By
Symeon C. Symeonides^*

Published in 49 American Journal of Comparative Law 1 (2001)
Copyright by the author and the American Society of Comparative Law, Inc.

Table of Contents

I. Introduction

II. Methodology
    1. Torts
        a. Traditional States Down to Ten
        b. Second (or Confused) Thoughts in Minnesota
    2. Contracts: Traditional States Up to Eleven?
    3. Updating the Charts

III. Torts
    1. Loss-Distribution Conflicts
        a. Common-Domicile Cases
        b. Split-Domicile Cases
    2. Conduct-Regulation Conflicts
        a. Tortious Interference with Contracts
        b. Premises Liability
    3. Class Actions
    4. Products Liability
    5. Maritime Torts

IV. Worker's Compensation

V. Contracts
    1. Cases Upholding the Parties' Choice
    2. Cases Not Upholding the Parties' Choice

VI. Insurance Conflicts
    1. Insurance for Environmental Pollution
    2. Insurability of Punitive Damages
    3. Automobile Insurance Conflicts

VII. Substance vs. Procedure
    1. Criminal Cases
    2. Civil Cases

VIII. Statutes of Limitation

IX. Et Alia

This is the fourteenth Annual Survey of American Choice-of-Law Cases. [FN1] It is prepared under the auspices of the Association of American Law Schools Section on Conflict of Laws [FN2] as a service to fellow teachers and students of conflicts law, both in this country and abroad. [FN3]

As in previous years, the Survey aspires to be thorough, representative, and objective. This, however, should be taken as a pledge of a good faith effort rather than as an ironclad warranty of result. The reader can be assured that: (a) all appellate choice-of-law cases [FN4] decided during the year 2000--a total of 642 cases [FN5]--have been canvassed; (b) this Survey discusses or describes most of those cases that can add something new to the development or understanding of the law of choice of law; and (c) every effort has been made to prevent the surveyor's personal opinions from interfering with or affecting the selection or discussion of the cases.

    a. Traditional States Down to Ten. The 1998 Survey discussed the current status of the traditional theory in tort and contract conflicts in the few states that continued to adhere to it. [FN6] One of the states that was then classified in the traditional column for tort conflicts was Montana. Although that state's highest court had never encountered a tort conflict and thus did not have the opportunity to endorse or reject the lex loci delicti rule, the Survey classified Montana in the traditional column for tort conflicts "out of an abundance of caution." [FN7] After noting that in contract conflicts the same court appeared too "eager to distance itself from the traditional theory," [FN8] the Survey predicted that, "as soon as the opportunity arises, the Montana Supreme Court will refuse to adopt the lex loci delicti rule and will probably adopt the Second Restatement for tort conflicts." [FN9]

That prediction came true in 2000, in a unanimous opinion of the Montana Supreme Court in Phillips v. General Motors Corp.. [FN10] After noting the inherent deficiencies of the lex loci delicti rule, [FN11] the dwindling number of states adhering to it, [FN12] and the shallowness of their commitment to it, [FN13] the court reiterated its earlier adoption of the Second Restatement for contract conflicts [FN14] and concluded as many courts do that there was "no reason to have

 one choice of law approach for contracts and another for torts." [FN15] The court proclaimed its adoption of the Second Restatement's "`most significant relationship' approach to determine the applicable substantive law for issues of tort." [FN16]

Phillips was a products liability/wrongful death action filed on behalf of the only surviving member of a Montana family, the Byrds, who perished when their 1985 Chevrolet pickup collided with another vehicle. The collision occurred in Kansas while the family was driving from their Montana domicile to North Carolina to spend Christmas with relatives. Apparently because the fuel tanks of the Chevrolet were mounted outside the frame rail, the collision caused a fire that resulted in the death of the driver Darrell Byrd and his wife and child. Another child, also riding in the Chevrolet, survived with serious injuries and moved to North Carolina after the accident. The action was filed on his behalf by his legal guardian, a North Carolina domiciliary, against General Motors (GM), a Michigan-headquartered corporation, which designed, tested, and manufactured the Chevrolet, apparently in Michigan. [FN17] The Chevrolet had been purchased by Darrell Byrd in North Carolina at a time when he was domiciled in that state. The defendant invoked the law of Kansas, [FN18] which had a statute of repose that barred the action and a products liability law that allowed certain defenses not available to manufacturers elsewhere and limited the amount of compensatory and punitive damages. The plaintiff invoked the law of Montana, which had no statute of repose, disallowed the manufacturer's defenses, and imposed no limits on compensatory or punitive damages.

The court proceeded to resolve the resulting conflict under the Restatement Second, which the court followed in a fairly meticulous fashion and without overlooking the specific Restatement sections applicable to the issue at hand. [FN19] This is in contrast to many other courts which prefer to bypass the specific Restatement sections and directly resort to the general laissez faire § 6 or the equally equivocal § 145. [FN20] The Phillips court did recite §§ 6 and 145, but noted that, under the more specific §§ 146 and 175 applicable respectively to personal injury and wrongful death actions, the law of the state of injury presumptively applies unless another state has a more significant relationship under the principles listed in § 6(2) and after taking into account the contacts listed in §145(2). The court concluded that "the principles of § 6(2) need not be given equal consideration in each case," [FN21] and that in this case "most weight" [FN22] should be given to the principles that require consideration of the relevant policies of the states of the injurious conduct, the resulting injury, and the parties' domicile. After a detailed analysis of the policies of these states, the court concluded that the presumption in favor of the state of injury, Kansas, was rebutted because the state of the victims' domicile, Montana, had a more significant relationship. [FN23]

The court concluded that the purpose of Kansas's products liability law was "to regulate the sale of products in that state and to prevent injuries incurred by that state's residents due to defective products," [FN24] and that this purpose "could not be implicated by the facts of this case as it involves neither a sale in Kansas nor an injury to a Kansas resident." [FN25] The court followed the same rationale even with regard to those rules of Kansas products liability law that protected the manufacturer, such as its statute of repose or the state-of-the art defense. The court concluded that these rules "were not enacted in order to grant a defense to a manufacturer when a non-Kansas resident is injured by a product not purchased in Kansas." [FN26] Regarding compensatory damages, the court concluded that Kansas' limitations on the amount of wrongful-death damages were intended "to alleviate a perceived crisis in the availability and affordability of liability insurance" [FN27] and that, because no Kansas residents were involved in this case, Kansas had no interest in insisting on those limitations. [FN28]

Finally, regarding punitive damages, the court focused more on the fact that Kansas law allowed such damages rather than on the fact that it limited their amount to $5 million. Noting that the purpose of punitive damages is "to punish or deter conduct deemed wrongful when the availability of a cause of action and compensatory damages are considered an insufficient punishment or deterrence," [FN29] the court concluded that Kansas was uninterested because the manufacturer's conduct did not occur in Kansas. [FN30]

As to where the manufacturer's conduct occurred, the defendant pointed to both Michigan, where the car had been manufactured, [FN31] and North Carolina, where the car had been introduced into the market and then resold to the victim. However, the defendant did not brief the court on the content of the laws of these states and thus the court's discussion was "somewhat general in nature." [FN32] In fact, North Carolina law was favorable to the defendant. [FN33] However, using a renvoi-type syllogism, [FN34] the court concluded that North Carolina had no claim to apply its law because, under the lex loci delicti rule followed in that state, a North Carolina court would have applied Kansas law. [FN35] Thus, said the court, "any expectation General Motors had that the law of North Carolina would govern . . . would not be justified." [FN36]

The court used a similar renvoi syllogism to discount Michigan's interest by relying on a similar case in which a Michigan court held that Michigan had "little interest in applying its law when its only contact with the dispute is the location of the manufacturer." [FN37] While other Michigan cases have reached the same result, [FN38] cases reaching the opposite result are not lacking. [FN39] Moreover, it may not be without significance that, in the Michigan cases that did not apply Michigan law, that law would favor a foreign victim at the expense of a Michigan manufacturer. Thus neither those cases nor Phillips presented the converse and more difficult true-conflict question of whether a state with a pro-recovery law would apply the pro-manufacturer law of the state of manufacture. Phillips nevertheless addressed this hypothetical scenario and concluded that to apply the law of the state of manufacture in such a case "would tend to leave victims under compensated as states wishing to attract and hold manufacturing companies would raise the threshold of liability and reduce compensation." [FN40] This would allow a state with a high concentration of industry to "capture all of the benefits of a high threshold of liability and a low level of compensation . . . by attract[ing] and retain[ing] manufacturing firms . . . within its borders while placing the costs of its legislative decision, in the form of less tort compensation, on the shoulders of nonresidents injured by its manufacturers' products." [FN41] This, said this court, "seems inherently unfair." [FN42]

Thus, after discounting the interests of the states of injury, conduct, and defendant's domicile, the court considered the interests of the victims' domicile, Montana, [FN43] whose law favored the victims on liability and compensatory and punitive damages. The court held that Montana's interests predominated in all respects. After noting that Montana adopted a strict liability standard "in order to afford `maximum protection for consumers against dangerous defects in manufactured products with the focus on the condition of the product, and not on the manufacturer's conduct or knowledge'," [FN44] the court stated that "the focus of Montana law is not only on the regulation of products sold in Montana, but also on providing the maximum protection and compensation to Montana residents." [FN45] The court reasoned that, because the victims in this case were Montana residents, the application of Montana's law of strict liability and full compensation "would further the purposes of Montana law by insuring that the costs to Montana residents due to injuries from defective products are fully borne by the responsible parties" [FN46] and would have "the salutary effect of deterring future sales of defective products in Montana and encouraging manufacturers to warn Montana residents about defects in their products as quickly and as thoroughly as possible." [FN47] The same deterrent effect would be served by the application of Montana's law on punitive damages, the court reasoned, because "punitive damages serve to punish and deter conduct deemed wrongful--in this case, placing a defective product into the stream of commerce which subsequently injured a Montana resident." [FN48] Thus, the court concluded, Montana had a more significant relationship than Kansas and this displaced the presumption in favor of the law of the place of injury.

The court also addressed the question of whether Montana would recognize a public policy exception for cases which under Montana's choice of law are governed by the law of another state. The court concluded correctly that, after the adoption of the Restatement Second, such an exception is unnecessary and redundant because "[c]onsiderations of public policy are expressly subsumed within the most significant relationship approach. . . . [in that] [i]n order to determine which state has the more significant relationship, the public policies of all interested states must be considered." [FN49]

    b. Second (or Confused) Thoughts in Minnesota. Since 1973, Minnesota has been following Professor Leflar's choice-influencing considerations, one of which is the better-law criterion. [FN50] During the 1990s, some Minnesota cases have shown more "restraint and moderation" in applying the better-law criterion, [FN51] such as by expressing misgivings on their ability to determine which state's law is better, [FN52] by stating that better law and forum law should not be seen as synonymous terms, [FN53] by employing the better-law criterion only as a tie-breaker, [FN54] while courts in other states have begun blending the better-law approach with other modern approaches. [FN55]

In Nodak Mutual Insurance Co. v. American Family Mutual Insurance Co., [FN56] the Supreme Court of Minnesota twice described its choice-of-law approach as "the significant contacts test" [FN57] and noted that "this court has not placed any emphasis on [the better-law] factor in nearly 20 years." [FN58] This prompted a lower Minnesota court to conclude that this factor "has been abandoned in recent years." [FN59] The Nodak court dutifully listed the five choice-influencing factors [FN60]--including the better-law factor--but, after quickly finding the first three factors to be inconclusive, the court spent the balance of the opinion discussing the fourth factor--"advancement of the forum's governmental interest." [FN61] Yet, at the end of this discussion, the court concluded that it was not the forum's but the other state's interests that needed advancement. [FN62] Even more curiously, the court phrased its holding as follows: "We therefore hold that when all other relevant choice-of-law factors favor neither state's law, the state where the accident occurred has the strongest governmental interest . . . [and its law] should be applied." [FN63] When the losing litigant characterized this statement as "a return to the doctrine of lex loci," [FN64] the court responded that "this court . . . ha[s] rejected lex loci in favor of the significant contacts approach." [FN65]

As explained later, [FN66] the particular result reached in Nodak is defensible-- the court applied North Dakota law to a subrogation dispute between a North Dakota insurer and a Minnesota insurer arising from a collision in North Dakota between a car insured by the first insurer in that state and a car insured by the second insurer in Minnesota. In interest analysis terminology, this was an "unprovided for" case in that North Dakota law favored the Minnesota insurer while Minnesota law favored the North Dakota insurer. Under these circumstances, the application of North Dakota can be justified rather easily. What is less clear, however, is the choice-of-law approach the court followed. One way of looking at Nodak is to see it as symptomatic of the increased eclecticism exhibited by many courts in employing the modern choice-of-law methodologies. But there is a difference between eclecticism and confusion. Indeed, a skeptic might describe as follows the new Minnesota approach:

(a) According to the latest pronouncement of the Minnesota Supreme Court, Minnesota follows a "significant contacts" approach; [FN67]

(b) However, this approach relies not on contacts, but on five choice-influencing factors; [FN68]

(c) These factors are not really five, but rather one, because the first three factors (being no more than hortatory statements) are inconclusive in the vast majority of cases, while the last factor (the better-law) has not been employed "in nearly twenty years." [FN69]

(d) Thus, Minnesota's approach boils down to the remaining factor--the "[a]dvancement of the forum's governmental interest." [FN70]

(e) But this does not mean that Minnesota is parochially bent on advancing the forum's governmental interests; on appropriate occasions, Minnesota may choose to advance the interests of a non-forum state; [FN71] In fact, Minnesota may have advanced beyond thinking in terms of forum vs. non-forum interests in that it presumes a priori that the accident state, be it the forum or not, "has the strongest governmental interest;" [FN72]

(f) Yet this is not a return to the lex loci delicti rule because that rule has been "rejected . . . in favor of the significant contacts approach." [FN73]

One of the states which the 1998 Survey did not list in the traditional camp for contract conflicts was Wyoming. Despite serious reservations, [FN74] the Survey placed this state in the Second Restatement column because of two cases decided by the Wyoming Supreme Court. The first case, Cherry Creek Dodge, Inc. v. Carter, [FN75] which was interpreted by the Tenth Circuit Court of Appeals as having adopted the Second Restatement, [FN76] cited favorably Restatement § 188 although it relied mostly on the "reasonable relationship" language of Wyoming's UCC. The second case, Resource Technology Corp. v. Fisher Scientific Co., [FN77] applied § 187 of the Second Restatement to uphold a contractual choice-of-law clause. However, as said in discussing that case, the fact that § 187 is followed even in states that do not otherwise follow the Second Restatement [FN78] meant that "the doubts as to whether Wyoming follows the Restatement (Second) for contract that do not contain a choice-of-law clause will subsist for some time." [FN79]

In BHP Petroleum (Americas), Inc. v. Texaco Exploration and Production, Inc. [FN80] which was decided in 2000, the Wyoming Supreme Court resolved these doubts by distancing itself from the Second Restatement. The court acknowledged that "there is an indication that [in Cherry Creek] we were relying upon the Restatement (Second) Conflict of Laws § 188." [FN81] However, said the court, "we invoked the Restatement provision only as containing examples of factors to be considered in making the determination as to where the cause of action arose." [FN82] "We do not understand that this Court has adopted the `most significant relationship' test of Restatement (Second) Conflict of Laws § 188." [FN83]

Thus, at least for now, Wyoming should be removed from the Second Restatement column, at least until a better case comes along. Indeed, BHP Petroleum was not a good case for general methodological pronouncements in that it involved the narrow issue of where a cause of action arises for purposes of applying the Wyoming borrowing statute. As explained elsewhere, even states that have unequivocally rejected the traditional approach in contract conflicts tend to follow that approach in applying their statutes of limitation or their borrowing statutes. [FN84]

Finally, even if Wyoming were to be placed back in the traditional column for contract conflicts, it is doubtful that the number of states in that column is really as high as eleven. Hence the question mark in the heading of this section. As explained in the 1998 Survey, at least two states, Rhode Island and Tennessee, were placed in that column out of an abundance of caution and do not really belong there. [FN85]

3. Updating the Charts

It appears that the readership of this Survey has come to expect an annual update of the methodological charts. In response to this expectation, an updated table and maps are reproduced below, depicting the various methodological camps as they existed at the end of the year 2000. [FN86] All the caveats and qualifications that have been repeatedly expressed in previous Surveys [FN87] regarding the precision, certainty, and significance or lack thereof of these classifications are reiterated here.

The geographical distribution of these methodologies is depicted in the following two maps, one for tort conflicts and the other for contract conflicts.

Map 1. Tort Conflicts
Map 2. Contract Conflicts

As the above table and maps indicate, at the end of 2000, the traditional theory's following in tort conflicts had been reduced to ten states after the Montana Supreme Court decision discussed above. [FN88] With regard to contract conflicts, the traditional column includes eleven states, one of which is Wyoming whose vacillation is discussed above. [FN89] However, as explained elsewhere, two of those states, Rhode Island and Tennessee, only nominally belong in that column. [FN90]

The significant-contacts column (three states for torts and five for contracts) does not include Minnesota, despite the statements of that state's highest court in Nodak that a "significant contacts test" is followed in that state. [FN91] For, even if these statements were to be taken at face value, they do not entail adoption of the approach contemplated by this column, which is confined to states that follow a combination of a center-of-gravity test and the Restatement Second but without the Restatement's policy-analysis element. [FN92]

The Restatement Second column includes 24 states for contracts and, after the addition of Montana, 22 states for torts. The remaining columns remain unchanged from previous years. [FN93] This includes the better-law column, which continues to include Minnesota and Rhode Island despite the increased eclecticism seen in those states. [FN94] However, because of this eclecticism and the relatively minor role that the better-law criterion now seems to occupy in several of the states listed therein, that column should perhaps be renamed into something like "Leflar's choice-influencing considerations, with only occasional reliance on the better-law criterion."

    1. Loss-Distribution Conflicts

    a. Common-Domicile Cases. In 1997, the Supreme Court of Vermont abandoned the lex loci delicti rule and adopted the Restatement Second. [FN95] Since then, the same court encountered four conflicts cases, the last two of them in 2000. The two earlier cases involved the two permutations of the common-domicile pattern, namely situations in which the tortfeasor and the victim are domiciled in one state and are involved in accident occurring in another state. Miller v. White [FN96] involved the Babcock permutation in that the common domicile was in the pro-recovery state (Vermont) and the accident in the non-recovery state (Quebec), while Myers v. Langlois [FN97] involved the converse permutation (Vermont accident/Quebec common domicile). The court adopted the distinction between conduct-regulation and loss-distribution issues, held that both cases involved loss-distribution issues, and applied in both cases the law of the parties' common domicile, Vermont and Quebec, respectively.

The first 2000 case, Martineau v. Guertin, [FN98] appeared identical to Myers in that it also arose out of a traffic accident in Vermont, the pro-recovery state, and involved two parties domiciled in Quebec, the lower-recovery state. [FN99] On closer examination, however, Martineau differed from Myers in some respects that the court found significant. [FN100] For, although the parties were domiciled in Quebec, both of them had been living and working together in Connecticut for some time before the accident [FN101] and their relationship was centered in the latter state. The accident occurred not on a short trip to and from Quebec, but rather while they were leaving Quebec to return to Connecticut for work. The car involved in the accident was registered in Connecticut and insured "by a company based in Connecticut." [FN102] Because Connecticut's law on the issue in question was identical to Vermont's, [FN103] the court concluded that "the Connecticut contacts must be grouped with the Vermont contacts in determining whether the Quebec contacts are significant enough" [FN104] and that, with such a grouping, "the significance of the parties' common legal domicile is considerably reduced." [FN105]

The phrase last quoted may suggest that the question in Martineau was whether this was a good case for an exception to the common-domicile rule followed in Miller and Myers. While this was partly true, the more precise question the Martineau court asked was whether this was a good case for rebutting the presumption that Restatement Second § 175 establishes in favor of the law of the state of the accident. [FN106] After considering the above contacts and state interests, [FN107] the court concluded that "any interest Quebec may have in applying its law to the instant litigation is not significant enough to overcome the presumption that the law of Vermont--the place where the injury and wrongful conduct occurred--should govern the dispute." [FN108]

b. Split-Domicile Cases. The second case decided by the Supreme Court of Vermont in 2000, McKinnon v. F.H. Morgan & Co. Inc., [FN109] was not a common-domicile case but it involved the same Restatement Second presumption in favor of the state of injury in personal injury actions. [FN110] The plaintiff, a Quebec domiciliary, was injured in Quebec while riding a bicycle that was sold and serviced by the defendant in Vermont. The plaintiff invoked Vermont's pro-plaintiff law, but was apparently unprepared to rebut the above presumption in favor of Quebec law. She failed to brief the court on the content of Quebec law or to "compare the law of Quebec with that of Vermont" [FN111] and thus she "hamper[ed] any examination of policy considerations underlying those laws." [FN112] The court noted that the contacts listed in Restatement Second § 145(2) were evenly divided between the two jurisdictions and concluded that the presumption in favor of applying the law of the place of the injury, Quebec, "--especially when it coincides with the place of the plaintiff's domicile--" [FN113] had not been rebutted. Consequently, Quebec law was held applicable.

A presumption in favor of the law of the place of the tort is also established by the third Neumeier rule. This rule provides that, in the cases covered by that rule, "the applicable rule of decision will be that of the state where the accident occurred but not if it can be shown that displacing that normally applicable rule will advance the relevant substantive law purposes without impairing the smooth working of the multistate system or producing great uncertainty for litigants." [FN114] One of the most interesting cases applying this rule in recent years is Gould Electronics Inc. v. United States [FN115]. This was an action for contribution filed against the United States in Pennsylvania by an Ohio corporation that claimed to have sustained injuries in New York caused by the federal government. Because under the Federal Torts Claims Act (FTCA) [FN116] tort claims against the United States are governed by the "whole law" [FN117] of the state in which the injurious "act or omission" [FN118] occurs, this case was decided under New York's conflicts law. After characterizing as loss-distributing the rules that provide for contribution among joint tortfeasors, [FN119] the court embarked on the task of resolving through New York's Neumeier rules the conflict between New York and Ohio contribution law. New York bars, but Ohio permits, settling tortfeasors to claim contribution from non-settling joint tortfeasors. [FN120]

Because the first two of the Neumeier rules depend on the parties' domicile, the court had to affix a domicile to the defendant, the United States, in order to decide which Neumeier rule would be applicable to the case. The court entertained three possibilities--that the United States is domiciled (a) in each of the 50 states, (b) nowhere, or (c) in the District of Columbia. If the United States is deemed to be domiciled in each of the 50 states, the court said, then the law of Ohio would govern under the first Neumeier rule because Ohio is one of the 50 states and the plaintiff is domiciled there. [FN121] If, however, the United States is deemed to be domiciled either nowhere or in the District of Columbia, then this would be a split-domicile case that would fall within either Neumeier rule 2 or 3. The court eliminated rule 2 on the assumption that the "locus of the tort" was in New York, [FN122] which was not the plaintiff's domicile, and--under this scenario--was not the defendant's domicile either. Thus the case fell within the scope of Neumeier rule 3 which, as said above, requires the application of the law of the locus of the tort, subject to displacement under the circumstances provided in that rule. [FN123]

The court then summarized the factors that New York courts consider in deciding whether to displace the law of the locus under Neumeier rule 3. According to this summary, displacement is more likely when one or more of the following factors are present: (1) when the parties' contacts with the locus state are a matter of fortuity rather than voluntary action; (2) when the tort does not occur in the domicile of either party; (3) when displacement will not encourage forum shopping nor create the appearance of favoring local litigants; (4) when the parties are domiciled in states with similar laws; or (5) when the other state has a stronger interest than the locus state in applying its law. [FN124] The court concluded that, except for factor 1, [FN125] all other factors militated in favor of displacing New York contribution law with Ohio contribution law. Factors 2 and 3 favored displacement because: the tort occurred in New York which was the domicile of neither party; forum shopping was not an issue because the action was filed under the FTCA, which requires application of the conflicts law of the locus rather than the forum state; and displacement of the law of the locus state would not favor local litigants because plaintiff, the beneficiary of such displacement, was not a forum domiciliary. Factor 4 also favored displacement because, even if the United States is deemed to be domiciled in the District of Columbia, the District's law was similar to Ohio's and this would render this case functionally analogous to common-domicile cases which are governed by the law of the common-domicile pursuant to Neumeier rule 1. [FN126] Finally, regarding factor 5, the court concluded that the locus state, New York, had "no interest in extending the protection of its contribution law to the United States [,a non domiciliary,] . . . [nor] in inhibiting the contribution rights of [plaintiffs], domiciliaries of Ohio." [FN127] In contrast, said the court, Ohio had "a strong interest in applying its contribution law to protect its domiciliary's rights to obtain contribution." [FN128]

Erny v. Russo [FN129] involved a conflict between the laws of joint and several liability of New Jersey, which was the place of the traffic accident and plaintiff's domicile, and New York, which was the domicile of the two defendant drivers who were found to be 40% and 60% at fault, respectively. Under New York law, a plaintiff can recover 100% of her damages from a defendant regardless of that defendant's percentage of fault. In contrast, under New Jersey law, a defendant can be required to pay 100% of plaintiff's damages only if that defendant's fault amounts to or exceeds 60%. The plaintiff sought to recover all of her damages from the one defendant who was only 40% at fault but who had an insurance policy with generous limits. The plaintiff argued that New York law should apply, inter alia, because New York's policy of facilitating a plaintiff's recovery by allowing access to the deepest pocket is intended "not only for the benefit of New York residents, but for out-of-state residents as well." [FN130] The court rejected the argument, primarily because New Jersey law had already been applied to the issue of contributory/comparative negligence and it would be an inappropriate dépeçage to apply New York law to the issue of joint and several liability. Said the court, "the two concepts were `so intertwined' that `it would not be good policy to have one of those concepts decided under one state's law and the other under another state's law.'" [FN131] The court also rejected the plaintiff's argument "that New York would welcome another state's imposition of full responsibility on its resident solely because New York law would permit it," [FN132] and quoted approvingly a statement from another New Jersey case to the effect that "[i]t would indeed be anomalous to apply foreign law solely to gain access to a deep pocket when local law denies that access." [FN133]

In Caruolo v. John Crane, Inc., [FN134]  the court did not consider the propriety of dépeçage when it held that, although New York law governed the question of defendant's liability, Rhode Island law should govern the issue of joint and several liability. The law of Rhode Island was applicable under the second sentence of Neumeier rule 2 because that state was the victim's domicile and the place where he suffered his injury--a prolonged exposure to asbestos products. The court also held that the law of Rhode Island, rather than New York, applied to the issue of prejudgment interest because "[p]rejudgment interests, like other damages issues, is an aspect of loss allocation," [FN135] and because New York precedents require that "the same analysis applicable to joint and several liability, and other loss-allocating issues, also be applied to the issue of pre-judgment interest." [FN136]

The five "choice-influencing" factors followed in Minnesota do not establish any presumption in favor of the law of the place of the tort but, as explained earlier, the Minnesota Supreme Court came very close to establishing such a presumption in Nodak Mutual Insurance Co. v. American Family Mutual Insurance Co. [FN137] by suggesting that in the majority of cases the state of the tort should apply because that state "has the strongest governmental interest." [FN138]  Nodak was a subrogation dispute between a Minnesota insurer, who delivered in that state a policy insuring a Minnesota car and driver, and a North Dakota insurer who delivered in that state a policy insuring a North Dakota car and driver. After the two cars were involved in a traffic collision in North Dakota, the Minnesota insurer paid no-fault benefits to its Minnesota insured and then sought to recoup those benefits from the North Dakota insurer. Such recoupment was available under North Dakota law, but not under Minnesota law. As one would expect, the Minnesota insurer argued for the application of North Dakota law while the North Dakota insurer argued for the application of Minnesota law.

In particular, the North Dakota insurer argued that Minnesota law should govern because Minnesota had a "strong interest in not allowing its insurers to recover no-fault benefits from out-of-state insurers" [FN139] when such benefits are not recoverable under Minnesota law so as to prevent those insurers from receiving "a windfall." [FN140] The court appropriately turned the argument around by pointing out that if Minnesota law were applied then it would be the North Dakota insurer that would "receive a windfall" [FN141] because it would be able "to avoid paying . . . money that it might otherwise have to pay" [FN142] under North Dakota law. In the end, the court applied the law of North Dakota as the accident state, after finding persuasive a North Dakota case that applied the law of the accident state, Minnesota, under similar circumstances. [FN143] The court made no mention of renvoi.

In another Minnesota case, Montpetit v. Allina Health System, Inc., [FN144] the court quickly and appropriately rejected the argument of applying the law of the place of the tort. Indeed, the issue involved in that case--who is entitled to the proceeds of a wrongful death settlement--was one of those issues for which the state of the tort as such has no legitimate claim to apply its law, under any modern choice-of-law approach. Under the law of Minnesota, where the tort occurred, the victim's parents would be entitled to share in the proceeds, whereas under the law of Wisconsin, where the victim and all beneficiaries lived, the proceeds would go to the victim's spouse and children. The court concluded that "[i]t is Wisconsin that has the predominate governmental interest in distribution of the recovery because the parties who claim entitlement as beneficiaries are all domiciled in Wisconsin" [FN145] and that Minnesota's own interests "would be most advanced by applying Wisconsin law." [FN146]

    a. Tortious Interference with Contracts. Three 2000 cases described below involved actions for tortious interference with contract. In all three cases, the contracts involved had been entered into in a foreign country between an American corporation and a foreign entity and were to be performed in that country; the alleged interference was perpetrated by another American corporation in the foreign country but was arguably conceived in and was directed from the United States; the law of the foreign country did not allow an action for interference with contracts but the law of the involved American state allowed such action; the court characterized the conflicting laws as pertaining to conduct regulation rather than loss allocation and applied the law of the foreign country.

In Abogados v. AT&T, Inc., [FN147] which was decided under California's comparative impairment analysis, the interference occurred in Mexico. The court found "nonsensical" [FN148] the plaintiff's argument that "Mexico has no interest in regulating conduct that affects contracts made in Mexico." [FN149] Said the court: "[T]his case involves Mexico's determination of the scope of its substantive law: the point at which it will attach tort liability to conduct occurring within its borders. This decision is designed both to protect potential defendants--including foreign defendants who might otherwise avoid doing business in Mexico--from liability for conduct that Mexico does not consider wrongful, and to limit plaintiffs from recovering even if such conduct damages them." [FN150] Indeed, said the court, "there may even be some circumstances in which a third-party's interference with a Mexican contract might result in a net societal benefit-- e.g., when the `interference' enables a contracting party to find a better deal." [FN151]

In Bridas Corp. v. Unocal Corp., [FN152] which was decided under the Restatement Second followed in Texas, the interferences occurred in Turkmenistan and Afghanistan. The plaintiff, a Texas corporation, had obtained oil and gas exploration contracts with the governments of those two countries and claimed that the defendant, another Texas-based corporation, caused those governments to breach those contracts. The plaintiff argued that, because the defendant's foreign acts were conceived in and directed from its Texas headquarters, Texas had an interest in applying its law to ensure compliance with its standards of conduct. The court, focusing more on contacts than on interests, rejected the argument because "both the quantity and quality of the contacts identified in [Restatement Second] § 145 mandates the application of foreign law to all tort claims asserted by [plaintiff] because the parties and the subject matter of this litigation have a more significant relationship to the nations of Turkmenistan and Afghanistan than to Texas." [FN153] The plaintiff also argued that because of the difficulty in ascertaining and predicting Turkmen and Afghan law, the law of Texas should apply by default as the lex fori. The court rejected this argument as well, after a lengthy and enlightening discussion of the testimony of nine foreign-law experts (six for defendant and three for plaintiff) and concluded that Turkmen and Afghan law were "readily and reliably ascertainable." [FN154]

EA Oil Service, Inc. v. Mobil Exploration & Producing Turkmenistan, Inc., [FN155] decided by the same panel as Bridas a few days later, involved very similar facts and issues and was decided the same way. The court noted Texas's interest in protecting the Texas plaintiff but also spoke of "Turkmenistan's interest in controlling its oil wealth" [FN156] and took notice of a letter submitted by the Turkmen government in which it expressed its belief that disputes relating to contracts with that government should be litigated in Turkmenistan. [FN157] The court concluded that, especially because the conduct and injury occurred in Turkmenistan, that country had the most significant relationship and its law should govern, thus barring plaintiff's action.

BP Chemicals Ltd. v. Formosa Chemical & Fibre Corp., [FN158] was an action by a British corporation against a Taiwanese and a New Jersey corporation for misappropriating trade secrets licensed by plaintiff to another Taiwanese corporation. The court held that Taiwanese law should apply because Taiwan had the greatest interest in setting the standards for determining whether the trade information licensed in Taiwan and used there was protectable and in determining whether the defendant acted tortiously in acquiring that information in Taiwan from another Taiwanese corporation.

    b. Premises Liability. As demonstrated the surveys from previous years, [FN159] cases in which the owner or custodian of premises is sued for injury sustained by third parties at the premises are almost invariably governed by the law of the state in which the premises are situated, even if that state has few other contacts, and regardless of the choice-of-law methodology the court follows. One such case [FN160] is Olson v. Empire District Electric Co., [FN161] which involved an action by the members of a Missouri family against the owners of a Kansas dam and lake for injuries received as a result of a boating accident in that lake. Under the law of Kansas, but not Missouri, a lake owner who like the defendant allows free recreational use of the lake is immune from liability for injury sustained by the user. After discussing Missouri precedents, the court concluded that "in determining whether acts or omissions in another state are tortious, . . . a Missouri court applies the standards of conduct of the state where the alleged tort occurs." [FN162] The court described Kansas' policy of encouraging lake owners to allow free recreational use by limiting their liability and concluded that that policy would be thwarted by the application of Missouri law. Said the court: "The result of such holding would be that an owner of Kansas property would owe a greater duty of protection to a Missouri resident . . . than [to] . . . a Kansas resident . . .. Such a scenario is patently absurd." [FN163]

    3. Class Actions

It is commonly assumed that class actions are by definition multistate in that they involve plaintiffs from several states. Indeed this is true in all but a few of the class actions that make national headlines. In these cases, class certification is compounded by the choice-of-law question. [FN164] Under Rule 23(b)(3) of the Federal Rules of Civil Procedure and equivalent provisions in many states, the plaintiff must demonstrate, inter alia, that "questions of law or fact common to the members of the class predominate over any questions affecting only individual members." [FN165] Although this predominance requirement is phrased in the disjunctive, many courts tend to read it in the conjunctive, namely, they require commonality and predominance of questions of both fact and law. In multistate, especially nationwide, class actions, this requirement is particularly difficult to meet, but one way of satisfying it is by demonstrating that the claims of all members of the class, or of an appropriate subclass, will be governed by the law of the same state. Unfortunately for plaintiffs, this requirement is almost insurmountable when the forum follows a modern non-territorial choice-of-law approach. This is because modern approaches tend to place heavy reliance on each plaintiff's domicile and generally pride themselves in engaging in an individualized handling of each claim and each issue. [FN166]

This difficulty is illustrated by Spence v. Glock, [FN167] which was decided under the Restatement Second followed in the forum state of Texas. This was a nationwide class action in which pistol-owners domiciled in all 50 states filed products liability actions against the Austrian manufacturer and Georgia distributor of these pistols. The pistols were designed and their parts manufactured in Austria and were shipped to Georgia, where they were assembled and then sold by the Georgia distributor. The district court certified the class after finding that Georgia law would apply to the claims of all plaintiffs. The Fifth Circuit Court of Appeals decertified the class after concluding that Georgia's contacts with the case, while non-negligible, were "not so overwhelming that it is clear that Georgia has the most significant relationship." [FN168] To answer that question, the court said, "one must compare Georgia's contacts and the state policies those contacts implicate with those of the 50 other interested jurisdictions," [FN169] such as the states in which the plaintiffs were domiciled or had bought their guns. "The burden of proof lies with the plaintiffs," [FN170] said the court, and "by not presenting a sufficient choice of law analysis [plaintiffs] have failed to meet their burden of showing that common questions of law predominate." [FN171]

One would expect that the plaintiffs' burden would be lighter when the class action is filed in a state that follows a traditional territorially-based approach. This must have been the expectation of plaintiffs in Philip Morris, Inc. v. Angeletti, [FN172] which was filed in Maryland, a lex-loci-delicti state. The class action was filed against tobacco manufacturers by current or former Maryland domiciliaries who claimed to have suffered injury in Maryland as a result of their use of tobacco products. The lower court certified the class after finding that, under the lex loci rule, the law of Maryland would apply to the claims of all class members.

Maryland's highest court, the Court of Appeals, disagreed and vacated the class certification. The court noted that "[b]ecause Maryland is among the few states that continue to adhere to the traditional conflict of laws principle of lex loci delicti, the First Restatement of Conflict of Laws, while of merely historical interest elsewhere, continues to provide guidance for the determination of lex loci delicti questions in Maryland." [FN173] For cases in which the conduct and injury occur in different states, the first Restatement provides that the locus of the tort is in the state in which the "last act" necessary to make the actor liable occurred, and prescribes detailed rules for determining that state. One of these rules, often derided by conflicts teachers, is a rule that provides that "[w]hen a person causes another voluntarily to take a deleterious substance which takes effect within the body, the place of wrong is where the deleterious substance takes effect and not where it is administered." [FN174] Under this rule, the court reasoned, the place of the tort was wherever "the harmful force [of nicotine] took effect upon the body" [FN175] or, as the plaintiffs facetiously commented, the state in which "the magical moment of addiction" [FN176] occurred. Thus, the court concluded, it was unlikely that the law of Maryland would apply to all members of the class because many of them had suffered the deleterious effects of nicotine addiction before they became Maryland domiciliaries. [FN177]

Angeletti can be usefully contrasted to two similar cases decided under a non-territorialist choice-of-law approach. One of these cases, Tune v. Philip Morris, Inc., [FN178] though not a class action, involved a smoker who became addicted to tobacco while he was domiciled in New Jersey and later moved to Florida where he continued to smoke and was later diagnosed with lung and larynx cancer. Under the law of Florida, but not New Jersey, the plaintiff had an action against the defendant tobacco manufacturer. The court rejected the defendant's arguments that the law of the injury state as such should govern the case. The court looked at New Jersey as the "primary place of exposure to smoke" [FN179] and at Florida as "the last substantial place of exposure" [FN180] and the state in which "the actionable, symptomatic, or diagnosable disease manifested itself." [FN181] The court noted that "[i]f tort law concerning smoke-related claims were based on the law of the various forums in which a plaintiff smoked, then determining the applicable law could be most difficult." [FN182] The court held that New Jersey had no interest in applying its law [FN183] but, even if it did have such an interest, Florida had the most significant relationship and its law should govern. Said the court: "Florida owes much of its prosperity to the people who have chosen to retire here from other states. We must have strong policies to protect the people who make Florida their home during retirement." [FN184]

The second case, Simon v. Philip Morris Inc., [FN185] is one of several nationwide class actions filed in federal court in New York by plaintiffs from many states against certain tobacco companies alleging conspiracy to conceal the dangers of smoking. Once again, senior district judge Jack B. Weinstein contributed another of those monumental (and perhaps controversial) opinions that readers have come to expect from him in complex mega tort cases. The opinion, too extensive to summarize here, is a mini treatise on choice-of-law developments since Babcock, interspersed with perceptive historical and comparative observations. More importantly, it is a reflective contribution to the developing but under-served choice-of-law doctrine in class actions from a judge who has been there perhaps more often than any other. The opinion concludes that questions of the defendants' liability should be governed by the law of New York, where much of the alleged conspiratorial activity took place, and that questions of recovery by individual plaintiffs can be divided into subclasses which could be governed by the laws of other states. Whether Weinstein's decision will survive review by the Second Circuit remains to be seen. Even if it does not, however, this decision will remain a "must-read" for conflicts teachers.

Individual products liability actions are less complicated than class actions but still complicated enough, at least when the pertinent plaintiff- and defendant-affiliated contacts are spread in several states. For example, in Phillips v. General Motors Corp., [FN186] discussed supra, [FN187] the two plaintiff-affiliated contacts (the victim's domicile and place of injury) were in Montana and Kansas respectively, the defendant-affiliated contacts (place of manufacture and manufacturer's principal place of business) were in Michigan, and the place of the product's acquisition was in yet another state, North Carolina. Phillips is one of the few cases of this pattern that apply the pro-recovery law of the state of the victim's domicile when that state does not have any one of the other pertinent contacts, such as the place of injury or the place of the product's acquisition. [FN188]

Another such case decided in 2000 is Calhoun v. Yamaha Motor Corp., U.S.A., [FN189] a products liability action filed by the survivors of a Pennsylvania child who was killed in Puerto Rican waters while using a rented Japanese-made watercraft. The court applied Pennsylvania law to questions of comparative negligence and compensatory damages. [FN190] Because the victim and her survivors were Pennsylvania domiciliaries, said the court, Pennsylvania had a "strong interest" [FN191] in making them whole and "in obtaining compensation for its citizens in order to remedy wrongs that have been committed against [them]." [FN192]

Tune v. Philip Morris, Inc., [FN193] also discussed supra, [FN194] applied the pro-recovery law of the victim's new domicile, Florida, but that state was also the place where the victim continued to use defendant's products and to suffer the injury that began in his previous domicile. Savage Farms, Inc. v. Western Auto Supply Co. [FN195] also applied the pro-recovery law of the victim's domicile, Alaska, but that state was also the place of injury and the product's acquisition.

McKinnon v. F.H. Morgan & Co., Inc., [FN196] discussed supra, [FN197] applied the law of the victim's domicile, which was also the place of the injury, but that law favored the manufacturer rather than the victim. [FN198] Finally, Torrington Co. v. Stutzman, [FN199] in which the victims' domicile, residence, and injury were in three different states, applied the pro-recovery law of the forum state, which was also the defendant's principal place of business and place of manufacture.

    5. Maritime Torts

In 1982, the Jones Act was amended so as to prevent foreign brown-water seamen who are injured while working in oil exploration in foreign territorial waters from suing in the United States. [FN200] However, the actual language of the amendment leaves room for arguing that it only bars claims based on American maritime law, not foreign law. The ambiguity was created by an exception contained in the second paragraph of the amendment, which allows the above foreign plaintiffs to sue if they establish that they have no remedy under the law of the country of their citizenship or residence or the foreign country in whose waters they suffered the injury. [FN201]

Jackson v. North Bank Towing Corp. [FN202] appeared to be the perfect case for resolving this ambiguity. The plaintiff was a Honduran national who was injured while working aboard an American vessel engaged in oil exploration in the territorial waters of Mexico. In his action against the vessel owner, the plaintiff asserted claims under American law as well as under the laws of Honduras and Mexico. At issue in this appeal were only his foreign-law claims. [FN203] The plaintiff argued that his foreign-law claims should be allowed because the above amendments to the Jones Act only bar American-law claims. The Fifth Circuit Court of Appeals agreed that the plaintiff's argument was consistent with the letter of the amendments, although it was probably inconsistent with congressional intent, which apparently was to bar foreign plaintiffs from American courts unless they had no available forum elsewhere. [FN204] The court decided to stick to the letter of the amendments and reversed the trial court's dismissal of the foreign-law claims. The court recognized the resulting "anomaly whereby it would be easier for foreign seamen to get foreign law claims into U.S. court than for them to get in maritime claims brought under United States law." [FN205] Nonetheless, said the court, "the plain text of the statute dictates this result." [FN206]

The plaintiff's victory was short-lived, however, because on rehearing the court vacated its earlier decision [FN207] after being informed that the plaintiff's foreign-law claims had already been dismissed by a Louisiana state court [FN208] which relied on the legislative history of the amendments. Under these circumstances, said the Fifth Circuit court, "we need not have addressed the admittedly difficult interpretation question that was previously decided in Louisiana state court." [FN209] The problem is, however, that the state court's interpretation, which was equally conclusory, [FN210] is not authoritative. Thus, the ambiguity remains.

In Solano v. Gulf King 55, [FN211] the plaintiffs were Nicaraguan blue-water seamen who were injured in Nicaraguan territorial waters while serving aboard American-flagged, owned, and operated shrimping vessels. Because the plaintiffs were blue-water seamen not employed in oil exploration, their claims, which were based on American maritime law, were not barred by the above Jones Act amendments. Thus, the court was free to address the choice-of-law question under the Supreme Court's Lauritzen-Romero-Rhoditis [FN212] trilogy and the seven factors articulated in those cases for resolving this question. The American defendant argued in the trial court that "American interests would be served by the application of Nicaraguan law, which would reduce costs whenever one of their employees is injured on the job, thus making an American corporation more competitive in the international marketplace." [FN213] The trial court was not impressed with this argument. The court noted that the defendant "realizes substantial savings due to the low wages paid to the Nicaraguan seamen . . . [and] [i]t is certainly within the national interest that the United States government, which has propped up Defendants with ... loans, not be perceived as officially or implicitly sanctioning the [ruthless exploitation of other countries' labor pools]." [FN214] The Court of Appeals did not rule on the defendant's argument but noted that "the district court's assumption that the application of United States law would allow the Plaintiffs a more generous recovery, while almost certainly correct, was not a valid consideration in its choice-of-law analysis." [FN215] The court held for the defendant because it concluded that the Lauritzen factors leaned in favor of Nicaraguan law. [FN216]

As said earlier, [FN217] many courts that follow the Restatement Second tend to bypass the specific Restatement sections that contain presumptive rules for specific types of torts or issues and directly resort to the general, laissez faire § 6, or the equally equivocal § 145 for torts. In 2000, several cases did a better job in noticing the specific Restatement sections applicable to the issue before the court. [FN218] One such case is Hughes Wood Products, Inc. v. Wagner, [FN219] decided by the Supreme Court of Texas. The issue in this case was which state's law governs an employer's claim to worker's-compensation tort-immunity. The injured employee, a domiciliary of Texas, had been hired in that state by a Texas employer and was injured in Louisiana while working for that employer. The Restatement's specific provision for this issue is § 184. It prohibits a tort action by the injured employee if the employer is declared immune from such action by the worker's compensation law of a state in which the injury occurred or the employment was principally located or whose law governs the employment contract. [FN220] The Court of Appeals decided this case by relying solely on the general Restatement §§ 6 and 145 of the Restatement. The Supreme Court of Texas held that "[t]he court of appeals erred in failing to consider section 184's application to the exclusive-remedy issue," [FN221] explained why the application of §184 would affect the outcome of the case, and held that the employer failed to carry the burden of showing that it was entitled to immunity under that section.

In contrast, the courts in Kubasko v. Pfizer, Inc. [FN222] and Standring v. Gerbus Brothers Construction Co. [FN223] relied exclusively on the above general sections of the Restatement Second and ignored § 184. Kubasko is one of several cases in which the defendant's tort-immunity claim hinges on whether the injured plaintiff qualifies as defendant's statutory employee. [FN224] Under the law of Delaware, which was the place of the employment relationship and the domicile of all parties, the plaintiff would not qualify as an employee and thus the defendant would not be immune from a tort action. The opposite was true under the law of Connecticut, which was the place of the injury. Following Restatement Second §§ 145 and 6, the court concluded that Delaware had a more significant relationship and its law applied. [FN225]

In Standring, the defendant's tort-immunity claim hinged on whether the acts that caused the employee's injury were "intentional" as provided by Ohio law, or both "intentional and deliberate" as required by Kentucky law. Ohio was the place of the employment relationship and residence of the parties, while Kentucky was the place of the accident. The act that caused the accident was claimed to be intentional but not deliberate and thus the defendant would be entitled to immunity under Kentucky law, but not Ohio law. Following Restatement §§ 6 and 145, the court applied the law of Ohio because that state had "the greatest interest." [FN226] Said the court: "It is difficult to articulate a persuasive basis for Kentucky having an interest in providing immunity to employers who commit intentional torts upon its employees, although, concededly, under [the Kentucky statute] it apparently does so unless the employer acted deliberately to injure its employee." [FN227] Nevertheless, the court concluded, "Ohio has the greatest interest . . . [because] [t]his case involves an Ohio employer and an Ohio employee involved in an employment relationship arising and existing within the state of Ohio ... [and [t]he policy of this state is to vigorously protect the common-law right of employees to sue for an intentional tort." [FN228]

In Makarova v. United States, [FN229] the defendant's claim to immunity hinged on whether the injured person, the famous ballerina Natalia Makarova, was an employee of the Kennedy Center or was instead an independent contractor. She had been injured during a performance at the Kennedy Center in the District of Columbia and she argued that under the District's law she was an independent contractor. The Kennedy Center argued that Makarova's status should be determined under New York law, which was designated as applicable in the "employment" contract. The court thought that the parties' arguments "conjure[d] up the mystical doctrines of dépeçage and renvoi" [FN230] and "decline[d] to enter that bog for the very reason that Makarova was an `employee' under the law of both New York and the District of Columbia." [FN231] As much as it may be difficult to envision as a mere employee a ballerina of such talent and fame, the court's finding was apparently correct, legally speaking. [FN232]

Finally, in United Airlines, Inc. v. Kozel, [FN233] the question was whether Virginia was required to give full faith and credit to a worker's compensation settlement approved by the Illinois Industrial Commission that explicitly precluded the employee from receiving supplemental benefits under Virginia worker's compensation law. Curiously, neither party relied on the Supreme Court decision in Industrial Commission of Wisconsin v. McCartin, [FN234] but both parties invoked the same court's decision in Thomas v. Washington Gas Light Co. [FN235] The employer argued that Thomas was distinguishable because the Illinois settlement agreement in Kozel included specific language that purported to settle the employee's Virginia claims and that, through this agreement, the employee "gave Illinois the right and authority to terminate [his] Virginia claims." [FN236]

The Virginia court disagreed. The court found that the Illinois Commission had made no factual findings other than some generic language that the settlement was in the employee's best interest. "This finding," said the court, "concerns only the application of the Illinois Workers' Compensation Act and is insufficient to require the Virginia commission to give full faith and credit to the Illinois award." [FN237] Citing an excerpt from the plurality opinion in Thomas regarding the difference between administrative agencies and courts of general jurisdiction, [FN238] the Kozel court concluded:

The Illinois Commission did not purport to, and could not have adjudicated the appropriateness of the proposed settlement under the laws of Virginia. Nonetheless, the Illinois Commission approved language in the settlement agreement that purported to foreclose the claimant's right to seek further relief before the Virginia Commission. This is a determination that the Illinois Commission had no power to make. Accordingly, pursuant to the Supreme Court's decision in Thomas, we are not bound by the Illinois Order under principles of comity. [FN239]

 

In previous years, this section of the Survey was divided into cases in which the contract contained a choice-of-law clause and cases in which the contract did not contain such a clause. This year this division is abandoned for the simple reason that, from the choice-of-law perspective, none of the cases of the latter category are worth discussing. [FN240] Thus this discussion is limited to cases in which the contract contained a choice-of-law clause and is divided into cases that uphold and cases that do not uphold the parties' choice.

    1. Cases Upholding the Parties' Choice

Wallace Hardware Co., Inc. v. Abrams [FN241] is notable for two reasons: (a) it is the first case decided under the conflicts law of Kentucky, a lex fori state, to apply § 187 of the Restatement Second; and (b) it upheld under the chosen law of Tennessee a contract that failed to comply with a Kentucky statute that embodied a "fundamental policy" designed to prevent overreaching because the court found no overreaching in the particular case. The contract in question was one in which a Kentucky guarantor guaranteed the indebtedness of a Kentucky debtor to a Tennessee creditor. The guaranty was enforceable under Tennessee law but was unenforceable for over-broadness and lack of specificity under a Kentucky statute. Relying on that statute and the fact that "Kentucky courts are egocentric concerning choice of law questions," [FN242] the trial court held the guaranty contract unenforceable.

The Sixth Circuit Court of Appeals reversed, even though it too acknowledged the "provincial tendency" [FN243] of Kentucky courts "to apply their own law, even when a contractual provision might state otherwise." [FN244] The court also acknowledged that the Kentucky Supreme Court has not applied Restatement Second § 187 [FN245] (which deals with choice-of-law clauses) even though it has adopted § 188 (which deals with contracts that do not contain such clauses). Nevertheless, the Sixth Circuit predicted that "Kentucky courts would choose to adopt § 187 of the Restatement as their analytical tool in addressing a contractual choice-of-law clause," [FN246] and proceeded to examine the enforceability of the clause and the contract under § 187. The court noted that the Kentucky statute with which the guaranty failed to comply was designed to "protect against overbroad guaranties . . . [and] to protect against the misuse of superior bargaining power." [FN247] In that sense, the statute embodied a "fundamental policy" within the meaning of § 187. However, the court concluded that "the evidence in this case reveals an arms-length transaction between parties represented by counsel, and not a contract of adhesion dictated by one party." [FN248] Consequently, said the court, "while [the Kentucky statute] might well vindicate a `fundamental' policy in other instances, we find no basis for concluding that Kentucky has a `fundamental' interest, under the facts of this case." [FN249]

Mazzoni Farms, Inc. v. E.I. DuPont De Nemours & Co. [FN250] is a follow-up from two cases discussed in last year's survey in which the Eleventh Circuit Court of Appeals certified the choice-of-law question to the Florida Supreme Court. [FN251] The Florida plaintiffs in this case claimed that they were induced by defendant's fraud to sign a release and settlement agreement that contained a contractual choice of Delaware law. The plaintiffs did not claim that the choice-of-law clause itself was procured by fraud. Section 201 of the Restatement Second provides that the effect of fraud upon the contract is to be decided under the chosen law, unless the choice-of-law clause itself was induced by fraud. The plaintiffs argued that enforcement of the clause under these circumstances would be against Florida's public policy because it would allow the defendant to contract against liability for its own fraud. The defendant argued that parties "are only prohibited from contracting against liability for future, not past, intentional wrongdoing." [FN252] The Florida Supreme Court agreed, holding that "enforcement of the choice-of-law provision is not so obnoxious to Florida public policy as to render it unenforceable." [FN253] The court also held that because, rather than seeking rescission of the contract, the plaintiffs chose to seek damages, they thereby affirmed the contract and were bound by it under the chosen law of Delaware. [FN254]

In the end, however, Delaware law was not as unfavorable to plaintiffs. In a decision rendered in the meantime, [FN255] the Delaware Supreme Court held that a release in a settlement agreement does not bar the releasing party's claim for fraud in the inducement of the release. Thus, the plaintiffs eventually got a chance to assert their fraudulent inducement claims when their case returned to the Eleventh Circuit. [FN256]

    2. Cases Not Upholding the Parties' Choice

Among the few cases that refused to enforce the choice-of-law clause in 2000, [FN257] the most notable are two cases in which the chosen law would permit a contractual indemnification for the indemnitee's own negligence. Both cases refused to apply the chosen law as repugnant to the public policy of the otherwise applicable law of the forum state.

In J.S. Alberici Construction Co., Inc. v. Mid-West Conveyor Co., Inc., [FN258] which was decided by the Delaware Supreme Court, the contract in question was a contract for demolition work in Delaware, between a Kansas contractor and a Missouri subcontractor. The contract contained an indemnification agreement that was valid under the contractually chosen law of Kansas but not under the law of Delaware, which the court assumed would be otherwise applicable to the contract. A Delaware statute expressly declared such an agreement to be "against public policy and . . . void and unenforceable" [FN259] because it would permit indemnification for one's own negligence. The court found this declaration "difficult to ignore" [FN260] and refused to examine further whether this policy was "fundamental." Said the court: "[C]ourts faced with a clear legislative statement of public policy should not attempt to parse that policy or speculate concerning the degree of egregious conduct sought to be prevented." [FN261] Consequently, the court concluded, "enforcing Kansas law on this issue would be clearly repugnant to the public policy of Delaware." [FN262]

In Roberts v. Energy Development Corp., [FN263] the contract in question was an oil-well servicing contract between a Texas well-owner and a Louisiana contractor for services to be performed primarily in Louisiana. The contract contained an indemnification provision which was valid under the contractually chosen law of Texas but was expressly declared "null and void and against public policy of the state of Louisiana" [FN264] by a Louisiana statute, the Louisiana Oilfield Indemnity Act (LOIA).

The district court held that Texas law would have been applicable in the absence of a choice-of-law clause and upheld the indemnification provision. The Court of Appeals reversed, holding that Louisiana law would have been the otherwise applicable law and, since the chosen law of Texas "would contravene Louisiana's explicit and unambiguous public policy against indemnification agreements," [FN265] the choice-of-law clause should not have been upheld.

The most noteworthy part of this case is the court's discussion of why Louisiana law would have been applicable in the absence of a choice-of-law clause. The court criticized the district court's conclusion that Texas law would otherwise apply as being based "primarily on the extent of the parties' contacts with Texas," [FN266] which the Court of Appeals found to be outweighed by contacts with Louisiana. More importantly, the Court of Appeals said, "the [district] court did little to compare the relative strength of each state's respective policies" [FN267] as required by the Louisiana conflicts codification. The Court of Appeals undertook this comparison by first reiterating the parameters within which the evaluation of state policies is to be made pursuant to the Louisiana codification:

We must evaluate the strength of these policies in light of (1) the pertinent contacts regarding the development and formation of the agreement, the location of the parties, and the location of the performance of the agreement; (2) the nature and purpose of the agreement; and (3)(a) the policies and needs of the interstate system, including the policies of upholding the justified expectations of the parties and of minimizing the adverse consequences that might follow from subjecting a party to the law of more than one state and (b) the policies of facilitating the orderly planning of transactions, of promoting multi-state commercial intercourse, and of protecting one party from undue imposition by the other. [FN268]

The court analyzed these factors and concluded that the factor last quoted regarding undue imposition tipped the scales in favor of Louisiana law. Said the court:

Louisiana's commitment to protecting its sub-contractors from the `inequity' foisted on such entities by indemnity provisions in work agreements pertaining to wells for oil and gas, is more emphatic than that of any respective policies of Texas. The force of Louisiana's public policy disfavoring indemnity agreements, as stated in the LOIA, is unquestionably very strong. . . . The language of the LOIA makes it clear that Louisiana has a very strong policy against allowing its oil and gas well sub-contractors to be manipulated by well owners and operators who would foist the burden of indemnification on them through work agreements, and subjecting these subcontractors to contrary laws permitting indemnification provisions in other jurisdictions. [FN269]

Given that the sub-contractor and the contract in question fell precisely within the intended protective scope of the LOIA, the court concluded that "the strength of Louisiana's policy of preventing the adverse consequences which would fall upon its sub-contractors by application of the laws of Texas tips the scales with respect to each state's policies noted above." [FN270]

In contrast to previous years, 2000 produced only one major case involving insurance coverage for environmental pollution. This may be an indication that litigation involving these cases is tapering off as insurers began changing their practices several years ago. Reichhold Chemicals, Inc. v. Hartford Acc. & Indem. Co. [FN271] is a continuation of a 1997 case with the same name which was discussed in the 1997 Survey. [FN272] This was an action for a declaratory judgment in which a New York insured sought a declaration that its insurers were obligated to defend and indemnify the insured for claims arising from environmental contamination caused by the insured's operations in the state of Washington. [FN273] The insurance policy had been negotiated and issued in New York through the insurers' New York brokers. The 1997 case involved the issue of the timeliness of the notice given to the insurer by the insured. The court held that, under Restatement Second § 193, the pro-insured law of the state of the insured risk, Washington, applied because New York did not have a more significant relationship.

In the 2000 case, the issue was the interpretation of a pollution exclusion clause in the insurance policy, as well as issues of allocation of damages. As in the 1997 case, Washington law favored the insured, while New York law favored the insurer. The court concluded once again that both states were equally interested in applying their law. As the place of the contaminated site, Washington was interested in applying its pro-coverage law so as to "protect[] its environment and its citizens, both as taxpayers and as inhabitants." [FN274] New York was also interested in applying its pro-insurer law because some of the insurers had their principal places of business in that state and all of them had negotiated, executed and administered the policies through their New York offices. However, the court held that New York's interests [FN275]--which had been considerably weakened by a recent change that made New York law more favorable to the insured-- were "not sufficiently compelling to overcome the presumption in favor of Washington law," [FN276] which is established by Restatement Second § 193 in favor of the state of the insured risk. The application of Washington law, said the court, did not violate the expectations of the parties because many major states now adhere to the same pro-coverage law as Washington and the insurers did not avail themselves of the option of contractually designating the applicable law. "[T]hese insurance companies which write thousands of contracts have deliberately omitted the choice of law provision from these contracts," [FN277] said the court. To be sure, this is only half of the question. The other half is whether such choice-of-law clauses will be held enforceable in this highly regulated area of the law. An affirmative answer should not be readily assumed.

    2. Insurability of Punitive Damages

Fluke Corp. v. Hartford Acc. & Indem. Co. [FN278] involved the question of which state's law governs the insurability of punitive damages. The insured, a Washington corporation, had purchased in that state from defendant insurer a commercial general liability (CGL) policy to cover the insured's multistate operations. The insured was found by a California court guilty of malicious prosecution of a patent infringement lawsuit and was ordered to pay a large sum in punitive damages. The policy covered both intentional misconduct by the insured and punitive damages for such conduct. This coverage was prohibited by California law but allowed by Washington law (although the latter law did not allow punitive damages). The court rejected the insurer's argument of applying Restatement Second § 193 and through it the law of California as the place of the insured risk. Instead the court resolved the conflict under §§ 6 and 188 of the Restatement and concluded that Washington had the most significant relationship.

    3. Automobile Insurance Conflicts

In addition to Nodak Mutual Insurance Co. v. American Family Mutual Insurance Co., [FN279] five other automobile insurance conflicts have been decided by a state court of last resort. These cases involved disputes about uninsured motorist coverage and other similar disputes between insureds and their own insurer. Only one of these cases applied the law of the state of the accident. [FN280] The remaining four cases applied the law of the state in which the policy was purchased by the insured who was also domiciled in that state. [FN281] The same result was reached by many, [FN282] but not all, [FN283] cases decided by intermediate courts.

    1. Criminal Cases

Of the cases involving the substance/procedure dichotomy, the more interesting cases decided in 2000 are criminal-law cases involving issues of evidence admissibility. They are interesting in the sense that they did not adhere to the traditional a priori procedural characterization of evidentiary issues, although most cases end up applying the law of the forum state. Four of these cases were decided in Texas, and three of them applied the law of the forum to determine the admissibility of evidence received in another state. Davidson v. State [FN284] held that an oral statement made by defendant to a customs officer in Montana, which would be admissible in Montana, was not admissible in Texas because it was not electronically recorded as required by Texas law. Vega v. State [FN285] held that evidence collected while defendant was interrogated in Illinois, which would have been admissible in Illinois, was not admissible in Texas. Kos v. State [FN286] held that statements made by defendant to a physician in New Mexico, which would be privileged under New Mexico law, were admissible in Texas, which does not recognize a physician-patient privilege. On the other hand, Gonzalez v. State [FN287] held that California law governed the admissibility of statements made by defendant to a pastor in California, although under the facts of the particular case the statements would not be privileged under California law or Texas law.

State v. Briggs [FN288] held that the law of Rhode Island, where the murder occurred and the trial was conducted, governed the voluntariness and thus admissibility of statements made by defendant to police in New Hampshire, as well as the admissibility of the contents of a trash can seized by police in New Hampshire. With regard to both issues, New Hampshire law was more favorable to defendant than Rhode Island law.

State v. Berry [FN289] involved the "three strikes" laws of California and Washington, the forum state. The issue was whether Washington should count for purposes of its own three-strikes law two California convictions which were "permanently stayed" by a California court pursuant to a California statute that prohibits multiple sentences for multiple offenses arising from the same acts. The majority felt compelled to hold that under its obligation to give full faith and credit to sister-state judgments, the two California stayed convictions should be counted because technically they were not "dismissed" under California law. A dissenting Justice characterized the majority opinion as a "`triumph of form over substance; a triumph of expediency at the expense of reason.'" [FN290] He argued that the stayed convictions were "effectively dismissed or vacated under California law" [FN291] and accused the majority of sending defendant "to the penitentiary for the rest of his life for a debt a separate sovereign has canceled" [FN292] and of attempting "to squeeze the conviction of another sovereign for every drop of punishment it may hold in Washington under the full faith and credit clause." [FN293]

    2. Civil Cases

Among civil cases, Larrison v. Larrison, [FN294] a child custody case, also involved the issue of the admissibility of evidence--a taped telephone call. The call was made from Pennsylvania, the law of which requires consent of both parties before recording the conversation, and was recorded by the recipient in New York, the law of which does not require such consent. The court concluded that the laws of the two states on this issue were substantive rather than procedural and resolved the conflict by applying the law of New York law under which the recording was admissible evidence. The court reasoned that New York had the greater interest in allowing its citizens to lawfully record telephone conversations within its borders and that, while Pennsylvania also had an interest in protecting its citizens from having telephone conversations recorded without proper consent, Pennsylvania courts "have no power to control the activities that occur within a sister state." [FN295] The court concluded that "Pennsylvania has no state interest in a recording of a telephone conversation placed to New York, even if the recording is later used in the Pennsylvania Courts." [FN296]

Also noteworthy are two federal cases, Baker v. General Motors Corp., [FN297] which involved the issue of the attorney-client privilege, and Midwest Grain Products of Illinois, Inc. v. Productization, Inc., [FN298] which involved questions of attorney fees. [FN299] Both cases concluded that these questions were substantive for Erie purposes and thus were governed by state law. In Baker the majority held that the documents at issue were privileged under the work-product doctrine and privilege law of both the forum state and the other state. The dissenting judge thought that the laws of the two states differed, that the resulting conflict should be resolved under the law of the forum, and that under that law the privilege had been waived.

In Midwest Grain the court, after concluding that Oklahoma law governed the contract in question, asked whether the same law should govern the question of attorney fees: "If Illinois [the forum state] regards attorney's fees as the kind of thing that should follow the contract, then it would look to the Oklahoma fee statute; if instead Illinois regards attorney's fees as an aspect governing use of the judicial system (i.e., `procedural'), then an Illinois court hearing this case would follow Illinois rules on fees regardless of what Oklahoma had to say." [FN300] In the end the court ventured its "best guess" [FN301] that Illinois courts would conclude that "[r]ules governing the award of attorney's fees do not affect the substantive rights of the parties; rather they are closer to rules that regulate the conduct of the trial or affect the remedy available . . . [and thus they are] procedural rather than substantive." [FN302]

Although understandable, this guess may not have been good enough. For when the Illinois Supreme Court encountered an attorney-fee conflict a few weeks later in Morris B. Chapman & Associates Ltd. v. Kitzman, [FN 303] the court did not characterize the issue as procedural. Rather the court employed a full fledged choice-of-law analysis under Restatement Second § 6 and concluded that an attorney-fee dispute resulting from litigation in Missouri should be resolved under Illinois law.

Of the many uninteresting 2000 cases involving statute-of-limitation conflicts, two cases are worth reading--Juran v. Bron [FN304] and Streber v. Hunter. [FN305] In Juran, the Delaware Chancery Court drew upon its equity powers and refused to apply a Delaware borrowing statute. The statute provided that causes of action arising outside the forum state are governed by the statute of limitation of either the forum state or the other state, "whichever is shorter." [FN306] The court reasoned that statutes of this type are designed to prevent forum shopping and that there was no forum shopping in this case because the forum had a shorter limitation period than the other state, California. The court applied the California period because California had a more significant relationship with the underlying contractual dispute.

Streber was a legal malpractice claim filed against a Louisiana tax attorney by his Texas clients. The action was timely under the statute of limitation of the forum state of Texas, which provides an unlimited discovery rule for legal malpractice claims. In contrast, the action was barred by Louisiana's "extremely limited discovery rule" [FN307] which bars legal malpractice actions filed after two years from the malpractice and regardless of when the malpractice is discovered. Following the Restatement Second, the court applied Texas law and allowed the action to proceed. The court noted that the relationship of the parties and the other facts of the case were evenly divided between the two states but concluded that, in light of "Texas's public policy in protecting its citizens against the `inherently undiscoverable' malpractice of attorneys," [FN308] Louisiana's policy of protecting its attorneys should give way.

Two 2000 cases involved the question of enforcement of sister state judgments. In Wener v. Perrone & Cramer Realty, Inc., [FN309] the trial court held that it would be unconstitutional to apply the forum's ten-year statute of limitations for judgments and refused to enforce a Florida judgment that was still viable under Florida's twenty-year statute of limitation. The Court of Appeals reversed, relying on U.S. Supreme Court precedents such as McElmoyle v. Cohen [FN310] that permit the forum to apply its own statute of limitations under these circumstances. The court noted that the forum's statute of limitation provided the same period for enforcement of domestic and foreign judgments and thus did not present the potential equal-protection problems alluded to by the Supreme Court in Watkins v. Conway. [FN311]

Potomac Leasing Co. v. Dasco Technology Corp. [FN312] involved the same pattern as Wener and reached the same result. However, Potomac Leasing involved the additional question of whether a foreign judgment registered in the forum state under the Uniform Foreign Judgments Act is subject to the same limitation period as provided for actions sought to be enforced through a common-law action on the foreign judgment. State courts are split on this issue, [FN313] and the Utah Supreme Court chose to follow the states that answer this question affirmatively. Thus a Texas judgment that was registered in Utah after the eight-year period provided by the Utah statute was not enforceable in Utah although apparently it was still enforceable in Texas. However, if the judgment had been registered within eight years from rendition, the judgment would have been enforceable in Utah (within the same period?) even after the judgment would be no longer enforceable in the rendering state.

As said at the beginning, this Survey aspires to be thorough. But the task is immense and the space limitations of this Journal are real. These limitations do not permit description, much less discussion, of many other cases decided during the year 2000 on matters such as the extraterritorial application of American statutes, [FN314] status, [FN315] marital property, [FN316] marital property agreements, [FN317] and recognition of judgments. [FN318] All that is possible is a citation to these cases for those readers who are interested in reading more, as the century turns . . .

Completed January 30, 2001

*Dean and Professor of Law, Willamette University College of law, LL.B. (Priv. L.), LL.B. (Publ. L.), Aristotelian University of Thessaloniki; LL.M., S.J.D., Harvard Law School.

[FN1]. In chronological order, the thirteen previous surveys are: Kozyris, "Choice of Law in the American Courts in 1987: An Overview, " 36 Am. J. Comp. L. 547 (1988); Symeonides, "Choice of Law in the American Courts in 1988," 37 Am. J. Comp. L. 457 (1989); Kozyris & Symeonides, "Choice of Law in the American Courts in 1989: An Overview," 38 Am. J. Comp. L. 601 (1990); Kramer, "Choice of Law in the American Courts in 1990: Trends and Developments," 39 Am. J. Comp. L. 465 (1991); Solimine, "Choice of Law in the American Courts in 1991," 40 Am. J. Comp. L. 951 (1992); Borchers, "Choice of Law in the American Courts in 1992: Observations and Reflections," 42 Am. J. Comp. L. 125 (1994); Symeonides, "Choice of Law in the American Courts in 1993 (and in the Six Previous Years), " 42 Am. J. Comp. L. 599 (1994); Symeonides, "Choice of Law in the American Courts in 1994: A View "From the Trenches"," 43 Am. J. Comp. L. 1 (1995); Symeonides, "Choice of Law in the American Courts in 1995: A Year in Review, " 44 Am. J. Comp. L. 181 (1996); Symeonides, "Choice of Law in the American Courts in 1996: Tenth Annual Survey," 45 Am. J. Comp. L. 447 (1997); Symeonides, "Choice of Law in the American Courts in 1997," 46 Am. J. Comp. L. 233 (1998); Symeonides, "Choice of Law in the American Courts in 1998: Twelfth Annual Survey," 47 Am. J. Comp. L. 327 (1999); Symeonides, "Choice of Law in the American Courts in 1999: One More Year," 48 Am. J. Comp. L. 143 (2000). Hereinafter, these Surveys are referred to only by the author's name and the survey year.

[FN2]. This Survey does not reflect the views of the Association of American Law Schools or its Section on Conflict of Laws.

[FN3]. The fact that many overseas readers may have easier access to this Journal than to the cases discussed here explains why references to older cases are so often accompanied by references to previous surveys discussing those cases.

[FN4]. The Survey does not cover cases dealing with jurisdiction (including forum non conveniens and choice-of-forum clauses), recognition of judgments, and federal-state conflicts.

[FN5]. These cases have been identified by searching Westlaw's 2000 databases with the query "`choice of law' or `conflict of law' or `what law governs'." Of the 642 appellate cases, 114 were decided by state supreme courts, 328 by state intermediate courts, and 200 by federal appellate courts. In addition, 728 cases have been decided by federal district courts, thus raising the total number of cases to 1370. Because of the space limitations of this Journal, the federal district court cases are not discussed in this Survey.

[FN6]. See Symeonides, 1998 Survey, 330-45; See also Eugene Scoles, Peter Hay, Patrick J. Borchers & Symeon C. Symeonides, Conflicts of Laws 86-95 (3rd ed. 2000) (hereinafter referred to as Scoles, Hay, Borchers & Symeonides, Conflict of Laws).

[FN7]. Symeonides, 1998 Survey at 333. See also id. at 331 ("[C]ommitment to the lex loci delicti rule appears . . . entirely questionable in Montana."); id. at 330 ("Montana's commitment to the lex loci delicti rule . . . [is] so questionable that, realistically speaking, th[is] state[] should not be placed in the traditional camp.").

[FN8]. Id. at 333.

[FN9]. Id. at 334.

[FN10]. 995 P.2d 1002 (Mont. 2000).

[FN11]. See 995 P.2d 1006-07.

[FN12]. Id. at 1007 ("At the end of 1998, only 11 states still adhered to the lex loci rule, and their continued adherence is questionable," citing Symeonides, 1998 Survey at 331).

[FN13]. Id., citing Symeonides, supra n.__, at 345.

[FN14]. Id. at 1007.

[FN15]. Id.

[FN16]. Id.

[FN17]. See infra n. ___.

[FN18]. The defendant also invoked the laws of North Carolina and Michigan but did not adequately brief the court on the content of those laws.

[FN19]. After noting that many appellate courts apply the Restatement "in a fairly conclusory fashion," id. at 1007, the court then said that "[a]lthough the analysis that follows appears somewhat tedious, our attempt is to comply with the procedures set forth in the Restatement (Second) of Conflict of Laws." Id.

[FN20]. See Patrick J. Borchers, "Courts and the Second Conflicts Restatement: Some Observations and an Empirical Note," 56 Md. L. Rev. 1232, 1237-40 (1997); Symeon C. Symeonides, "The Judicial Acceptance of the Second Conflicts Restatement: A Mixed Blessing," 56 Md. L. Rev. 1246, 1271-72 (1997). In 2000, a higher than usual number of cases paid attention to the Restatement's specific sections. In addition to Phillips, see Martineau v. Guertin, 751 A.2d 776 (Vt. 2000), discussed infra at text accompanying nn. ___; McKinnon v. F.H. Morgan & Co. Inc., 750 A.2d 1026 (Vt. 2000), discussed infra at text accompanying nn. ___; Hughes Wood Products, Inc. v. Wagner, 18 S.W.3d 202 (Tex. 2000), discussed infra at text accompanying nn. ___.

[FN21]. 995 P.2d at 1014.

[FN22]. Id.

[FN23]. See id. at 1009, 1014-15.

[FN24]. Id. at 1009.

[FN25]. Id.

[FN26]. Id. at 1009-10. The court disposed in a similar manner of defendant's argument regarding plaintiff's contributory negligence, which would have reduced plaintiff's recovery under Kansas law. While noting that the record contained no evidence of plaintiff's contributory negligence or where such negligence occurred, the court concluded that Kansas' comparative negligence rule was loss-allocating rather than conduct-regulating and that Kansas had "no interest in allocating responsibility for the injuries suffered by Montana residents and caused by a product purchased in North Carolina." Id. at 1010.

[FN27]. Id.

[FN28]. Id.

[FN29]. Id.

[FN30]. Id. at 1011.

[FN31]. But see id. at 1011, noting that "evidence of where the pickup truck was designed and manufactured is not in the record."

[FN32]. Id. at 1010.

[FN33]. North Carolina requires proof of negligence in products liability actions and, more to the point, has a statute of repose that would bar the action. See Hall v. General Motors Corp., 229 Mich.App. 580, 582 N.W.2d 866 (1998), discussed in Symeonides, 1998 Survey at 375-77.

[FN34]. The employment of a renvoi syllogism in this fashion seems to have increased in recent years. See, e.g., Miller v. White, 702 A.2d 392 (Vt. 1997), discussed in Symeonides, 1997 Survey 237-39; Sutherland v. Kennington Truck Service, Ltd., 562 N.W.2d 466 (Mich. 1997), discussed in Symeonides, 1997 Survey 240-44; Nodak Mutual Ins. Co. v. American Family Mutual Ins. Co., 604 N.W.2d 91 (Mn. 2000), discussed infra at text accompanying nn. ___ and nn. ___; Kubasko v. Pfizer, Inc., 2000 WL 1211219 (Del.Super. 2000), discussed infra at ___; Braxton v. Anco Electric, Inc., 330 N.C. 124, 409 S.E.2d 914 (1991); Stutsman v. Kaiser Foundation Health Plan, 546 A.2d 367 (D.C. 1988).

[FN35]. See 995 P.2d at 1011: "On the facts of this case, a North Carolina court would apply the law of Kansas because they still adhere to the `vested rights' theory that any right created by an injury is solely a product of the law of the territory in which that injury occurred. . . . Accordingly, the scope of North Carolina product liability law does not include causes of action for products purchased in North Carolina by North Carolina residents which cause injury outside of North Carolina. This belies the significance of North Carolina's interest in having its law applied." The court noted that the place of purchase may have had greater significance if North Carolina followed the Second Restatement. Id.

[FN36]. Id. 1013. See also id. ("[I]f a North Carolina resident receives an injury from a defective vehicle while driving out-of-state, the law of the place of injury would govern that dispute.")

[FN37]. Id. at 1011, citing Farrell v. Ford Motor Co. (1993), 199 Mich.App. 81, 501 N.W.2d 567, appeal denied, 445 Mich. 863, 519 N.W.2d 158 (1994). Farrell is discussed in Symeonides, 1993 Survey at 628-30.

[FN38]. See, e.g., Hall v. General Motors Corp., 229 Mich.App. 580, 582 N.W.2d 866 (1998), discussed in Symeonides, 1998 Survey at 375-77 (applying North Carolina's pro-manufacturer law to a products liability action by a North Carolina victim against General Motors which manufactured the car in Michigan whose law would favor the victim).

[FN39]. See, e.g., Mahne v. Ford Motor Co, 900 F.2d 83 (6th. Cir. 1990), cert. denied, 498 U.S. 941 (1990), discussed in Symeonides, 1993 Survey at 629-30, (applying Michigan's pro-recovery law rather than Florida's pro-manufacturer law to a products liability action brought by a Florida domiciliary who was injured in a Florida accident).

[FN40]. 995 P.2d at 1011-12.

[FN41]. Id. at 1012.

[FN42]. Id.

[FN43]. The court held that the critical domicile is the domicile of the victims at the time of the accident and that the fact that the surviving child of the Byrd family was forced to move to North Carolina after his parents' death should not change the analysis. See id. at 1013 ("The guarantee of full compensation for Montana residents who suffer injuries due to defective products certainly will not turn on such fortuitous circumstances as a postaccident move caused by the allegedly wrongful conduct of a defendant.")

[FN44]. Id. at 1012, quoting Sternhagen v. Dow Co., 282 Mont. 168, 176, 935 P.2d 1139, 1144 (1997).

[FN45]. Id.

[FN46]. Id.

[FN47]. Id.

[FN48]. Id.

[FN49]. Id. at 1015.

[FN50]. See Milkovich v. Saari, 203 N.W.2d 408 (1973).

[FN51]. See Symeonides, 1997 Survey, 255-56; Symeonides, 1994 Survey, 19-25.

[FN52]. See Jepson v. General Cas. Co. of Wisconsin, 513 N.W.2d 467 at 473 (Minn. 1994) ("From our present day vantage point, neither the law Minnesota had then, nor the law we have now, is clearly better. Sometimes different laws are neither better nor worse in an objective way, just different. Because we do not find either stacking or anti-stacking to be a better rule in the sense Leflar intended, this consideration does not influence our choice of law."); Lommen v. The City of East Grand Forks, 522 N.W.2d 148 at 152 (Minn. Ct. App. 1994) ("[N]either Minnesota's nor North Dakota's law is `better' than the other . . . neither . . . is demonstrably antiquated or plainly unfair . . . [they] simply differ."). See also Kenna v. So-Fro Fabrics, Inc., 18 F.3d 623 at 627 (8th Cir. 1994) (decided under North Dakota conflicts law) ("[W]e are not in a position to decide that either [state's law] is the better rule of law.").

[FN53]. See Jepson, 513 N.W.2d at 473 ("If [it] were true [that] forum law would always be the better law . . . [then] this step in our choice of law analysis would be meaningless.").

[FN54]. See Nesladek v. Ford Motor Co., 876 F.Supp. 1061 (D. Minn. 1994), stating that the better-law factor need not be considered when Minnesota's other choice-influencing factors "clearly dictate the application of one state's law." Id. at 1070. See also Ferren v. General Motors Corp. Delco Battery Div., 628 A.2d 265, 269 (N.H. 1993).

[FN55]. For example, the Supreme Court of Rhode Island recently described its choice-of-law approach as a blend of interest analysis, the Restatement Second, and Leflar's choice-influencing considerations, coupled with a presumptive common-domicile rule for loss-distribution tort conflicts. See Cribb v. Augustin, 696 A.2d 285 (R.I. 1997), discussed in Symeonides, 1997 Survey, 255-56. See also Kenna v. So-Fro Fabrics, Inc., 18 F.3d 623 (8th Cir. 1994) (decided under North Dakota conflicts law).

[FN56]. 604 N.W.2d 91 (Mn. 2000).

[FN57]. Id. at 94, 96.

[FN58]. Id. at 96.

[FN59]. Montpetit v. Allina Health System, Inc., 2000 WL 1486581 at *3 (Mn. App. 2000). This case is discussed at text accompanying n. ___, infra.

[FN60]. These factors are: "(1) Predictability of results; (2) Maintenance of interstate and international order; (3) Simplification of the judicial task; (4) Advancement of the forum's governmental interest; and (5) Application of the better rule of law." 604 N.W.2d at 94.

[FN61]. Id. (emphasis added). For discussion of this factor see id. 95-96.

[FN62]. It should be noted that--although this factor did not appear on the surface of the opinion--the other state's law was more favorable to the Minnesota party than was Minnesota's law. See text accompanying nn. ___, infra.

[FN63]. Id. at 96.

[FN64]. Id.

[FN65]. Id.

[FN66]. See text accompanying nn.___, infra.

[FN67]. Supra n. __ (emphasis added).

[FN68]. See supra n. ___

[FN69]. Supra n. __

[FN70]. Supra n. ___ (emphasis added).

[FN71]. At least when the law of that state would benefit a forum litigant. See supra n. ___.

[FN72]. Supra n. ___

[FN73]. Supra n. ___.

[FN74]. See Symeonides, 1995 Survey, 201 at n. 124.

[FN75]. 733 P.2d 1024 (Wyo. 1987).

[FN76]. See Amoco Rocmount Co. v. The Anschutz Corp., 7 F.3d 909 (10th Cir. 1993).

[FN77]. 924 P.2d 972 (Wyo. 1996).

[FN78]. See Symeonides, "The Judicial Acceptance of the Second Conflicts Restatement: A Mixed Blessing, 56 Md L. Rev. 1248, 1260 (1997) (citing cases from Alabama, California, Georgia and Maryland).

[FN79]. Symeonides, 1996 Survey at 457.

[FN80]. 1 P.3d 1253 (Wy. 2000).

[FN81]. Id. at 1257.

[FN82]. Id.

[FN83]. Id.

[FN84]. See Symeonides, 1996 Survey 494-95.

[FN85]. See Symeonides, 1998 Survey at 334-35. See also Scoles, Hay, Borchers & Symeonides, Conflicts of Laws 92-93. But see Cazabat v. Metropolitan Property & Cas. Ins. Co., 2000 WL 1910089 (R.I.Super. 2000) (relying on a 1937 decision of the Rhode Island Supreme Court for the proposition that "a contract is to `be interpreted according to the law of the place where the parties . . . made and executed the contract.")

[FN86]. Documentation for these classifications can be found, in addition to the annual surveys, in Symeon C. Symeonides, "The Judicial Acceptance of the Second Conflicts Restatement: A Mixed Blessing," 56 Md. L. Rev. 1246, 1252-60 (1997). See also Scoles, Hay, Borchers & Symeonides, Conflict of Laws 68-79, 85-102.

[FN87]. See, e.g., Symeonides, 1996 Survey, 458; Symeonides, supra n. ___ at 1261-63. See also Scoles, Hay, Borchers & Symeonides, Conflict of Laws 79-84, 687-88.

[FN88]. See supra n. ___ et seq.

[FN89]. See supra n. ___, et seq.

[FN90]. See supra n. ___.

[FN91]. See supra nn. ____.

[FN92]. See Scoles, Hay, Borchers & Symeonides, Conflict of Laws 95-96.

[FN93]. For a recent explanation and documentation for these columns, see Scoles, Hay, Borchers & Symeonides, Conflict of Laws at 100-102.

[FN94]. See supra nn. ____.

[FN95]. See Amiot v. Ames, 166 Vt. 288, 693 A.2d 675 (1997), discussed in Symeonides 1997 Survey 235-36.

[FN96]. 702 A.2d 392 (Vt. 1997), discussed in Symeonides, 1997 Survey 237-39.

[FN97]. 721 A.2d 129 (Vt. 1998), discussed in Symeonides, 1998 Survey 345-48.

[FN98]. 751 A.2d 776 (Vt. 2000).

[FN99]. Vermont's law allowed a tort wrongful-death action while Quebec's no-fault insurance law barred a tort action and confined the plaintiff to an administrative remedy and a much lower recovery.

[FN100]. See 751 A.2d 776, 789-80.

[FN101]. The victim had a green card and had lived in Connecticut for seven years. The defendant was a co-worker who also had lived in Connecticut for some time prior to the accident.

[FN102]. 751 A.2d at 780.

[FN103]. The issue was whether the victim's survivors were entitled to a wrongful death action, which both Vermont and Connecticut allowed, or whether they should be confined to an administrative remedy as provided by Quebec's no-fault insurance system. The court reiterated the distinction between conduct-regulation and loss-distribution issues and noted that "this case primarily concerns how to compensate plaintiffs for their loss rather than how to define the standard of care by which defendant will be held liable." Id. at 779.

[FN104]. Id.

[FN105]. Id.

[FN106]. Restatement Second 175 provides that, in wrongful death actions, the law of the state of the injury applies unless some other state has a more significant relationship to the occurrence and the parties under the principles stated in 6. Restatement Second  146 establishes the same presumption in personal injury actions. For a 2000 common-domicile case holding that this presumption was overcome, see Callis v. Zilba, 136 Ohio App.3d 696, 737 N.E.2d 974 (Ohio App. 2000) (holding that, because both the tortfeasor and the victim of a Michigan traffic accident were Ohio domiciliaries, the presumption in favor of Michigan law was rebutted and the application of Ohio law was justified.) For another case that applied the law of the parties' common domicile under the first Neumeier rule, see Dorsey v. Yantambwe, 715 N.Y.S.2d 566 (N.Y. A.D. 4th Dept. 2000) (holding that the "domicile" of corporate defendant is in the state of its principal place of business and applying the law of that state, which was also the plaintiff's domicile, to a dispute arising from an accident in another state.).

[FN107]. See 751 A.2d at 780-81 ("Quebec's interests diminish when Quebec residents are involved in accidents outside the province . . . [because Quebec law] explicitly allows Quebec residents injured outside the province to seek recovery under the law of the place of their injuries . . . [and] mandates that insurance be obtained to . . . provide protection . . . equal[ing] the minimum amount of liability insurance prescribed by law in the state . . . where the accident occurred. . . . Here, in conformity with these provisions, defendant was apparently covered under a private liability policy making the insurer liable for the minimum amount prescribed by the Canadian province or the American state where the accident occurred.")

[FN108]. Id. at 781. For another case decided under the same Restatement Second presumption, see Ricci v. Alternative Energy Inc., 211 F.3d 157 (1st Cir. 2000) (decided under Maine conflicts law). This case arose out of a work-related accident in Maine which caused the death of Rhode Island worker. Relying on Collins v. Trius, 663 A.2d 570 (Me. 1995), the plaintiff argued for the application of Rhode Island law. Collins, which is discussed in Symeonides, 1995 Survey at ___, had applied the law of the parties' common domicile, Quebec, in an action arising from an accident in Maine. The court rejected the plaintiff's argument after pointing out that Ricci was not a common-domicile case. The court held that Maine law governed because the Restatement presumption in favor of the law of the law of the place of injury, which was also the place of the wrongful conduct, had not been rebutted.

[FN109]. 750 A.2d 1026 (Vt. 2000).

[FN110]. See Restatement Second  146.

[FN111]. 750 A.2d at 1029.

[FN112]. Id.

[FN113]. Id. at 1030.

[FN114]. Neumeier v. Kuehner, 31 N.Y.2d 121 at 128, 286 N.E.2d 454, 335 N.Y.S.2d 64 (1972).

[FN115]. 220 F.3d 169 (3d Cir. 2000).

[FN116]. 28 U.S.C. 1346(b) et seq.

[FN117]. Richards v. United States, 369 U.S. 1, 11 (1962).

[FN118]. 28 U.S.C. 1346(b)(1).

[FN119]. See 220 F.3d at 183-84 ("Contribution law is loss allocating because it assigns liability after the tort occurs.").

[FN120]. In Wreglesworth v. Arctco, Inc, 738 N.E.2d 964 (Ill. App. 2000), the question was which law governed the question of whether a release executed by one tortfeasor could be invoked by another joint tortfeasor not specifically identified in the release. Following the Restatement Second, the court applied the law of Illinois, where the release was executed and the released defendant and the releasing victim were domiciled, in a dispute arising from an Indiana accident.

[FN121]. To be sure, since New York is also one of those 50 states, the United States could also be treated as a domiciliary of New York which the court assumed to be the state of the defendant's conduct. If so, the case would fall within the first sentence of the second Neumeier rule which provides that "[w]hen the [tortfeasor]'s conduct occurred in the state of his domicile and that state does not cast him in liability for that conduct, he should not be held liable by reason of the fact that liability would be imposed upon him under the tort law of the state of the victim's domicile." Neumeier v. Kuhner 31 N.Y.2d 121, at 128, 335 N.Y.S.2d 64, 286 N.E.2d 454 (1972). All of this of course assumes that the Neumeier rules are at all applicable to claims between joint tortfeasors, as opposed to claims between a tortfeasor and the victim. This assumption is far from self-evident, Cooney notwithstanding. See Scoles, Hay, Borchers & Symeonides, Conflict of Laws at 752 ("the Neumeier rules may be ill-suited for cases in which the injurious conduct and the resulting injury occur in different states, or for cases in which the dispute is not between the injured victim and the tortfeasor but rather between joint tortfeasors.")

[FN122]. See 220 F.3d at 186.

[FN123]. See text accompanying n. ___, supra.

[FN124]. 220 F.3d at 187. The court articulated the last factor as follows: "[when] the purpose of the domiciliary law is superior to and does not interfere with the purpose of the locus law." Id. This phrasing, however, is either confusing or misleading. The court's actual discussion of this factor, see id. at 188-90 and nn. __-__, infra, suggests that this factor contemplates a straight interest analysis.

[FN125]. Because the parties' contacts with New York were not fortuitous, this factor did not favor displacement of New York law. See id. 190.

[FN126]. See id. at 187 ("[T]here should be no difference in result where the plaintiff and defendant have the same domicile (where the first Neumeier rule governs and the law of the common domicile applies), and the plaintiff and defendant have a split domicile but with the same domiciliary law (where the third Neumeier rule governs).)" The court thought that the same result would obtain if the US is deemed to be domiciled in each of the 50 states because Ohio is one of those states and this would produce the common-domicile scenario. But see supra n. ___. The court also concluded that "[i]f the United States is considered to be domiciled nowhere, then it has no domiciliary law to compare to Ohio contribution law. However, since [plaintiff]'s domiciliary law and the United States lack of domiciliary law are not in conflict, this factor weighs towards displacing New York law with Ohio law." Id.

[FN130]. Id. at 189.

[FN131]. Id. at 190.

[FN129]. 333 N.J. Super 88, 754 A.2d 606 (N.J. Sup. 2000).

[FN130]. 754 A.2d at 614. The plaintiff also argued that New York drivers are aware that they are subject to unlimited liability even when they are found to be only minimally responsible and thus "pay [insurance] premiums that are calculated for that exposure." Id. at 613.

[FN131]. Id. at 610 (internal quotations are from the trial court opinion). See also id. at 614 ("[I]n a case where New Jersey's comparative negligence law has already been applied . . . our law of joint and several liability, which is essentially a damages provision, will be applied.")

[FN132]. Id. at 615. While acknowledging that the enhanced liability exposure created by New York's joint and several liability law was a factor in the calculation of automobile insurance rates in that state, the court noted that those rates are not likely to have been derived from any expectation that New York law would apply when a New York insured negligently causes an accident in New Jersey.

[FN133]. Id. at 614, quoting Haggerty v. Cedeno, 653 A.2d 1166, (N.J. Super. 1995).

[FN134]. 226 F.3d 46 (2d Cir. 2000) (decided under New York conflicts law).

[FN135]. Id. at 59.

[FN136]. Id.

[FN137]. 604 N.W.2d 91 (Mn. 2000), discussed supra ___

[FN138]. See supra at n. ___.

[FN139]. 604 N.W.2d at 95.

[FN140]. Id.

[FN141]. Id.

[FN142]. Id.

[FN143]. See id. at 96, discussing Family Mutual Insurance Co. v. Farmers Insurance Exchange, 504 N.W.2d 307 (N.D.1993).

[FN144]. 2000 WL 1486581 (Mn. App. 2000).

[FN145]. Id. at *3.

[FN146]. Id.

[FN147]. 223 F.3d 932 (9th Cir. 2000).

[FN148]. Id. at 935.

[FN149]. Id.

[FN150]. Id. at 935-36.

[FN151]. Id. at 936.

[FN152]. 16 S.W.3d 893 (Tex. App. 2000) review denied.

[FN153]. Id. at 899.

[FN154]. Id. at 903, 906.

[FN155]. 2000 WL 552406 (Tex. App. 2000).

[FN156]. Id. at *3.

[FN157]. Id. at n.4.

[FN158]. 229 F.3d 254 (3d Cir. 2000).

[FN159]. See, e.g., Symeonides, 1999 Survey at 150-52; Symeonides, 1996 Survey at 451.

[FN160]. For other 2000 cases, see, e.g., Judge v. Pilot Oil Corp., 205 F.3d 335 (7th Cir. 2000) (applying Indiana law to an action against an Indiana truck stop owner whose security guard shot an Utah driver); Garvin v. Hyatt Corp., 2000 Mass. App. Div. 143, 2000 WL 798640 (Mass. App. 2000) (hotel owner's liability); Wal-Mart Stores, Inc. v. Manning, 2000 WL 681069 (Ala. 2000) (store-owner's liability).

[FN161]. 14 S.W.3d 218 (Mo. App. 2000).

[FN162]. Id. at 222.

[FN163]. Id.

[FN164]. For an excellent recent discussion of this problem, see Ryan P. Phair, "Resolving the `Choice-of-Law Problem' in Rule 23(b)(3) Nationwide Class Actions," 67 U. Chi. L. Rev. 835 (2000).

[FN165]. FRCP 23(b)(3) (emphasis added).

[FN166]. See Symeon C. Symeonides, Wendy C. Perdue & Arthur T. von Mehren, Conflict of Laws: American, Comparative, International, 128, 132, 298 (1998).

[FN167]. 227 F.3d 308 (5th Cir. 2000).

[FN168]. 227 F.3d at 312 (emphasis added).

[FN169]. Id.

[FN170]. Id. at 313.

[FN171]. Id.

[FN172]. 358 Md. 689, 752 A.2d 200 (Md. 2000).

[FN173]. 752 A.2d at 231.

[FN174]. Restatement (First) of Conflict of Laws 377, Notes 1 and 2, at 455-56 (1934).

[FN175]. Id.

[FN176]. 752 A.2d at 230.

[FN177]. See id. 232-33. For another class action case decertifying a class for failure to follow the last-act rule, see IBM Corp. v. Kemp, 536 S.E.2d 303 (Ga. App. 2000) (holding that the tort occurred where the last act occurred and, because that act occurred in the domicile of each of the victims who were domiciled in different states, the plaintiffs' claims could not be governed by the law of a single state.) For a Maryland case following a "common sense" exception to the last-act rule, see Estate of White v. R.J. Reynolds Tobacco Co., 109 F.Supp.2d 424 (D.Md. 2000) (acknowledging that the "last act" occurred in Pennsylvania but applying the law of Maryland to an individual smoker's products liability action against a tobacco manufacturer because "most of the wrongful acts charged to defendants occurred in Maryland." Id. at 427).

[FN178]. 766 So.2d 350 (Fla. App. 2000).

[FN179]. 766 So.2d at 355.

[FN180]. Id.

[FN181]. Id.

[FN182]. Id. at 356.

[FN183]. See id. at 353 ("[T]he social costs of [plaintiff's] injuries will be born by the people of Florida and have no perceptible effect upon the people of New Jersey. . . . Simply put, New Jersey has little or no stake in this case; it has nothing to gain or lose through this lawsuit. There is no reason why a Florida court should feel constrained to obey New Jersey laws that would limit or restrict this Florida citizen's access to a Florida court or to the remedies that a Florida court would otherwise provide.")

[FN184]. Id. at 355.

[FN185]. 124 F.Supp.2d 46 (E.D.N.Y. 2000).

[FN186]. 995 P.2d 1002 (Mont. 2000).

[FN187]. See text accompanying nn. ____, supra.

[FN188]. For other cases applying the same law under similar circumstances, see Scoles, Hay, Borchers & Symeonides, Conflict of Laws, 832-33.

[FN189]. 216 F.3d 338 (3rd Cir. 2000).

[FN190]. The court held that the plaintiffs' claim for punitive damages was governed by Puerto Rico law which prohibited such damages. Said the court: "Punitive damages . . . are intended to punish wrongdoers and deter future conduct. . . . Although Pennsylvania has an interest in punishing those who harm their citizens, . . . Puerto Rico's interest in regulating the activity that occurs in its territorial waters . . . is more dominant." Id. at 347-48.

[FN191]. Id. at 347.

[FN192]. Id.

[FN193]. 766 So.2d 350 (Fla. App. 2000).

[FN194]. See text accompanying nn. ____, supra.

[FN195]. 2000 WL 869342 (Alaska 2000), rehearing pending. (Successor liability conflict resolved under the law of Alaska pursuant to the Restatement Second.)

[FN196]. 750 A.2d 1026 (Vt. 2000).

[FN197]. See text accompanying nn. ____, supra.

[FN198]. For other cases applying the same law under similar circumstances, see Scoles, Hay, Borchers & Symeonides, Conflict of Laws, 844-45.

[FN199]. ___S.W.3d ___, 2000 WL 1862923 (Tex. 2000).

[FN200]. See 46 U.S.C.  688(b), paragraph (1), which provides:

No Action may be maintained under [American law] . . . for the injury or death of a person who was not a citizen or permanent resident alien of the United States . . . if the incident occurred-- (A) while that person was in the employ of an enterprise engaged in the exploration, development, or production of off-shore mineral or energy resources ...; and (B) in the territorial waters or waters overlaying the continental shelf of a nation other than the United States . . .

[FN201]. 46 U.S.C.  688(b)(b), paragraph (2) provides:

The provisions in paragraph (1) of this subsection shall not be applicable if the person bringing the action establishes that no remedy was available to that person-- (A) under the laws of the nation asserting jurisdiction over the area in which the incident occurred; or (B) under the laws of the nation in which . . . the person for whose injury or death a remedy is sought maintained citizenship or residency.

[FN202]. 201 F.3d 415 (5th Cir. 2000).

[FN203]. The plaintiff did not appeal the dismissal of his American law claims.

[FN204]. See 201 F.3d at 418 n.1, reproducing congressional testimony by the bill's sponsors.

[FN205]. Id. at 417.

[FN206]. Id. at 417-18

[FN207]. See Jackson v. North Bank Towing Corp., 213 F.3d 885 (5th Cir. 2000).

[FN208]. Jackson v. North Bank Towing Corp., 742 So.2d 1 (La. App. 1999).

[FN209]. 213 F.3d at 889.

[FN210]. See 742 So.2d at *7 ("There is a question on whether the statutory construction of 46 U.S.C.App.  688 precludes foreign plaintiffs from bringing only U.S. maritime claims or all claims. The legislative history of 46 U.S.C.App.  688 makes it apparent that the intent of Congress is for the statute to cover all claims whether based in U.S. law or not.")

[FN211]. 212 F.3d 902 (5th Cir. 2000), cert. denied 121 S.Ct. 312 (2000).

[FN212]. See Lauritzen v. Larsen, 345 U.S. 571, 73 S.Ct. 921, 97 L.Ed. 1254 (1953), Romero v. International Terminal Operating Co., 358 U.S. 354, 79 S.Ct. 468, 3 L.Ed.2d 368 (1959) and Hellenic Lines Ltd. v. Rhoditis, 398 U.S. 306, 90 S.Ct. 1731, 26 L.Ed.2d 252 (1970).

[FN213]. 212 F.3d at 906.

[FN214]. Id.

[FN215]. Id. at 907.

[FN216]. See id.:

We conclude that the facts of this case are more analogous to an injury occurring on a fixed drilling platform than on a vessel in traditional maritime commerce. For that reason, we find that the district court erred in the weight it accorded the Lauritzen-Rhoditis factors in this case. When we discount the law of the flag and allegiance of the defendants factors which favor application of United States law, and accord more weight to the Plaintiffs' citizenship and residence, the place of the employment contracts and the place of injury, all of which were in Nicaragua, it is clear that the calculus ultimately dictates application of Nicaraguan law.

[FN217]. See supra n. ___.

[FN218]. See id.

[FN219]. 18 S.W.3d 202 (Tex. 2000).

[FN220]. See Restatement (Second) of Conflict of Laws  184 (1971).

[FN221]. 18 S.W.3d at 206.

[FN222]. 2000 WL 1211219 (Del.Super. 2000).

[FN223]. 2000 WL 1455270 (Ohio App. 2000).

[FN224]. For other cases involving this issue, see, e.g., Banks v. Virginia Electric & Power Co., 205 F.3d 1332, 2000 WL 191851 (4th Cir. 2000) (decided under Maryland conflicts law) (applying Virginia law and holding that a Delaware domiciliary employed in Maryland by a Maryland employer and injured in Virginia while working for a Virginia employer was a borrowed servant of the latter employer and thus was not entitled to a tort action); Foshee v. Torch Operating Co., 763 So.2d 82 (La. App. 2000) (decided under the Louisiana conflicts codification) (applying Texas law and holding that a Louisiana employee who was injured in Texas was the borrowed servant of a Texas employer and thus was not entitled to a tort action). See also Makarova v. United States, 201 F.3d 110 (2d. Cir. 2000), discussed infra at text accompanying nn. ___.

[FN225]. The court's conclusion was also influenced by a renvoi syllogism based on the fact that Connecticut cases had, under similar circumstances, applied the law of the place of the employment relationship rather than the law of place of the injury. See Kubasko, 2000 WL 1211219 at **3-4.

[FN226]. Standring, 2000 WL 1455270 at *6.

[FN227]. Id.

[FN228]. Id. For a similar case reaching the same result under Restatement Second  6, 145 and 184, see Walton v. Duct & Vent Cleaning of America, Inc. 2000 WL 1838701 (applying Massachusetts worker's compensation law and barring an action by a Massachusetts employee against his Massachusetts coemployee and employer arising from an accident in Connecticut).

[FN229]. 201 F.3d 110 (2d. Cir. 2000).

[FN230]. Id. at 114.

[FN231]. Id.

[FN232]. See id. 114-15.

[FN233]. 33 Va.App. 695, 536 S.E.2d 473 (Va.App. 2000).

[FN234]. 330 U.S. 622, 67 S.Ct. 886, 91 L.Ed. 1140 (1947).

[FN235]. 448 U.S. 261, 100 S.Ct. 2647, 65 L.Ed.2d 757 (1980).

[FN236]. Kozel 536 S.E.2d at 476.

[FN237]. Id.

[FN238]. See id. at 477: "`But the critical differences between a court of general jurisdiction and an administrative agency with limited statutory authority forecloses the conclusion that constitutional rules applicable to court judgments are necessarily applicable to workmen's compensation awards.'" (Quoting from Thomas 448 U.S. at 281-82, 100 S.Ct. at 2661).

[FN239]. Kozel 536 S.E.2d at 477.

[FN240]. But see infra, section discussing insurance conflicts.

[FN241]. 223 F.3d 382 (6th Cir. 2000) (decided under Kentucky conflicts law).

[FN242]. 223 F.3d at 391.

[FN243]. Id.

[FN244]. Id. at 394.

[FN245]. Id. at 393. But see id. at 397 (stating that the Kentucky Supreme Court has "employ[ed] a 187 analysis, albeit only implicitly.")

[FN246]. Id. at 397.

[FN247]. Id. at 399.

[FN248]. Id. at 399-400.

[FN249]. Id. at 400.

[FN250]. 761 So.2d 306 (Fla. 2000). For other mildly interesting cases upholding the choice-of-law clause, see Hobin v. Coldwell Banker Residential Affiliates, Inc. 744 A.2d 1134 (N.H. 2000); Ciena Corp. v. Jarrard, 203 F.3d 312 (4th Cir. 2000); Rollins, Inc. v. Parker, 755 So.2d 839 (Fla. App. 2000); Torres v. McClain, 535 S.E.2d 623 (S.C. App. 2000); Rowlette & Associates v. Calphalon Corp., 2000 WL 385502 (Minn. App. 2000).

[FN251]. See Mazzoni Farms, Inc. v. E.I DuPont de Nemours & Co. 166 F.3d 1162 (11th Cir. 1999) and Foliage Forest, Inc. v. DuPont de Nemours & Co., 172 F.3d 1284 (11th Cir. 1999), discussed in Symeonides, 1999 Survey at 164.

[FN252]. 761 So.2d at 312.

[FN253]. Id. at 312.

[FN254]. See id.

[FN255]. See E.I. DuPont De Nemours & Co. v. Florida Evergreen Foliage, 744 A.2d 457 (Del. 1999).

[FN256]. See Mazzoni Farms, Inc. v. E.I. DuPont De Nemours & Co., 223 F.3d 1275 (11th Cir. 2000); Foliage Forest, Inc. v. E.I. DuPont De Nemours & Co., 221 F.3d 1199 (11th Cir. 2000).

[FN257]. See, e.g. Hulcher SVCS, Inc. v. R.J. Corman R.R. Co., 2000 WL 1800652 (Ga. App. 2000); Falk v. Riedel, 102 Wash. App. 1046, 2000 WL 1451001 (Wash. App. 2000).

[FN258]. 750 A.2d 518 (Del 2000).

[FN259]. 6 Del.C. 2704(a).

[FN260]. 750 A.2d at 521.

[FN261]. Id.

[FN262]. Id. at 521. In Fina, Inc. v. ARCO, 200 F.3d 266 (5th Cir. 2000) (decided under Texas conflicts law), the indemnity agreement contained a choice of Delaware law which the court found not to violate a fundamental policy of the otherwise applicable law of Texas. Thus, the choice-of-law clause was held enforceable and Delaware law was applied pursuant to the clause. However, in applying that law the court found that the indemnity agreement was unenforceable because it did not meet the specificity standards of Delaware law. The agreement also would have failed to meet the higher standards of Texas law.

[FN263]. ___ F.3d ___, 2000 WL 1828311 (5th Cir. 2000) (decided under Louisiana conflicts law).

[FN264]. La.Rev.Stat. 9:2780(A).

[FN265] 2000 WL 1828311 at *8.

[FN266]. Id. at *7.

[FN267]. Id.

[FN268]. Id. at *6, quoting La. Civ. Code arts. 3515 and 3537.

[FN269]. Id. at *7.

[FN270]. Id. at *8.

[FN271]. 252 Conn. 774, 750 A.2d 1051 (Conn. 2000).

[FN272]. See Reichhold Chemicals, Inc. v. Hartford Accident & Indemnity Co., 243 Conn. 401, 703 A.2d 1132 (1997), discussed in Symeonides, 1997 Survey at 249-51, 277.

[FN273]. The case encompassed the insured's operations in nine additional states. However, this phase of the case was confined to the dispute arising from the Washington site.

[FN274]. 750 A.2d at 1057.

[FN275]. See id. at 1057-58.

[FN276]. Id. at 1059.

[FN277]. Id.

[FN278]. 102 Wash. App. 237, 7 P.3d 825 (Wash. App. 2000).

[FN279]. 604 N.W.2d 91 (Mn. 2000), discussed supra ___

[FN280]. See Csulik v. Nationwide Mut. Ins. Co., 723 N.E.2d 90 (Ohio 2000) (holding that a phrase that obligated insurer to pay any damages "due by law" to the insured was ambiguous and as such should be interpreted against the insurer under the pro-recovery law of the state of the accident rather than the law of the state where the policy was issued and delivered).

[FN281]. See Fortune Ins. Co. v. Owens, 351 N.C. 424, 526 S.E.2d 463 (N.C. 2000) (applying the law of Florida, where the policy was purchased and the insured was domiciled at the time, in a dispute arising from a North Carolina accident); Ryals v. State Farm Mut. Ins. Co., 134 Idaho 302, 1 P.3d 803 (Idaho 2000) (applying the law of Idaho, where the policy was purchased by an Idaho insured, in a dispute arising from a New York accident); Great West Cas. Co. v. Hovaldt, 603 N.W.2d 198 (S.D. 1999) (applying the law of South Dakota, where the policy was purchased by a South Dakota insured, in a dispute arising from a Texas accident); U.S. Fidelity & Guar. Co. v. Preston, 26 S.W.3d 145 (Ky. 2000) (holding that, although the insured was precluded from recovering damages from the other driver under the law of Georgia where the accident occurred, the insured was entitled to UM coverage under the law of Kentucky where he was domiciled and had purchased the policy).

[FN282]. See, e.g., American Country Ins. Co. v. Palumbo, 25 S.W.3d 484 (Mo. App. 2000); O'Neal v. State Farm Mut. Auto. Ins. Co., 533 S.E.2d 781 (Ga. App. 2000); Gordon v. Colonial Ins. Co. of California, 536 S.E.2d 376 (S.C. App. 2000); Eagle Ins. Co. v. Singletary, 717 N.Y.S.2d 351 (N.Y. A.D. 2 Dept. 2000); Beltrondo v. State Farm. Mut. Auto. Ins. Co., 2000 WL 1902211 (Ohio App. 2000); Jordan v. State Farm Mut. Auto. Ins. Co., 2000 WL 311519 (Ohio App. 2000); Burress v. Sanders, 31 S.W.3d 259, 2000 WL 343788 (Tenn. App. 2000); State Farm Mut. Auto. Ins. Co. v. Great West Cas. Co., 615 N.W.2d 871 (Minn. App. 2000).

[FN283]. For cases applying the law of the state of the accident, see, e.g., Adams v. Thomason, 753 So.2d 416 (La. App. 2000); Austin v. Western World Ins. Co., 765 So.2d 390 (La. App. 2000).

[FN284]. 25 S.W.3d 183 (Tex. Crim. App. 2000).

[FN285]. 32 S.W.3d 897, 2000 WL 1682512 (Tex.App. 2000).

[FN286]. 15 S.W.3d 633 (Tex. App. 2000).

[FN287]. 21 S.W.3d 595 (Tex. App. 2000), rev. granted 11/8/00.

[FN288]. 756 A.2d 731 (R.I. 2000).

[FN289]. 141 Wash.2d 121, 5 P.3d 658 (Wash. 2000).

[FN290]. 5 P.3d 668, Sanders, J., dissenting. Internal quotations are from State v. Ladson, 138 Wash.2d 343, 351, 979 P.2d 833 (Wash. 1999).

[FN291]. P.3d at 664.

[FN292]. Id.

[FN293]. Id. at 665.

[FN294]. 750 A.2d 895 (Pa. Super. 2000).

[FN295]. Id. at 898.

[FN296]. Id.

[FN297]. 209 F.3d 1051 (8th Cir. 2000) (decided under Missouri conflicts law).

[FN298]. 228 F.3d 784 (7th Cir. 2000).

[FN299]. See also Watters v. Cashiers, 202 F.3d 276, 2000 WL 10277 (7th Cir. 2000) (collection of attorney fees governed by forum's Attorneys Lien Act).

[FN300]. 228 F.3d at 791.

[FN301]. Id. at 792.

[FN302]. Id.

[FN303]. 193 Ill.2d 560, 739 N.E.2d 1263 (Ill. 2000).

[FN304]. 2000 WL 1521478 (Del. Ch. 2000).

[FN305]. 221 F.3d 701 (5th Cir. 2000) (decided under Texas conflicts law). See also Nierman v. Hyatt Corp., 2000 WL 1782091 (Mass. App. 2000) (decided under Restatement Second  142).

[FN306]. 10 Del.C. 1821.

[FN307]. 221 F.3d at 719.

[FN308]. Id. at 720.

[FN309]. 528 S.E.2d 65 (N.C. App. 2000).

[FN310]. 38 U.S. (13 Pet.) 318, 10 L.Ed. 177 (1839).

[FN311]. 385 U.S. 188 (1966).

[FN312]. 10 P.3d 972 (Utah 2000).

[FN313]. See id. at 974-75.

[FN314]. See, e.g., Alpha Therapeutic Corp. v. Nippon Hoso Kyokai, 199 F.3d 1078 (9th Cir. 2000) (Foreign Sovereign Immunities Act); Wiwa v. Royal Dutch Petroleum Co., 226 F.3d 88 (2d Cir. 2000) (Alien Tort Claims Act); United International Holdings, Inc. v. Wharf (Holdings) Limited, 210 F.3rd 1207 (10th Cir. 2000) (Securities Exchange Act); In re Air Crash Off Long Island, New York, on July 17, 1996, 209 F.3d 200 (2d Cir. 2000) (Death on the High Seas Act).

[FN315]. See Pyles v. Russell, 2000 WL 1448576 (Ky. 2000) (inheritance rights of adopted children); In re Estate of Crockett, 728 N.E.2d 765 (Ill. App. 2000) (validity of marriage); In re Marriage of Pennington, 2000 WL 182689 (Wash. 2000) (common-law marriage or "meretricious relationship"); Somerville Bd. of Educ. v. Manville Bd. of Educ., 752 A.2d 793 (N.J.Super. 2000) (child's dual domicile); In re Estate of Derricotte, 744 A.2d 535 (D.C. 2000) (decedent's domicile); Johnson v. Johnson, 617 N.W.2d 97 (N.D. 2000) (equitable adoption).

[FN316]. See Lurie v. Sheriff of Gallatin County, 999 P.2d 342 (Mont. 2000); DeFrance v. De France, 710 N.Y.S.2d 612 (N.Y.A.D. 2000); In re Succession of Moss, 769 So.2d 614 (La. App. 2000) writ denied 12/8/00; Meissner v. Meissner, 759 So.2d 225 (La. App. 2000), writ denied 765 So.2d 341 (La. 2000); Peters v. Haley, 762 So.2d 695 (La. App. 2000).

[FN317]. See Rivers v. Rivers, 21 S.W.3d 117 (Mo. App. 2000); Torres v. McClain, 535 S.E.2d 623 (N.C. 2000).

[FN318]. A higher than usual number cases have been decided during 2000 by state supreme courts involving recognition judgments from other states. For child custody cases, see Rocissono v. Spikes, 749 A.2d 592 (Vt. 2000); State v. Wooten, 756 A.2d 1222 (Vt. 2000); Hamilton v. Foster, 260 Neb. 887, 620 N.W.2d 103 (Neb. 2000); In re Adoption of N.M.B., 2000 WL 1448812 (Pa. 2000); In re Adoption of Asente, 734 N.E.2d 1224 (Ohio 2000); Diorinou v. Mezitis, ___ F.3d ___, 2001 WL 20835 (2d Cir. 2001); Whallon v. Lynn, 230 F.3d 450 (1st Cir. 2000); For child support cases, see Department of Human Services v. Frye, 754 A.2d 1000 (Me. 2000); Stout v. Stout, 534 S.E.2d 776 (W.Va. 2000) Susan H. v. Keith L., 609 NW.2d 659 (Neb. 2000); Department of Human Services v. Shelnut, 772 So.2d 1041 (Miss. 2000); Brickner v. Brickner, 723 N.E.2d 468 (Ind. App. 2000); Tepper v. Hoch, 536 S.E.2d 654 (N.C. App. 2000); State ex rel Harnes v. Lawrence, 538 S.E.2d 223 (N.C. App. 2000). For other judgment-recognition cases, see Teague v. Bad River Band of Lake Superior Tribe of Chippewa Indians, 236 Wis.2d 384, 612 N.W.2d 709 (Wis. 2000) (Indian tribal court judgment); Jewel v. Jewel, 751 A.2d 735 (R.I. 2000) (foreign divorce and remarriage); Amant v. Callahan, 20 S.W.3d 896 (Ark. 2000) (domiciliary and ancillary probate); In re Hashim, 213 F.3d 1169 (9th Cir. 2000) (public policy defense to recognition of British judgment).