Hunker v. Royal Indem. Co., 24

• Decision Date: 13 March 1973
• Docket Number: No. 24,24
• Citation: 57 Wis.2d 588,204 N.W.2d 897
• Parties: Robert J. HUNKER, Plaintiff-Respondent, v. ROYAL INDEMNITY CO. et al., Defendants-Appellants, Robert J. Henry, Defendant-Respondent.
• Court: Wisconsin Supreme Court

Page 897

204 N.W.2d 897

57 Wis.2d 588

Robert J. HUNKER, Plaintiff-Respondent, v. ROYAL INDEMNITY CO. et al., Defendants-Appellants Robert J. Henry, Defendant-Respondent.

No. 24.

Supreme Court of Wisconsin.

March 13, 1973.

Godfrey, Trump & Davidson, William H. Frazier, Milwaukee, for appellant Royal Indemnity.

Heide, Sheldon, Hartley, Thom & Wilk, S. Michael Wilk, Kenosha, for appellant Republic-Franklin Ins. Co.

Goldberg, Previant & Uelmen, Albert J. Goldberg, Milwaukee, for plaintiff-respondent.

HEFFERNAN, Justice.

The facts of this case show substantial contacts with the state of the forum, Wisconsin, and with the State of Ohio.

In addition to being the forum, Wisconsin is the state in which the accident occurred, and one of the parties to the collision on the Wisconsin highway was a Wisconsin resident.

The plaintiff is a resident of Ohio and his action is against an Ohio insurance company which issued the liability policy in the State of Ohio to Brown, an Ohio resident, the plaintiff's co-employee and driver. Both Hunker and Brown were employees of an Ohio corporation. Their trip to Wisconsin, commenced in Ohio, was in the scope of their employment for their Ohio employer. Hunker and his employer are subject to Ohio's workmen's compensation law. An award has been made to Hunker, and he has collected it.

To the extent we can anthropomorphize the sovereign states of Ohio and Wisconsin, they are both interested jurisdictions. The conduct of persons driving automobiles on Wisconsin highways is of concern to the State of Wisconsin as a government which seeks safety for persons on its highways, the distribution of accident losses, and payment to Wisconsin creditors. As a justice-seeking jurisdiction, its courts are concerned that justice be done irrespective of the origins of the party litigants.

Ohio is interested in seeing that its citizens are not impoverished as the result of accidents and injuries occurring in the course of their employment--that the cost of work-occasioned injuries are placed upon the industry involved as a cost of doing business and spread as an additional cost to the consumer. It is concerned with industrial safety and industrial peace. It enacted a workmen's compensation law to assure that doctors and hospitals who treat those injured in industrial accidents will be compensated and that injured workmen will not be objects of charity, either of the state or of private institutions.

We cite these generalized concerns of two jurisdictions only for the purpose of demonstrating that the selection of the law of either jurisdiction, or some aspects of the law of one jurisdiction and some aspects of the law of the other, is not, under the rationale of Wilcox v. Wilcox (1965), 26 Wis.2d 617, 133 N.W.2d 408, completely absurd. Arguably, public-policy interests of the concerned jurisdictions and the concerned parties would rationally be served by the choice of some of the law of either jurisdiction. The question that confronts this court is, however, not which jurisdiction we should select as the source of all the law to be applied to the case, but rather what aspects of the laws of either jurisdiction are most appropriately to be applied. There are substantial contacts with both Wisconsin and Ohio that could, under some circumstances, trigger the application of the law of either.

Only a single aspect of the law is at issue here--whether the Ohio law that bars suits against co-employees should be chosen for application in this case or the Wisconsin law that permits co-employee suits.

Prior to 1963, such actions were permitted by Ohio, but since that time they have been barred by Ohio statutory law. Sec. 4123.741, Page's Ohio Revised Code Annot. Under interpretations given the Wisconsin law by this court, a worker may bring suit against a co-employee for negligent conduct causing injuries in the course of their joint employment. Zimmerman v. Wisconsin Electric Power Co. (1968), 38 Wis.2d 626, 157 N.W.2d 648. The fact that the accident is covered by Wisconsin's workmen's compensation law does not bar the separate tort action. See, secs. 102.03(2) and 102.29(1), Stats.

The plaintiff has received an award under the Ohio workmen's compensation law, but since the decision of the United States Supreme Court in Carroll v. Lanza (1955), 349 U.S. 408, 75 S.Ct. 804, 99 L.Ed. 1183, it appears reasonably clear that the prior compensation award in the state of residence is not a bar to a common-law action for damages elsewhere.

The Wisconsin court can constitutionally apply its own law to the case. The application of that law will permit the cause of action for common-law negligence to proceed; the application of Ohio law would bar the cause of action by the co-employee and terminate further efforts to collect more than was awarded by the Ohio compensation authorities.

Since different law may be applied to resolve further proceedings in this case, and the selection of law will affect the outcome, this court is faced with a conflict-of-laws problem and is obliged to make a choice between the Wisconsin rule and the Ohio statute.

Illinois is also 'concerned,' though minimally, since the automobile was hired there and one of the insurance policies came into operation as the result of such hiring, and it could be asserted that Illinois law is available as a choice. However, as between the law of Ohio and the law of Illinois, no choice need be made, for each bars suits by co-employees. That choice would not be outcome determinative.

While a methodology could be applied that would lead to the choice of either the law of Ohio or of Illinois, the choice would be meaningless, since the result would be identical in respect to the only issue in this case. In respect to the choice of law between that of Ohio and that of Illinois, this is a 'no-conflicts' case. Since their law is identical, and Ohio obviously has more substantial contacts than Illinois, our analysis will be confined to the law of that jurisdiction as contrasted with that of Wisconsin.

In the evolution of the Wisconsin conflicts law, we have arrived at a methodology of making the choice of law by relying upon an analysis of 'choice-influencing considerations.'

The first case in recent Wisconsin conflicts law history is Wilcox v. Wilcox (1965), 26 Wis.2d 617, 133 N.W.2d 408. In Wilcox, we concluded that, qualitatively as well as quantitatively, the facts of that case pointed to the law of Wisconsin as being the one that ought to be applied. We emphasized that Nebraska was only minimally concerned in comparison to Wisconsin. We were careful, however, in Heath v. Zellmer (1967), 35 Wis.2d 578, 593, 151 N.W.2d 664, to point out that in Wilcox the conflict identified was not 'serious.' In Conklin v. Horner (1968), 38 Wis.2d 468, 475, 157 N.W.2d 579, 582, we stated that, 'Wilcox was an easy case that revealed no serious conflict with the laws of another jurisdiction.' We have refrained, however, from labeling the Wilcox situation as a false conflict, since the law of either Wisconsin or Nebraska could constitutionally have been applied and the choice of law would have determined the outcome. Wilcox was a conflicts case. In Zelinger v. State Sand & Gravel Co. (1968), 38 Wis.2d 98, 107, 156 N.W.2d 466, 470, it was carefully explained that 'An easy choice does not make a false conflict.' In Heath, however, we lapsed into the loose use of language by characterizing a conflict as a 'true' conflict. We now deem that language inappropriate--an outcome-determing conflict either exists or it does not. It may be resolved either with ease or with difficulty. But if it is a conflict of laws, nothing is gained by so characterizing it as easy or difficult. While it would be appropriate to use the term, 'true,' for emphasis in contrast to a no-conflict ('false' conflict) situation, it is misleading to apply it as descriptive of a choice of law which can only be made with some degree of effort.

Whether a choice of law is easy to make or hard to resolve, the decision will be made by this court in accordance with the 'choice-influencing considerations' adopted in Heath and followed in Zelinger, Conklin, and Haines v. Mid-Century Ins. Co. (1970), 47 Wis.2d 442, 177 N.W.2d 328. These considerations are proper and relevant whether the choice be easy or difficult.

In Wilcox, we analyzed the facts and the contacts with the forum and found that the choice was an easy one. We then concluded that Wisconsin's law ought to apply.

In Heath, a much more difficult case, we carefully analyzed the facts as we did in Wilcox, concluded that there was a difficult choice to be made, and then applied Robert A. Leflar's choice-influencing considerations. We have followed this two-step technique since Heath.

We deem this method of analysis a redundancy. No useful purpose is served by a preliminary analysis that only tells us our problem is difficult. Moreover, the same considerations are in part likely to be tediously reiterated in each of the two steps. More importantly, by using the two-step analysis, what appears to be an easy choice is likely to be resolved at the first stage without a proper evaluation of the five choice-influencing considerations we adopted in Heath.

While the Wilcox analysis well served its purpose where once made the choice of law was apparent, we deem it more appropriate merely to determine whether there is a conflict, i.e., will the choice of one law as compared to another determine the outcome. Once that is decided and the facts on their face reveal that to apply any of multiple choices of law would not constitute mere officious intermeddling, in the constitutional sense, the analysis should proceed with the law-selecting process based on the five factors approved in Heath.

The choice-influencing considerations as capsulized by Robert A. Leflar in Choice-Influencing Considerations in Conflicts Law, 41 New York University Law Rev. (1966)...