Opinion
Docket No. 77-4340.
Decided June 6, 1978. Leave to appeal applied for.
Randolph McCarthy, Jr., for plaintiffs. James, Dark, Craig Brill, for defendant.
Before: R.B. BURNS, P.J., and J.H. GILLIS and D.C. RILEY, JJ.
This matter involves the ancient doctrine of lex loci delicti. This writer was faced with a similar case some ten years past and took that opportunity to urge the Supreme Court to abandon the lex loci delicti doctrine and adopt the new "dominant contacts" approach in determining what law should govern in conflict situations.
The right of action on the tort is determined by the law of the state where the injury occurred.
The "dominant contacts" approach to choice of law situations requires the trial judge to assess the equities of the parties, the contacts involved between the forums and the relevant state policies in an effort to determine what law should apply to the case.
The Supreme Court decided to retain the Michigan position and declined to adopt the new approach, which is now used by a majority of states. Hence, this writer is bound to follow the mandate of the Supreme Court and apply the outmoded doctrine of lex loci delicti to this case. In doing so, this writer reaches what he perceives to be an inequitable result, and urges plaintiffs to appeal this case to the Supreme Court, who will hopefully abandon the lex loci delicti doctrine and adopt the more equitable "dominant contacts" approach.
For example, see Ingersoll v Klein, 46 Ill.2d 42; 262 N.E.2d 593 (1970), Beaulieu v Beaulieu, 265 A.2d 610 (Me 1970), Kennedy v Dixon, 439 S.W.2d 173 (Mo 1969), Clark v Clark, 107 N.H. 351; 222 A.2d 205 (1966), Wilcox v Wilcox, 26 Wis.2d 617; 133 N.W.2d 408 (1965), Wessling v Paris, 417 S.W.2d 259 (Ky App 1967), First National Bank in Fort Collins v Rostek, 182 Colo. 437; 514 P.2d 314 (1973), Brickner v Gooden, 525 P.2d 632 (Okla 1974), Fabricius v Horgen, 257 Iowa 268; 132 N.W.2d 410 (1965).
The facts in this matter are not in dispute.
Plaintiff and a co-employee, both residents of Michigan, were operating a truck in the course of their employment for the Kalamazoo Valley Plant Growers. The truck overturned in Wythe County, Virginia, and plaintiff sustained serious, disabling injuries.
A Michigan corporation.
The truck in question was leased in Michigan by the Kalamazoo Valley Plant Growers from defendant, Ryder Truck Rental, Inc., a Florida corporation authorized to do business in Michigan.
Plaintiffs commenced an action against defendant in Kalamazoo County Circuit Court pursuant to MCL 257.401; MSA 9.2101, the owner liability statute.
Defendant filed a motion for summary judgment on the basis that Virginia tort law, which does not provide for owner liability suits, governed the matter in accordance with the doctrine of lex loci delicti.
The trial court applied the doctrine and granted defendant's motion for summary judgment.
The question presented to this Court is simply drawn.
"Shall the law of the place of the tort invariably govern the availability of relief for the tort or shall the applicable choice of law rule also reflect a consideration of other factors which are relevant to the purposes served by the enforcement or denial of the remedy?" Babcock v Jackson, 12 N.Y.2d 473, 477; 240 N.Y.S.2d 743; 191 N.E.2d 279 (1963) (footnote omitted).
The Supreme Court has answered this question in the analogous case of Abendschein v Farrell, 382 Mich. 510; 170 N.W.2d 137 (1969).
In Abendschein, the Court specifically rejected the modern trend of cases which have adopted the "dominant contacts" approach in determining what law should be applied in any given conflict situation and steadfastly affirmed the doctrine of lex loci delicti.
"That rule has been settled unanimously, understood thoroughly, and thought to be fair to all affected thereby as man might reasonably conceive unless, of course, we are to make equity causes out of law actions. In a word, the law applicable to the presently reviewed question is the rule stare decisis, a rule all of us are supposed to follow save only when persuasion leads to abiding conviction that some undeniably better rule is available for proper supersession. There is no such persuasion, since the quagmire of unanswered and perceivably unanswerable questions arising out of the proposed new doctrine appears less attractive than our admittedly hard and fast — and occasionally unjust, it is true — rule that the law of the place of the wrong is applied when the forum is a Michigan court.[3]
"[3] Application of the substantive law of the jurisdiction where the tort occurred has been the unanimously accepted rule in Michigan since Wingert v Wayne Circuit Judge (1894), 101 Mich. 395 [59 N.W. 662]." Abendschein v Farrell, supra, at 516.
However, this seemingly hard and fast rule is not without exception. A handful of Michigan cases have declined to follow the lex loci delicti doctrine when it contravenes the public policy of this state.
For example, in Sweeney v Sweeney, 402 Mich. 234, 242; 262 N.W.2d 625 (1978), the Supreme Court concluded that:
"The state of residence has a substantial interest in the parent-child legal relationship. Michigan's announced public policy is to permit a child `to maintain a lawsuit against his parent for injuries suffered as a result of the alleged ordinary negligence of the parent'. That public policy should apply to Michigan residents suing in Michigan courts even though the alleged negligence occurred in Ohio.
"Automatic application of lex loci delicti in this daughter against father suit would frustrate an announced Michigan public policy. Whether lex loci delicti should be applied in other situations is not decided here."
Also, see Kircher v Kircher, 288 Mich. 669; 286 N.W. 120 (1939), and Branyan v Alpena Flying Service, Inc, 65 Mich. App. 1; 236 N.W.2d 739 (1975).
Plaintiffs contend that Virginia tort law, which does not provide for owner liability suits, contravenes the public policy of this state and therefore an exception to the lex loci delicti rule is warranted in the instant case.
Plaintiffs' argument, while logical and persuasive, has been specifically rejected by the Supreme Court.
"The fact Michigan statutory regulations of the rights of a motor vehicle guest passenger may differ from Ontario statutory provisions, or even the provisions of the common law governing like rights, is not a reason for holding the statute of the foreign jurisdiction contravenes public policy here." Kaiser v North, 292 Mich. 49, 57; 289 N.W. 325 (1939).
Plaintiffs' other public policy contention, in respect to the no-fault act, fails in light of the aforementioned case.
Plaintiffs next contend that the lease agreement executed between the parties incorporates Michigan statutes and, therefore, Michigan law should govern the instant case. In support of their contention, plaintiffs direct us to Kline v McCorkle, 330 F. Supp. 1089 (ED Va 1971), which ruled that statutory provisions can become part of the contract.
It should be noted that the Kline case, supra, was reversed by the Fourth Circuit in Kline v Wheels by Kinney, Inc, 464 F.2d 184, 187 (CA 4, 1972).
Even if we were to accept plaintiffs' argument and incorporate MCL 257.517; MSA 9.2217 and MCL 257.520; MSA 9.2220, into the lease, the liability of the lessor would not be determined by the lease. The aforementioned statutes concern the proof and amount of financial responsibility required in order to operate a motor vehicle registered in this state. Hence, liability could be determined by reference to Michigan law or that of another state, and then these provisions could be applied.
Accordingly, we reluctantly affirm the trial court's order dismissing plaintiffs' suit.
Affirmed. Costs to appellee.
D.C. RILEY, J., concurs in result only.