DeLoach v. Alfred

• Decision Date: 23 September 1997
• Docket Number: CA-SA,No. 2,2
• Citation: 952 P.2d 320,191 Ariz. 82
• Parties: , 252 Ariz. Adv. Rep. 55, 253 Ariz. Adv. Rep. 35 Kevin G. DeLOACH and Yvonne DeLoach, husband and wife, Petitioners, v. The Honorable Michael ALFRED, a Judge of the Superior Court of the State of Arizona, County of Pima, Respondent, and Kevin E. HAMBLIN, a single person, Real Party in Interest. 97-0071.
• Court: Arizona Court of Appeals

Page 320

952 P.2d 320

191 Ariz. 82, 252 Ariz. Adv. Rep. 55, 253 Ariz. Adv. Rep. 35

Kevin G. DeLOACH and Yvonne DeLoach, husband and wife, Petitioners, v. The Honorable Michael ALFRED, a Judge of the Superior Court of the State of Arizona, County of Pima, Respondent and Kevin E. HAMBLIN, a single person, Real Party in Interest.

No. 2 CA-SA 97-0071.

Court of Appeals of Arizona Division 2, Department B.

Sept. 23, 1997.

Review Granted March 17, 1998.

Chandler, Tullar, Udall & Redhair, LLP, by D.B. Udall and Christopher R. Pennison, Tucson, for Petitioners.

King, Frisch & Allen, P.C. by Ron Allen, Tucson, for Real Party in Interest.

OPINION

HOWARD, Judge.

Petitioners Kevin and Yvonne DeLoach, defendants in the underlying tort action that arose out of an automobile accident in Tennessee, seek special action review of the respondent trial court's denial of their motion for summary judgment. The motion was based on the running of Tennessee's one-year statute of limitations. We have accepted jurisdiction of the special action because it raises only an issue of law, the issue is of statewide importance, and our resolution of the issue ends the litigation. Sanchez v. Coxon, 175 Ariz. 93, 854 P.2d 126 (1993).

Real party in interest Kevin Hamblin, a California resident, was involved in an auto accident in Tennessee on June 19, 1994. He filed the underlying action in Arizona on June 19, 1996, naming as defendants Budget Rent-A-Car of Memphis, whose principal place of business is Tennessee; Wilbert Moore and his wife, Tennessee residents; and the DeLoaches, Arizona residents. Budget has apparently been dismissed from the action, and counsel conceded at oral argument in this special action that the Moores remain parties.

The DeLoaches filed a motion for summary judgment based on the one-year statute of limitations for tort actions in Tennessee. Tenn.Code Ann. § 28-3-104. They argued that the locus of the accident, rather than the forum, determines which statute of limitations applies. Hamblin opposed the motion, urging the trial court to apply this state's two-year statute of limitations. A.R.S. § 12-542. He argued that Arizona applies its own law to procedural matters and that both Arizona's and Tennessee's limitation provisions are procedural. The trial court agreed and denied the motion for summary judgment.

In general, jurisdictions use one of two approaches to decide choice of law questions involving conflicting statutes of limitations. Under the traditional approach, statutes of limitation are viewed as presumptively procedural, in which case the law of the forum applies. Arizona has historically applied this approach, Eschenhagen v. Zika, 144 Ariz. 213, 696 P.2d 1362 (App.1985); State of Michigan v. First National Bank of Arizona, 17 Ariz.App. 45, 495 P.2d 485 (1972), which was also the approach adopted in §§ 142 and 143 of the Restatement (Second) of Conflict of Laws (1971), before they were revised in 1988. The unrevised sections provided:

§ 142. Statute of Limitations of Forum

(1) An action will not be maintained if it is barred by the statute of limitations of the forum, including a provision borrowing the statute of limitations of another state.

(2) An action will be maintained if it is not barred by the statute of limitations of the forum, even though it would be barred by the statute of limitations of another state, except as stated in § 143.

§ 143. Foreign Statute of Limitations Barring the Right

An action will not be entertained in another state if it is barred in the state of the otherwise applicable law by a statute of limitations which bars the right and not merely the remedy.

To apply these sections, a court must determine whether the statute of limitations of another state is substantive or procedural, not always an easy task.

The traditional, substantive/procedural approach has been the subject of much criticism. See, e.g., Keeton v. Hustler Magazine, Inc., 131 N.H. 6, 549 A.2d 1187 (1988) (Souter, J., dissenting); see also Barry Ravech, Civil Procedure--Conflicts of Law--Statutes of Limitations, 80 Mass.L.Rev. 126 (1995); Louise Weinberg, Choosing Law: The Limitations Debates, 1991 U.Ill.L.Rev. 683. Jurisdictions thus began adopting what has been referred to as the interest analysis approach which was ultimately adopted in the 1988 revision of the Restatement. The revision eliminated § 143 and provides as follows in revised § 142:

Whether a claim will be maintained against the defense of the statute of limitations is determined under the principles stated in § 6. In general, unless the exceptional circumstances of the case make such a result unreasonable:

(1) The forum will apply its own statute of limitations barring the claim.

(2) The forum will apply its own statute of limitations permitting the claim unless:

(a) maintenance of the claim would serve no substantial interest of the forum; and

(b) the claim would be barred under the statute of limitations of a state having a more significant relationship to the parties and the occurrence.

Under the interest analysis approach, a court analyzes the conflict between limitations as it would other conflict-of-law issues. Id. See also Margaret Ross Grossman, Statutes of Limitations and the Conflict of Laws: Modern Analysis, 1980 Ariz. St. L.J. 1.

As previously stated, Arizona historically has applied the traditional approach. See Monroe v. Wood, 150 Ariz. 411, 724 P.2d 30 (1986); Ross v. Ross, 96 Ariz. 249, 393 P.2d 933 (1964); Brandler v. Manuel Trevizo Hay Co., 154 Ariz. 96, 740 P.2d 958 (App.1987); First National Bank; Weller v. Weller, 14 Ariz.App. 42, 480 P.2d 379 (1971). In Brandler, however, Division One of this court discussed the two approaches, without deciding which this state should follow, presumably because the outcome there was the same regardless of which approach was used. We note, moreover, that at the time Brandler was decided, the Restatement had not yet been revised. Here, the issue has been placed squarely before us, and the outcome depends on the approach we choose. ¹

In deciding which approach to adopt, we rely, first, on the general principle that in the absence of prior decisions to the contrary, this state will follow the Restatement whenever applicable. Jesik v. Maricopa County Community College Dist., 125 Ariz. 543, 611 P.2d 547 (1980); Porter v. Porter, 101 Ariz. 131, 416 P.2d 564 (1966); MacNeil v. Perkins, 84 Ariz. 74, 324 P.2d 211 (1958); Bristor v. Cheatham, 75 Ariz. 227, 255 P.2d 173 (1953); Ingalls v. Neidlinger, 70 Ariz. 40, 216 P.2d 387 (1950); Mott v. Eddins, 151 Ariz. 54, 725 P.2d 761 (App.1986). "One of the reasons, if not the main reason that we follow the Restatement in the absence of prior Arizona decisions, is that the Restatement is supposed to represent the general law on the subject in the United States." Cannon v. Dunn, 145 Ariz. 115, 116, 700 P.2d 502, 503 (App.1985).

Neither Monroe nor Ross decided the issue that is before us. Monroe, involved application of A.R.S. § 12-507, Arizona's borrowing statute. See n. 5, infra. And, Monroe, like Brandler, was decided before the Restatement was revised. Although the court in Monroe stated that the traditional rule was the law in Arizona, that law was based on the 1971 version of the Restatement. Ross, a contract action, was decided in 1964, before the 1971 version of the Restatement and well before Monroe.

The question, then, is whether we should adopt the revised version of the Restatement. ² Notwithstanding the general rule that we will follow the Restatement, we will not do so blindly. See Small v. Ellis, 90 Ariz. 194, 367 P.2d 234 (1961).

We find Justice Souter's dissent in Keeton persuasive. He pointed out that an evaluation based on the presumption that a limitation provision is procedural unless it " 'extinguishes a right' " or is "an inherent part of a statutory scheme creating a right," 549 A.2d at 1198, quoting Gordon v. Gordon, 118 N.H. 356, 360, 387 A.2d 339, 342 (1978), usually results in a determination that the provision is procedural and a mechanical application of the law of the forum. He wrote:

[I]n the practical world served by the law ... a plaintiff is concerned with a right only insofar as it may be asserted as a right of action, and a right of action endures entirely at the sufferance of the defendant who can demonstrate an expired limitation period. Thus, the most that can be said from drawing any right-remedy distinction in this context is that the elements of causes of action in tort and contract do not customarily require a plaintiff to plead and prove in the first instance that the litigation is timely, and a defendant who would rely on a plaintiff's untimeliness must plead the expired limitation period as an affirmative defense. But there is no significance in this. Exactly the same thing is true, for example, when a defendant seeks to plead self-defense to an assault charge ... but no one would seriously suggest that the law of self-defense is merely remedial or procedural, and not substantive.... Because, indeed, the statute of limitations can function as such a dispositive defense, the fallacy of dismissing it as merely remedial is just as clear now as it was twenty years ago, when Professor Leflar mildly observed that a right without a remedy is not much of a right. R. Leflar, American Conflicts Law § 127, at 304 (1968).

549 A.2d at 1198-99 (citations omitted). Justice Souter also expressed great concern in his dissent that the traditional approach provides litigants with the opportunity to forum shop, viewing that as precisely what had occurred in Keeton. Id. See also Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 104 S.Ct. 1473, 79 L.Ed.2d 790 (1984) (New York resident sued Ohio corporation with principal place of business in California in New Hampshire, where defendant had minimal contacts and the statute of limitations had not yet run); Cowan v. Ford Motor Co., 694 F.2d 104 (5th Cir.1982) (action...