## Facts

- A midair collision occurred on September 9, 1969, between an Allegheny Airlines DC-9 (Flight 853) and a Piper Cherokee over Indiana, killing all 83 occupants and destroying both aircraft.
- The DC-9 was operating under IFR and receiving radar vectors from FAA air traffic control at Indianapolis Approach Control.
- The Piper Cherokee, owned by Forth (a Brookside subsidiary), was flown by student pilot Robert W. Carey under VFR on a solo cross-country flight from Brookside Airport to Bakalar Air Force Base.
- Multiple wrongful-death and property-damage actions were filed in federal courts, including claims under diversity jurisdiction and against the United States under the Federal Tort Claims Act.
- The cases were centralized for coordinated pretrial proceedings in the Southern District of Indiana under 28 U.S.C. § 1407.
- Allegheny and the United States asserted cross-claims and third-party claims seeking contribution and indemnity from Brookside, Forth, and Carey’s estate for liabilities arising out of the collision.

## Issues

1. Whether state law (Indiana) or federal common law governs contribution and indemnity claims among parties arising from an aviation collision involving federally regulated airspace and the United States under the FTCA.
2. Whether Indiana law permits contribution among alleged joint tortfeasors in these circumstances.
3. Whether Indiana law permits indemnity on the pleaded facts (including any special relationship or active/passive fault distinction).
4. Whether a prior, related Seventh Circuit decision concerning the same collision precludes the contribution and indemnity claims under res judicata or collateral estoppel.

## Decision

- The Seventh Circuit affirmed dismissal of Allegheny’s and the United States’ cross-claims and third-party complaints.
- The court held Indiana law governed the availability of contribution and indemnity, rejecting a federal common-law rule based solely on federal aviation regulation or the FTCA context.
- Under Indiana law, the claims for contribution failed because Indiana did not recognize contribution among joint tortfeasors absent statutory authorization.
- The indemnity claims failed because the pleadings did not establish a basis for shifting the entire loss (such as a qualifying special relationship or purely derivative liability).
- The court further concluded that the prior related decision arising from the same collision barred continued pursuit of the contribution and indemnity claims under claim and issue preclusion.

## Legal Principles

- In federal cases resting on diversity and FTCA jurisdiction, allocation-of-loss rights among tortfeasors (contribution/indemnity) are generally matters of substantive state law absent a controlling federal statute.
- Federal regulation of aviation safety may inform standards of care, but it does not alone create a federal common-law regime for contribution or indemnity among alleged tortfeasors.
- Indiana law (at the time) did not allow contribution among joint tortfeasors without statutory authorization.
- Indiana indemnity is limited and typically requires a qualifying relationship or liability that is secondary/derivative rather than based on the indemnitee’s own negligence.
- Res judicata and collateral estoppel bar relitigation of claims or issues previously resolved in related litigation involving the same underlying occurrence.

## Conclusion

The Seventh Circuit upheld dismissal of cross-claims and third-party claims seeking contribution and indemnity after an aviation disaster, holding that Indiana substantive law controlled and foreclosed contribution and the pleaded indemnity theories, and that prior litigation arising from the same collision independently precluded further pursuit of those claims.


Kohr v. Allegheny Airlines, Inc., 504 F.2d 400 (7th Cir. 1974)