EXAM CODE # __________

 

Please write this code number on each blue book or as a header to each page of typed exam turned in.

MICHAEL STEVEN GREEN

 

CONFLICT OF LAWS

Law 410

 

SPRING 2007

 

 

 3 Hours

Please check the appropriate box, indicating what you are submitting.

□ Exam Questions (if exam questions are not required to be returned, this cover sheet must be detached from the questions and returned)

□ Scantron

□ Hand-written exam

□ Typing and have submitted printed copy within exam period.

□ Typing, have submitted disk and will submit printed copy within 90 minutes of conclusion of allotted exam period.

 

Do not put your name on this exam or the blue books! Use your exam code number.

 

                                                            Student Exam Code Number _________________

 

TIME:  You have three (3) hours to finish the exam. I have indicated how many minutes should be devoted to each question to ensure proper pacing.

 

SCORING:  This exam has five (5) pages, including this cover sheet. The total number of questions is twelve (12). The total number of points for this exam is 100. Each question will indicate how many points it is worth. Pace accordingly.

 

RULES:  This is a limited open book exam. Commercial outlines, hornbooks, treatises etc. are not permitted in the examination. You may not access the internet for this examination. You may bring into the examination only the following materials:

 

1)         All materials assigned in this course, that is:

a) Currie, Kay, Kramer, & Roosevelt, Conflict of Laws (7th ed. 2006)

b) Reading materials that were available on the website for the course.

2)         Any outline made by you or by a study group within which you participated.

3)         Your class notes.

 

Your exam (with this cover) must be returned with your answers.

 

Should you feel ill or panicky in anyway, please immediately see Dean Jackson in room 107.

 

The choice-of-law approaches of the states mentioned in this exam should be assumed to be as follows:

 

Virginia                                     First Restatement

Maryland                                  First Restatement

District of Columbia (DC)         Interest analysis with Baxter’s comparative impairment approach as a resolution of true conflicts

Wisconsin                                 Leflar’s choice-influencing considerations approach

Michigan                                  Interest analysis with a lex fori approach to true conflicts, that is, a resolution of true conflicts in favor of Michigan law if Michigan has an interest

Illinois                                       Second Restatement

 

NOTE 1:          When engaging in choice-of-law analysis under Leflar’s approach or the Second Restatement, you need to mention only those considerations that are actually relevant to your analysis. You don’t have to waste time mentioning a consideration and then saying it is irrelevant to the case.

 

NOTE 2:          DC law should be treated as state, not federal, law in the following questions.


1.                  P (a domiciliary of DC) enters into an employment contract with D (a DC business with its principal place of business in DC). In the course of the employment, P engaged in some work for D in Maryland, where P was injured. P sues D in Maryland state court under Maryland’s common law of negligence. The Maryland state court allows the action to proceed, because Maryland’s workers compensation statute permits the injured worker to elect relief under either the common law or under workers compensation. P received a judgment against D of $100,000.

D refuses to pay. P then brings an action on the Maryland judgment in DC court. DC’s workers compensation statute allows for injured workers to recover only under workers compensation and not under common law. Furthermore, it explicitly covers accidents occurring outside DC, if the employment contract was entered into in DC. Citing the DC statute, the DC court dismisses P’s suit without prejudice.

Briefly assess the decision of the DC court. [8 points – 14 minutes]

 

2.                  P (a domiciliary of Michigan) gets into a car accident with D (a domiciliary of Virginia) in Michigan. One and a half years after the accident, P sues D in Virginia state court. Under the Michigan statute defining negligence under Michigan law, the plaintiff has no cause of action unless he proves his own lack of contributory negligence. Michigan law does not specify the statute of limitations for negligence actions, but Michigan’s catch-all statute of limitations is two years. Virginia has no catch-all statute of limitations, but in the statute defining negligence under Virginia law, the statute of limitations for negligence is specified as one year. The Virginia Rules of Civil Procedure specify that the burden is on the defendant to prove the plaintiff’s contributory negligence.

Is P’s suit within the applicable statute of limitations? Must P or D prove the issue of P’s contributory negligence? Do not address constitutional restrictions on choice of law. [8 points – 14 minutes]

 

3.                  P (a domiciliary of Michigan) is driving in Illinois, when she gets into an accident with a car driven by an employee of D (a charity incorporated in Michigan and with its principal place of business in Michigan). D’s employee was in Illinois to pick up some food for a soup kitchen that D runs in Michigan. P sues D in Illinois state court for the negligence of D’s employee under respondeat superior. Both Illinois and Michigan law allow respondeat superior actions in general, but under Illinois’s law of charitable immunity, charities are immune from liability for the negligence of their employees.

At the time of the accident, D’s employee was driving 10 miles an hour in excess of the speed limit. This is admitted in D’s answer. Under the law of Michigan, but not the law of Illinois, driving above the speed limit is per se negligence.

Is P’s suit barred by charitable immunity? Is D’s employee per se negligent? Do not address constitutional restrictions on choice of law. [8 points – 14 minutes]

 

4.                  P (a domiciliary of Virginia) was invited by D (a domiciliary of Virginia) to take a pleasure trip by car to Michigan. The trip began in Virginia and was to end in Virginia. While in Michigan, D drove the car into a telephone pole. P sues D for his damages in DC court. (Personal jurisdiction exists because D was tagged in DC.) D asserts the defense of Virginia’s guest statute. Should the defense succeed? Do not address constitutional restrictions on choice of law. [8 points – 14 minutes]

 

5.                  X (a domiciliary of Virginia) became drunk in a bar in DC owned and run by D (a domiciliary of DC). After getting drunk at D’s bar, X drove home to Virginia, where X got into an accident with P (a domiciliary of DC). P sues D in DC court under DC’s Dram Shop Act, which imposes liability on tavern keepers for the accidents of those whom they intoxicate. Virginia does not have a dram shop act. D argues that Virginia law applies and makes a motion to dismiss. What result? Do not address constitutional restrictions on choice of law. [5 points – 9 minutes]

 

6.                  P (a DC corporation with its principal place of business in DC) and D (a domiciliary of Virginia) entered into a contract in Maryland for D to deliver coal to P’s power plant in DC. The contract included no choice of law provision. D failed to deliver, forcing P to buy coal on the open market for $100,000 more than the contract price. P sues D in Virginia state court and receives a judgment for $100,000 – plus interest on $100,000 for the amount of time that elapsed between P’s purchase of the coal on the open market and the time of P’s judgment against D. Under the law of all the relevant states (DC, Virginia, and Maryland), P is entitled to interest because, but for D’s breach, P could have profitably invested the extra $100,000 he had to pay for the coal. Under the law of Virginia the relevant rate of interest is 6%. Under the law of Maryland it is 5%. Under the law of DC is it 4%. Which interest rate applies? Do not address constitutional restrictions on choice of law. [6 points – 11 minutes]

 

7.                  Father (domiciled in Virginia) and Son (domiciled in Maryland) are visiting a chemical factory in Michigan when it explodes and they both die intestate (that is, without a will). At the time of his death Father has only two assets: land in DC and a bank account in Virginia. After his death, Father’s land is sold and the proceeds are added to the bank account in Virginia. Administrative proceedings concerning Father’s estate are then brought in Virginia state court. There are only two claimants – Mother (the wife of Father), who is domiciled in Virginia, and Grandson (the son of Son), who is domiciled in Maryland.

Under the law of intestate succession of all relevant states (Virginia, Maryland, DC, and Michigan), if Son died before Father or if Father and Son died at the same time, Father’s assets go to Mother. On the other hand, under the law of all relevant states, if Son outlived Father (if only for a second), then Mother and Grandson share Father’s assets equally. There is no evidence concerning who died first, Father or Son. Under the law of Virginia and Michigan, when a parent and a child both die in the same event, the rebuttable presumption is that they both died at the same time. Under the law of DC and Maryland, when a parent and a child both die in the same event, the rebuttable presumption is that the child died after the parent.

Should the Virginia court rule that Grandson is entitled to one half of the proceeds from the sale of the DC land? Should it rule that Grandson is entitled to one half of the rest of Father’s estate? Do not address constitutional restrictions on choice of law. [20 points – 36 minutes]

 

8.                  While on a trip in Chicago, Illinois, D (domiciled in Virginia) authorizes his son X (also domiciled in Virginia) to use D’s car to drive around Chicago. Contrary to D’s orders, X decides to drive the car to Madison, Wisconsin, where he hits P (domiciled in Wisconsin). P sues D in Virginia state court. Under the law of Wisconsin, anyone who licenses another to use his car is liable for the torts of the licensee.  Under the law of Illinois the licensor is not liable for the torts of the licensee. Under the law of Virginia, the licensor is liable for the torts of the licensee only if the licensee acted recklessly or with malice. Which law should the Virginia court apply? Do not address constitutional restrictions on choice of law. [6 points – 11 minutes]

 

9.                  P (a domiciliary of Illinois) enters into an employment contract with D (an Illinois business with its principal place of business in Illinois). In the course of the employment, P engages in some work for D in Maryland, where P is injured. P sues D in Maryland state court for relief under Illinois’s Workers Compensation Statute, even though the statute states that actions under it must be brought before Illinois’s Industrial Commission. May the Maryland court entertain P’s action anyway? [6 points – 11 minutes]

 

10.              P (a domiciliary of Wisconsin) was injured by X (a domiciliary of Illinois) in a car accident in Illinois. At the time of the accident X was working for D (an Illinois corporation with its principal place of business in Illinois). P filed a complaint against X in Wisconsin state court alleging negligence. (Personal jurisdiction was through tagging X in Wisconsin.) But almost immediately after filing the complaint and serving X, P and X entered into a settlement agreement, which provided that P “would refrain from instituting any action concerning the accident and would hold X harmless.” The agreement did not contain a choice of law clause. The agreement was negotiated in Illinois but was entered into in Wisconsin. Pursuant to the agreement, the Wisconsin state court issued a consent judgment for X and against P.

P then brought a suit against D in Illinois state court for P’s damages in the accident under a theory of respondeat superior. Under Illinois law, the settlement agreement between P and X would be construed as releasing D as well. Under Wisconsin law, it would not be construed as releasing D. Can P’s suit against D proceed? Do not address constitutional restrictions on choice of law. [10 points – 18 minutes]

 

11.              Husband and Wife divorced in Maryland. The divorce decree divided the property between them, setting aside for Wife some real property located in DC. The decree did not purport to actually change title. Soon after the divorce – and before Husband had actually transferred title in the DC property to Wife – Wife died intestate. Husband brought a declaratory judgment action in DC court to determine ownership of the property. He argued that the Maryland court did not have jurisdiction over the DC property and therefore that Husband and Wife remained joint tenants at the time of Wife’s death. Under DC and Maryland law, if Husband and Wife were joint tenants, ownership of the property would devolve to Husband – rather than Wife’s heirs – upon Wife’s death. Husband argues, therefore, that the property is his. How should the DC court decide? [7 points – 13 minutes]

 

12.              D (domiciled and working in DC) is a famous surgeon who, on the strength of her reputation (although not through any advertising on her part) gets patients from all over the world. X (domiciled in Virginia), on the advice of her doctor in Virginia, travels to DC to have D to perform an operation on her. In the course of the operation X dies. P (domiciled in Virginia), who is X’s husband, sues D in Virginia state court for wrongful death. (Personal jurisdiction over D is through tagging while she is traveling through Virginia.) DC’s wrongful death statute has a limitation on damages of $100,000. Virginia’s wrongful death statute has no limitation. The Virginia court refuses to apply DC’s damages limitation because it violates Virginia’s strong public policy against the imposition of limits on damages. This policy is expressed in the Virginia state constitution, which states that “[t]he right of action now existing to recover damages for injuries resulting in death shall never be abrogated; and the amount recoverable shall not be subject to any statutory limitation.” Assess the constitutionality of the Virginia court’s decision. [8 points – 14 minutes]