Paul v. National Life

Citation352 S.E.2d 550,177 W.Va. 427
Decision Date12 January 1987
Docket NumberNo. 16808,16808
CourtSupreme Court of West Virginia
Parties, 63 A.L.R.4th 155 Vincent W.B. PAUL, etc. v. NATIONAL LIFE, etc. and Arthur A. Vickers, etc.

Joshua I. Barrett, Melissa Hambrick, Ditrapano & Jackson, Charleston, for appellant.

John Slack, III, Lynn Oliver, Jackson, Kelly, Holt & O'Farrell, Andrew J. Goodwin, Charleston, for appellee.

NEELY, Justice:

In September of 1977 Eliza Vickers and Aloha Jane Paul, both West Virginia residents, took a weekend trip to Indiana. The two women were involved in a one-car collision on Interstate 65 in Indiana when Mrs. Vickers lost control of the car. That collision took both women's lives. The administrator of Mrs. Paul's estate brought a wrongful death action against Ms. Vickers' estate and the National Life Accident Company in the Circuit Court of Kanawha County. Upon completion of discovery, the defendants below moved for summary judgment. Defendants' motion contended that: (1) the Indiana guest statute, which grants to a gratuitous host immunity from liability for the injury or death of a passenger unless that host was guilty of willful and wanton misconduct at the time of the accident, 1 was applicable; and (2) that the

[177 W.Va. 429] record was devoid of any evidence of willful or wanton misconduct on the part of Ms. Vickers. By order dated 29 October 1984, the Circuit Court of Kanawha County entered summary judgment for the defendants below. The order of the circuit court held that our conflicts doctrine of lex loci delicti required that the law of the place of the injury, namely, Indiana, apply to the case, and that the record contained no evidence of willful or wanton misconduct on the part of Ms. Vickers. It is from this order that the plaintiffs below appeal

The sole question presented in this case is whether the law of Indiana or of West Virginia shall apply. The appellees urge us to adhere to our traditional conflicts doctrine of lex loci delicti, while the appellants urge us to reject our traditional doctrine and to adopt one of the "modern" approaches to conflicts questions. Although we stand by lex loci delicti as our general conflicts rule, we nevertheless reverse the judgment of the court below.

I

Unlike other areas of the law, such as contracts, torts and property, "conflicts of law" as a body of common law is of relatively recent origin. Professor Dicey has written that he knew of no decisions in England considering conflicts of law points before the accession of James I, 2 and it is generally acknowledged that the first authoritative work on conflicts did not appear until the publication of Joseph Story's Conflict of Laws in 1834. 3 Accordingly, no conflicts of law doctrine has ever had any credible pretense to being "natural law" emergent from the murky mists of medieval mysticism. Indeed, the mention of conflicts of law and the jus naturale in the same breath would evoke a power guffaw in even the sternest scholastic. In our post-Realist legal world, it is the received wisdom that judges, like their counterparts in the legislative branch, are political agents embodying social policy in law. Nowhere is this received wisdom more accurate than in the domain of conflict of laws.

Conflicts of law has become a veritable playpen for judicial policymakers. The last twenty years have seen a remarkable shift from the doctrine of lex loci delicti to more "modern" doctrines, such as the more flexible, manipulable Restatement "center of gravity" test. Of the twenty-five landmark cases cited by appellants in which a state supreme court rejected lex loci delicti and adopted one of the modern approaches, the great majority of them involved the application to an automobile accident case of a foreign state's guest statute, doctrine of interspousal or intrafamily immunity, or doctrine of contributory negligence. 4 All

but one of these landmark cases was decided in the decade between 1963 and 1973, when many jurisdictions still retained guest statutes, the doctrine of interspousal immunity, and the doctrine of contributory negligence. However, in the years since 1970, these statutes and doctrines have all but disappeared from the American legal landscape

Although by the mid-1960's only seven states had replaced contributory negligence[177 W.Va. 430] with comparative fault, several states switched over in 1969, and the 1970's and early 1980's witnessed a surge of legislative and judicial action accomplishing the switch. As of 1982, some 40 states had adopted some general form of comparative negligence.

Prosser and Keeton on Torts, Ch. 11, § 67, p. 471 (5th ed. 1984) [footnotes omitted]. Indeed, Delaware adopted a comparative negligence statute in 1984, Del.Code Ann. Ch. 10, § 8132 (1984), and South Carolina has a statute providing that contributory negligence shall not operate as a bar in motor vehicle accident cases. S.C.Code Ann. § 15-1-300 (1974). Thus at most eight states now embrace the doctrine of contributory negligence in automobile accident cases. 5

A similar evolution has taken place with respect to the doctrine of interspousal immunity.

By 1970 about a dozen courts had rejected any universal principle of immunity between spouses. In the decade that followed more than a dozen other courts joined them in abrogating the immunity, including courts in community property states where special problems created practical difficulties in discarding the immunity. The movement to abolish the unqualified immunity has continued, and it now appears that spousal actions will be permitted for personal injuries in a majority of the states, at least in some circumstances, though some courts have indicated that they will scrutinize such actions with care or that immunity might be retained in some class of case.

Prosser and Keeton on Torts, Ch. 22, § 122, p. 903 (5th ed. 1984) [footnotes omitted]. In a footnote, Dean Prosser notes that "abrogation of the immunity has often come first in automobile injury cases." Id. at n. 23. See also Coffindaffer v. Coffindaffer, 161 W.Va. 557, 244 S.E.2d 338, 341-42 (1978) and cases there cited.

Between 1927 and 1939, some thirty states enacted automobile guest statutes. 2 F. Harper & F. James, The Law of Torts § 16.15 (1956). 6 However, no state has enacted a guest statute since 1939. 7 Thirty-three states have at one time or another had statutory or judicially created guest laws. Thirteen guest statutes have been declared unconstitutional. 8 At least nine

other states have repealed their guest statutes, 9 and at least five states have substantially[177 W.Va. 431] limited the scope of their guest statutes. 10 Indeed, in 1984 Indiana revised its guest statute to apply only to hitchhikers or guests related to the host as a parent, spouse, child, stepchild, brother, or sister. Ind.Code Ann. § 9-3-3-1 (Burns Repl.Vol. 1980). Three states at one time had judicially created automobile guest laws. The cases establishing those laws have been overruled in all three states by court decision or statute. 11

In sum, twenty-seven of the original guest laws have been repealed, declared unconstitutional, or overruled, and five have been substantially modified. Only one state retains a statute applying to all guest passengers that permits recovery only when the host is guilty of willful or wanton misconduct. 12

Thus nearly half of the state supreme courts of this country have wrought a radical transformation of their procedural law of conflicts in order to sidestep perceived substantive evils, only to discover later that those evils had been exorcised from American law by other means. Now these courts are saddled with a cumbersome and unwieldy body of conflicts law that creates confusion, uncertainty and inconsistency, as well as complication of the judicial task. This approach has been like that of the misguided physician who treated a case of dandruff with nitric acid, only to discover later that the malady could have been remedied with medicated shampoo. Neither the doctor nor the patient need have lost his head.

The Restatement approach has been criticized for its indeterminate language and lack of concrete guidelines. See First National Bank in Fort Collins v. Rostek, 182 Colo. 437, 514 P.2d 314 (1973). Restatement (Second) of Conflicts of Law, Sec. 145-146 (1971) provides:

§ 145. The General Principle

(1) The rights and liabilities of the parties with respect to an issue in tort are

determined by the local law of the state which, with respect to that issue, has the most significant relationship to the occurrence and the parties under the principle stated in § 6

(2) Contacts being taken into account in applying the principle of § 6 to determine the law applicable to an issue include:

(a) the place where the injury occurred,

(b) the place where the conduct causing injury occurred,

(c) the domicile, residence, nationality, place of incorporation, and place of business of the parties, and

(d) the place where the relationship, if any, between the parties, is centered.

These contacts should be evaluated according to their relative importance with respect to the particular issues.

§ 146. Personal Injuries.

In an action for a personal injury, the local law of the state where the injury occurred determines the rights and liabilities of the parties, unless, with respect to the particular issue, some other state has a more significant relationship [177 W.Va. 432] under the principles stated in § 6 to the occurrence and the parties, in which event the local law of the other state will be applied.

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