Comments: The grading key reproduced below proved nearly useless. Answers to this question were graded without much use of the key. Students were credited with out-of-the-box solutions. Those who confused jurisdiction with choice of law did poorly. Students generally failed to consider jurisdictions other than Louisiana, Alabama and Illinois. Many students labored under the mistaken notion that a state needs some interest in the litigation or some "minimum contact" to adjudicate the case. That notion utterly ignores Hughes v. Fetter, wherein the Supreme Court of the United States said that a state may not constitutionally close the doors of its courts to actions arising elsewhere. This test question is difficult, as there is something "wrong" with each of the three obvious fori. We should start by asking the relative liability or fault of Jack and Bubba. One of these persons may not have any fault and may not even be needed as a defendant. Indeed, if the policy limits are high enough, neither motorist may be needed! It would suffice to bring the action in a state such as New York (Collins v. American Automobile Ins. Co.) which, even though not having a direct action statute of its own, is willing to view the Louisiana direct action statute as substantive and therefore creating a transitory cause of action that may be enforced wherever Everystate Insurance may be found. Everystate, like Ford and Blazerock, may be found in every state either through having qualified to do business and having appointed a registered agent there, or through sufficient minimum contact to support general jurisdiction. Jurisdiction obviously exists in Illinois as to all defendants except Bubba. Perhaps Illinois is willing to view LRS 22:655 as substantive. If so, Bubba is not even necessary as his insurer clearly can be sued in Illinois. Jurisdiction obviously exists in Alabama as to all defendants except Jack. Perhaps Alabama is willing to view LRS 22:655 as substantive. If so, Jack is not even necessary as his insurer clearly can be sued in Alabama. If suit is brought in Louisiana, prescription is a problem. But Louisiana Civil Code article 3549 "borrows" the prescriptive period of the state whose law "is applicable to the merits of the cause of action." It can be argued, using Louisiana's governmental interests test, that that state is Illinois (or Illinois/Alabama taken as an undifferentiated whole). In such case, the Illinois (or Illinois/Alabama) prescriptive period would be applicable. But, if Jack might be at fault, the plaintiff has just painted herself into a corner. If Illinois law (or Illinois/Alabama law) applies, the guest passenger statute of Illinois and/or Alabama arguably applies also. If suit is brought in Illinois, prescription may also be a problem. This depends on whether the Illinois borrowing statute borrows the statute of limitations of the place where the accident occurred, or of the place whose law is applicable to the merits. If the latter, it can be argued that Illinois should apply Illinois law to the case, including Illinois's statute of limitations, but then the plaintiff is back in the same guest-passenger corner. If suit is brought in Alabama (under this hypothetical, Alabama has no borrowing statute), prescription is no problem. The plaintiff is thereby free to claim either that Louisiana is the center of gravity, or that Louisiana is the state having the greatest interest, or that Louisiana is the locus of the delictus. Even if Alabama follows center-of-gravity or governmental interests, it can also be argued that there is no one clear center of gravity, no one clear state having the greatest interest. In such a case, lex locus delicti would apply. Louisiana law favors the plaintiff on all substantive issues. The issue of whether a direct action can be maintained against Everystate does not depend on choice of law. The Louisiana direct action statute by its own terms applies when the accident occurred in Louisiana. Some states treat this as creating a substantive cause of action. Hence the attractiveness of New York, subject only to any borrowing-statute issue there. This case might be a good candidate for use of depeçage, arguing that while Illinois's prescriptive period should apply, Louisiana law should govern on the guest-passenger issue. |
Now the largely discarded (as to this question) grading key: |
| The plaintiff will need to find a jurisdiction where: | |
A two-year or longer statute of limitation applies, and |
7 points _______ |
There is no "borrowing statute", or |
7 points _______ |
The court will borrow the Illinois/Alabama limitation |
7 points _______ |
Ford, Blazerock and Everystate are subject to in personam |
7 points _______ |
through service within the jurisdiction |
7 points _______ |
or through minimum contact |
7 points _______ |
sufficient for general jurisdiction |
7 points _______ |
| Statutes of limitation are procedural | 7 points _______ |
| The forum always applies its own limitations | 7 points _______ |
unless it has a borrowing statute |
7 points _______ |
| Articulate explanation of borrowing statute | 7 points _______ |
| Louisiana Revised Statutes 22:655 applies | 7 points _______ |
| Accident occurred in Louisiana | 7 points _______ |
| LRS 22:655 creates substantive, transitory cause of action | 7 points _______ |
| Jurisdiction against Everystate and/or Ford is all that is necessary | 7 points _______ |
| Everystate and Ford have agents for service in every state | 7 points _______ |
| Discussion of Oltarsh v. Aetna or its principles | 7 points _______ |
| Discussion of Collins v. American Cas. Co. or its principles | 7 points _______ |
| Will Illinois or Alabama apply their guest passenger statute? | 7 points _______ |
| Do either of those states follow lex loci delicti? | 7 points _______ |
| Could a court treat Illinois/Alabama law as undifferentiated whole? | 7 points _______ |
| Discussion of limitations issue in light of choice-of-law approaches | 7 points _______ |
| Discussion of guest passenger issue in light of choice-of-law approaches | 7 points _______ |
| Observation that depeçage may be appropriate | 7 points _______ |
| Defense may argue that prescription differs from limitations: | 7 points _______ |
Prescription is substantive and extinguishes the cause of action |
7 points _______ |
Limitations is procedural and only closes a courthouse's doors |
7 points _______ |
Foreign court in this view should apply Louisiana prescription |
7 points _______ |
A. Is the Tennessee TRO entitled to FF&C in Louisiana?
| The Tennessee order is not entitled to full faith and credit in Louisiana | 5 points _______ |
| Ex parte orders are not entitled to FF&C under FPKPA | 5 points _______ |
| Tennessee has jurisdiction to hear the custody case | 5 points _______ |
Tennessee is the home state of the children |
5 points _______ |
Discussion of Atkins v. Atkins |
5 points _______ |
| "Home state" is where the child has lived for six months | 5 points _______ |
prior to the date suit is filed |
5 points _______ |
| If child is less than six months old, since birth | 5 points _______ |
| Periods of temporary absence are counted | 5 points _______ |
C. Where does jurisdiction lie to dissolve the marriage?
| Both Louisiana and Tennessee have concurrent jurisdiction | 5 points _______ |
It's a race to judgment on the divorce itself |
5 points _______ |
| Jurisdiction in divorce is based on domicile | 5 points _______ |
| Husband is domiciled in Tennessee | 5 points _______ |
Shelby County is a county of proper venue |
5 points _______ |
| Wife is domiciled in Louisiana | 5 points _______ |
East Baton Rouge Parish is a parish of proper venue |
5 points _______ |
D. Where does jurisdiction lie to determine alimony and child support?
| Alimony and child support require in personam jurisdiction | 5 points _______ |
Wife may be longarmed into Tennessee based on living there |
5 points _______ |
Husband is subject to Louisiana jurisdiction. State reason. |
5 points _______ |
| Both states have concurrent jurisdiction as to support | 5 points _______ |
E. Where does jurisdiction lie to partition the community?
| Property issues require either in personam or quasi in rem jurisdiction | 5 points _______ |
Wife may be longarmed to Tennessee based on living there |
5 points _______ |
Husband's longarmability to Louisiana depends on his contacts |
5 points _______ |
| Either party may be personally served while in the other party's jurisdiction | 5 points _______ |
| With in personam jurisdiction, court may divide all property wherever located | 5 points _______ |
| Otherwise, in rem, court may divide only property within the jurisdiction | 5 points _______ |
| All but Louisiana immovables are governed by Tennessee law | 5 points _______ |
Return to The Castle Classroom
Copyright © 2004 by M. R. Franks - ALL RIGHTS RESERVED