Conflict of Laws M.H. Hoffheimer

Final Exam University of Mississippi

Law School

Spring 1995

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 denotes Restatement [first] of the Law of Conflict of Laws (1934). The term "state" denotes a state of the United States. The term "country" denotes 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 (recommended one hour 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. Alfredo, an Italian citizen, owns and lives at his home, named "Villa Elena," which is real property located in Italy. One day Taylor, citizen of Mississippi, visits Alfredo at Alfredo's home in Italy.

After drinking several bottles of wine, Taylor begins to offer to buy Alfredo's house. He offers Alfredo $1,000,000 for the house and property. Alfredo agrees, and they shake hands.

Taylor promptly drafts a contract for the purchase and sale of the property which they both sign. The contract provides that it is to be governed by the law of Mississippi.

Then Taylor also drafts a deed transferring the property, and Alfredo signs it, too. In return, Taylor gives Alfredo a check (on a Mississippi bank) payable to Alfredo's order in the amount of $1,000,000.

The deed, signed and delivered, comports with the formalities of the real property law of Mississippi. But assume that under the law of Italy such a document must be notarized. Assume that Italy follows the First Restatement approach to resolving choice of law problems.

Who owns Villa Elena and why? In your answer, explain whether it will make a difference whether an action to determine title to the property is brought in Italy or Mississippi.

2. Same facts. But assume that Taylor learns that Villa Elena sits on valuable mineral rights, which make the property worth more than $3,000,000. He wants to sue Alfredo for breach of contract and recover the difference between the contract price and the market value of the property--$2,000,000.

Assume that the contract, like the deed, is not valid under the law of Italy because it has not been notarized.

Taylor has come to you for advice. Please tell him whether he has a cause of action for breach of contract. Explain how both courts in Mississippi and Italy would decide whether there is a valid contract.

3. Same facts. But for some reason, Taylor commences an action against Alfredo for breach of the contract in California, and Alfredo does not challenge the California court's jurisdiction. Assume that California follows the comparative impairment approach to conflicts. Explain what that approach is and explain how it would resolve the validity of the contract.

4. Same facts. But it turns out that the property is really worth only $500,000 and Taylor wants to get out of the contract and stops payment on the check as soon as he returns to Mississippi.

After the check has been dishonored, Alfredo sues Taylor in Italy. Taylor asks you whether, if he refuses to return to Italy to litigate and the Italian court enters judgment, such a judgment could be enforced by courts in the United States. Please explain whether enforcing such a judgment would violate his due process rights.

5. Same facts. Perhaps disregarding your advice given in response to the last question, Taylor has now ignored the legal process from the Italian court and judgment has been entered against him. The judgment has become final under the law of Italy.

Taylor brings you all his files. All of the pleadings and papers filed in the lawsuit were in Italian. Moreover, your research discloses that under Italian law, there was no opportunity for pretrial discovery. You also learn that, because Taylor did not appear, the Italian court conducted an ex parte hearing. At the hearing Alfredo gave his version of the facts without taking any oath. And under Italian law Alfredo's unsworn statements were not subject to any cross examination. At the hearing the court also received hearsay testimony.

The Italian court entered judgment for Alfredo in the amount of $1,000,000. Alfredo has now come to Mississippi and commenced a civil action to enforce the Italian judgment. Assume that Taylor had good defenses to the check under the law of Mississippi. Alfredo's lawyer offers to settle the case for $750,000. Assuming he has assets, what do you advise Taylor to do and why?

6. In 1993, Mr. Able, resident of Mississippi, decided to go on a trip to Europe for his summer vacation. While he was in the airport of the country of Andorra, on June 1, 1993, Able got into a fight with Baker, a citizen of Andorra.

The facts are disputed, but it seems that Able and Baker were sitting at a bar in the airport, watching a televised sporting event, when they began to argue about the merits of their respective national teams. According to witnesses, Able called Baker a "liar" and a "scum" and Baker called Able a "fraud" and a "cheat" (among other things). Witnesses agree that Able and Baker repeatedly struck each other. As a result of the fight, both Able and Baker sustained serious injuries.

Able claims that Baker started the fight and that he was only protecting himself. Baker claims, on the contrary, that he was protecting himself and that Able started the fight.

In May 1994, while Baker happened to be visiting Mississippi, Able commences a civil action against him in state court in Mississippi, seeking actual and punitive damages for assault, battery, and slander. Baker effected timely removal of the case to federal court.

Assume that punitive damages may be available for intentional torts under the law of Mississippi, but that punitive damages are not available in tort under the law of Andorra.

Baker moves to dismiss the claim for punitive damages. You are clerking for Judge Jones. She comes to you for advice and asks whether the federal court should grant the motion to dismiss the claim for punitive damages. Please advise 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 Quiller's Quandary (60 minutes recommended)

Ben Quiller, citizen of Mississippi, owns a small business in Varnerville, Mississippi and uses several wordprocessors in connection with the business. Quiller went to Memphis to negotiate getting computer service from Computer World Corp., a Tennessee corporation with virtually all its business in Memphis. All the negotiations took place at Computer World's offices in Memphis. Quiller and Computer World entered into a written contract for services. They signed the contract in Memphis.

According to the terms of the contract, Computer World agreed to respond promptly to every call for help from Quiller's business. If the problem was not resolved by telephone, Computer World agreed to send a computer consultant to Quiller's offices within four hours of receiving a request for help.

The contract contained many other detailed provisions. It also stated that "the law of Tennessee applies to all disputes arising under this contract." The contract further stated that "all litigation arising out of this contract shall be commenced only in state or federal courts located in the state of Tennessee." It further provided that "any lawsuit or civil action alleging a breach of this contract must be brought within two years of the first notice of the alleged breach."

The Mississippi statute of limitations for written contracts is three years. Miss. Code. Ann. § 15-1-49(1). Tennessee's statute of limitations for written contracts is six years.

Tennessee allows parties to alter limitations by contract (except in certain cases involving life insurance). But the Mississippi Code explicitly provides:

The limitations prescribed in this chapter 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.

In July 1992 Computer World breached its contract by refusing to send service consultants to Quiller's business. Quiller ultimately had to obtain similar service from a far more expensive company. In August 1994 Quiller sued Computer World in Tennessee for breach of contract. The Tennessee court dismissed the action on the basis of the two-year contractual limitation of actions. The time for appeal has lapsed, and the judgment of dismissal has become final.

Quiller has now come to you for legal advice about filing again in Mississippi. Please advise and explain fully.

B. The Case of the Interstate Collision (recommended time 60 minutes)

One day Mr. Preston, citizen of the state of East Dakota, drove to the state of West Dakota to do some shopping. While he was stopped at a red traffic light, his car was struck from behind by a United States Postal Service truck driven by Mr. Destin, also a citizen of East Dakota. Preston and Destin were seriously injured in the collision. Preston returned home but died two weeks later in East Dakota from burns received in the collision.

At the time of the collision Destin had been employed by the East Dakota regional branch of the Postal Service for two weeks. It turns out that Destin had a long history of reckless driving, including four criminal convictions for driving while intoxicated and one vehicular homicide conviction. In his job application, however, Destin stated that he had no citations, convictions, or civil judgments resulting from violations of traffic laws. The Postal Service relied on his statements in the job application and made no further inquiry.

Because the Postal Service is an agency of the government, Preston's estate commences a civil action against the United States government in federal court in West Dakota under the Federal Torts Claim act. The lawsuit states claims both for personal injuries that Preston sustained before his death and claims for wrongful death.

Count I of his complaint alleges that the government was negligent per se for Destin's failure to stop before colliding with him in violation of a West Dakota's assured-clear-distance-ahead statute. (This statute requires drivers to maintain at all times a slow enough velocity so that they can stop without colliding with an object in their lane of traffic.) Count II alleges that the government was negligent in hiring Destin.

The prayer for relief demands damages for wrongful death, including damages for the loss of enjoyment of life; it also demands actual damages in the amount of $1,000,000 for pain and suffering endured by Preston before dying.

Under the law of East Dakota, damages are recoverable for the loss of enjoyment of life in an amount to be determined by the factfinder. Under the law of West Dakota, such damages are not recoverable. Under the law of East Dakota there is not limit on actual damages recoverable for pain and suffering. But under the law of West Dakota the total damages recoverable for pain and suffering may not exceed $500,000.

Under the caselaw in East Dakota, employers of truck drivers have been held to have an affirmative duty to verify the driving record of employees. Under the law of West Dakota, employers of truck drivers have been held to have a duty to verify employees' driving records only when they have reason to believe that an employee lied on his or her application or when they have some other reason to believe a driver has a history of bad driving. The parties agree that the government had no reason to believe that Destin had a record of bad driving or had reason to know he lied on his employment application.

East Dakota follows the interest analysis approach to choice of law. West Dakota retains the traditional territorial approach.

The government files three motions. First, it moves for summary judgment on the claim based on negligent hiring. Second, it moves for summary judgment on the damages for loss of enjoyment of life. Third, it moves for summary judgment on any damages for pain and suffering in excess of $500,000. Please rule on the motions and explain fully.