Reassessing Connecticut's Eclectic Choice of Law Methodology: Time for (another) New Direction
| Publication year | 2021 |
| Pages | 462 |
73 CBJ 462. REASSESSING CONNECTICUT'S ECLECTIC CHOICE OF LAW METHODOLOGY: TIME FOR (ANOTHER) NEW DIRECTION
Eclectic: "Selecting or employing individual elements from a variety of sources, systems, or styles.(fn1)
Connecticut's choice of law jurisprudence has evolved significantly from its once rigid adherance to the doctrine of lex loci as a means of selecting the applicable law (fn2) Instead of taking a mechanical approach to choice of law issues, Connecticut courts now use a hybrid and eclectic approach to choice of law. Professor William A. Reppy, Jr. described eclecticism as a process in which a court uses "two or more distinct choice of law methods, or parts of those methods, in deciding a single choice of law issue."(fn3) The Connecticut Supreme Court ushered in this eclectic approach with a series of cases that it issued beginning in 1980 and continuing to the present time.(fn4) In addition to employing multiple approaches to decide single choice of law issues-eclecticism in the narrow sense-in its departures from traditional choice of law methodology, the court has attempted to formulate narrow choice of law "rules" applicable to particular kinds of cases rather than developing one single method for resolving all choice of law issues in all types of cases.(fn5) Thus, the Connecticut Supreme Court has also embraced eclecticism in the broad sense, meaning that it has adopted distinct choice of law methodologies for different categories of cases. (fn6) Professor Reppy criticized eclecticism because it "usually deprives choice of law of any certainty; it becomes incomprehensible to lawyers and lower court judges who cannot deal with a choice of law problem in ignorance of the choice of law method employed by the forum."(fn7)
The eclectic choice of law jurisprudence of the Connecticut Supreme Court has caused mischief Before reaching the merits of a choice of law dispute, litigants argue over what law selection method courts should employ.(fn8) For example, litigants have attempted to recharacterize tort cases as contract cases and vice versa, depending upon which set of choice of law "rules" would produce a more favorable outcome.(fn9) An additional consequence of Connecticut's eclectic choice of law jurisprudence is that lower state court and federal district court opinions apply various inconsistent law selection methods.(fn10)
This article focuses on eclecticism and inconsistency in Connecticut's choice of law jurisprudence with a particular emphasis on tort cases. Section 11 describes and analyzes older Connecticut cases decided under the vested rights approach. Section III sets forth the transition from this rigid vested rights approach of the past to the more flexible-but uncertain-hybrid and eclectic approach that the Connecticut Supreme Court has articulated. Section IV analyzes how lower state courts and the federal district courts have applied Connecticut's choice of law methodology. The section argues that as a result of the Connecticut Supreme Court's eclectic decisions, lower state courts and federal district courts faced with choice of law issues have reached inconsistent results that are difficult to reconcile. Section V argues that the Connecticut Supreme Court should attempt to eliminate unnecessary eclecticism from its choice of law jurisprudence and should move toward one uniform interest-based approach to resolving choice of law issues. It also describes recent positive developments in Connecticut's choice of law methodology. Section VI summarizes these arguments and concludes this article.
Connecticut traditionally followed the rule of lex loci when deciding the applicable law in tort cases.(fn11)" This is also known as the vested rights approach. Under this doctrine, a plaintiff's right to recover for injuries "vests" or arises under the law of the place of the injury. At least in theory, under the vested rights approach to choice of law, only the situs of the injury matters rather than the situs of malfeasance that gave rise to the injury. (fn12) Likewise, the domiciles of the parties have no bearing on the applicable law.(fn13) The rationale behind the vested rights approach is that states are sovereign within their borders but do not have the power to regulate conduct outside their borders. (fn14) Thus, in theory, the forum state will defer to the law of the state of the injury because that' state is the only one capable of regulating conduct within its borders. As scholars have pointed out, the vested rights approach has its attractions in that it seemingly provides for consistency and simplicity in choice of law.(fn15) Of course, the vested rights approach also produces harsh results.
Three older Connecticut Supreme Court decisions demonstrate the harsh results associated with the lex loci approach to choice of law. In Landers v. Landers,(fn16) a Connecticut couple traveled to Virginia where they had a motor vehicle accident. The wife sued her husband in Connecticut for the injuries that she sustained in the accident. (fn17) Virginia maintained interspousal tort immunity but Connecticut did not. The court concluded that Virginia law applied since the accident occurred there and that under the law of Virginia the wife had no capacity to sue her husband. The court then sustained a demurrer.(fn18) The mere fortuity of the accident in Virginia barred Mrs. Landers's recovery~ The Landers court, however, was not concerned with these issues. The inquiry was simple and straightforward. Another decision, Menczer v. Menczer, (fn19) which involved nearly identical facts, reached the same result. Yet another decision, Gibson v. Fullin, (fn20) held that Florida's guest statute barred a Connecticut passenger's recovery against a Connecticut driver in a negligence case arising from a car accident in Florida, even though Florida repealed its guest statute subsequent to the time the plaintiff filed suit.
Given the unjust consequence of applying foreign law in cases like Landers, it is surprising that Connecticut's use of the vested rights approach to choice of law was so mechanical. It need not have been. There are a variety of "escape devices" that the court could have used to avoid the harsh results. One such device is subject matter characterization, which can apply in limited circumstances. (fn21) Another escape device is depecage, " [t] he process whereby different issues in a single case arising out of a single set of facts are decided according to the laws of different states."(fn22) In Landers, for example, the court could have applied the "family law" of Connecticut to determine whether one spouse had the capacity to sue the other and could have applied foreign law to govern the conduct of the parties. The point is that by separating the issue of immunity from the underlying issue of liability, the court could have applied Connecticut law to the controlling issue and reached a different result. The Wisconsin Supreme Court took this approach in Haumschild v. Continental Casualty Co.(fn23) Or in Gibson the court could have constructed a rule on public policy grounds that in negligence cases arising out of state, the domiciles of the parties control whether the foreign guest statute could apply.
Escape devices themselves tend to produce problems. Characterization-and other escape devices-while they can produce just results, are intellectually dishonest. They also tend to produce narrow rules that are not helpful in other cases with different facts.
[B]ecause formal rules can never capture the complexities or depth of the profuse situations they are meant to govern, they have a tendency to multiply exponentially. Counter rules are devised, and exceptions, then exceptions to exceptions. As black letter rule is piled upon black letter rule, certainty and predictability wither chronically. Because the law must deal with an abundance of comple[x] and pro[]found matters, it turns out that hard-and-fast rules are rarely that.(fn24)
One way of looking at these early Connecticut cases was that the court preferred to reach unjust results rather than employing escape devices. The Connecticut court's desire for simplicity, uniformity, and predictability in choice of law became an end in itself. The court remained intellectually honest but at the cost of harsh results.
A. Connecticut's Workers' Compensation Choice of Law Rules Are Eclectic
Connecticut began to move away from traditional choice of law rules and toward an eclectic approach to choice of law in Simaitis v. Flood.(fn27) In Simaitis, two employees of a Connecticut corporation, Aetna Life and Casualty, traveled to Tennessee in the course of their employment.(fn28) While there, the two employees were involved in an automobile accident, one as a passenger, the other as the driver.(fn29) Both employees received workers' compensation benefits; however, the passenger sued the driver in Connecticut to recover for the injuries she sustained in the accident.(fn30) Employing traditional choice of law rules, and therefore applying Tennessee law-which, unlike Connecticut law, had no exception to workers'...
To continue reading
Request your trial