Pounders v. Enserch E&C, Inc. – 4/17/2012

April 20, 2012

Arizona Court of Appeals Division One Holds That in a Wrongful Death Action, the Law of the State Where the Injury Occurred Applies Even if a Disease Develops and Manifests Itself in a Different State.

Pounders inhaled asbestos fibers while living in New Mexico and working for Arizona Public Service at a power plant located in New Mexico.  After he moved to Arizona, he was diagnosed with mesothelioma, which was purportedly caused by the asbestos inhalation.  Pounders’s wife filed a wrongful death claim in Arizona against several parties involved with the manufacture and installation of equipment used at the power plant.

The trial court granted summary judgment in favor of the defendants after concluding that New Mexico law applied and that a New Mexico statute barred the plaintiff’s claims.  The plaintiff appealed, arguing that Arizona law (which would not bar the claims) applied rather than New Mexico law.

Under Arizona law, the laws of the state where the injury occurred presumptively apply.  The Court held that even though the mesothelioma may not have developed until Pounders had moved to Arizona, the “injury” occurred in New Mexico because the forces allegedly put in motion by the defendants (exposing Pounders to asbestos) first took effect when he inhaled the asbestos while living and working in New Mexico.  For a slow-developing illness, the location of the “injury” for choice of law purposes in a wrongful death action may be different from where the effects first manifest themselves as a physical impairment.  The presumption of New Mexico law applying can be overcome by demonstrating that another state has a more significant relationship to the occurrence and the parties, but after evaluating several factors the Court held that New Mexico had a closer relationship than Arizona.

The Court also rejected the plaintiff’s argument that her claim survived even under New Mexico law.

Judge Timmer authored the opinion; Judges Portley and Gould concurred.