Choice of Law Hypo--Bar Study

In My Humble Opinion
1

Okay, I’m having a real fit with these Choice of Law rules. All of the factors seems circular and reduce to an amorphous “Which state would have the most significant relationship?”

So here’s my example.

Plaintiff—From Monongalia County, West Virginia, a modified comparative negligence state where 50% fault bars all recovery.

Defendant—From Fayette County, Pennsylvania, a pure comparative negligence state, but comes to West Virginia often for work.

Tort occurs in North Carolina—a contributory negligence state which bars all recovery to any slightly negligent Plaintiff.
So, our Plaintiff is on vacation in the Outer Banks and gets into a car accident with Defendant (also on vacation). The Plaintiff is 90% at fault (everyone agrees with this for whatever reason). However, the Defendant only has minor injuries (assume $0) but the Plaintiff has serious injuries totaling $1 million.

After recovery, he looks at his options. If he brings the suit in North Carolina, he gets nothing because he was contributorily negligent. Even if he tries to ZAP serve the Defendant during his work in West Virginia, Plaintiff is still out of luck because he is greater than 50% at fault.

But if he brings suit in PA, and can argue that PA law should apply, then he can recover $100k from the Defendant under a pure comparative negligence system.

Of all of the factors for states having interest, which one is dispositive? Can I use factor 4 from the restatement that the purpose of the tort system is to compensate injured parties and allow me to apply PA law to the tort?

*This isn’t a real question, but one that I made up and can’t figure out under these flowery conflict of laws rules.

2

D) none of the above. He is barred by res from bringing another suit.
Per the hypo:

3

Sorry, I meant after his physical recovery. Just strike that portion and insert “after three months”

4

I used to have such a case in my notes about that example, Ohio and Michigan were involved and a car was hit by another, when suit was filed, the court had to determine what law applied.

This might help;
Thus, we begin by looking to Ohio choice of law rules to determine what state law to apply to this case. Under Ohio law, courts apply interest-analysis tests set forth in the Restatement (Second) of the Law, Conflict of Laws to resolve conflict of laws issues. E.g., Gries Sports Enters. v. Modell, 15 Ohio St.3d 284, 473 N.E.2d 807, 810 (1984), cert. denied, 473 U.S. 906, 105 S.Ct. 3530, 87 L.Ed.2d 654 (1985).

11
The basis of an action–i.e., whether it is deemed to be a tort case or a contract case–determines which of the Restatement 's interest-analysis tests an Ohio court must apply. If an action is deemed to be a tort action, section 146 applies, and the law of the state where the injury occurred presumptively controls. Morgan v. Biro Mfg. Co., 15 Ohio St.3d 339, 474 N.E.2d 286, 288-89 (1984) (per curiam). If an action is based in contract, however, then section 188 applies, and the law of the state where the contract was made presumptively controls. Nationwide Mut. Ins. Co. v. Ferrin, 21 Ohio St.3d 43, 487 N.E.2d 568, 569 (1986) (per curiam).

12
Thus, the question before us is whether, under Ohio law, tort law or contract law applies when determining an insurance company’s liability pursuant to an underinsured motorist policy. Miller, the executrix, argues that we must apply Ohio tort law to determine the potential damages for which State Farm may be held responsible, because the tort which gave rise to this case occurred in Ohio.
On a search I also found this in WI:

632.09 Choice of law. Every insurance against loss or destruction of or damage to property in this state or in the use of or income from property in this state is governed by the law of this state.

5

Practice tip: when you’re sure you’re right but the only thing backing you up is the fourth subparageaph in a section of the Restatement of Torts, most likely, you’re wrong.

This advice does not apply for the bar exam, where you must memorize canons of a mythological nationally recognized tort law that doesn’t actually exist.

6

I’m finding this out rapidly. For example, I had a multiple choice question on a wife who was estranged from her drunk husband for over a year. She wanted a divorce and her husband wanted one as well. No alimony requested, no children. The call of the question asked for her “best” cause of action for divorce.

Well, I immediately chose “no-fault” grounds. Husband is cooperative. Why pay lawyers extra money to drag him through the mud when a statutory no-fault ground exists?

Correct answer was fault based “habitually intoxicated” ground because it gave her the “strongest” argument for divorce. Even though no-fault is correct, intoxication is a “better” choice.(???)

I think that if any lawyer would recommend doing that, he is bordering on unethical. Why would you recommend a course of action to your client that would cause financial loss, emotional toil, and a heightened standard of proof for seemingly no reason?

7

What rule do you think he’s violating?

Several reasons, depending on the situation. In my state, a no fault divorce requires consent from both parties. If the guy is at all wishy-washy, she may well pay a lawyer to draw up a no-fault divorce that the guy may never sign. If she serves him in a fault based divorce that she knows she can prove, she’s got him. He either signs the no fault, or she gets a hearing on the fault grounds. A lot of fault-based filings settle out no fault, but it often takes a looming trial date to really resolve things.

Also, in my state, the Court may consider marital fault when dividing marital property/debt.

I disagree with the “correct” answer, though. Habitual drunkenness is somewhat harder to prove than desertion (available after 1 year, with certain qualifiers), but there is no reason not to plead both those fault grounds and no fault in the alternative.