Resolving Six Celebrated Conflicts Cases Through Statutory Choice-of-law Rules - Symeon C. Symeonides

• Publication year: 1997

Resolving Six Celebrated Conflicts Cases Through Statutory Choice-of-Law Rulesby Symeon C. Symeonides^*

I am truly honored to be asked to participate in a symposium hosted by Brainerd Currie's school and dedicated to him. Like the other participants in this symposium, I have studied Currie's insightful writings, I have learned immensely from them, and I have written about them.¹ Unlike most participants, however, I found myself in the position of being able to use some of Currie's ideas in the drafting of choice-of-law legislation. I had the undeserved good fortune of being asked to serve as the Reporter for the Louisiana State Law Institute in revising and codifying Louisiana's conflicts law. The result of that effort is a codification that became effective on January 1, 1992, as Book IV of the Louisiana Civil Code.² Good or bad, this is the only comprehensive choice-of-law legislation in the United States. I thought it might be interesting to the readers of this symposium to see how the six cases that are the object of this symposium would be resolved under this codification.³ This is what I hope to demonstrate in this article.

It is, of course, well known that Brainerd Currie abhorred choice-of-law rules.⁴ However, his famous aphorism that "[w]e would be better off without choice-of-law rules"⁵ must be put in proper historical perspective. When Currie made this statement, he had good reasons to be skeptical of rules. The rules that prevailed at that time, that is, those of the First Restatement, were dogmatic, rigid and mechanical, if not downright silly. Currie had less of a good reason to condemn all future efforts to develop different choice-of-law rules. Perhaps he thought that it was impossible to develop rules that would be faithful to the teachings of his revolution without prematurely arresting the development of American conflicts law.

The question I would like to pose to the readers of this article is whether the Louisiana codification has come close to belying Currie's pessimism, if that is what it was, in formulating rules that are flexible and sensitive to the policies underlying the competing laws, faithful to the lessons of the conflicts revolution, and capable of producing functionally sound results.

I. Grant v. McAuliffe⁶

A. Defining the Issue

Like all modern choice-of-law methodologies, the Louisiana codification requires an issue-by-issue analysis⁷ because its choice-of-law rules are issue-oriented. Of relevance to this case are two sets of such rules,⁸ those contained in Article 3543 which applies to "issues pertaining to standards of conduct and safety,"⁹ and those contained in Article 3544 which applies to "issue[s] pertaining to loss distribution and financial protection."¹⁰ In this case, the issue with regard to which a conflict is claimed to exist is whether a tort victim's cause of action against the tortfeasor dies with the tortfeasor, as provided by Arizona law, or whether the action can be maintained against the tortfeasor's estate, as provided by California law. The question is whether this issue falls within the scope of Article 3543 or 3544.

B. Classifying the Issue

To answer this question, the court must begin with the law of the state where the injurious conduct occurred. If that state has a rule that purports to regulate that conduct, then the case raises an issue of conduct regulation and the applicable article is Article 3543. If the state of the conduct does not have a conduct-regulating rule that is implicated in the case, then the court should ask whether that state and the other involved state have conflicting loss-distribution rules that are implicated by the facts of the case. If the answer is yes, then the resulting conflict is one that raises an "issue pertaining to loss distribution and financial protection,"¹¹ which falls within the scope of Article 3544.

This is exactly the situation here. Arizona, the state where the injurious conduct occurred, does not have a rule that purports to regulate that conduct. The Arizona rule that provides that the tort victim's cause of action does not survive the death of the tortfeasor is not a rule purporting to regulate conduct. This is so even if this rule had a penal law rationale, such as a notion left from the days when penal law was not clearly separated from tort law, that a dead person cannot be punished. The presence of such a rule in Arizona has no bearing on how a potential tortfeasor, or for that matter a potential victim, would conduct themselves, in that it does not make them either more or less careful or risk averse. Whatever the original rationale behind this rule, it is more likely that today the rule functions as a mechanism for protecting the tortfeasor's heirs and pre-accident creditors against the claims of the tort victim. As such, the rule qualifies as a rule of post-accident loss distribution in that it immunizes the tortfeasor's estate and places the loss caused by the accident on the victims of the accident.

Similarly, the California rule which allows the action to proceed against the tortfeasor's estate is a rule of post-accident loss distribution. It is premised on the notion that the function of tort law is to compensate rather than to punish and that such compensation must be extracted from the tortfeasor's assets, be he alive or dead, before his heirs or pre-accident creditors can assert their claims against the estate. The rule places the loss resulting from the accident on the tortfeasor's estate rather than on the victim. Even if the California rule somehow had a conduct-regulating function, for example, to encourage drivers to drive more carefully, that function would not be relevant in this case which involves driving in another state.

C. The Applicable Choice-of-Law Rule and the Governing Law

Because both conflicting rules are loss-distribution rules, the conflict between them falls within the scope of Article 3544, rather than Article 3543. Because both the injured person and the person who caused the injury are domiciled in the same state, the pertinent part of Article 3544 is subparagraph (1) which provides that "[i]f, at the time of the injury, the injured person and the person who caused the injury were domiciled in the same state," then "[ijssues pertaining to loss distribution and financial protection are governed ... by the law [of that state]."¹² Thus, California law applies. The action survives the death of the tortfeasor and should be allowed to proceed against his estate.

D. Defending the Result

The application of the law of the parties' common domicile in this case finds ample support in the American conflicts experience of the last four decades¹³ and is in keeping with the general principles of the Louisiana conflicts codification which have been drawn from that experience. These principles call for the application of "the law of the state whose policies would be most seriously impaired if its law were not applied"¹⁴ to the particular issue. Here there is little doubt that California, not Arizona, would be the state whose policies would be most seriously impaired if its law were not applied to this loss-distribution conflict. As its name suggests, a loss-distribution rule reflects a society's judgment about which classes of people should bear post-accident losses and which classes should not. This judgment is arrived at by assessing and evaluating competing social policies with a view towards attaining an equilibrium between or among them. When, as in this case, both sides of this equilibrium are situated in the same state, i.e., when both parties are domiciled in the same state, one of them being a member of the class to whom the rule imposes the loss and the other being a member of the class that benefits from this loss-allocation, the application of the rule effectuates its underlying policy without impairing the policies of any other state.¹⁵ This is the reason for which the Louisiana conflicts codification has adopted the common-domicile rule. Although this rule is subject to exceptions or "escapes,"¹⁶ there is no reason to invoke any exceptions in a case like this one in which California's loss-distribution rule allows a California tort victim to recover from the estate of a California tortfeasor.

II. Babcock v. Jackson"

A. Defining the Issue

In this case, the issue with regard to which a conflict is claimed to exist is whether an injured guest-passenger's action against the host-driver (and his insurer) for injury caused by the latter to the former should be allowed to proceed on the merits, as provided by New York law, or whether the action should be barred because of the passenger's status as a gratuitous guest of the driver, as provided by the Ontario guest statute.

Again, the question is whether this issue is one "pertaining to conduct and safety"¹⁸ or one "pertaining to loss distribution."¹⁹ Because the injurious conduct occurred in Ontario, and none of Ontario's conduct-regulating rules is invoked here, this issue cannot be one pertaining to conduct regulation. The only Ontario rule that is invoked in this case is the Ontario guest statute. However, it is clear that, at least in the form it existed at the time of the accident, this statute was not a conduct-regulating rule because it had no bearing on the way drivers or their passengers conducted themselves. The existence of that statute would not tempt a person driving in Ontario to drive more carelessly because, if he were to cause an accident and survive it, he would not be accountable to his guest-passengers, although he would be accountable to everybody else who might be injured. Regardless of the statute's original purpose, which might well have been to protect good Samaritans and punish ungratefulness, the fact remains that today the Ontario guest statute functions as a rule of loss distribution in that it places the post-accident loss on the injured guest passenger, rather than on the driver and his...