5.2 General Rules

• Library: Virginia Law and Practice: A Handbook for Attorneys (Virginia CLE) (2020 Ed.)

5.2 GENERAL RULES

5.201 Tort Versus Contract Determination. The forum state applies its own law to ascertain whether the issue is one of tort or contract. ²

Where a plaintiff files an action in Virginia, the court applies Virginia choice-of-law provisions in deciding whether liability is a matter of tort or contract. ³

5.202 Substantive Versus Procedural Determination. Whether an issue is substantive or procedural is governed by Virginia law. ⁴

Different substantive issues can properly be decided under the laws of different states when the considerations influencing the choice differ as they apply to the different issues. ⁵

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Virginia uses traditional lex loci / lex fori analysis. The broad, uncontroverted rule is that the lex loci will govern as to all matters going to the basis of the right of action itself, while the lex fori controls all that is connected merely with the remedy. ⁶

5.203 Restatement Analysis Rejected. Virginia has rejected the Restatement (Second) Conflict of Laws "most significant relationship" analysis, ⁷ reaffirming that it follows the lex loci delicti rule. ⁸

In resolving conflicts of laws, the settled rule in Virginia is that the substantive rights of the parties in a multistate tort action are governed by the law of the place of the wrong. ⁹

In McMillan v. McMillan, ¹⁰ the court reasoned that: "Even though the 'center of gravity' formula sets up a more flexible rule than the lex loci delicti concept, the components of the formula can be viewed differently from case to case, thereby creating uncertainty and confusion in application of the theory." ¹¹

In cases involving choice-of-law questions, Virginia adheres to the use of traditional rules applicable to conflicts of laws. ¹² Under such rules, questions of substantive law are governed by the law of the place of the transaction or the place where the right is acquired (lex loci), while questions of procedure and remedy are governed by the law of the place where the action is brought (lex fori). ¹³

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5.204 Public Policy. "A common law cause of action declared by the courts of a sister state may be enforced in Virginia so long as it is not contrary to the policy or prejudicial to the interests of Virginia." ¹⁴

If the applicable substantive law of the jurisdiction where the contract was executed is contrary to Virginia public policy, Virginia courts will not apply the foreign rule of law. ¹⁵

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Notes:

^[2] Erie Ins. Exch. v. EPC MD 15, LLC, 297 Va. 21...