Mon. Feb. 10

Virginia cases

McMillan v McMillan (Va. 1979)

Buchanan v. Doe (Va. 1993)

"The forum state applies its own law to ascertain whether the issue is one of tort or contract."

“Substantive tort law in West Virginia, as in Virginia, requires that the plaintiff prove he was injured by the negligence of the defendant. But there is nothing in the tort law of either state which requires that injury be accompanied by physical contact in order to impose liability on the defendant. Under West Virginia law, however, in order to recover from an insurance company under an uninsured motorist policy, the injured party must prove in the John Doe tort action that the injury was accompanied by physical contact. But, for several reasons, we conclude that this requirement is a matter of statutory law dealing with insurance contracts.”

“Finally, if we construed the proof-of-contact requirement as State Farm suggests, the scope of a Virginia insured's UM coverage would depend upon the UM statutory provisions of each state in which a Virginia insured traveled, contrary to our understanding of the purpose of UM insurance.”

Perkins v Doe (W. Va. 1986)- W. Virg’ian gets into accident in Va. (no contact)- suit brought in fed ct against John Doe- question certified to W. Va. S.Ct.- said law of place of harm applied

Lee v. Saliga (W. Va. 1988)- Pennsylvanian gets into accident in W.Va. (no contact)- suit against insurance co. in W. Va ct.- W. Va. S Ct. holds that law of place of contracting applies

• Concurrence (Lacy)• “In my opinion, applying West Virginia law to bar a

Virginia resident from establishing the negligence of a John Doe motorist and recovering under the uninsured motorist provisions of an automobile liability policy solely because there was no physical contact between the vehicles is contrary to a significant public policy of this Commonwealth, as reflected in a broad range of Virginia's motor vehicle statutes, rules and regulations.”

• Concurrence (Lacy)• “To restrict the Virginia insured's recovery against

unknown motorists by imposing the physical contact rule punishes those drivers who attempt to avoid such contact, defeating the broader public policy to encourage safe driving. Applying the rule also places Virginia insureds at risk from negligent uninsured motorists whenever they leave the Commonwealth and subjects them to the requisites for recovery under the uninsured motorist provisions of each state in which they travel. Thus, they lose the full contractual benefits of their Virginia insurance policies, despite Virginia's articulated policy of protecting Virginia insureds against unknown, uninsured motorists whose negligence causes them injury.”

• Concurrence (Lacy)

• “Further, if the accident had occurred in Virginia, there would be no question of Buchanan's right to proceed to establish John Doe's liability for his injuries. Indeed, if Buchanan had filed suit in West Virginia, based on the facts before us here, the courts of that state would not have applied the physical contact rule to bar his action.”

Dreher v. Budget Rent-A-Car System, Inc. (Va. 2006)

• “The statutes of New York imposing a showing of financial responsibility as a condition to the registration and operation of motor vehicles express a strong public policy that a person injured by the negligence of a driver should have recourse to a defendant able to respond in damages.” The New York legislature intended this responsibility to extend extra-territorially. The provisions of N.Y. Law § 388 have been viewed as showing a “commendable concern not only for residents of [New York], but residents of other States who may be injured as a result of the activities of New York residents.”

pleading and proving foreign law

• FRCP 44.1 • A party who intends to raise an issue concerning the

law of a foreign country shall give notice by pleadings or other reasonable written notice. The court, in determining foreign law, may consider any relevant material or source, including testimony, whether or not submitted by a party or admissible under the Federal Rules of Evidence. The court's determination shall be treated as a ruling on a question of law.

Failure to offer evidence of foreign law

State court in New York in 1840 is entertaining negligence action under Pennsylvania law.No one offers evidence of what the law in Pa is.What does the court do?

Would things be different if the action were under Ca. or Fl. Law?

What about Engl. Law? French law?

What if the cause of action arose in an uncivilized place?

A federal court in New York is entertaining an action under New York state law. No one offers evidence of what the content of New York law is.

Can the court presume that New York law is like federal law?

2 Californians enter into gambling contract in Cal, with performance in Cal- gambling contracts are illegal under Cal. Law- the parties offer no evidence of Ca. law however- if the suit were brought in Nevada state court, where gambling contracts are legal, can the court presume that Ca. law is like Nev. law?

Failure to plead foreign law

•P (NY) sues D (NY) for not inviting P to NY birthday party, causing emotional harm•asks for $1 million in damages•No one mentions which NY law applies•What happens?

- 2 Californians enter into gambling contract in Cal, with performance in Cal- gambling contracts are illegal under Cal. law- P sues D in Cal. ct- D fails to bring motion to dismiss for failure to state a claim - can the case proceed or must ct dismiss?- if the suit were brought in Nevada state court, where gambling contracts are legal, must the court dismiss?

•P (Ark) sues D (Del) for negligence of D’s employee in Saudi Arabia•Complaint simply alleges negligence of employee,

damages etc.•No one mentions which law applies•What happens?

Walton v Arabian American Oil Co (2d Cir 1956)

•New York Civil Practice Act, § 344-a•judicial notice statute

Louknitsky v. Louknitsky

- California state court determining spousal rights in marital property of couple, now domiciled in Ca., while they were in China- presumed Chinese law was the same as California’s community property system

•Borrowing statutes

• West v Theis (Idaho 1908)• statute of limitations starts running in Kansas, but D leaves state, tolling it• Because no PJ in Kansas cts

• in Washington for many many years• More than anybody’s statute of limitations

• then briefly in Idaho, where sued• Idaho had borrowing statute that looked to statute of limitations of state

where cause of action arose (Kansas)• Is the action barred?

• Bridge Prods. Inc. v. Quantum Chem. Corp. (ND Ill 1990)• Property bought in VA• Del choice of law provision in K• Suit in Ill• Should court use Del statute of limitations?• Or should it use the statute of limitations that would be applied by an

Illinois court?• In this case it was VA’s