1. Mon. Feb. 13

2. - P sues D in state court under FELA
- P sues D in state court under FELA. - FELA has a two-year statute of limitations - The forum state has a one-year procedural statute of limitations - P has waited one and a half years to sue - Is P barred? - Engel v. Davenport (US 1926)

3. Public Policy Exception

4. Mertz v Mertz (NY 1936)

5. Holzer v Deutsche Reichsbahn-Gesellschaft (NY 1938)

6. Virginia cases

7. McMillan v McMillan (Va. 1979)

8. JONES v RS JONES & Assoc (Va. 1993)

9. 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.

10. We think the limitation contained in Fla. Stat. Ann. § 95
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]."

11. Buchanan v. Doe (Va. 1993)

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

13. “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.”

14. “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.”

15. Perkins v Doe (W. Va. 1986) - W. Virg’ian gets into accident in Va
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

16. 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.”

17. 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.”

18. 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.”

19. Dreher v. Budget Rent-A-Car System, Inc. (Va. 2006)

20. “The statutes of New York imposing a showing of financial responsibility as a condition to the registration and operation of motor vehicles express a strong public policy that a person injured by the negligence of a driver should have recourse to a defendant able to respond in damages.” The New York legislature intended this responsibility to extend extra-territorially. The provisions of N.Y. Law § 388 have been viewed as showing a “commendable concern not only for residents of [New York], but residents of other States who may be injured as a result of the activities of New York residents.”

21. pleading and proving foreign law

22. Fact approach to content of foreign law

23. Must be pleaded Proved Jury Limited appellate review

24. cause of action was really under the law of the forum – foreign law was a fact concerning the availability of recovery

25. Law approach to foreign law

26. FRCP 44.1
A party who intends to raise an issue concerning the law of a foreign country shall give notice by pleadings or other reasonable written notice. The court, in determining foreign law, may consider any relevant material or source, including testimony, whether or not submitted by a party or admissible under the Federal Rules of Evidence. The court's determination shall be treated as a ruling on a question of law.

27. failure to plead foreign law

28. P (NY) sues D (NY) for not inviting P to NY party, causing emotional harm
asks for $1 million in damages
No one mentions which NY law applies
What happens?

29. Sua sponte?

30. 2 Californians enter into gambling contract in Cal, with performance in Cal - gambling contracts are illegal under Cal. Law - the parties offer no evidence of Ca. law however - if the suit were brought in Nevada state court, where gambling contracts are legal, can the court presume that Ca. law is like Nev. law?

31. failure to offer evidence of foreign law

32. - put burden on plaintiff and dismiss - put burden on defendant and assume states a claim - put burden on party best able to identify law - put burden on court - use presumption about what law is like to allow case to proceed

33. presumptions - that common law applies in a common law jurisdiction (that is, has not been abrogated by statute) - that fundamental law applies in a jurisdiction - that law of the jurisdiction is like the forum’s

34. Walton v Arabian American Oil Co (2d Cir 1956)

35. P (Ark) sues D (Del) for negligence of D’s employee in Saudi Arabia
Complaint simply alleges negligence of employee, damages etc.
No one mentions which law applies
What happens?

36. New York Civil Practice Act, § 344-a
judicial notice statute

37. Louknitsky v. Louknitsky - California state court determining spousal rights in marital property of couple, now domiciled in Ca., while they were in China - presumed Chinese law was the same as California’s community property system

38. Statutory solutions

39. Uniform Probate Code

40. Borrowing statutes – statutes of limitations
Borrow statute of limitations period
Where cause of action arose?
Of substantive law?

41. in Washington for many many years then briefly in Idaho, where sued
West v Theis (Idaho 1908)
statute of limitations starts running in Kansas, but D leaves state, tolling it
Because no PJ in Kansas cts
in Washington for many many years
More than anybody’s statute of limitations
then briefly in Idaho, where sued
Idaho had borrowing statute that looked to statute of limitations of state where cause of action arose (Kansas)
Is the action barred?

42. Bridge Prods. Inc. v. Quantum Chem. Corp. (ND Ill 1990)
Property bought in VA
Del choice of law provision in K
Suit in Ill
Should court use Del statute of limitations?
Or should it use the statute of limitations that would be applied by an Illinois court?
In this case it was VA’s