Conflict of Laws M.H. Hoffheimer

Final Exam University of Mississippi

Law School

Spring 2003

General instructions

This is a closed book exam. Do not speak with any person other than the faculty member who is administering this exam until you have turned in your exam. Do not remove any exam materials, questions, or blue books from the room during the exam. After you complete the exam and turn in your blue books, you may take the questions with you when you exit the room.

The exam consists of two parts. You will have three hours to complete the exam, and recommended times are indicated for each part. Answer all questions.

Identify yourself on your blue books only by your exam number. By placing the exam number on your blue book and by submitting your blue book for credit, you are agreeing to the following pledge (as required by law school policy):

"On my honor I have neither given nor received improper assistance. And I will report any improper assistance that I am made aware of."

Definitions, terms, and conditions

Reference to the first Restatement means the Restatement [first] of the Law of Conflict of Laws (1934). The term "state" means a state of the United States. The term "country" means a sovereign power that is neither a state of the United States nor the government of the United States.

No effort has been made to achieve legal verisimilitude, and the laws that are included in questions should be considered accurate only hypothetically and for purposes of answering the questions on this exam. Do not assume any additional fact or law, except those laws studied in the course, without stating explicitly your assumption and explaining why such additional information is necessary for your answer.

PART I. SHORT ANSWERS (120 minutes for this part--or an average of ten minutes for each question)

Instructions. Write a coherent literate response to each of the following problems. Each problem in this part can be answered adequately with a response that is no longer than one paragraph.

1. On April 1, 2000, Missy, a Mississippi resident, was driving a car in the sovereign country of Neverland. Peter, a resident of Neverland, was a passenger.

Although it was getting dark, Missy forgot to turn on her car lights. When they stopped at an intersection, a truck driven by Daniel, a resident of Neverland, collided with their car. Daniel was not able to see Missy's car from a distance because her lights were off.

Everybody was injured and both vehicles were damaged.

Neverland retains a pure form of contributory negligence under which any fault on the part of a plaintiff completely bars a tort claim. Mississippi reduces but does not bar a plaintiff's claim when the plaintiff is at fault.

The Neverland statute of limitations for tort claims is six years. The applicable Mississippi statute of limitations is three years.

Neverland follows the choice of law rules of the first Restatement.

On April 25, 2003, Missy commenced a civil action against Daniel in Neverland court. Daniel moved to dismiss her claim on the ground that the statute of limitations had run. Please rule on the motion and explain.

2. Same facts. Daniel also moved to dismiss on the ground that Missy's claim was barred by her contributory negligence. Please rule on the motion and explain.

3. Same facts. Peter has commenced a civil action against Missy in Mississippi state court. Missy moves to dismiss on the ground that the statute of limitations has run. Please rule on the motion and explain.

4. Same facts. Missy commences a civil action against Daniel in Mississippi state court. Daniel moves to dismiss on the ground that the statute of limitations has run. Please rule on the motion and explain.

5. Azor, a citizen of the country of Neverland, owned a tugboat that he used exclusively in Neverland on the Neverland River. He purchased fire insurance for the tugboat from Neverland Assurance Group (NAG). Under the terms of the insurance policy the tugboat was to be operated at all times within the borders of Neverland. All premiums were to be paid in Neverland currency (the nollar). All claims for loss were to be presented to the NAG offices in Neverland City, the capital of Neverland.

The contract also provided that "All claims for loss must be presented within 12 months of the date of the loss." And it provided that "This contract shall be governed by and its provisions construed in accordance with Neverland law." A Neverland supreme court decision has upheld such contractual provisions and held that insurance claims presented in violation of such provisions are barred even when the statute of limitations has not yet run.

On March 15, 1999, Azor sold the tugboat to Azi. Azi is a citizen of Mississippi. Along with the sale of the boar, Azor assigned the insurance contract to Azi.

On March 20, 1999, the tugboat spontaneously burst into flames and sank to the bottom of the Neverland River. On April 1, 2000, Azi submitted an insurance claim to NAG. NAG denied the claim because it was not submitted within 12 months.

On April 2, 2003, Azi sued NAG in Mississippi state court on the insurance contract. (NAG did not have minimum contacts in Mississippi but it entered and appearance and forgot to raise that issue.)

The Neverland statute of limitations for written contracts is 10 years. Assume that the Mississippi general three year statute of limitations applies to the contract claim. In addition, Mississippi law provides:

The limitations prescribed in this chapter [on statutes of limitations] shall not be changed in any way whatsoever by contract between parties, and any change in such limitations made by any contracts stipulation whatsoever shall be absolutely null and void, the object of this section being to make the period of limitations for the various causes of action the same for all litigants.

Miss. Code Ann. § 15-1-5 (1995).

NAG has moved for summary judgment arguing that the Mississippi court must dismiss the claim under either the one-year suit provision or under the Mississippi statute of limitations. Azi counters that 1) the one-year suit provision is void under the Mississippi statute and void as violative of Mississippi public policy, and 2) the longer Neverland statute of limitations should apply under the valid choice of law provision in the contract selecting Neverland law to govern the contract.

Please rule on the motion and explain.

6. Earnest Dooright, currently a Maryland resident, was working in the country of Atlantis in the year 2000 for an American company. In response to an editorial in the Atlantis Times, Dooright wrote a letter to the editor. In the letter he accused the editor, Wolf Wolverton, of Anti-Americanism, racism, and bad grammar.

The Atlantis civil code makes false accusations of racism libelous in the absence of any negligence or wrongful intent, and it places the burden on the person leveling the accusation to prove the truth of the accusation.

In 2001 Wolverton commenced a civil action in Atlantis against Dooright for libel. Dooright defended on the merits and lost. The Atlantis court entered judgment against Dooright in the amount of $500,000.

In 2002 Wolverton followed Dooright to Maryland and sued Wolverton in Maryland state court asserting a cause of action based on the Atlantis court judgment. The Maryland court entered judgment for Wolverton and Dooright did not appeal.

Wolverton has now brought the Maryland judgment to Mississippi and has commenced a civil action seeking to obtain a Mississippi court judgment based on that judgment so he can more easily satisfy his claim against Dooright by executing on Dooright's assets in Mississippi. Wolverton moves for summary judgment and Dooright opposes, arguing that the underlying cause of action is deeply repugnant to United States and Mississippi public policy, specifically because it imposes liability for political speech protected by the first amendment and by the Mississippi state constitution.

Rule on the motion and explain.

7. Arbeiter, a District of Columbia resident employed by Big Virginia Power Corp., a Virginia corporation, was injured in Virginia on the job. Arbeiter presented a claim to the Virginia workers compensation board for partial disability. The Virginia workers compensation board awarded Arbeiter $500 for his initial injury but it concluded that Arbeiter had recovered fully and suffered no continuing disability of any sort.

The Virginia statute provides that workers compensation remedies provide the "exclusive" remedy and thus bar any other legal or administrative recovery.

Arbeiter has come to you for advice and asks whether he should commence either a tort or workers compensation claim in the District of Columbia. Please advise and explain.

8. Johnny and June Check got married in Jackson Mississippi and lived for ten years in Clarksdale, Mississippi. They had two children Una and Tres. One day June decided to leave Johnny. She loaded up the van with her CDs, Una and Tres, and drove to Nevada.

In Nevada June opened a successful hair styling business. She bought a home, supported her children, and began to live life to the fullest. Five years later June fell in love with Newt Waynan, and June decided it was time to get divorced from Johnny.

June sued Johnny in Nevada state court and served him in Mississippi by certified mail. Johnny still loved June. He had never been to Nevada and certainly did not want to go there just for a divorce. Accordingly he ignored the process. As a result a decree of divorce was entered against Johnny by the Nevada court. The Nevada court also awarded custody to June of Una and Tres and ordered Johnny to pay $2000 per month for child support.

For over one year Johnny ignored threatening letters from June's Nevada lawyer. Then June returned to Mississippi to sue him for the unpaid support obligations.

Johnny has come to you for advice and asks: Is he really divorced from June? Please explain.

9. Same facts. The next day Johnny calls you on the phone. June has let Una and Tres spend the day with Johnny. She is coming to pick them up in one hour. Johnny asks whether he must return them. He asks: Does June have legal custody of the children pursuant to the Nevada court order, or can he disregard that decision? Please advise and explain.

10. In March 2000, Donna, citizen of the state of West Carolina, injured Pat, citizen of the state of East Carolina in a car accident in West Carolina. Donna was 45 percent at fault, Pat was 20 per cent at fault, and Pat's car mechanic, Bob, a citizen of East Carolina, was 35 percent at fault.

Both states have a form of comparative negligence that reduces Pat's total recoverable damages by her share of fault (so long as it does not exceed the combined fault of other tortfeasors). But under the law of East Carolina tortfeasors are jointly and severally liable for all recoverable damages while West Carolina's Tortfeasor Relief Act makes tortfeasors liable only for their share of damages. In other words, under East Carolina tort law Pat can recover 80 percent of her damages from either tortfeasor, but under West Carolina law she must recover 45 percent of her damages from Donna and 35 percent from Bob.

East Carolina follows Interest Analysis and West Carolina follows the choice-of-law rules of the first Restatement.

Pam sues Donna in East Carolina state court. Her complaint itemizes her total damages as $200,000 but she reduces her prayer for relief by twenty per cent to a total of $160,000.

Donna removes the action to federal district court for the district of East Carolina. She subsequently moves the federal court, under 28 U.S.C. § 1404(a), to transfer the action to the federal court for the district of West Carolina. The court grants this motion and the action is transferred.

After transfer, Donna moves for partial summary judgment, arguing that the court must apply West Carolina law and should dismiss the claim for any damages over 45 percent of Pat's actual damages. Rule on the motion and explain.

11. Same facts. But assume further that the trial court (rightly or wrongly) applied East Carolina law, and judgment was entered against Donna in the amount of $160,000. The jury in assessing liability returned a special verdict that found that the total damages were $200,000 and found that Donna's share of fault was 45 percent and Bob's was 35 percent. Donna did not appeal and paid off the judgment in full.

Donna has now sued Bob in state court in East Carolina seeking contribution from Bob for the damages she paid to Pat that were caused by Bob's fault. Bob does not dispute that he was 35 percent at fault, but he disputes the total amount of Pat's damages. He thinks Pat was faking.

Donna moves for partial summary judgment arguing that res judicata and collateral estoppel prevent Bob from relitigating the amount of damages that Pat proved in the federal court in West Carolina. Rule on her motion and explain.

12. An Alabama state legislator concerned about budget problems in the state has an idea for a new tax that would apply to certain foreign corporations. Under his proposed tax all foreign corporations would have to pay a $1000 fee to qualify to do business in the state of Alabama. And "foreign corporations" would be defined as a corporation that 1) is not incorporated under the law of any state of the United States or under the law of the United States, or 2) does not have an office, manufacturing facility, or other place of business in the United States, or 3) is not majority owned by individuals or corporations that are citizens of the United States.

American Patriot Manufacturing, a Chinese corporation with its principal place of business in China, has criticized the proposal and promised to challenge the tax if enacted. The legislator has assigned different legal issues to different attorneys. The legislator has assigned you the issue of whether American Patriot Manufacturing would prevail if it challenged such a tax on the ground that it violated American Patriot's rights under the privileges and immunities clause. Please explain.

PART II. ANALYTIC ESSAYS (60 minutes)

Instructions. Write a coherent, literate essay in the Blue Book that responds to the following problem.

The Case of the Good Deed Doer Done Wrong (60 minutes)

Dubya Duffy lived in the country of Narnia where he volunteered his time to lead a charitable activity for young people known as the Scout Rangers. The Scout Rangers were having a convention in the neighboring country of Azlantia, and Duffy offered to take one of his Scout Rangers, Pinky, to the convention. Pinky, like Duffy, was a resident of Narnia.

On the first day of the convention, Duffy and Pinky went out to lunch and invited another Scout Ranger, Peppie, to go with them. Peppie was a citizen of Azlantia. Peppie accepted with delight, and all three got into the car that Duffy was renting. While driving Pinky and Peppie to the restaurant, in the country of Azlantia, Duffy negligently (but not wilfully or wantonly) injured both Pinky and Peppie.

Several months after the accident, Peppie's parents were killed in an unrelated accident, and Peppie moved to Oregon to live with his grandmother, Betty, an Oregon citizen. Peppie has now become a resident of Oregon.

Narnia has a statute that provides a defense of charitable immunity. Under this statute Duffy is immune to liability for all torts committed while engaged in charitable activity unless his conduct was wilful or wanton. Azlantia has rejected the doctrine of charitable immunity by statute. Oregon has also abolished charitable immunity. Narnia follows the first Restatement. Azlantia follows interest analysis for choice of law problems. Oregon also follows interest analysis.

There are two cases pending.

Case no. 1. Pinky has sued Duffy in Narnia. Duffy has moved to dismiss arguing that the Narnia choice of law rules require application of Azlantia law and Azlantia as an interest analysis jurisdiction would characterize the case as a false conflict and apply the law of Narnia, the parties' common domicile, for this loss-shifting rule.

Case no. 2. Peppie has sued Duffy in Oregon and served process on Duffy in Oregon while Duffy was vacationing in that state. Peppie has moved for summary judgement asking the court to determine that his claims will be governed either by Oregon or Azlantian law.

You are representing the Bigg Risks Insurance Company, a Delaware corporation with its principal place of business in Hartford Connecticut. Duffy has an insurance policy with your client, and your client is trying to decide whether to settle the claims. It asks you for a legal analysis of the cases pending in the Narnia and Oregon courts that explains what law those courts will apply. Please write the legal analysis.