Conflict of Laws M.H. Hoffheimer

Final Exam University of Mississippi

Law School

Spring 1999

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 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. One day Mr. Driver and Ms. Passer, residents of state A, decided to visit the casinos in a neighboring state, state B. They planned to have dinner at the casinos, have a few drinks, and return to state A before midnight.

They drove to the Big Bang Casino, owned and operated by a corporation incorporated in state B with its principal place of business in Nevada. Once they got to the casino, however, they started gambling, and as long as they were gambling, the casino provided free drinks. They ended up staying longer than they expected and were tired and drunk when it came time to drive home to state A. As they were picking up their car in the casino parking lot, the parking lot attendant remarked, "Gee, you guys seem pretty drunk. You might have a wreck. It would be better if you spent the night in the casino hotel."

On the trip back home, at about 3:30 a.m., while Driver was driving the car in state B, he fell asleep at the wheel. The car smashed into a tree, causing serious injuries to Passer's left leg.

When Driver's insurance company refused to pay Passer's claims, Passer commenced a civil action against Driver in state court in state A for personal injuries.

Under the law of state A assumption of risk is no longer a separate defense, but state A does provide that the plaintiff's recoverable damages are reduced by the plaintiff's share of fault. In contrast, state B still recognizes assumption of risk as a complete defense in a tort action. The supreme court of state B has recently held that a passenger who knowingly rides with a drunk driver assumes the risk of any resulting injuries.

Driver moves for summary judgment arguing that state B's law of assumption of risk governs and provides a complete bar to recovery.

State A follows the traditional territorial approach to choice of law.

Rule on the motion and explain.

2. Same facts. At the hearing on the motion for summary judgment, the court asks whether there will be admissible evidence of the plaintiff's awareness of the risks involved in riding with the driver. The defendant argues that the statement of the parking lot attendant is admissible.

Under the law of evidence in state A the defendant's testimony about such an out-of-court statement would be hearsay (not subject to an exception), but under the law of state B it would be admissible under several exceptions to the hearsay rule.

Would the defendant be permitted to testify about the parking lot attendant's statement at a trial in state A? Please explain.

3. Same facts. But instead assume state A follows interest analysis in choice-of-law determinations. Would the court apply state A's comparative negligence or dismiss the action under state B's law of assumption of risk? Please explain.

4. Same facts. But instead assume state A follows Leflar's better rule approach in choice-of-law determinations. Would the court apply state A's comparative negligence or dismiss the action under state B's law of assumption of risk? Please explain.

5. Same facts. Assume state A grants defendant Driver's motion for summary judgment. Passer then commences a civil action in state B court against Big Bang Casino for the same injuries on the theory that the casino negligently served alcoholic drinks to Driver after he was intoxicated.

Under the case law of state A, an innkeeper is liable for injuries proximately caused by inebriated guests. Under the law of state B, an innkeeper is not civilly liable for injuries inflicted by guests.

The defendant Big Bang Corporation moves to dismiss arguing 1) the claim is barred by res judicata and 2) state B should apply state B law and not recognize the cause of action. State B follows interest analysis. Please rule on the motion and explain.

6. Same facts. Assume the trial court denied the motion in the previous question and announced that it will recognize a cause of action under state A law against the casino for negligently serving drinks to drunk patrons. The defendant again moves for summary judgment on the ground that the negligence claim is barred by assumption of risk. The plaintiff and defendant stipulate that the casino is entitled to raise the defense and that state B's law of assumption of risk governs. But even though state A already found that assumption of risk barred plaintiff's claim against Passer by finding that she assumed the risk, the plaintiff denies that she assumed the risk and wants to litigate the issue again in state B court.

The defendant casino argues, however, that state A's judgment against plaintiff prevents relitigation of the defense of assumption of risk. Rule on the motion for summary judgment and explain whether plaintiff can relitigate the issue of whether she assumed the risk.

7. Rick and Roy, two male domiciliaries of Alabama, went for a vacation to the country of Zazaland. Rick and Roy were homosexuals, and while they were in Zazaland, Rick asked Roy to marry him. Roy agreed to marry Rick, and Rick gave Roy a valuable engagement ring. They decided to wait till the following spring to get married.

But on the flight back to Alabama, Rick flirted with the flight attendant and Roy became furious and said he would never marry Rick.

The law of Zazaland recognizes homosexual marriages and also recognizes a cause of action for breach of a contract of marriage. A Zazaland statute fixes a penalty for breaches of contract in cases where there is no monetary loss in an amount equal to one thousand U.S. dollars. Assume that under Alabama law homosexual marriages are void and that homosexual conduct is criminal. Assume that Zazaland and Alabama both follow the traditional territorial approach of the First Restatement.

Rick commences a civil action in Alabama court for breach of contract based on Zazaland law. What are Roy's best defenses?

8. Same facts. Rick has asked for the engagement ring back, and Roy has refused. Assume that under the law of Zazaland a gift of an engagement ring is a completed gift at the time of transfer of possession but that under the law of Alabama ownership of an engagement ring only vests at the time of marriage. Rick has commenced a civil action in Alabama state court demanding the return of the ring.

You are the judge. Who gets the ring and why?

9. Same facts. After Roy repeatedly violated court orders to cooperate in discovery, the Alabama court entered judgment for Rick in the amount of $1000.00 and ordered Roy to give Rick the ring.

Roy has moved all his assets to Mississippi. Six years later Rick found Roy in Mississippi and has commenced a new cause of action in Mississippi state court on the Alabama money judgment and moved for summary judgment, attaching a certified copy of the Alabama pleadings and judgment.

Assume that the time for enforcing the judgment has expired under the law of Alabama and that Rick did nothing to revive the judgment in Alabama. In other words, Alabama courts would dismiss an action on the judgment as time barred under the Alabama statute of limitations. But the Mississippi statute for enforcing foreign state judgments provides: "All actions founded on any judgment or decree rendered by any court of record without this state shall be brought within seven years after the rendition of such judgment or decree, and not after." Miss. Code. Ann § 15-1-45.

The defendant moves to dismiss for two separate reasons: 1) full faith and credit requires application of the Alabama statute of limitations; 2) the claim is time barred under Mississippi law. Please rule on the motion and address both reasons.

10. Same facts. Assume that the Mississippi court does not dismiss the claim (perhaps erroneously) as time barred. The defendant moves for summary judgment on the ground that enforcing the Alabama judgment is against Mississippi law and contrary to Mississippi public policy. The plaintiff argues that the full faith and credit clause requires Mississippi to recognize a judgment from another state even if it violates Mississippi law or policy.

Rule on the motion and identify the specific case law or statutory authorities that best support the positions of the defendant and the plaintiff.

11. Same facts. Assume the Mississippi court (perhaps erroneously) enters a judgment on the Alabama judgment that is final. The plaintiff returns to Alabama and attempts to execute the Mississippi judgment in Alabama.

The defendant moves to dismiss execution proceedings arguing that the underlying claim is time barred in Alabama. Rule on the motion and explain.

12. Hal and Betty were married and resided in Kentucky for eight years during which time they had three children. In 1996 the couple decided to separate. Hal moved to Georgia and Betty moved to Mississippi. The children sometimes stayed with Hal and sometimes with Betty. They were sent back and forth on a bus. Betty has never been in Georgia and has no contacts with that state other than the fact that her children spend time there with their father.

In 1997 Hal became a resident of Georgia. In 1998 he commenced a civil action in Georgia state court for divorce and for custody of the children. Betty was served by long-arm service of process. She had knowledge of the Georgia proceedings but refused to participate. The Georgia court entered a decree of divorce ans awarded custody of the children to Hal.

Betty has come to you for legal advice in Mississippi. She asks 1) is the Georgia divorce decree valid? and 2) is the Georgia decree awarding custody valid and will it be recognized by Mississippi courts? 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 Crazy Crash

Aaron resided in the country Zazaland. In 1980 he married Beth, a resident of Zazaland. The marriage was celebrated in Zazaland. In 1990 Aaron and Beth separated but did not get divorced. In 1992 Aaron married Cathy, a resident of Zazaland. Their marriage was celebrated in Zazaland. Under the law of Zazaland, the second marriage was valid. Zazaland law also provides that any prior marriage is automatically terminated upon the death or remarriage of either party to the marriage.

In 1998 Aaron and Cathy visited the United States for a vacation. They drove to Mississippi to see Emerald Mound. While Aaron was driving the car with Cathy as a passenger, he ran off the road and struck a tree. Cathy was badly injured. Her actual damages exceed $50,000.

Aaron had declined any insurance coverage from the rental car company because he was covered by Zazaland Insurance Corp. Under the terms of his contract Zazaland Insurance Corp., "all claims must be presented to and any lawsuits seeking to recover for insured losses must be filed within one year of the date of the loss or injury."

The law of Zazaland recognizes a defense of spousal immunity as a complete bar in civil litigation brought by one spouse against the other. The Zazaland High Court has explained that the immunity in rooted in fundamental principles of justice and is designed to deter immoral litigation and to protect family unity.

Zazaland has a guest statute that prevents a guest from recovering damages from a host driver unless the driver was wanton or reckless in inflicting injuries. The parties concede that Aaron may have been negligent but was not wanton or reckless.

The law of Zazaland also has a statute that limits damages for torts to $1000 in any case where the tortfeasor was insured at the time of the tort. Aaron was insured at the time of the tort. Legislative history in Zazaland reveals that this statute, promoted by the insurance industry, was hoped by many Zazaland legislators to eliminate unnecessary litigation and to reduce insurance costs. As part of the legislative compromises that led to the cap on damages, Zazaland also enacted a statute that permits direct actions against tortfeasors' insurance companies by injured persons.

One year and one month after the accident, Cathy commences a civil action against Aaron and Zazaland Insurance Corp. in Circuit Court in Mississippi demanding $100,000 damages and seeking to hold each defendant liable jointly and severally for the judgment.

Assume that Mississippi does not recognize spousal immunity and does not have a guest statute. Nor does it permit direct actions against insurance companies.

The tort claim is not yet time barred by either the Mississippi or Zazaland statutes of limitations. But Zazaland enforces contractual agreements reducing times for litigating claims, and a Zazaland court would dismiss the action pursuant to the agreement in the insurance contract. In contrast, Mississippi law provides: "The limitations period prescribed [by statute] shall not be changed in any way whatsoever by contract between parties, and any change in such limitations made by any contracts stipulations 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.

Zazaland follows the First Restatement.

Aaron moves to dismiss the tort claim on two grounds: 1) spousal immunity and 2) the Zazaland guest statute. He also moves for an order limiting damages against him to no more than $1000.

Zazaland Insurance Corp. moves to dismiss the direct action statute under Mississippi law. It also moves to dismiss pursuant to the contractual agreement that all litigation must be commenced within one year and argues that it would be unconstitutional to apply the Mississippi statute extending the legal obligations of the defendant insurance company beyond what it agreed to in the contract.

Rule on the motions and explain.