10-3250-cv
McPhee v. Gen. Elec. Int'l, Inc.


                 UNITED STATES COURT OF APPEALS
                     FOR THE SECOND CIRCUIT
                                   SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL
RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER
THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION "SUMMARY
ORDER"). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT
REPRESENTED BY COUNSEL.

          At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of New
York, on the 19th day of August, two thousand eleven.

PRESENT:     RALPH K. WINTER,
             BARRINGTON D. PARKER,
             DENNY CHIN,
                            Circuit Judges.

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MICHAEL G. MCPHEE, as administrator of
the Estate of GREG B. MCPHEE, deceased,
          Plaintiff-Appellant,

             -v.-                                         10-3250-cv

GENERAL ELECTRIC INTERNATIONAL, INC.,
          Defendant-Appellee.
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FOR PLAINTIFF-APPELLANT:               L. MARC ZELL, Zell & Co.,
                                       Jerusalem, Israel, (Jeffrey E.
                                       Michels, Zell Goldberg LLC, New
                                       York, New York, on the brief).

FOR DEFENDANT-APPELLEE:                REBECCA A. WOMELDORF (Michael L.
                                       Junk, on the brief), Hollingsworth
                                       LLP, Washington, DC.

             Appeal from a judgment of the United States District

Court for the Southern District of New York (Sullivan, J.).
          UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment of the district court is AFFIRMED.

          Plaintiff-appellant Michael G. McPhee, administrator of

the estate of Greg B. McPhee ("Greg"), appeals from a judgment

entered July 27, 2010 in the district court following dismissal

of his wrongful death action against defendant-appellee General

Electric International, Inc. ("GEII").   In 2007, GEII deployed

Greg overseas to perform water and commissioning services at a
facility in Israel.   On February 19, 2007, the parties entered

into an employment agreement containing a choice-of-law provision

that designated New York law as the law governing any dispute

arising between the parties.   On July 25, 2007, in the course of

his employment, Greg entered into a water-purification tank at

the Israeli facility, where he accidentally died of asphyxiation.

Greg's brother brought this action on his behalf, and GEII moved

to dismiss the complaint on the grounds of workers' compensation

immunity pursuant to New York Workers' Compensation Law § 11.     We

assume the parties' familiarity with the facts, proceedings

below, and issues presented on appeal.

          We review an order granting a motion to dismiss de

novo, accepting all factual allegations in the complaint as true

and drawing all reasonable inferences in the non-movant's favor.

City of Pontiac Gen. Emps.' Ret. Sys. v. MBIA, Inc., 637 F.3d
169, 173 (2d Cir. 2011).   On appeal, McPhee principally argues

that dismissal of the action was improper because Israeli and not

New York law applies, for two reasons:   (1) this wrongful death


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action falls outside the scope of the choice-of-law clause in the

employment agreement; and (2) even if the choice-of-law clause

applies to this action, the lack of sufficient contacts between

New York and the transaction renders the clause unenforceable.

           McPhee's first argument is unavailing because the

language of the agreement is sufficiently broad to encompass a

wrongful death action arising from an employee's death on the

job.   The agreement states, in relevant part, that "[i]n the

event of any dispute between the parties to this agreement or

with respect to any claim arising from the employment

relationship," the applicable law "shall be the substantive and

procedural law of New York."   McPhee concedes that a choice-of-

law provision may be written broadly enough to encompass tort

claims.   See Krock v. Lipsay, 97 F.3d 640, 645 (2d Cir. 1996)
("Under New York law, in order for a choice-of-law provision to

apply to claims for tort arising incident to the contract, the

express language of the provision must be 'sufficiently broad' as

to encompass the entire relationship between the contracting
parties." (quoting Turtur v. Rothschild Registry Int'l, Inc., 26
F.3d 304, 310 (2d Cir. 1994))).     The district court correctly

held that the language of the clause -- which expressly provided

that "any claim" arising from the "employment relationship" would

be governed by New York law -- encompassed a claim for wrongful

death based on a fatal, on-the-job accident.

           As for McPhee's second argument, we conclude that the

district court, sitting in diversity, properly applied New York's
choice-of-law rules to determine whether the clause was

                                  -3-
enforceable.   Bakalar v. Vavra, 619 F.3d 136, 139 (2d Cir. 2010)

(citing Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487

(1941)).   In New York, "the chosen law [must] bear[] a reasonable

relationship to the parties or the transaction."    Welsbach Elec.

Corp. v. MasTec N. Am., Inc., 7 N.Y.3d 624, 629 (2006).       We

affirm the district court's judgment for substantially the

reasons stated in its well-reasoned decision.     Namely, a

"reasonable relationship" existed between New York and both the

parties and the employment relationship because:    GEII had a

substantial presence in New York; a GE unit coordinated Greg's

deployment overseas through vendors in New York; paychecks to

Greg originated from New York; GEII's parent company had a

substantial connection to New York; and the parties selected New

York as the forum to litigate this action.

           We have considered appellant's other arguments on

appeal and have found them to be without merit.    Accordingly, the

judgment of the district court is hereby AFFIRMED.


                               FOR THE COURT:

                               Catherine O’Hagan Wolfe, Clerk




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