Conflict of Laws M.H. Hoffheimer

Final Exam University of Mississippi

Law School

Spring 1996

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 (60 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. Ben Driver, resident of the state of East Virginia, was employed as a truck driver by the Widget Distribution, Corporation, a corporation incorporated with its principal place of business in the state of West Carolina.

On June 6, 1994, while driving the Widget Distribution Corporation truck, Driver skid off the road and was seriously injured. Driver filed a claim for workers compensation with the Workers Compensation Board of West Carolina. He presented evidence from his physician that he was entitled to permanent partial disability.

Under the law of West Carolina, in order to qualify for workers compensation, an injury must be suffered by a person who is 1) an employee and 2) working in the "course of employment."

Driver's employer conceded that he was an employee. But it argued that the injury was not sustained while he was working in the "course of employment." It introduced evidence that Driver was not driving on the scheduled route on his employer's business but was rather driving to a casino over 60 miles distance from any of his scheduled deliveries. It further introduced evidence that Driver was intending to meet one Gloria at this casino for amorous purposes not related to his employer's business.

After hearing all the evidence, the West Carolina Workers Compensation Board ruled that Driver was not entitled to an award of workers compensation because he was not acting in the scope of his employment at the time of the injury. Driver did not appeal this ruling, which consequently became final and binding on the parties under the law of West Carolina.

Six months later, Driver filed a claim for workers compensation before the Labor Compensation Agency of the State of East Virginia again seeking an award of permanent partial disability for the injuries suffered as a result of the accident of June 6, 1994. The Widget Distribution Corporation asked the agency to dismiss this second claim. The employer argued that because the claim had already been presented to and decided by the workers compensation agency in another state and had become a final decision, full faith and credit required that the claim be dismissed.

Please rule on the motion and explain.

2. California, at long last, has divided into two states, Northern and Southern California, and both have been admitted to statehood.

Peterson and Presley, residents of Northern California, were killed when an airplane in which they were passengers crashed during take off. The crash occurred in the state of Southern California.

The facts are in dispute. There is some evidence that the crash was due to the negligence of the pilot, Don Donaldson, a resident of the state of Southern California.

Northern California limits damages in actions for wrongful death to $100,000. Southern California has no such limit. Northern California has adopted the First Restatement approach in conflict of laws cases. Southern California has adopted governmental interest analysis.

Peterson's estate commences a civil action for wrongful death against Donaldson in federal court for the appropriate district in the state of Southern California, invoking diversity of citizenship jurisdiction, and demanding damages in the amount of $2,000,000.

Donaldson moves for partial summary judgment, arguing that the law of Northern California applies and that damages cannot exceed $100,000. Rule on the motion and explain.

3. Same facts. The estate of Presley commences a civil action against Donaldson in state court in the state of Northern California demanding damages in the amount of $3,000,000. Donaldson moves for partial summary judgment, arguing that under the law of Northern California, damages in the case cannot exceed $100,000. Rule on the motion and explain.

4. Seth, an Orthodox Jew and resident of New York, was offered a job teaching the History of the Old Testament at the University of Southern Mississippi. For some time Seth had planned to marry his niece. He knew that most states prohibit as incestuous marriages between uncle and niece. Accordingly, the summer before he moved to Mississippi, he and his niece took a trip to Israel where they were married in ceremony that was lawful under Israeli law.

The couple then moved to Mississippi. After some time, they had a son Enosh. Many years later Seth died intestate. His estate is being administered in Mississippi. Does the mother of Enosh have a right to share in the estate as Seth's "surviving spouse"? Explain.

5. The state of New York has decided to raise revenues by imposing a special "hospitality tax" on persons who stay in New York hotels. This tax adds 25% to the total hotel charges and is collected by the hotel.

After a year in force, this tax proved very unpopular with influential New York businessmen who had to travel extensively within the state. They lobbied the legislature either to exclude New York residents from this tax or to allow New York residents a full refund of the hospitality tax.

The New York legislature decided neither to exclude New York residents from the tax nor to allow them a direct tax refund. But the legislature did enact a law that provides that any amount of hospitality tax paid by New York residents will be subtracted as a credit from their state income tax. Since virtually all New York residents affected by the hospitality tax pay large amounts of state income tax, this in effect gives the in-state residents a delayed refund. At the same time, the New York legislature refused to allow any similar credit towards the New York state income tax owed by non-residents.

The state of New Jersey has commenced a civil action against the state of New York. The plaintiff state pays for thousands of its state employees to visit New York each year, and it complains that the hospitality tax violates its rights under the equal protection clause of the Constitution. You are clerking for Justice Souter, who asks whether this is a viable claim. Please advise.

6. Same facts. Big X Corporation, a corporation engaged in freight and shipping of merchandise, with its place of incorporation and principal place of business in Memphis, Tennessee, incurs major costs as a result of the New York hospitality tax being levied on its drivers who stay at motels in New York. The corporation commences a civil action against the state of New York complaining that the hospitality tax is in violation of the privileges and immunities clause. You are clerking for the judge, who asks your opinion on the merits of the plaintiff's claim. Please explain.

PART II. ANALYTIC ESSAYS (recommended two hours for this part)

Instructions. Write coherent, literate essays in the Blue Book that respond to the following problems.

A. The Case of the Uninvited Visitor (60 minutes recommended)

Dobbs is a resident of the country of Narnia, a small island nation in the Caribbean. On May 6, 1992, he went fishing in the Gulf of Mexico on his boat "The Nina." He got caught in a hurricane and got lost. During a lull in the storm, he spied a harbor on the coast and piloted his vessel into it. There he fastened "The Nina" to a dock. Dobbs believed that the dock was in Narnia, but in fact the storm had driven him off course, and he was now in the country of Atlantis.

As Dobbs docked the boat, Philippe, a resident of Atlantis came running up. Philippe informed Dobbs that he owned the dock, and he insisted that Dobbs remove "The Nina" from the dock. Philippe knew that the hurricane would resume, and he was worried that tying the vessel to the dock would cause major damage to the dock in the storm.

Dobbs refused to move the boat. When the storm returned, it forced the vessel to pull at the ropes that secured it to the dock with such force that the dock was seriously damaged.

Dobbs only later learned that he was not in Narnia. He caused about $2000 damages to the dock and has offered to pay Philippe for the costs of repairing the dock.

Under the law of Atlantis, the owner of real property (including a dock) may exclude all others for any reason, and under Atlantian law damages for trespass include punitive damages whenever actual damages are proven. In contrast, under the caselaw of Narnia, the owner of a vessel has a privilege to enter another's real property under the emergency circumstances of this case, but such a party remains liable for actual damages caused by the use of the dock.

The statute of limitations for trespass actions in Atlantis is three years. The statute of limitations for trespass actions in Narnia is five years. Narnia has enacted a borrowing statute that is verbatim identical to the Mississippi borrowing statute (except that it substitutes the word "country" for the word "state").

Under the law of Atlantis attorneys fees are recoverable as a matter of right in any case where any amount of punitive damages is awarded by the jury. But under the law of Narnia, attorneys fees may be awarded only when there is proof of malice or bad faith litigation. There is no allegation of such malice or bad faith.

Three and a half years after the cause of action arose or accrued, Philippe sued Dobbs in Narnia for trespass and demanded punitive damages and attorneys fees. Dobbs has moved for summary judgment on the ground that the action is barred by the statute of limitations. In the alternative, he moves for partial summary judgment on the issue of punitive damages and attorneys fees, arguing that in this case Narnian law applies to the issue of punitive damages and fees and provides a defense.

Narnia follows the First Restatement. Atlantis follows interest analysis. You are the judge. Please rule on the motion, addressing all alternative grounds, and explaining your decision fully.

B. The Case of the Bad Binocular Businessman (60 minutes)

Fritz Fieraugen, adult male resident of Oregon, was a spendthrift and accordingly adjudicated a spendthrift and incompetent by a court in Oregon. As a matter of Oregon law, this adjudication meant that all contracts entered into by Fieraugen are voidable.

Because Fieraugen's legal disability became widely known on the west coast, he decided to try to do business in a different region and traveled to Mississippi. In Mississippi, Fieraugen approached Pat Plinky, a Mississippi resident, who owned and operated a chain of sporting goods stores. Fieraugen showed Plinky a sample pair of high quality binoculars with a retail value well over $100 and offered to sell similar binoculars wholesale to Plinky for only $50 per pair. Plinky eagerly ordered 1000 pairs of the binoculars and gave Fieraugen a down payment of $2000. Plinky filled out and signed the order form provided by Fieraugen. Since Fieraugen had purchased this order form at a business supply store in Tennessee, the form provided that "all disputes arising with respect to this contract shall be governed by Tennessee law."

Fieraugen took the down payment to the Big Duck casino, where he promptly lost all his money. He then returned to Oregon to await service of process.

Plinky was worried about getting personal jurisdiction over Fieraugen; therefore, he commenced three identical civil actions. He commenced two in the appropriate state trial courts in Mississippi and Tennessee. He also commenced a civil action in federal court in Oregon, invoking the federal court's diversity of citizenship jurisdiction.

After commencing the federal action in Oregon, Plinky moved the federal court to transfer the action to a federal district court in Mississippi under 28 U.S.C. § 1404(a). The federal court granted Plinky's motion, and the action is now pending in federal court in an appropriate district in Mississippi.

The complaints filed in all three actions are identical, and each contains two separate causes of action. First, they allege that Fieraugen breached his contract and demand actual damages. Second, they allege fraud and demand actual and punitive damages.

Under the local law of Oregon, Fieraugen has a defense to the action for breach of contract. Under the local law of Oregon, he also has a defense to the fraud action, because Oregon courts have decided that allowing recovery under such a theory would completely frustrate the purposes of the Oregon spendthrift protection. Assume that under the local law of both Mississippi and Tennessee the defendant has no spendthrift defense to either the contract or fraud claim.

Oregon follows interest analysis. Tennessee follows the First Restatement approach to contracts problems and the Second Restatement approach to torts.

Discovery has been completed in all three cases. Fieraugen's lawyer has retained you as an expert in Conflict of Laws. First, the lawyer wants to know what law will apply in each of the three cases if the defendant moves for summary judgment. Evaluate and explain the probable outcome of a motion for summary judgment on both the contract and torts claims in each court.

Second, the lawyer wants to know, if the defense gets the action disposed of by way of a summary judgment in one court, whether such a judgment will be binding on the other courts. Please advise and explain your answer fully.