Tues. Feb. 9

renvoi

The primary reason for its existence lies in the fact that the law-making and law-enforcing agencies of the country in which land is situated have exclusive control over such land. As only the courts of that country are ultimately capable of rendering enforceable judgments affecting the land, the legislative authorities thereof have the exclusive power to promulgate the law which shall regulate its ownership and transfer.…If an instrument which was intended to transfer that land did not meet the standards set by that law or violated some provision thereof regarding the land, the courts had the physical power to deny it effect and enforce instead the rights decreed by the law of that country or the law of any other country which the law-making agencies deemed appropriate in a particular case.

Circling?

Section 8. Rule in questions of title to land or divorce. (1) All questions of title to land are decided in accordance with the law of the state where the land is, including the Conflict of Laws rules of that State. (2) All questions concerning the validity of a decree of divorce are decided in accordance with the law of the domicile of the parties, including the Conflict of Laws rules of that State.’

2 nd Restatement Renvoi if - the objective of the particular choice of law rule is that the forum reach the same decision as that of another state (on the same facts) Examples: validity and effect of transfer of interests in land and succession of interests in movables in a decedents estate

Public Policy Exception

Loucks v Standard Oil (NY 1918)

“The courts are not free to refuse to enforce a foreign right at the pleasure of the judges, to suit the individual notion of expediency or fairness. They do not close their doors unless help would violate some fundamental principle of justice, some prevalent conception of good morals, some deep-rooted tradition of the common weal.”

Mertz v Mertz (NY 1936)

Mertz “The term ‘public policy’ is frequently used in a very vague, loose or inaccurate sense. The courts have often found it necessary to define its juridical meaning, and have held that a state can have no public policy except what is to be found in its Constitution and laws. Therefore, when we speak of the public policy of the state, we mean the law of the state, whether found in the Constitution, the statutes or judicial records.”

Assume that after the dismissal, the action is brought in Conn. Can the defendant argue res judicata?

Mertz – another justification “The law of the forum determines the jurisdiction of the courts, the capacity of the parties to sue or be sued, the remedies which are available to suitors and the procedure of the courts. Where a party seeks in this state enforcement of a cause of action created by foreign law, he can avail himself only of the remedies provided by our law, and is subject to their limitations.”

Holzer v Deutsche Reichsbahn- Gesellschaft (NY 1938)

Does interest analysis suggest that forum law should be used as in Mertz?

Should the court have simply dismissed?

German law requires everyone who is fired for being Jewish to pay for clearing out his office Deutsche Reichsbahn sues in New York for costs of cleaning out Holzer’s office Result?

Compare Kilberg v N’eastern Airlines - NY P, Mass D, plane accident in Mass - Ticket brought in NY - Mass limit on damages for wrongful death - Suit in NY - Court characterizes as procedural - But also refuses to apply limit on PPE grounds

penal laws

Virginia cases

McMillan v McMillan (Va. 1979)

§ 145. The General Principle (1) The rights and liabilities of the parties with respect to an issue in tort are determined by the local law of the state which, with respect to that issue, has the most significant relationship to the occurrence and the parties under the principles stated in § 6. (2) Contacts to be taken into account in applying the principles of § 6 to determine the law applicable to an issue include: (a) the place where the injury occurred, (b) the place where the conduct causing the injury occurred, (c) the domicil, residence, nationality, place of incorporation and place of business of the parties, and (d) the place where the relationship, if any, between the parties is centered. These contacts are to be evaluated according to their relative importance with respect to the particular issue.

§ 169. Intra-Family Immunity (1) The law selected by application of the rule of § 145 determines whether one member of a family is immune from tort liability to another member of the family. (2) The applicable law will usually be the local law of the state of the parties' domicil.

Babcock v. Jackson (NY 1963) NY P – guest in car w/ NY D Crashed into stone wall in Ontario Q of application of Ontario guest statute Held Ontario guest statute does not apply

Kell v. Henderson (NY Sup. Ct. 1965) Residents of Ontario in NY Trip begins and ends in Ontario Accident in NY Court applied NY law, not Ontario guest statute

JONES v RS JONES & Assoc (Va. 1993)

Limitations other than for the recovery of real property Actions other than for recovery of real property shall be commenced as follows:... (3) Within four years.-- (a) An action founded on negligence.... (4) Within two years.--.. (d) An action for wrongful death.... (g) An action for libel or slander. (5) Within one year.-- (a) An action for specific performance of a contract....

We think the limitation contained in Fla.Stat.Ann. § 95.11(4)(d) is directed so specifically to the right of action provided by the state's wrongful death act as to warrant saying that the limitation qualifies the right. Indeed, if the limitation is not so directed, one is constrained to ask, to what else could it possibly be pointed? The language, "[a]n action for wrongful death... shall be commenced... [w]ithin two years," is, to borrow from Davis v. Mills, "so specific that it hardly can mean anything else [than a qualification upon the newly created liability]."

What about Virginia’s two-year statute of limitations for wrongful death actions…?

Buchanan v. Doe (Va. 1993)

"The forum state applies its own law to ascertain whether the issue is one of tort or contract."

“Substantive tort law in West Virginia, as in Virginia, requires that the plaintiff prove he was injured by the negligence of the defendant. But there is nothing in the tort law of either state which requires that injury be accompanied by physical contact in order to impose liability on the defendant. Under West Virginia law, however, in order to recover from an insurance company under an uninsured motorist policy, the injured party must prove in the John Doe tort action that the injury was accompanied by physical contact. But, for several reasons, we conclude that this requirement is a matter of statutory law dealing with insurance contracts.”

“Finally, if we construed the proof-of-contact requirement as State Farm suggests, the scope of a Virginia insured's UM coverage would depend upon the UM statutory provisions of each state in which a Virginia insured traveled, contrary to our understanding of the purpose of UM insurance.”

Perkins v Doe (W. Va. 1986) - W. Virg’ian gets into accident in Va. (no contact) - suit brought in fed ct against John Doe - question certified to W. Va. S.Ct. - said law of place of harm applied Lee v. Saliga (W. Va. 1988) - Pennsylvanian gets into accident in W.Va. (no contact) - suit against insurance co. in W. Va ct. - W. Va. S Ct. held that law of place of contracting applies

Concurrence (Lacy) “In my opinion, applying West Virginia law to bar a Virginia resident from establishing the negligence of a John Doe motorist and recovering under the uninsured motorist provisions of an automobile liability policy solely because there was no physical contact between the vehicles is contrary to a significant public policy of this Commonwealth, as reflected in a broad range of Virginia's motor vehicle statutes, rules and regulations.”

Concurrence (Lacy) “To restrict the Virginia insured's recovery against unknown motorists by imposing the physical contact rule punishes those drivers who attempt to avoid such contact, defeating the broader public policy to encourage safe driving. Applying the rule also places Virginia insureds at risk from negligent uninsured motorists whenever they leave the Commonwealth and subjects them to the requisites for recovery under the uninsured motorist provisions of each state in which they travel. Thus, they lose the full contractual benefits of their Virginia insurance policies, despite Virginia's articulated policy of protecting Virginia insureds against unknown, uninsured motorists whose negligence causes them injury.”

Concurrence (Lacy) “Further, if the accident had occurred in Virginia, there would be no question of Buchanan's right to proceed to establish John Doe's liability for his injuries. Indeed, if Buchanan had filed suit in West Virginia, based on the facts before us here, the courts of that state would not have applied the physical contact rule to bar his action.”