Conflict of Laws M.H. Hoffheimer

Final Exam University of Mississippi

Law School

Spring 1997

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. Trixie Tator died domiciled in state X. She left a will bequeathing all her personal property to her daughter. Some time after executing the will Ms. Tator had opened a savings account in state Y. She had continued to deposit funds in the savings account, so that at the time of her death it was worth over $1,000,000. When she opened the account she had filled out a little blue card on which she had designated her friend Bertha as the "survivor" to whom the account should be payable in the event of her death.

Under the law of state X, the designation of Bertha as "survivor" does not constitute a valid will or testamentary trust (because it does not satisfy the formalities required by state X's statute of wills). Under the law of state Y, the designation of the "survivor" is construed as a "Totten Trust" that creates a valid revocable trust that vests upon death.

According to state X's choice of law cases, interests in bank accounts are treated as interests in personal property, and the state X courts hold that the law governing personal property is determined by the place where the personal property is. State Y choice of law cases also characterize bank accounts as personal property, but state Y applies the law of the owner's domicile. Otherwise, state X follows the First Restatement, and state Y follows the Second Restatement.

Bertha appears in the probate proceedings in state X and claims she is entitled to the bank account. You are the trial judge, rule on her claim and explain.

2. Same facts. The bank in state Y commences an interpleader action in state Y, depositing the funds with the state Y court and joining Ms. Tator's daughter and Bertha. The daughter and Bertha both appear and assert claims to the proceeds of the bank account. Rule on their claims and explain.

3. Bob and Bill, two male citizens of California, went on a foreign exchange program to the Netherlands in their senior year in college. They roomed together, had a torrid homosexual romance, and agreed to get married. They exchanged engagement rings and made plans to get married in the Netherlands which legally recognizes homosexual marriages.

Bill became distraught when, the week before the date set for the wedding, Bob ran off with Bill's best friend Ben. Bill sued Bob in Netherlands courts for various legal theories akin to breach of contract to marry and intentional infliction of emotional distress. Bob appeared in the action and lost, and a judgment was entered against him in an amount equal to approximately $10250, which he did not appeal. The amount of the judgment included $250 for actual damages and $10000 for attorneys fees. You may assume that no relevant American jurisdiction would permit any attorneys fees in a case like this.

Bob then returned to California. Because Bob did not satisfy the foreign judgment against him, Bill commenced an action in California state court on the foreign judgment. Bob was properly served but refused to answer the complaint; accordingly, a default judgment was entered against him in the amount of $10250.

Bob subsequently moved to Mississippi. And Bill commenced still another action in Mississippi against Bob alleging two causes of action: 1) the Netherlands judgment, and 2) the default judgment from California.

The plaintiff moves for summary judgment on both causes of action. How should the trial court should rule on the motions and why?

4. Same facts. Assume that the Mississippi trial court refuses to grant plaintiff's motions, and the case eventually results in a judgment for defendant Bob.

Bob then moves to Alabama. Bill follows Bob to Alabama and commences another cause of action, and Bob raises a defense of res judicata and moves for summary judgment attaching a certified copy of the Mississippi judgment. Bob opposes the motion attaching certified copies of the judgments from the Netherlands and California. The Alabama trial court grants the defendant's motion. Explain whether the Alabama judgment should be affirmed on appeal.

5. Give an example of the use by a private party of offensive collateral estoppel against the government and explain whether it is permitted.

6. The state legislature, in an effort to stretch tax dollars and reduce educational costs, has enacted the Taxpayers Educational Protection Act which requires that every elementary school child be "a bona fide resident of the state for no less than four months prior to his or her enrollment" in any public elementary school.

The parents of Betty Patterson, who had previously been citizens of Alabama, moved to Mississippi three months before school started. Local school officials regretfully refused to enroll Betty. Betty and her parents have commenced a civil action in state court seeking to enroll her, alleging that the Taxpayers Educational Protection Act violates the rights guaranteed to Betty under the Privileges and Immunities clause.

A separate lawsuit has been commenced in federal court by the parents of Carol Priestly. Priestly's parents are citizens of Great Britain who have come to the United States for one year to teach at a state university. They arrived three months before school started. When they attempted to enroll Carol, the local school officials regretfully refused under the Taxpayers Educational Protection Act. Priestly's parents seek injunctive relief in federal court, claiming that the state legislation violates their rights under the Privileges and Immunities clause.

You are clerking for the state attorney general who must respond to the complaints. He knows you have just taken Conflict of Laws and asks for your advice about the two complaints. Please advise.

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 Accidental Tourist (60 minutes recommended)

One day Edward, a resident of the state East Dakota, decided to go on a vacation and drive to the state of West Dakota. While he was driving in West Dakota, Willie, a resident of West Dakota, pulled in front of Edward and suddenly slowed down. Edward was unable to avoid colliding with the rear of Willie's car. He caused some visible damage to the bumper.

After the accident, Edward and Willie got out of their cars, and Willie began to shout at Edward. A crowd formed, and Willie accused Edward in a loud voice, audible to everyone present, of being a "drunk driver" and "trying to kill" him. The statements were not true. Finally, Edward got angry and, after giving Willie his name and insurance information, he drove back to East Dakota.

West Dakota retains contributory negligence, while East Dakota has adopted a version of comparative negligence that reduces a plaintiff's damages by the proportion of the plaintiff's fault.

West Dakota Criminal Code section 12-7-41 prohibits any driver from leaving the scene of an accident before filling out a police report for any accident in which a person has been injured. The statute gives each person injured in an accident a right to recover $2500 from any driver who leaves the scene of the accident prior to filling out a police report. East Dakota has no similar statute.

Under the law of West Dakota the tort of slander does not require proof of actual damages, but the under the law of East Dakota slander requires proof of actual damages.

Under the law of West Dakota the plaintiff in a slander action has the burden of proving the statements are false, but under the law of East Dakota the defendant bears the burden of proving the statements are not false.

East Dakota follows the First Restatement. West Dakota has adopted interest analysis.

Willie has commenced a civil action against Edward in the state of East Dakota, asserting two causes of action. First, he claims that he suffered a whiplash neck injury in the collision and asserts a tort-based claim for personal injuries and property damage, alleging that Edward was negligent for failing to stop before colliding with him and negligent per se for violating the West Dakota "assured clear distance ahead statute" (a statute that requires drivers to drive at such a speed that they can stop before colliding with an object in front of them on the road).

Second, Willie asserts a cause of action under the West Dakota Criminal Code for $2500 because Edward left the scene of an accident.

Edward appeared in the action. He filed an answer denying liability and raising the defenses of contributory and comparative negligence. He also filed a counterclaim stating a cause of action against Willie for slander in connection with the public statements that Willie had made at the scene of the accident.

The parties stipulate that Willie is ten percent at fault for the accident. They also agree there is no proof of actual damages.

Edward and Willie have both filed motions for summary judgment in the East Dakota court. Edward argues that Willie's two claims must be dismissed as a matter of law and argues that West Dakota contributory negligence applies.

Willie argues that the East Dakota law applies to Edward's counterclaim for slander and that the counterclaim should be dismissed because there is no proof of actual damages and because Edward has failed to identify admissible evidence that can prove the falsity of the statements.

Rule on the motions for summary judgment. Explain 1) whether East Dakota will enforce the West Dakota statutory cause of action; 2) whether contributory or comparative negligence applies in Willie's tort claim; 3) whether Edward must prove actual damages; and 4) whether Edward of Willie bears the burden of proof with respect to the truth or falsity of the allegedly slanderous statements.

B. The Case of the Dirty Tail Lights (60 minutes)

In 1994 Lamar (a citizen of Mississippi) and Crocker (a citizen of Tennessee) were classmates at the University of Northern Mississippi. One Friday afternoon they drove to Memphis to see a movie and have dinner. Lamar drove Crocker's car.

After dinner they went to a bar and had several drinks. Then they started to drive back to Mississippi. It was night, but the bar's parking lot was brightly lit, so Lamar forgot to turn on his headlights and tail lights. On the way out of town, still in Tennessee, they stopped at an intersection. The tail lights were still not lit. Moreover, the rear brake lights were not clearly visible, because the car was so dirty.

You may assume that Tennessee statutes require the owner of a motor vehicle to maintain operable, visible brake lights and require the driver of a vehicle to turn on headlights and tail lights after dark.

While Lamar and Crocker were stopped for the red light, a truck driven by Tom Driver collided with the rear of their car, causing personal injuries to both Lamar and Crocker.

Tom Driver is a resident of Tennessee. At the time of the accident he was employed by and driving a truck for Cajun Carriers Company, a Louisiana corporation. At the time of the accident Cajun Carriers carried insurance for personal injuries caused by its employees under an agreement with Everystate Insurance Company, a Delaware corporation with its principal place of business in Connecticut.

Pretrial research has disclosed that Tom Driver had a bad accident history at the time he was employed by Cajun Carriers in Louisiana. In fact, he had gone to Louisiana for employment because no trucking company in Tennessee or Mississippi would hire him. In hiring Driver, Cajun Carriers did not ask him about his driving record, nor did the company attempt to obtain a copy of his driving record.

Two and one half years after the collision, Lamar and Crocker commence similar civil actions in Circuit Court in Mississippi against Tom Driver, Cajun Carriers, and Everystate Insurance. First, both plaintiffs state a tort claim against Driver for personal injury. Second, both assert a claim against Cajun Carriers for respondeat superior. Third, both assert a claim against Cajun Carriers for negligent hiring and supervision of Driver. Fourth, both assert a "direct action" claim against Everystate Insurance Company under the Louisiana Direct Action statute (which establishes a cause of action in favor of an injured party that can be brought against a tortfeasor's insurer prior to any determination of its insured tortfeasor's liability).

The defendants appear in both actions and move to dismiss. Each defendant raises two defenses: 1) the claims are barred by contributory negligence because the failure of Crocker (as driver) and Lamar (as owner) to maintain and operate visible lights at night violated the Tennessee statutes and constitutes negligence per se; and 2) the claims are bared by the statute of limitations. In addition, Everystate Insurance Company argues in support of its motion to dismiss that Mississippi should not apply the Louisiana direct action statute against it.

You may assume that both plaintiffs had some fault and that at the time of the accident Tennessee still had pure contributory negligence (which would bar any recovery if a plaintiff was at fault at all) while Mississippi had comparative negligence. You may assume that the relevant statutes of limitations are three years (Mississippi), two years (Tennessee), and four years (Louisiana).

Rule on the motions and explain fully.

Conflict of Laws M.H. Hoffheimer

Exam Answers University of Mississippi

Law School

Spring 1997

1. Bertha's claim in valid. In renvoi situations the First Restatement direct the forum to apply only the local law of the state selected by its choice of law rules (except for real property and divorce).

2. The court should recognize the claim of the testatrix's daughter and disregard the Totten Trust, because under the Restatement Second (like the First Restatement), the court should avoid renvoi problems by applying only the local law of the sate selected by its choice of law rules.

3. Motion for summary judgment granted. The Netherlands judgment would normally be enforceable under the Kent-Story approach but, as it is not the judgment of a sister state, full faith and credit does not require its recognition, and it need not be recognized where it is deeply offensive to public policy. But Mississippi must give full faith and credit to the California judgment.

4. Affirmed. The court must give full faith and credit to the judgment entered last in time when there are conflicting judgments entitled to full faith and credit.

5. Answer. 1. An example of collateral estoppel against the government: the government in a lawsuit against Big Chemical Company loses on the issue of whether private contractors hired by the government are valid agents for making a search under a federal statute. Big Chemical would use offensive collateral estoppel if it attempted to prevent the government from relitigating the exact same issue in a second lawsuit. 2. Offensive collateral estoppel against the government is permitted only if there is mutuality.

6. Answer. This legislation is almost certainly unconstitutional but probably not for the reasons identified by the plaintiffs. 1. Because the family from Alabama now resides in Mississippi, the statute does not discriminate against them because they are citizens of another state but because they have not lived long enough in Mississippi. Such durational residency requirements are often unconstitutional but they have not been linked directly to the privileges and immunities clause. 2. The British family has no claim under the same clause because it only prohibits discrimination against citizens of other states of the United States, not against persons or citizens of foreign countries (who, of course, enjoy protection under the equal protection clause).

A. The Case of the Accidental Tourist

The defendant's motion for summary judgment is granted.

1. East Dakota will not enforce the plaintiff's West Dakota statutory cause of action because it is penal. It is part of the West Dakota's criminal code and, though it creates a right to recover in favor of a person involved in an accident, the recovery bears no relationship to any harm suffered, and its purpose is to punish the wrongdoer. Under the First Restatement, a state would not enforce a penal law or cause of action from another state.

2. East Dakota will apply contributory negligence to bar plaintiff's tort claims. Under the First Restatement, defenses to tort claims are governed by the law of the place of the wrong. For most purposes the place of the wrong is the place where the last event necessary to give rise to the cause of action. In this case, that place was West Dakota (where the damages occurred for both the personal injury and property claims), which retains contributory negligence.

The plaintiff's motion to dismiss the counterclaim for slander is not granted.

3. East Dakota will apply the slander law of West Dakota, which requires no proof of actual damages. Under the First Restatement, the existence of a tort cause of action is determined by the law of the place of the wrong. Normally, this place is where the last event necessary to give rise to a claim occurred. But there is a specific rule for slander that the place of the wrong is where the defamatory statements were communicated (West Dakota).

4. East Dakota law should probably apply to the issue of the burden of proof, because it is procedural. Under the First Restatement, forum law applies to procedure. Forum law here places the burden on the party defending the slander action (the plaintiff Willie) to prove the statements were true. So Willie is probably not entitled to summary judgment because his adversary has failed to identify evidence that the statements were false. On the other hand, First Restatement courts were not entirely consistent in their characterization of issues as "procedural." And in a case like this, where the effect of a burden is not so much a rule that regulates the order or weight of evidence as a rule that alters the elements of a tort, I think that it might be better viewed as substantive. If the burden of proof were substantive, then West Dakota law should apply as the law of the place of the wrong (the place where the allegedly slanderous statement was communicated).

B. The Case of the Dirty Tail Lights

1. Lamar's not barred by contributory negligence. The defendants' motions to dismiss Lamar's tort claim on the theory that it is bared by contributory negligence is denied. The court must apply Mississippi comparative negligence, not Tennessee contributory negligence. It is unnecessary to perform a Restatement Second analysis because the result is squarely within the holding of McDaniel v. Ritter (applying comparative negligence in favor of Mississippi resident for policy reasons even when contacts otherwise overwhelmingly pointed toward Tennessee).

2. Crocker's claim barred by contributory negligence. The defendants' motions to dismiss Crocker's tort claim on the theory that it is barred by contributory negligence is granted (though this case could be decided differently). Under the Restatement Second, the court will apply the law of the state that has the most significant relationship to the specific issue (the defense in Crocker's action). Contacts lean heavily towards Tennessee, the place of the accident (the place whose law governs absent other things according to section 146), the residence of the tortfeasor and plaintiff, the place of the driver's negligence, and the place of injuries. (The seat of the relationship between the plaintiffs is irrelevant to the issue of the defense.)

The claim against the trucking company for negligent hiring must be evaluated separately, because the negligent conduct occurred in Louisiana. But the other relevant contacts are in Tennessee.

Such factors must be evaluated in light of the purposes and factors set forth in section 6, which include considering the policies of the forum and other interested states. Although the Mississippi supreme court expressed strong policy grounds for applying comparative negligence in McDaniel, that case is distinguishable on at least two important grounds. First, McDaniel involved a Mississippi resident plaintiff. This gave the state of Mississippi a much stronger interest in applying its loss-allocating rule. Second, under the facts in McDaniel the court suggested that Tennessee did not have a strong interest in applying its law because the accident there occurred in another state. In this case, Mississippi has a far weaker interest, but Tennessee has stronger interest in applying its law. In fact, the case between non-Mississippi plaintiff Crocker and the non-Mississippi defendants presents a situation that is sometimes characterized as a "false conflict" by courts and scholars.

It is possible that even in a false conflict, the Restatement Second might permit the application of forum law under a consideration of the policies and interests (§6), as the case from Missouri showed. But at least in that case, the accident occurred in the forum state. Moreover, I recall that there is a case on point from Mississippi that goes the other way.

Of course, my holding leads to the result that the Mississippi resident gets the benefit of Mississippi law but the Tennessee resident does not purely because of their places of residence. This disparate treatment raises significant equal protection and privileges and immunities issues. The disparate treatment will not violate equal protection if it is rationally related to a "legitimate" state interest. Perhaps it is legitimate for Mississippi to withhold the benefit of its law from the Tennessee resident so as to discourage forum shopping. It will not violate privileges and immunities if there is substantial equality of treatment. Perhaps giving the foreign citizen the benefit of his own law constitutes substantial equality of treatment; perhaps, privileges and immunities does not even apply because the equal administration of conflicts rules is not something that bears on the vitality of the nation as a whole.

3. Lamar's claims not barred by statute of limitations. Lamar's claim against the tortfeasor arose or accrued in Tennessee, where it is time barred. The Mississippi borrowing statute normally borrows the shorter cause of action to bar claims that are barred by the law where they arose or accrued. But the statute provides and exception where the action accrued in favor of a Mississippi resident (like Lamar). Since the borrowing statute does not apply, his case is governed by the Mississippi three-year statute (applied as procedural by the forum).

4. Crocker's claims are time barred. For the same reason, Crocker's claims that arose in Tennessee are time barred under the Mississippi borrowing statute. This disparate treatment of the parties on the basis of their residence raises the same equal protection and privileges and immunities problems discussed above.

Crocker might possibly argue that the claim against the separate negligent hiring claim against the trucking company arose in Louisiana (the place of the negligent hiring) rather than at the place of the injury. But this argument is weakened by my holding that that claim is governed by Tennessee law. If governed by Louisiana law, Crocker could argue that that law also should apply under the borrowing statute, and since that law is longer than forum law, that borrowing statute would not apply, and Crocker would get the benefit of the longer Mississippi statute.

5. Direct action dismissed. Mississippi holds that direct action statutes are not applied because they are procedural. This may be wrong and is in conflict with the Illinois case which held that such claims are substantive (and not applicable on grounds of public policy), but it is settled law.