Conflict of Laws M.H. Hoffheimer

Final Exam University of Mississippi

Law School

Spring 2004

This is a closed book exam. Do not speak with any person other than the faculty member who is administering this exam until you have turned in your exam. Do not remove any exam materials, questions, or blue books from the room during the exam. After you complete the exam and turn in your blue books, you may take the questions with you when you exit the room.

The exam consists of two parts. You will have three hours to complete the exam, and recommended times are indicated for each part. Answer all questions.

Identify yourself on your blue books only by your exam number. By placing the exam number on your blue book and by submitting your blue book for credit, you are agreeing to the following pledge (as required by law school policy):

"On my honor I have neither given nor received improper assistance. And I will report any improper assistance that I am made aware of."

Reference to the first Restatement means the Restatement [first] of the Law of Conflict of Laws (1934). The term "state" means a state of the United States. The term "country" means a sovereign power that is neither a state of the United States nor the government of the United States.

No effort has been made to achieve legal verisimilitude, and laws that are included in questions should be considered accurate only hypothetically and for purposes of answering the questions on this exam. Do not assume any additional fact or law, except those laws studied in the course, without stating explicitly your assumption and explaining why such additional information is necessary for your answer.

PART I. SHORT ANSWERS (60 minutes for this part--or an average of ten minutes for each question)

Instructions. Write a coherent literate response to each of the following problems. Each problem in this part can be answered adequately with a response that is no longer than one paragraph.

1. The country of Eldorado and the state of Mississippi formed a joint venture to pool resources and coordinate marketing efforts aimed at promoting the domestic and international consumption of catfish. The parties negotiated details of the agreement through the exchange of e-mail correspondence. The formal execution took place at a ceremonial signing at the Capitol building in the Mississippi state capital.

One year after the joint venture was initiated, the country of Eldorado suffered a military coup under which General Felix Gatto seized power and installed himself as supreme ruler of the country. General Gatto cancelled the marketing campaign and withdrew from the joint venture when he discovered that the joint venture's marketing logo (a cat with mustache, spectacles and fish's tail) bore a strong resemblance to himself.

The contract provided, "In the event of breach, the breaching party shall be liable to the nonbreaching party for actual damages. No punitive damages shall be recoverable." But the contract also provided that "This contract shall be governed by and construed in accordance with the law of Eldorado." Under the law of Eldorado, punitive damages are available for willful breach of contract. The High Court of Eldorado has held that contractual waivers of rights to punitive damages are void as a matter of public policy. Under the law of Eldorado, the country of Eldorado has complete sovereign immunity.

Mississippi Attorney General Jim Hood has come to you for advice. He wants to know whether he can sue the country of Eldorado in state court; what law governs the contract; whether Eldorado is immune under the doctrine of sovereign immunity and whether punitive damages would be available. Please explain.

2. Same facts. Six months after the joint venture agreement was executed, Pedro Perro commenced a civil action against the state of Mississippi in United States District Court for the Southern District of Mississippi.

Perro, a citizen and subject of Eldorado, alleges in his complaint that he provided marketing services to the country of Eldorado for over ten years but that Eldorado terminated his contract because of its joint venture with the state of Mississippi. He alleges that the loss of this contract has caused him damages in excess of one million dollars.

Perro's complaint further alleges that his claim is supported by the law of Eldorado. Under the law of that country a cause of action for tortious interference with contract arises when a third person's acts encourage, directly or indirectly, any party to breach a contract. Eldorado law recognizes affirmative defenses to such a claim but places the burden on the defendant to establish such defenses.

Under the law of Mississippi intent is an element for tortious interference with contract. Perro concedes that there is no evidence of intent in this case.

The state of Mississippi has moved to dismiss. You are the judge, rule on the motion and explain.

3. In country X Dogg called Pat a "thieving whore." The words were heard by Y's employer in the country of Y. Under the law of Y the words "thieving whore" are defamatory per se and support a cause of action for damages in the absence of any proof of damages. Under the law of X all causes of action for spoken defamation must be supported by allegation and proof of damages.

Pat sues Dogg in state Y. Her complaint does not allege actual damages. Dogg moves to dismiss.

Both X and Y follow the first Restatement.

Rule on the motion and explain.

4. Hubert Humpty and Dudley Dumpty, citizens and subjects of the country of Narnia, were visiting California for a vacation. While driving from their hotel to Disneyland, Dumpty failed to look carefully before changing lanes. As a result Dudley collided with a truck and Humpty struck his head against the dashboard.

Unfortunately, Humpty suffered from eggshell skull syndrome and died. Humpty's estate has commenced a civil action against Dumpty in California state court for personal injury and wrongful death.

Narnia has a guest statute under which a guest cannot recover from a host driver for torts unless the driver's conduct was grossly negligent. California has no guest statute. The parties agree that Dumpty's conduct provides sufficient evidence to support a finding of negligence but not of gross negligence.

California follows comparative impairment. Narnia follows the first Restatement.

Dumpty moves to dismiss under the law of Narnia. Rule on the motion and explain.

5. Same facts. Assume that (erroneously or not) Humpty's estate gets a judgment against Dumpty in California state court in the amount of $200,000. Although the judgment has become final and is valid and binding under California law, Humpty's estate has been unable to satisfy the judgment because it has not located any assets of the defendant in California.

Accordingly, Humpty's estate commences a civil garnishment action against Everystate Insurance Co. in Delaware. Everystate Insurance is incorporated under the laws of Delaware. The complaint alleges that Dumpty owes Humpty's estate money as a result of the California judgment and that one of Dumpty's assets is his right to recover insurance proceeds on his policy with Everystate.

Humpty's estate has moved for summary judgment attaching a certified copy of the judgment from the California state court. Everystate Insurance Co. has come to you for advice on whether to offer to settle or to resist the motion. It asks whether the California judgment will be given res judicata or collateral estoppel effect in Delaware. Please advise.

6. T, a lifelong resident of state X, vacationed every summer in state Y, where he owned a ranch. In the summer of 2000, while in state Y, T drafted and signed a holographic document that purported to be a will and that provided, "I give my ranch to my sons and their heirs."

Under the law of state X the language "to my sons and their heirs" conveys a fee simple absolute to the sons as co-tenants. Under the law of state Y the language "to my sons and their heirs" conveys a life interest to the sons as co-tenants with remainder to the son's heirs at their death. Under case law in state X a group gift to "my sons" has been interpreted as intending to convey a property interest to all the sons whom the testator knew existed. Under case law in state Y a gift to "sons" has been interpreted to convey an interest to all biological children, known or unknown.

T died domiciled in state X. State X does not recognize holographic wills. State Y recognizes such wills.

At T's death, he is survived by two sons Sonny and Fils. Fils has two children. In addition, DNA tests conclusively establish that Hijo is also T's son, though T never knew of the existence of Hijo.

The person named as executor in T's holographic document has come to you for advice and asks: 1) Is the document valid as a holographic will? If it is, 2) Who are the sons? And 3) Do they get a fee simple or life estate? Please advise and explain. Apply the first Restatement rules.

PART II. ANALYTIC ESSAYS (120 minutes)

Instructions. Write coherent, literate essays in the Blue Book that respond to the following problems.

Big Trucking Corporation was incorporated in Delaware, had its principal place of business in New Jersey, and engaged in extensive over-the-road business in all forty-eight contiguous states. Since 1979 it has been licensed to do business in the state of Mississippi.

On April 1, 2002, Pam Plaintiff was injured in the state of West Dakota when a truck operated by Big Trucking Corporation collided with her car. The immediate cause of the collision was defective brakes. Burt Trucker was the truck driver at the time of the collision. A routine inspection of the truck by the truck driver would have revealed that the brakes were defective.

At all relevant times Trucker has been a resident of Mississippi. At the time of the accident Plaintiff was a resident of West Dakota. However, she moved to Mississippi to get married and changed her residence to Mississippi in January 2003.

Shortly after her accident Big Trucking Corporation became insolvent and has been dissolved. Burt Trucker is currently serving a thirty year sentence in the Mississippi state penitentiary for criminal acts unrelated to the accident involving Pam Plaintiff. Accordingly, neither of those persons is able to satisfy a claim for damages. Nor does either have any insurance.

In October 2003 Plaintiff commenced a civil action against the insurance company in Mississippi state court that had issued policies that she held at the time of the collision. The company, Happyco Insurance, is a Delaware corporation with its principal place of business in West Dakota. At the time of the accident Plaintiff owned two cars and each was insured with a separate policy with Happyco. Under the terms of each policy Happyco agreed to pay any personal injury damages sustained by Plaintiff that were the result of a tort committed by a tortfeasor who was uninsured and unable to satisfy a claim. Each policy limited the amount of this uninsured motorists coverage to $10,000.

Both policies provided that "all litigation for claims for uninsured motorists coverage must be commenced within thirteen months of the occurrence of the tort giving rise to the claim." Each policy further provided that "This contract shall be governed by and construed in accordance with the law of the state of West Dakota."

Under the law of West Dakota stacking is not allowed. In other words, a person is permitted to recover uninsured coverage under only one policy. In contrast, under the law of Mississippi a person is permitted to stack her claims. Under the law of West Dakota Plaintiff could recover no more than $10,000. Under the law of Mississippi Plaintiff could recover up to $20,000.

According to the law of West Dakota "suit clauses" that shorten the time within which litigation must be commenced are valid and enforceable if they do not shorten the period to less than one year. Under the law of Mississippi contractual provisions shortening the statute of limitations are unenforceable.

West Dakota follows the first Restatement approach to choice of laws issues.

Happyco has offered to pay Plaintiff $10,000 but refuses to pay her any more, insisting that her claim is barred under the suit clause and that West Dakota law governs the stacking issue. Plaintiff has come to you for legal advice. Please fully analyze her claims and evaluate any potential defenses.

On April 1, 2002, Don, citizen of the state of Mississippi, went for a car trip to the state of East Dakota. After entering East Dakota, Don picked up two hitchhikers. Pete Misspin, a domiciliary of Mississippi, and Phil Eastin, a domiciliary of East Dakota.

While struggling with his five-disk CD changer, D lost control of the car. The car hit a tree, and Misspin and Eastin were badly injured.

East Dakota follows the first Restatement. Under the Hitchhiker Reform Act of East Dakota hitchhikers are not allowed to recover for torts committed by their host drivers for any form of negligence. They can only recover for intentional torts. The legislative history of the act makes clear that the purpose of the act was to discourage hitchhiking by making hitchhikers bear all the costs of injuries that occur while they are hitchhiking.

On April 14, 2004, Misspin and Eastin commenced civil actions in Mississippi Circuit Court against Don for personal injuries stemming from the 2002 accident.

Mississippi has a three year statute of limitations for personal injury actions. But East Dakota has a two year statute of limitations for all tort claims.

Don has come to you for legal advice. Please fully analyze the merits of plaintiffs' claims, identifying possible defenses, and explaining what law will apply and why.