years:

The final rule ... would use the one-year movement from the beginning of the second year previous to the end of the first year previous to set the movement from the prior year’s AEWR to the current year’s AEWR.

48 Fed.Reg. 40,170 (September 2, 1983). Thus, the 1984 AEWR for a particular state is determined by applying the percentage change in the annual average weekly earnings statistic between 1982 and 1983 to the existing 1983 AEWR for that state. DOL must have the average weekly earnings statistics produced by the ES-202 data for both 1982 and 1983 in order to determine the 1984 AEWR. Yet, the preliminary uncorrected tabulations of the ES-202 data for 1983 will not be available until September of 1984 — the year for which the AEWR is to be used. The same situation will recur in all subsequent years in which the ES-202 methodology is used to make annual AEWR adjustments.

Recruitment for the planting, cultivation and harvesting of tobacco and cabbage begins in January of each year. These crops are worked between April and September. Apple harvesting recruitment typically begins in July and continues through early September. Apple harvesting begins in early to mid-September. So by September, recruitment for apple, tobacco and cabbage agricultural work is finished and the cabbage and tobacco seasons are virtually over.

The AEWR purports to ensure against any “adverse effect” to “similarly employed’’ domestic workers which would otherwise be produced by employment of temporary foreign workers. See 8 C.F.R. § 214.2(h)(3). An AEWR based on ES-202 data simply cannot prevent an adverse effect, and, therefore, achieve the result for which it is purportedly designed, since it is unavailable at the time when an adverse effect is likely to occur — during the recruitment and hiring of farm workers.

The record before the Court demonstrates that the ES-202 data needed to promulgate the AEWR for a given year is not available to DOL until September of the year for which the AEWR is to be promulgated. The ES-202 data is not available when needed and the ES-202 methodology, therefore, is not a reasonable method for determining the AEWR.

This methodology was also criticized by USDA Secretary, John Block, who stated that “the ES-202 program data are inappropriate for determining annual changes in the AEWRs.” See Administrative Record Document 203 at p. 1. More specifically, Secretary Block explained that (i) the ES-202 data does not cover small agricultural employers (except in six jurisdictions) and only 40 percent of the workers in United States agriculture are represented in the ES-202 data; (ii) although DOL lists several ways that ES-202 program data are use for other purposes as a means of justifying their use to compute annual changes in the AEWRs, for the most part the cited uses of this data use only non-agricultural ES-202 data; and (iii) the proposed rule would adjust the AEWRs on the basis of changes in the estimated average weekly wages (not hourly wages) of all types of workers employed on farms covered by unemployment insurance — an average weekly wage is an inappropriate indicator of hourly wage rates, which is what the AEWR is supposed to measure. Id. at p. 2-3.

The comments of Secretary Block further suggested that to ensure an objective and reliable computation of H-2 wage rates, “an appropriate new data series and a totally new methodology must be developed.” As a stop gap measure only, Secretary Block recommended that DOL use the wage data from the USDA July farm labor surveys to compute the 1983 AEWRs. Id. at p. 4.

It is apparent that the criticisms of Drs. Holt, Polopolus and Secretary Block point out serious deficiencies in the statistical validity of using the ES-202 data series to calculate annual changes in the AEWRs. Although DOL responded to most of these comments in the publication of the final rule, in my opinion this does not bolster the validity of this methodology so as to ratify the actions of DOL in establishing a methodology that simply does not measure what it is supposed to measure. This methodology is inappropriate and a new methodology must be established. It is clear that DOL realizes this for in the final rulemaking the agency seems to justify the final rule by indicating that:

This rulemaking meets the critical need, created by the recent Orders in NAACP, Jefferson County Branch v. Donovan, and the impending 1983 harvest season, to set AEWRs for 1983 and does not foreclose a determination by DOL to institute in later years other changes in the AEWR regulations. 48 Fed.Reg. 40,173 (September 2, 1983)

Although it is clear that DOL has the authority to make changes in the AEWR, this self-serving declaration indicates, as did Mr. Richard Gilliland (Director, United States Employment Service, under whose direction the final rule was developed) at trial that the ES-202 methodology is simply a stop gap measure. In my opinion, such a choice by DOL represents a clear error of judgment.

C.

Finally, there are indications that the Secretary did not in fact sufficiently consider the comments which were submitted to the proposed rule. The proposed rule was published on July 22, 1983, and originally written comments were to have been received by August 5, 1983 — a mere 10 business days later. As many commentators pointed out to DOL, there was no way a proper analysis of the true impact of the proposed regulations could be made in such a short time. The DOL did extend the comment period through August 22,1983— another 2 weeks. This still is a very short time to sufficiently comment on such a technical regulation.

The final rule was published on September 2, 1983, just 11 days (8 business days) after the close of the comment period in which over two hundred comments were submitted. Common sense dictates that proper consideration could not have taken place in that brief span, and indeed the administrative record reflects that it did not. Cursory responses to comments which point out glaring deficiencies in this data series as a measure of the AEWR does not comply with DOL’s responsibility to consider and respond to such comments. The fact is, DOL was under the gun of Judge Richey’s court order, selected this methodology with no indication in the administrative record as to how it was selected, and was going to publish this as a final rule regardless of what the commentators submitted. Such action in my opinion is arbitrary and capricious, and the regulation must be overturned.

In conclusion, for the foregoing reasons, I find the regulation at 20 C.F.R. § 655,-207(b) as amended by DOL on August 31, 1983, and found at 48 Fed.Reg. 40,168 (September 2, 1983) to be arbitrary and capricious and in violation of 5 U.S.C. § 706.

The Clerk is directed to send certified copies of this Memorandum Opinion to all counsel of record.

ORDER

For the reasons stated in the Memorandum Opinion filed this day, it is hereby ADJUDGED and ORDERED that:

1. The regulation promulgated by the Department of Labor at 20 C.F.R. § 655.-207(b) as amended by DOL on August 31, 1983, and found at 48 Fed.Reg. 40,168 (September 2, 1983) is arbitrary and capricious and in violation of 5 U.S.C. § 706.

2. The Secretary of Labor shall promulgate an Adverse Effect Wage Rate for the year 1983 pursuant to the. rule making provision of the Administrative Procedure Act and consistent with the Court’s Opinion filed this date.

The Clerk is directed to send certified copies of this Order to all counsel of record.

      . See Virginia Agr. Growers Ass'n, Inc. v. Donovan, 579 F.Supp. 768 (W.D.Va.1984).

      . The 1983 adverse effect rates set by Defendants for the enumerated states are:
      F SUPP (84) 5156

        Slate AEWR
      Arizona $4.22
      Colorado (!)
      Connecticut 4.05
      Florida (sugar cane only) 5.37
      Florida (except sugar cane) 4.34
      Maine 4.15
      Maryland 4.38
      Massachusetts 4.05
      New Hampshire • 4.34
      New York 4.20
      Rhode Island 4.05
      Texas 4.16
      Vermont 4.28
      Virginia 4.39
      West Virginia 4.24
      1 Not yet available.

        Id. at 40170.

      . DOL calculated the 1982 AEWRs by extrapolating from the January and April, 1981 USDA quarterly survey statistics. 48 Fed.Reg. 235 (January 4, 1983).

      . In its opinion, the District Court commented on DOL’s inaction:
      On April 7, 1983 defendants submitted a memorandum to apprise the Court of DOL’s intentions in setting AERs. The memorandum stated that DOL was considering a 3-step process for establishing AERs that would be ready for application by 1985. Additionally, defendants stated that action was being taken to promulgate 1983 AERs for all affected states. However, on June 6, 1983, shortly before issuing this opinion, the Court requested an update on what progress, if any, DOL had made toward accomplishing its stated intentions. Defendants’ response disclosed that nothing of substance had been done during this time'. Moreover, DOL stated that action on 1983 AERs was being deferred pending issuance of this opinion. This lack of progress by DOL in carrying out its statutory mandate further underscores the importance of the Court's declaring DOL’s obligation to establish annual AERs now. It makes clear that if the Court found that this controversy was not yet ripe, it would be but a short while before plaintiffs had to return to the Court seeking this same relief.

        NAACP, Jefferson County Branch v. Donovan, 566 F.Supp. 1202, 1207 n. 6 (D.D.C.1983).

      . Dr. Holt and his associate, L. Burton, also submitted a second analysis of this rule with Plaintiff’s Opposition to Defendants’ Motion for Summary Judgment (Holt II).

      . Dr. Staller’s main area of disagreement with Dr. Holt was that he (Staller) felt the weekly wage movement was a substantially accurate measure of hourly earnings movement.

      . See also USDA Secretary John Block’s Comments as to this defect. Administrative Record, Document 203.

      . See also Administrative Record, Document No. 189 (Comments on the National Council of Agricultural Employers); Document No. 191 (Comments of Agricultural Producers, Valencia, California); Document No. 202 (Comments of Florida Sugar Institute); Document No. 203 (Comments of Secretary John R. Block, USDA).

      . At trial, Mr. Gilliland stated that DOL will request suggestions for methodologies for future years because it is the intent of DOL to return in 1982 to the USDA quarterly survey if such survey is reinstated. Trial Tr. at 371.


author: DONALD J. PORTER, District Judge.

text:
    Rodman J. BETHEL, Personal Representative of the Estates of Raydon A. Hurst and Patricia A. Hurst, decedents; Peter A. Hurst, and Kevin A. Hurst, Plaintiffs, v. Marvin W. JANIS, Defendant.
    Civ. No. 81-5018.
    United States District Court, D. South Dakota, W.D.
    Sept. 7, 1984.

      Lonnie Bryan, Frank Wallahan, Wallahan' Law Offices, Rapid City, S.D., for plaintiffs.
    Scott Sumner, Banks & Johnson, P.C., Rapid City, S.D., for defendant.
   MEMORANDUM OPINION

DONALD J. PORTER, District Judge.

CASE SUMMARY

Plaintiffs, Florida residents, brought this diversity action pursuant to 28 U.S.C. § 1332, against defendant, a South Dakota resident, for damages arising from a two car head-on collision that occurred within the boundaries of the Cheyenne River Sioux Indian Reservation in South Dakota in 1979. Plaintiffs sought damages under the South Dakota Wrongful Death statute, SDCL § 21-5-7, for the deaths of their parents in the accident, in addition to injuries suffered by plaintiffs themselves in the collision. The court, having considered the evidence presented at a bench trial, enters judgment for plaintiffs.

FACTUAL BASIS

In August 1979, defendant Marvin W. Janis, an American Indian, was driving on Highway 212 in Dewey County, South Dakota, within the boundaries of the Cheyenne River Sioux Indian Reservation. Janis, who was later shown to have had a blood alcohol content of 0.21%, crossed the centerline and collided with an automobile operated by Raydon Hurst, a 49 year old school teacher from Florida. The Hurst vehicle also carried Raydon’s wife, Patricia, 45, and their two minor children, Peter and Kevin. Raydon and Patricia were killed instantly, while Peter and Kevin survived with personal injuries. A third son, Terry, was not in the car. Janis subsequently pled guilty before this court on a charge of involuntary manslaughter for the death of Raydon Hurst. It is essentially undisputed that Janis’ negligence was the sole proximate cause of the accident.

JURISDICTION

As indicated by the factual summary just given, this is an action between non-Indian plaintiffs and an Indian defendant relating to the commission of a tort within Indian country. A South Dakota state court would have no jurisdiction over this case. See Kain v. Wilson, 83 S.D. 482, 161 N.W.2d 704 (1968); Smith v. Temple, 82 S.D. 650, 152 N.W.2d 547 (1967). While a series of Ninth Circuit cases, R.J. Williams Co. v. Fort Belknap Housing Auth., 719 F.2d 979 (9th Cir.1983); Begay v. Kerr-McGee Corp., 682 F.2d 1311 (9th Cir.1982); Hot Oil Service, v. Hall, 366 F.2d 295 (9th Cir.1966); Lottell v. Nakai, 344 F.2d 486 (9th Cir.1965), would similarly deny this court its jurisdiction here, a contrary rule is followed in this circuit. Poitra v. Demarrias, 502 F.2d 23 (8th Cir.1974) found diversity jurisdiction for a wrongful death action between an Indian plaintiff and an Indian defendant arising from an automobile collision on an Indian reservation. This Court’s decision in American Indian National Bank v. Red Owl, 478 F.Supp. 302 (D.S.D.1979), concluded that such diversity jurisdiction was not limited to cases involving only Indian parties. See also American Indian Agricultural Credit Consortium, Inc. v. Fredericks, 551 F.Supp. 1020 (D.Col.1982) (where there is a “transaction between [a non-Indian plaintiff] and an individual member of a tribe acting solely in his private capacity ... [there is no] interference with reservation self government or internal tribal affairs ... [and a federal] court can properly exercise subject matter jurisdiction.” 551 F.Supp. at 1022). This court will therefore find that it possesses jurisdiction over this action.

PUNITIVE DAMAGES

Plaintiffs claim that this court should award punitive damages because defendant was intoxicated at the time of the accident. It is true that defendant pled guilty to involuntary manslaughter before this Court in the death of Raydon Hurst. Punitive damages are, of course, awarded as punishment for outrageous conduct and to deter similar conduct in the future. Restatement (Second) of Torts § 908 (1979). Outrageousness may be concluded from the defendant’s evil motive or reckless indifference to the rights of others. Id. In South Dakota, punitive damages may be awarded in the discretion of the finder of fact “where the defendant has been guilty of oppression, fraud, or malice, actual or presumed ... for the sake of example, and by way of punishing the defendant.” SDCL § 21-3-2. It is this court’s view that the record, which essentially does no more than to prove the fact of defendant’s intoxication, is totally inadequate to show the actual or presumed malice necessary to grant an award of punitive damages. On this record, it is clear that the drunkenness alone is insufficient to sustain a cause of action for punitive damages. See Giddings v. Zellan, 82 App.D.C. 92, 160 F.2d 585 (1947), cert. den., 332 U.S. 759, 68 S.Ct. 61, 92 L.Ed. 345 (1947). Further, punitive damages are ordinarily not awardable under a wrongful death statute. Restatement (Second) of Torts § 908, comment a, (1979). The South Dakota Wrongful Death Statute, SDCL § 21-5-7, is no exception to this general rule. It is fundamental that in the absence of a statute providing for recovery, no cause of action for wrongful death lies. Jirsa v. Ice, 88 S.D. 209, 213, 217 N.W.2d 465, 467 (1974). Accordingly, an action brought under the wrongful death statute is an exclusive remedy and the legislature is free to impose restrictions upon it. Hoekstra v. Helgeland, 78 S.D. 82, 111, 113, 98 N.W.2d 669, 684, 686 (1959). In an earlier form, the South Dakota Wrongful Death statute did indeed allow for the recovery of punitive damages. In 1887, however, the legislature amended the statute to allow recovery of only actual or compensatory damages. Smith v. Chicago, Mil. &. St. P. Ry. Co., 6 S.D. 583, 587-88, 62 N.W. 967, 968 (1895). As Smith indicates, removal of the word “punitive” from the statute left pecuniary damages as the exclusive remedy. Id. This court is compelled, therefore, to find that the general statute allowing punitive damages, SDCL § 21-3-2, does not apply to the Wrongful Death statute.

This court must accordingly deny any recovery of punitive damages in this action, whether for the wrongful death of Raydon and Patricia Hurst or for the personal injuries of Kevin and Peter Hurst.

PREJUDGMENT INTEREST

Plaintiffs request an award of prejudgment interest on all damages recovered. Plaintiffs apparently concede that they are not entitled to interest under SDCL § 21-1-11, and it is clear that they are not. SDCL § 21-1-11 has been primarily applied in contract actions, see Northwestern Eng’g. Co. v. Thunderbolt Enters. Inc., 301 N.W.2d 421, 425 (S.D.1981); North River Ins. Co. v. Golden Rule Constr. Co., 296 N.W.2d 910, 914 (S.D.1980). As Cole v. Melvin, 441 F.Supp. 193, 210 (D.S.D.1977), put it, “the test for awarding interest is not whether liability was clear, but whether (assuming liability) the damages were reasonably ascertainable by reference to prevailing markets.”

This test can hardly be said to be satisfied by the bulk of the wrongful death and personal injury claims here. The monetary valuations of the personal injuries suffered by Peter and Kevin Hurst, their pain and suffering, the lost instruction, training, education, guidance, advice and counsel and homemaking services of the parents, and the lost companionship and society of their parents, are by necessity extremely difficult to set. The loss of support the children could have expected from their parents, while somewhat more easily quantifiable, is also highly uncertain. For none of these categories of damages may it be said that they “were reasonably ascertainable by reference to prevailing markets.”

Plaintiffs do request interest under SDCL § 21-1-13, which allowed the finder of fact discretionary power to award interest in “an action for the breach of an obligation not arising from contract, and in every case of oppression, fraud or malice.” For the same reasons given in the preceding discussion of punitive damages, the court finds no basis'for the award of interest for “oppression, fraud, or malice.” Likewise, the Court finds that plaintiffs have presented no persuasive reasons why the record here justifies an award of interest, and it is therefore denied, with the exception of the funeral expenses for Ray-don and Patricia Hurst, and the medical and hospital expenses for Peter and Kevin. These elements obviously stand on different footing and prejudgment interest of 15% is granted pursuant to SDCL § 54-3-4, for those sums. Safeco Ins. Co., v. City of Watertown, S.D., 538 F.Supp. 49 (D.S.D.1982). Given the fact the accident, deaths, burials and hospitalization all occurred in mid-August, 1979, the court will utilize the date of September 1,1979, as the date upon which these expenses became fixed.

DAMAGES FOR WRONGFUL DEATH

Loss of Financial Support. The largest single category of compensatory damages plaintiffs seek is for the support plaintiffs could have expected from their parents but for their' deaths. Plaintiffs calculate this amount by taking Raydon Hurst’s 1978 salary as a science and math teacher, $23,-764, then assuming a six percent salary raise for each of the remaining fifteen years in Raydon’s working-life expectancy, and concluding that the resulting total, $621,484, is the sum to which they are entitled. While this court entertains some doubts about the validity of any calculation that projects a school teacher to have an annual salary of $60,367 in 1994, there are much more fundamental difficulties with the amount of plaintiffs’ claim.

Damages for wrongful death in South Dakota must be “proportionate to the pecuniary injury resulting from such death to the persons respectively for whose benefit such action shall be brought.”, SDCL § 21-5-7. As interpreted by Hodkinson v. Parker, 70 S.D. 272, 275, 16 N.W.2d 924, 926 (1944), this means that the “amount of recovery must be based upon expenses necessarily incurred, and a reasonable expectation of benefits which would have resulted from the continued life of deceased.” While proof of past and future gross earnings is certainly' relevant in determining the level of future benefits that could be reasonably expected from the decedent, see Snodgrass v. Nelson, 369 F.Supp. 1206, 1212 (D.S.D.1974) aff'd. 503 F.2d 94 (8th Cir.1974); Smith v. Presentation Academy of Aberdeen, 61 S.D. 323, 248 N.W. 762 (1933); S.D. Pattern Jury Instructions, Civil § 31.01 (1968), plaintiffs are hardly entitled to the full amount of these future earnings. As Darnell v. Panhandle Cooperative Ass’n., 175 Neb. 40, 120 N.W.2d 278, 286 (Neb.1963) put it, “the plaintiff may not recover the value of the earnings lost ... the recovery must be limited to the value of the amount which the beneficiaries would have received from the earnings of the deceased.” See also, Tufty v. Sioux Transit Co., 69 S.D. 368, 372, 10 N.W.2d 767, 768-69 (1943) and cases cited therein.

The showing of expected future support presented by plaintiffs was perfunctory at best, but this court concludes that the record contains sufficient proof of a reasonable expectation of such support.. It appears that, although Peter and Kevin were not in college at the time of his death, Raydon Hurst intended to assist each of his sons to get a college education. Further, the third son, who did not appear at the trial, Terry- Hurst, was twenty-one at the time of the accident, and was also living in his parents’ home and receiving his living expenses. At the time of the accident, Kevin was thirteen years old, and Peter was eighteen years old. The court finds that, upon all the evidence, plaintiffs have shown that Raydon and Patricia Hurst would have supported both Peter and Kevin Hurst until both could be reasonably expected to complete college, or until both were twenty-two. The court also finds it more likely than not that Raydon and Patricia would have continued to contribute to Terry’s living expenses for another year, particularly in view of the fact his parents had bought Terry a car. Terry, however, had, after one brief attempt, apparently elected not to attend college, and this court accordingly cannot find it proven that the decedents would ever have contributed to his further education.

There is, of course, “no mathematical rule or formula”, Tufty, supra, 10 N.W.2d at 769, by which the amount of future support can be calculated, but “uncertainty as to the measure or extent of the damages does not bar recovery.” Kowing v. Williams, 75 S.D. 454, 67 N.W.2d 780, 783 (1954). Drawing upon its own experience, the court finds that it is reasonable that Raydon and Patricia Hurst would have expended about $350 a month, or $4,200 a year, for meeting the personal expenses (food, clothing, insurance, transportation, utilities, etc.) for each son. In the case of Kevin, this would be for nine years, or $37,800. In the case of Peter, this would be for four years, or $16,800. In the case of Terry, this would be $4,200. The Court will also set the approximate cost of college at $4,000 a year for four years. Thus, both Kevin and Peter should receive an additional $16,000 for loss of expected college support, or a total of $53,800 for Kevin Hurst, and $32,800 for Peter Hurst, and $4,200 for Terry Hurst.

Loss of Instruction, Moral Training, Education, and Other Parental Services. There has been a considerable amount of inconsistency in this century in South Dakota regarding whether instruction, moral training, etc., provided by the deceased can be compensable losses. See Halvorsen v. Dunlap, 495 F.2d 817, 819 (8th Cir.1974). It seems clear from the current state of the law, however, that these elements are recoverable. S.D. Pattern Jury Instructions, Civil, § 31.01, for instance, instructs the jury that it may consider, in awarding damages, the “instruction, moral training and superintendence of education decedent might reasonably have given his children had he lived” and the “counsel, guidance and aid decedent would reasonably have given ... had he lived.” See also Gilbert v. Root, 294 N.W.2d 431 (S.D.1980), which makes it clear that recovery may be made for losses of other than mere financial support.

The proof of these services was clear. It appears that Patricia Hurst, aside from her normal duties as a homemaker, taught her sons ceramics. Both Raydon and Patricia taught Peter how to ride horses, and both helped with Peter and Kevin’s homework. Both parents provided moral correction, generally by means of reasoning with their children rather than corporal punishment. Presumably, Raydon also taught his sons the basics of fishing, boating and camping on the family’s vacations, and involved all his sons in the care of the- family’s property-

Normally, the “method of proving pecuniry injury and the value of the services lost would be the costs of replacing the services.” Gilbert v. Root, supra, 294 N.W.2d at 432. The only direct proof on replacement value offered was that Raydon Hurst received approximately $16, an hour for tutoring services, and to an extent this does provide a limited basis for quantifying the award for these damages. On the other hand, it is also true that the value of parental services is incapable of exact proof, and must be determined from the fact of the relationship and the parents’ characters and dispositions. Schmitt v. Jenkins Truck Lines, Inc., 170 N.W.2d 632 (Ia.1969); Rogow v. United States, 173 F.Supp. 547 (S.D.N.Y.1959). In any event, it is clear from the evidence that had his parents lived, Kevin would have received the full benefit of his parents’ instruction, guidance and services in the areas summarized earlier, at least until he reached majority. Further, since it is also clear that his parents would have in all probability assisted him through college, Kevin could reasonably have expected further instruction and guidance, though on a lesser scale, during that period of his life. These services are, by necessity, valuable, and the court finds upon all the evidence adduced, that a reasonable award for the deprivation of' instruction, guidance and services for Kevin Hurst is $20,000.

The evidence is persuasive too, that Peter Hurst could have expected further guidance from his parents as he went through college. Peter’s course of study in college is related to veterinary medicine; this field of interest was encouraged from an early age by Peter’s parents, who bought him a horse, taught him to ride, and frequently attended the horse shows Peter entered. It is reasonable to infer that Ray-don and Patricia Hurst would have continued to take an active interest and involvement in Peter’s progress in his studies. The court finds, therefore, that the evidence supports an award for Peter Hurst in the amount of $10,000 for the deprivation of his parents’ instruction, guidance and services. Terry, on the other hand, did not testify at the trial, and the court simply has no basis for finding that the Hursts would have continued to provide him with any of these services. The court must therefore deny any award to Terry in this category.

Lost Companionship and Society. This category was recognized in South Dakota by Anderson v. Lale, 88 S.D. 111, 121, 216 N.W.2d 152, 158 (1974), which stated that “the better rule is to include loss of companionship, society, advice, assistance and protection as elements of damages in wrongful death cases wherein the decedent was a minor.” Halvorsen v. Dunlap, supra, 495 F.2d at 821, found that the same damages, could be recovered for an adult child. It is true that neither case addresses the question of whether damages can be recovered for the loss of companionship and- society suffered by children by the death of their parents, and defendant argues that such damages should be limited to cases where the decedent was a child. Defendant, however, offers no rationale and no persuasive authority for this argument, and this court views such a result as arbitrary and absurd. As Halvorsen v. Dunlap, supra, stated, a “wrongful death statute, is remedial in nature and it must be construed liberally in light of present social and economic conditions____[the court is] persuaded that the [Anderson'] standards and rationale apply under circumstances where, as in the present case, the [children] are seeking a recovery for the death of their [parents].” See Iowa-Des Moines National Bank v. Schwerman Trucking Co., 288 N.W.2d 198 (Ia.1980).

The Hurst family, before the tragic incident that occasioned this action, was described as “close knit”. The entire family participated in frequent outdoor activities as a group, including fishing, boating and camping. Both parents, insofar as it was possible, attended every athletic function that involved their sons, and took an interest in all their sons’ activities. The entire family worked together in the upkeep of their yard, and went together to frequent entertainments, such as' movies. Clearly, the society and companionship of their parents was a valuable component of the lives of Terry, Peter, Kevin Hurst, and this court finds, upon all the evidence, that an award of $25,000 for each son is appropriate for this element of damages. See Anderson, supra, 216 N.W.2d at 159-160.

Burial Expenses. Plaintiffs claim $6,611.35 for funeral expenses, [plaintiff’s brief filed July 17, 1984 at 4,] and defendant does not dispute this amount, [defendant’s brief filed July 31, 1984 at 2], This amount is clearly recoverable, see S.D. Pattern Jury Instructions, Civil, § 31.01, item 9, and the court orders that such amount is awarded plaintiffs, with prejudgment interest of $4,529 from September 1, 1979 to date of judgment.

DAMAGES FOR PERSONAL INJURIES

In addition to damages for the wrongful death of their parents, Kevin and Peter Hurst seek damages for injuries sustained by them in the same car accident. Kevin Hurst received a concussion, lacerations in the facial area, and multiple bruises. He was hospitalized for four days and suffered pain from these injuries for about one and one-half weeks. The lacerations left scars; other than that, however, Kevin sustained no permanent injuries.

The second vertebra of Peter Hurst’s neck was fractured, forcing him to wear a cervical collar for about one year. He testified that he still has occasional problems with his neck. Peter also fractured the metacarpal bone in his left hand, which has resulted in the shortening of his middle finger. He wore a cast for this for about one month, and suffered pain in the hand for about three weeks longer. In addition, there was a laceration over Peter’s left eye, which has left a scar. The ligaments, cartilage, tendons and blood vessels were torn in Peter’s right ankle. He was obliged to wear casts on this ankle for at least nine months. Some discoloration remains on his ankle today, although it will eventually disappear. Peter was hospitalized for four dáys.

It is true, of course, that plaintiffs are entitled to an award for their pain and suffering. South Dakota Pattern Jury Instructions, Civil, § 30.05. It is also true that there “is no precise calculation which will determine what is fair and reasonable compensation for pain and suffering ... [and] ‘of necessity, the measurement of such compensation must be left entirely to the [finder of fact.]’ ” Stein, Damages and Recovery: Personal Injury and Death Actions, 16 (1972). In making the finding, the court:

may consider the nature and extent of the injuries, the suffering occasioned by the injuries, and the duration and the pain ... [and] the age, health, habits, and condition of the injured party before his injury as compared with his condition as a result of the injury.

Ibid at 17.

Keeping in mind these familiar factors, the court finds that, on the record presented, the pain suffered by Kevin, though real, was comparatively minor and short-lived. The court therefore concludes that an award of $2,500 is appropriate for Kevin’s pain and suffering. South Dakota law appears to require testimony about the impact scarring would have on a plaintiff to justify a recovery for such injury, Koenig v. Weber, 84 S.D. 558, 174 N.W.2d 218 (1970). Beyond an exhibition of the scars, no such testimony was presented on this issue, unlike Koenig, in which there was both lay and expert testimony as to the effect of scarring, and the court will accordingly deny recovery for the scarring claim.

Peter’s injuries were substantially more severe. His neck pain and discomfort lasted for a substantial amount of time, and he was also forced to endure pain and limitations in the use of both one foot and one hand for varying lengths of time. Peter testified that these disabilities prevented him from engaging in horseback riding and attending college for about a year. Given this evidence the court finds that an award of $10,000 must be made to Peter for pain and suffering from the accident. For the reasons given above for Kevin’s scarring, the court denies any recovery for the injury to his finger and the long term — though not permanent — scarring of his ankle. Likewise, the court must deny any award for future neck pain. To recover damages for future pain or suffering or permanent injury, a plaintiff must show these elements with reasonable certainty. Klein v. W. Hodgman & Sons, Inc., 77 S.D. 64, 69, 85 N.W.2d 289, 292 (1957). Furthermore, if the claim for future suffering is subjective; as it is here, corroborating evidence from a medical expert is required. Id. at 71, 85 N.W.2d at 294. Peter has failed, in this court’s view, to show future pain and suffering or permanent injury with reasonable certainty, and has certainly failed to present corroborating medical testimony.

Finally, both Kevin and Peter are entitled to recover their hospital and medical expenses — $1,410 in the case of Peter, with $966 prejudgment interest — and $471.79 in the case of Kevin, with prejudgment interest of $323:16.

CONCLUSION

Upon all the evidence, the Court awards plaintiffs $207,010 for the wrongful death of Raydon and Patricia Hurst. The court further awards Kevin Hurst $3,294.95, and Peter Hurst $12,376 for personal damages sustained by them in the accident. The clerk shall enter judgment accordingly. This opinion constitutes this court’s findings of fact and conclusions of law.

      . The Court requested briefing from the parties on this issue in carrying out the Court’s obligation to inquire into its own jurisdiction. Lawrence County, South Dakota v. State of South Dakota, 668 F.2d 27 (8th Cir.1982). Plaintiffs cited to the court the Cheyenne River Sioux Tribal Code, § 1-4-5, which provides that the Tribe has jurisdiction over all civil actions "except the [tribal] courts ... shall not assume jurisdiction over any ... matter which does not involve either the tribe, its officers, agents, employees, property or enterprises or a member of the tribe, or a member of a federally recognized tribe, if some other forum exists for the handling of the matter and if the matter is not one in which.the rights of the tribe or its members may be directly or indirectly affected." Defendant has never made it appear on the record the tribe to which he belongs. Since it is admitted that the essential elements of diversity jurisdiction exist here — i.e., the parties are citizens of different states — plaintiffs have carried their burden of establishing jurisdiction. It would have then been incumbent on defendant to prove any additional fact tending to defeat jurisdiction. .

      . 18 U.S.C. § 1112 provides that involuntary manslaughter is the “unlawful killing of a human being without malice ... [i]n the commission of an unlawful act not amounting to a felony, or in the commission in an unlawful manner, or without due caution and circumspection, of a lawful act which might produce death."

      . Other jurisdictions supporting this view include Minnesota, Wisconsin and North Dakota. Eisert v. Greenberg Roofing & Sheet Metal Co., 314 N.W.2d 226 (Minn. 1982); Wangen v. Ford Motor Co., 97 Wis.2d 260, 294 N.W.2d 437, 13 ALR 4th 1 (1980); Hyyti v. Smith, 67 N.D. 425, 272 N.W. 747 (1937).

      . At the time of the decision in Smith v. Chicago, Mil & St P. Ry. Co., supra, 6 S.D. 583, 62 N.W. 967, the Wrongful Death statute allowed recovery for "damages". This statute was repealed in 1909. The 1909 Wrongful Death statute codified the approach taken by the courts and specifically employed the words "pecuniary injury" in the statute. Note, South Dakota Wrongful Death: Loss of Society and Companionship as Pecuniary Loss, 13 S.D.L.Rev. 232, 232-34 (1968). See also, Anderson v. Lale, 88 S.D. 111, 216 N.W.2d 152 (1974).

      . There is nothing in the record giving this court any guidance in, or suggesting that this court should, reduce any of the future damages to present value. "It is, of course, fundamental that no [such reduction] is warranted unless it is supported by the evidence." Stein, Damages and Recovery: Personal Injury and Death Actions, 345 (1972); Brochu v. Ortho Pharmaceutical Corp., 642 F.2d 652 (1st Cir.1981). See also. Kowing, supra, 67 N.W.2d at 783, "Matters in mitigation of damages constitute a defense and the burden of pleading and proving that damages would have been lessened ... was on defendants.”

      . Both Kevin and Peter request, as part of their claim for damages for pain and suffering, compensation for their presence at their parents' death. See plaintiffs' brief filed July 17, 1984 at 3-4. While both were in the back seat of the car at the time of the accident, neither remembered anything about the accident, and plaintiff’s failed to present any proof of their reaction to it. This is a totally inadequate record for the award of damages.


author: PANNER, Chief Judge.

text:
    ALLSTATE INSURANCE COMPANY, an Illinois corporation, Plaintiff, v. Jeanne SIMMS, personal representative of the Estate of Harold Simms, Jr., and Donald Zinn, Defendants.
    Civ. No. 84-87-PA.
    United States District Court, D. Oregon.
    Sept. 13, 1984.

      Robert E. Maloney, Jr., Charles F. Hudson, Spears, Lubersky, Campbell, Bledsoe, Anderson & Young, Portland, Or., for plaintiff.
    James M. Pippin, Pippin, Bocci & Shinn, Portland, Or., for defendant Jeanne Simms.
    Daniel C. Lorenz, Des Connall, P.C., Portland, Or., for defendant Donald Zinn.
   PANNER, Chief Judge.

Plaintiff seeks a declaration that its homeowners insurance policy does not provide insurance coverage for any claims arising out of the death of Harold Simms, Jr. (Simms). It has named as defendants both the personal representative of Harold Simms’s estate, Jeanne Simms, and the insured, Donald Zinn (Zinn).

Defendants Jeanne Simms and Zinn are involved in a separate wrongful death action in the state circuit court. Simms v. Zinn, No. [ AXXXX-XXXXX ] (Multnomah County Cir.Ct. filed July 12, 1983). In that action both Jeanne Simms and Zinn contend that Zinn’s homeowners, insurance policy issued by Allstate covers the claims in question.

Allstate moves for summary judgment. Defendant Zinn filed a cross motion for summary judgment. I now grant Allstate’s motion for summary judgment, and deny Zinn’s motion for summary judgment.

FACTS

The facts relevant to plaintiff’s claim come from the transcript of defendant Zinn’s criminal trial. They are not in dispute. Harold Simms, Jr., was shot and killed by Donald Zinn on January 1, 1982. Zinn was charged with the murder of Simms and with first degree manslaughter in the death of Charles Lewis. He was convicted of criminally negligent homicide in connection with the death of Simms.

At about 12:30 a.m. on the morning of the shooting, Zinn rested on his bed. He intended to pick up his fiancee after she finished bartending at 2:30 a.m. Zinn was awakened when someone turned on the bedroom overhead light. Zinn recognized Lewis, a former boyfriend of his fiancee, standing in the bedroom doorway. Lewis demanded to talk to Zinn. Zinn jumped from his bed, rushed to the bedroom closet, and grabbed a loaded rifle. As Zinn began to back out of the closet, he was held by Simms. After a brief discussion, Simms released Zinn and Zinn unloaded several cartridges onto the bed. Simms backed out of the bedroom and seated himself in the living room. As Zinn left the bedroom, he picked up the cartridges from the bed, pushed Lewis out of the bedroom and reloaded the rifle. As Lewis began to approach Zinn, Zinn pointed the rifle at Lewis, told him he was trespassing, and demanded that Lewis leave the house. Lewis continued to approach and Zinn repeated his demand. Zinn then shot Lewis. He then shot Simms as Simms was getting out of the chair. Simms advanced toward Zinn, and Zinn shot him a second time. Although Zinn could not recall shooting Simms more than twice, the coroner’s report indicates that Simms was shot five times. Zinn testified that when he shot Simms he was aiming for the chest area.

STANDARDS

Summary judgment is appropriate under Rule 56(c) if the court finds that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The moving party has the burden of establishing the absence of a genuine issue of material fact. Securities and Exchange Commission v. Murphy, 626 F.2d 633, 640 (9th Cir.1980). All reasonable doubts as to the existence of genuine issues must be resolved against the moving party. Hector v. Wiens, 533 F.2d 429, 432 (9th Cir.1976). The inferences to be drawn from the underlying facts must be viewed in the light most favorable to the party opposing the motion. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962). Where different ultimate inferences can be drawn, summary judgment is inappropriate. Sankovich v. Life Insurance Company of North America, 638 F.2d 136, 140 (9th Cir.1981).

DISCUSSION

Allstate contends that its homeowners insurance policy issued to Zinn does not provide coverage for any claim arising from Zinn’s slaying of Simms. Thé insurance policy contains the following exclusion: “We do not cover bodily injury or property damage intentionally caused by an insured person.” Complaint, Exhibit A at 18.

This court reviewed an identical exclusion clause in Allstate Insurance Co. v. Browning, 598 F.Supp. 421 (D.Or.1983) (Frye, J.). In reviewing the Oregon cases construing similar exclusion clauses, the court determined that both the act causing the harm, and the harm itself, must be intended in order for coverage to be excluded. Id. at 423.

In the present case, the evidence shows that Zinn intended to shoot Simms and intended to cause him bodily harm. In Zinn’s prior criminal trial, he testified as follows:

Q. All right. What did you do at that moment?
A. Well, I thought — I just had a flash in my mind, “I’m in the last room of my house. I can’t run anymore, because with all those locks on the doors, I would have to put the rifle down somewhere in the kitchen, and turn my back on the people. [Simms and Lewis],” and I pulled the trigger.
Q. When you pulled the trigger what did you intend to happen?
A. For them to go down.
Q. What did you — this is a big gun, this 45-70. Are you aware of its stopping power?
A. I have never shot an animal with it.
Q. But, you knew it was a buffalo gun?
A. Yes.
Q. When you fired this weapon, what did you expect to happen?
A. I expected him to drop.
Q. Did they drop?
A. No, they did not.
Q. What did they do?
A. They kept coming like I was shooting blanks.

Transcript at 34, 45.

In his affidavit submitted with his cross motion, Zinn states: “At no time during the transactions leading to the death of defendant Simms did I intend any wrongful or criminal behavior. I intended solely to exercise that degree of force which I honestly believed I was lawfully entitled to use in proper defense of myself.” Zinn Affidavit at 2-3. As noted previously, Zinn testified that when he shot at Simms, he was aiming for the chest area.

Viewing the inferences from these facts in a light most favorable to defendants, there is- no other inference to be drawn but that Zinn intended to shoot Simms and intended to cause Simms bodily harm, although he may not have intended to cause the death of Simms.. Defendant Jeanne Simms has not submitted any evidence to controvert this conclusion.

Zinn contends that “the evidence indicates that Mr. Zinn had consumed vast quantities of alcohol and that this may have contributed in a substantial and material way to the events of January 1, 1984.” Memorandum of Law at 3. There is no evidence in the record to support this conclusion. Zinn’s testimony shows that some hours before the shooting, he drank part of a coffee- cup of wine and spilled the rest. Transcript at 178. He later drank a half to three quarters of a brandy drink at a bar. Transcript at 181. Moreover he states in his affidavit that he consumed “some wine some hours before the shooting.” Zinn Affidavit at 2.

I cannot conclude on the basis of this evidence that Zinn consumed “vast quantities” of alcohol prior to the shooting incident. Nor can I conclude from this evidence that Zinn’s consumption of alcohol substantially influenced his behavior at the time of the shooting. It is clear that Zinn intended to shoot Simms and that he intended to cause Simms bodily injury.

Defendants contend that Zinn’s acts were not within the policy exclusion because Zinn was acting in self-defense when he shot Simms. In support of this argument Zinn cites Brasseaux v. Girouard, 269 So.2d 590 (La.Ct.App.1972). The Brasseaux court initially determined that even though the insured unreasonably believed that self-defense was necessary, and used excessive force in defending himself, the insured was covered by his insurance policy. Id. at 595. The court determined that the exclusion clause was ambiguous, and construed the clause against the insurer. On rehearing, however, the court concluded that it had erred in its original decision. It determined that where the insured shot the victim intentionally, and the shooting was unjustified, the exclusionary clause excluded coverage and relieved the insurer from liability. Id. at 600. The Brasseaux court was not presented with a situation where the insured was justifiably acting in self-defense.

California appears to follow the rule that where the insured causes injury while acting in self-defense, he is not precluded from coverage by an intentional injury exclusion. Walters v. American Insurance Co., 185 Cal.App.2d 776, 8 Cal.Rptr. 665 (1960). The California rule is influenced by an interpretation of section 533 of the California Insurance Code. The Walters court determined that the intentional injury exclusion requires an element of wrongfulness or misconduct. 8 Cal.Rptr. at 670. See Arenson v. National Automobile and Casualty Insurance Co., 45 Cal.2d 81, 286 P.2d 816, 818 (1955).

The majority of courts hold, however, that an intentional injury exclusion precludes coverage for intentional injuries caused by the insured, even where the insured is acting in self-defense. Lockhart v. Allstate Insurance Co., 119 Ariz. 150, 579 P.2d 1120 (Ariz.Ct.App.1978); Clemmons v. American States Insurance Co., 412 So.2d 906 (Fla.Dist.Ct.App.1982); Hartford Accident and Indemnity Co. v. Krekeler, 363 F.Supp. 354 (E.D.Mo.1973), rev’d on the other grounds, 491 F.2d 884 (8th Cir.1974).

In Lockhart v. Allstate Insurance Co., supra, the insurance company contended that its policy provided no coverage even if the insured was acting in self-defense at the time he allegedly shot the victim. The Arizona Court of Appeals held that the intentional injury exclusion precluded coverage. It provided the following rationale:

The insurance policy excludes coverage for an intentional act of the insured which was intended to cause injury or which could be expected to cause injury. The question of self-defense presents an issue of motive or justification for an intentionally caused harm but does nothing to avoid the inference of intent to harm that necessarily follows [the insured’s] deliberate shooting at [the victim]. Home Insurance Company v. Neilson, [165 Ind.App. 445, 332 N.E.2d 240 (1975)]. [The insured’s] own statement demonstrates that he intended to shoot the gun and to cause injury. Whether he intended the precise injuries which occurred is immaterial. We are of the opinion that despite [the insured’s] affidavit stating that he fired his gun only to protect himself and to prevent [the victim] from shooting at him, there is no factual issue as to his intent which would preclude summary judgment.

Lockhart v. Allstate Insurance Co., 579 P.2d at 1122-23.

In Clemmons v. American States Insurance Co., the insurance policy at issue excluded coverage of bodily injury either expected or intended from the standpoint of the insured. The court assumed the insured was acting in self-defense when he shot the victim. The court determined that the insured intentionally discharged a firearm while aiming it at the victim, and he intended and expected to inflict serious bodily injuries. The court reasoned that without regard to whether the insured’s actions were justified under criminal law concepts, he acted within the policy exclusion. Id. at 910.

I am persuaded by the Lockhart line of cases. I find that even if Zinn was. acting in self-defense when he shot Simms, he is precluded from coverage by the intentional injury exclusion of his policy.

Although Allstate’s insurance policy does not provide coverage for Zinn’s slaying of Simms, under some circumstances there may be a duty to defend Zinn if-withdrawal would prejudice Zinn. United Pacific Insurance Co. v. Pacific Northwest Research Foundation, 39 Or.App. 873, 593 P.2d 1278 (1979); Allstate Insurance Co. v. Browning, supra, at 424.

Allstate contends no such prejudice will occur. Records of the state court proceeding indicate that the case was reinstated on June 14, 1984, after a 30-day order of dismissal on May 23, 1984. Affidavit of Charles Hudson, Exhibit G. Allstate maintains that Zinn is represented by independent counsel in the state court proceedings. Zinn states that an answer has been filed on his behalf in the state court action. Zinn Affidavit at 2.

Under these circumstances, I find that Zinn will not be prejudiced by Allstate’s withdrawal. A final determination of this issue, however, more appropriately rests with the presiding judge in the state court action.

CONCLUSION

I find that the Allstate homeowners insurance policy issued to defendant Zinn does not provide coverage for claims arising from Zinn’s intentional shooting of Simms. Allstate’s motion for summary judgment is GRANTED. Although it appears that Zinn will not be prejudiced by Allstate’s withdrawal from the state court action, I defer final decision on that issue to the presiding judge in the state court proceeding. Defendant Zinn’s motion for summary judgment is DENIED.

IT IS SO ORDERED.