Conflict of Laws M.H. Hoffheimer

Final Exam University of Mississippi

Law School - Spring 1998

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)

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. Mr. Plantoff, resident of the state of West Dakota went on a car trip to the state of East Dakota, where he collided with a car driven by Mr. Devadanter, a resident of East Dakota. Devadanter was 99 per cent and Plantoff was one per cent at fault in causing the accident.

Under the law of East Dakota, contributory negligence is a complete bar. Moreover, in rejecting recent arguments that it should adopt comparative negligence, the East Dakota Supreme Court declared that comparative negligence is fundamentally unjust and contrary to strong East Dakota public policy. In contrast, West Dakota has adopted comparative negligence under which the plaintiff's fault reduces recoverable damages but does not bar a cause of action.

Under the law of East Dakota, a prevailing party in a personal injury action is entitled to recover attorneys fees. Under the law of West Dakota, a prevailing plaintiff in a personal injury action is not normally entitled to recover attorneys fees.

The state of East Dakota follows interest analysis in choice-of-law cases. The state of West Dakota follows the traditional territorial approach of the first Restatement in choice-of-law cases.

Plantoff brings a civil action against Devadanter in West Dakota state court. Devadanter moves to dismiss arguing that contributory negligence applies and further moves for attorneys fees. Rule on the motions and explain.

2. Same facts. But assume that Plantoff recovered a judgment on his action in West Dakota. Plantoff takes the judgment to East Dakota and commences execution proceedings to enforce it. Devadanter appears in the execution proceedings and moves to dismiss. He claims the judgment does not prevent him from raising the defense of contributory negligence, arguing that the judgment need not be recognized because West Dakota violated full faith and credit when it entered the judgment and because enforcing the judgment based on comparative negligence would be repugnant to East Dakota strong public policy. Rule on Devadanter's motion and explain.

3. Bob Worker, a resident of the District of Columbia, was employed by Bigcorp, a Maryland corporation with its principal place of business in Baltimore. Worker worked at Bigcorp's factory in Arlington, Virginia which manufactured fireworks and explosives.

One afternoon after work, Worker decided to light up a cigarette while still inside the factory. Smoking was strictly prohibited by company rules and by applicable safety regulations. While the match was still burning, Worker carelessly dropped it onto some explosive material. He was injured as a result.

Worker filed a claim for workers compensation in Virginia for the injuries he sustained. The Virginia workers compensation tribunal ultimately ruled that Worker was not entitled to workers compensation under the Virginia statute because he was not injured "in the scope of employment" as required under the statute. The decision was affirmed on administrative appeal and by the Virginia courts.

Worker subsequently brought another claim for workers compensation for the same injury in the District of Columbia. The defending employer appeared before the District of Columbia workers compensation tribunal and moved to dismiss the claim on grounds of res judicata and under the full faith and credit clause, arguing that the claim had already been presented and rejected in Virginia. Worker argued that res judicata and full faith and credit should not bar his claim because he was not represented by counsel in the Virginia proceedings and because he did not consider his choice-of-law options at that time.

You are the administrative judge. Rule on the motion to dismiss and explain.

4. You are appearing before the Mississippi Supreme Court in oral argument in a choice-of-law case. Chief Justice Praether has noticed that several Mississippi cases refer to Leflar's Better Rule approach to choice of law. She asks you what the rule is and whether Mississippi follows it. Please explain.

5. On June 1, 1997, Elvira Presley, citizen of Mississippi, agreed with Betty Bama, citizen of Alabama, to cut Bama's grass on July 1, 1998 (over one year later) on Bama's property located in Alabama. The contract was oral and was entered into during a conversation that took place in Mississippi. The parties agreed orally that Bama would pay Presley $200 in Alabama after Presley cut the grass. They further agreed orally that the law of Alabama would govern the contract.

Bama subsequently found someone willing to cut her grass for less money and informed Presley that the deal was off. Presley wants to sue Bama for breach of contract.

You have researched the law and discovered that Mississippi's general statute of frauds requires that contracts that cannot be performed within 15 months must be in writing but that Alabama's version requires that contracts that cannot be performed within 12 months must be in writing. Alabama follows the traditional territorial approach of the first Restatement.

Please explain whether the statute of frauds would be recognized as a defense in a civil action for breach of contract in Alabama.

6. Tom Frankfurter, a resident of Lafayette County, Mississippi, entered into a franchise agreement with Big Dogs, Inc., a Delaware corporation with its principal place of business in New Jersey. The terms of the agreement were contained in Big Dogs standard printed franchise agreement, which contained a few blanks in which Mr. Frankfurter's name and other details were inserted.

Under the terms of the form agreement, the corporation provided certain equipment and services. These included a large cart with an insulated heating compartment surmounted by an umbrella with the Big Dogs logo. Under the agreement Mr. Frankfurter was obligated to purchase Big Dogs brand hotdogs, mustard, and napkins. He also agreed to pay the corporation $200 per month for the right to sell Big Dogs exclusively in Lafayette County, Mississippi.

The parties agreed that the franchise relationship would continue for at least three years. Moreover, the contract provided that Mr. Frankfurter could not engage in any other retail food sales in Lafayette county for three years. The contract also contained numerous clauses in small print. Clause eight provided: "All litigation involving disputes under this contract must be commenced only in a court of proper jurisdiction in the state of New Jersey and not elsewhere." Clause nine provided: "This contract shall be governed and interpreted according to the law of New Jersey." Assume that according to the law of New Jersey forum-selection clauses are enforceable.

Big Dogs sent Mr. Frankfurter some bad hotdogs. Through no fault of Mr. Frankfurter's, a customer got very sick as a result of eating one of the bad hotdogs.

Mr. Frankfurter commences a lawsuit in Chancery Court in Mississippi to rescind the contract. The corporation has moved to dismiss under the forum selection clause. You are the Chancellor. Rule on the motion and 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 Confusing Car Crash (60 minutes recommended)

A new state, the state of Confusion, has been properly admitted to the United States pursuant to the Constitution. On April 1, 1995, Pam Patterson was injured in a car accident in the state of Confusion. The accident occurred when a pickup truck driven by Don Daniels crossed the center lane and collided with her car. Daniels was completely at fault. Patterson and Daniels were both residents of the state of Confusion at the time of the accident.

As a result of the collision, Patterson's car was damaged and she lost the use of it for three weeks. She suffered minor cuts and bruises and has suffered continuing back pain. She has already spent five hundred dollars on medical tests and therapy. And she has been told that the bad back pain may continue for the rest of her life and may limit her employment opportunities.

After consulting with a lawyer, Patterson has decided that she would be satisfied with a total of $80,000 damages for the collision. When Patterson called Daniels by phone to demand payment for her damages, he just laughed and said, "Sure thing, Baby. When you-know-where freezes over." Daniels was in fact uninsured at the time and is unable to pay any claim.

Patterson did nothing for one year. But in early 1996, she visited Mississippi, fell in love with Bub Snopes, and on April 1, 1996 she moved to Mississippi, planning to stay in the state and hoping to marry Snopes.

At the time of the crash, Patterson owned six cars and had six insurance policies with Everystate Insurance Co. Under the terms of the policies (as required by state of Confusion statutes), Everystate agreed to provide uninsured motorist coverage of up to $15,000 per accident for any damages inflicted by a tortfeasor who was neither insured nor able to pay the claim. Everystate Insurance Co. is a Delaware corporation with its principal place of business in Connecticut but it does extensive insurance business in every state and is qualified to do business in both the state of Confusion and Mississippi. Although Patterson's insurance policies covered losses no matter where they occurred, she applied for the policies in the state of Confusion; the application was accepted and the policies were issued in the state of Confusion by an authorized agent of the corporation; and each policy stated that it was governed by the law of the state of Confusion.

Each of her six policies in effect at the time of the crash in 1995 specifically provided that there could be no stacking of the uninsured motorist coverage. In other words, the polices prohibited her from adding together the $15,000 limit mentioned in all six policies to get a total of $90,000 but limited her total recovery to $15,000 for the losses sustained in the 1995 accident.

The law of the state of Confusion permits insurance companies to prohibit stacking by agreement. In contrast Mississippi courts have repeatedly held as a matter of Mississippi public policy that uninsured motorist coverage in separate policies may be stacked and that insurance companies may not prohibit such stacking by language in the insurance contract.

The statutes of limitations for both torts and contracts in Confusion are two years. Mississippi's statutes of limitations for torts and written contracts are three years or longer. The state of Confusion adheres to the traditional territorial approach of the first Restatement.

After both Daniels and Everystate refused to respond to polite letters, on April 3, 1997, your law firm commenced a civil action against both Daniels and Everystate in Mississippi Circuit Court asserting a tort claim against Daniels and a contract claim against Everystate and demanding total damages of $80,000.

All defendants effected a removal of the action to the United States District Court for the Northern District of Mississippi. The defendants filed motions to dismiss on various grounds or to transfer the case to the federal court for the District of Confusion pursuant to 28 U.S.C. § 1404(a) and § 1406.

The federal judge concluded there was no proper personal jurisdiction over Daniels in Mississippi and thus dismissed that claim. Even though there was jurisdiction and venue in the action against the insurance company, the judge decided to grant the motion to transfer the action to the district of Confusion in the interest of justice and for the convenience of witnesses and parties pursuant to section 1404(a).

Your law firm continues to represent Patterson after the transfer, and on March 29, 1998, you commenced a new action in the District of Confusion against Daniels. The federal court for that district has now consolidated the transferred case against Everystate with the case against Daniels.

The defendants have filed motions to dismiss. Daniels moved to dismiss the tort claim arguing it is barred by the Confusion statute of limitations. Everystate moved to dismiss the contract claim arguing it is either (a) barred by the Confusion statute of limitations or (b) barred by the limitations law that Mississippi would apply. Everystate also moved to dismiss the contract claim in excess of $15,000 arguing that stacking may not be permitted either because Confusion law applies, because Mississippi choice-of-law laws would not permit stacking here, or because the Constitution so requires.

While these motions are pending, the defendants have offered to settle all claims for $30,000. Mr. Biggchiese, a partner in your firm, is trying to decide whether to recommend settling to the plaintiff and has asked you to explain what the federal court will likely do in ruling on the motions. Please explain and discuss fully.

B. The Case of the Bad Apple (60 minutes)

Dave and Pam Apple were residents of Lamarville, Mississippi. In 1990 they were married in Memphis, Tennessee at the home of Pam's parents. The marriage was valid according to the law of Tennessee. After the marriage the couple returned to Lamarville where they lived together for five years.

In 1995 Dave left, leaving behind a note to Pam that said, "I just can't take it anymore. Forgive me if you can." Dave then hitchhiked to the state of North California where he rented a mobile home. After living in that state for over six months, he commenced divorce proceedings in 1996 in the North California Court of Divorces and Separations. Even though Pam had never set foot in the state of North California or had anything to do with it other than being married to Dave, Dave served her with process by sending her a summons and copy of the divorce petition by certified mail as authorized by North California statute. In addition to praying for a divorce, Dave's petition asked the court to declare that all of his alimony and support obligations were discharged by paying Pam the lump sum of $2000.

Pam ignored the process and did not enter an appearance, and the North California court entered a final decree declaring Dave and Pam divorced and declaring that Dave's total alimony and support obligations were discharged upon the payment of $2000.

After the divorce became final, Dave fell in love with and married his next door neighbor in North California, Bob (a man). The marriage took place in North California in accord with North California law, which recognizes such same sex marriages.

After the marriage, Dave and Bob traveled back to Lamarville. Dave offered Pam $2000. She accepted the money but did not agree that his obligations were discharged by the payment.

Two days after arriving in Lamarville, Dave ate a poisoned apple and died. He ingested the apple in Lamarville but actually died in Memphis, Tennessee during a shopping trip.

Dave's assets at death included Blackacre Plantation, comprising over 2000 acres of prime farmland outside Lamarville.

Bob has filed a document with the Mississippi Chancery Court that he claims is a will. The document was executed at the time of his putative marriage to Bob in North Carolina. It is entitled "Marriage Contract, Partnership Agreement, and Last Will and Testament." Paragraph four declares: "It is the intention of the undersigned that all of their property be held jointly and in trust for one another and that at the time of either of their deaths, the survivor shall be entitled to all the decedent's property interest. Each of the undersigned also expressly devises all real property to the other in the event of his death. And Dave specifically devises Blackacre Plantation to Bob."

The document was typed and signed at the bottom by Dave and Bob. The document was signed in North California and constituted a valid will under the law of North California. But you may assume that the document does not comply with the requirements for a valid will under the law of Mississippi.

In addition to the claim based on the putative will, Bob also claims that even if Dave died intestate, Bob is entitled to Blackacre Plantation under the Mississippi statutes of intestate succession as Dave's surviving spouse.

Pam has come to you for legal advice. She wants to know 1) whether the document will be recognized as a valid will; 2) whether Bob will be entitled to Blackacre Plantation or any other property as Dave's surviving spouse; and 3) whether the North California court decree bars any of her rights to support or alimony over $2000. Please write an opinion letter responding fully to her questions.