Smith v. Pierpont

• Decision Date: 06 May 1983
• Docket Number: Docket No. 60278
• Citation: 333 N.W.2d 165,123 Mich.App. 33
• Parties: George SMITH and Kathleen Smith, Plaintiffs-Appellants, v. David PIERPONT, M.D., Defendant-Appellee. 123 Mich.App. 33, 333 N.W.2d 165
• Court: Court of Appeal of Michigan — District of US

Page 165

333 N.W.2d 165

George SMITH and Kathleen Smith, Plaintiffs-Appellants, v. David PIERPONT, M.D., Defendant-Appellee.

Docket No. 60278.

123 Mich.App. 33, 333 N.W.2d 165

Court of Appeals of Michigan.

Submitted Oct. 13, 1982.

Decided Feb. 8, 1983.

Released for Publication May 6, 1983.

[123 MICHAPP 34] Wisti & Jaaskelainen, P.C. by Michael E. Makinen, Hancock, for plaintiffs-appellants.

Bridges & Collins by Kevin W. Koch and E. Nickolas Bridges, Negaunee, for defendant-appellee on appeal.

Before WALSH, P.J., and ALLEN and CAVANAGH, JJ.

CAVANAGH, Judge.

The trial court granted an accelerated judgment for the defendant on the basis of lack of jurisdiction. Plaintiffs' motion for reconsideration was denied; they now appeal as of right.

Plaintiffs sued the defendant for medical malpractice in Gogebic County Circuit Court based upon a vasectomy that the defendant performed upon plaintiff George Smith. Both the plaintiffs and the defendant are residents of Michigan, but the alleged tort occurred in Wisconsin where one of the defendant's offices is located. Defendant moved to dismiss the case for lack of jurisdiction because the plaintiffs had failed to submit their [123 MICHAPP 35] claim to mediation pursuant to the Wisconsin medical malpractice act of 1975, Wis Stats 655.001 et seq. Defendant maintained that under the principle of lex loci delicti Wisconsin law applied to the case since the situs of the alleged tort was in Wisconsin. The trial court treated the motion to dismiss as one for an accelerated judgment and agreed, holding that the plaintiffs' action must be mediated before it can be heard in court. We reverse.

The lex loci delicti rule stands for the proposition that where an injury is sustained in a foreign jurisdiction, the substantive law of that jurisdiction will govern the rights of the parties. Abendschein v. Farrell, 382 Mich. 510, 170 N.W.2d 137 (1969). This doctrine has, however, experienced a gradual but consistent erosion in the years following the Abendschein decision, and these incremental departures were recently consolidated by the Michigan Supreme Court in Sexton v. Ryder Truck Rental, Inc., 413 Mich. 406, 320 N.W.2d 843 (1982).

In Sexton, the Court considered two fact situations involving parties who were residents of Michigan or corporations doing business in Michigan and an injury sustained in a foreign jurisdiction. The Court began by observing that:

"Review of these matters convinces us that not only has there been a major retreat from the doctrine of lex loci delicti among scholars and the state courts, but that in Michigan itself the doctrine is at least as much honored in the breach as observed. Furthermore, both Abendschein and Kaiser v. North, 292 Mich 49; 289 NW 325 (1939), on which Abendschein so strongly relied, have been seriously eroded, and Kaiser has in effect been overruled.

"As a consequence, not following lex loci delicti in these cases does not flout stare decisis." Sexton, supra, p. 413, 320 N.W.2d 843.

[123 MICHAPP 36] The Court went on to note that the doctrine of lex loci delicti has been avoided in the past principally by the use of two devices: (1) characterization of the law in conflict as procedural, to which the doctrine does not apply, Papizzo v. O. Robertson Transport, Ltd., 401 F.Supp. 540 (E.D.Mich.1975), and (2) refusal to apply the relevant foreign substantive law on the grounds that to do so would contravene Michigan "public policy", Sweeney v. Sweeney, 402 Mich. 234, 262 N.W.2d 625 (1978).

Three distinct attitudes toward the doctrine emerged in Sexton, none of which garnered a majority of the justices. Justice Williams, with Justices Levin and Moody concurring, would hold that when two residents, or two corporations doing business in the state, or any combination thereof, are involved in an accident in another state, the forum would apply its own law. Sexton, 413 Mich. p. 413, 320 N.W.2d 843. Justice Kavanagh, with Justices Levin and Fitzgerald concurring, would hold that the lex fori would govern, absent a reason for applying the law of another state. Justice Levin wrote separately, noting that while he concurred with both opinions previously referred to, he favored that chosen by Justice Kavanagh. Sexton, p. 442, 320 N.W.2d 843. Justice Ryan dissented, joined by Chief Justice Coleman, and indicated that he would adhere to the traditional lex loci delicti analysis articulated in Abendschein, supra. Sexton, supra, p. 443, 320 N.W.2d 843.

Thus, despite the absence of a majority position, it appears that a majority of the justices are no longer willing to apply the substantive law of another state merely because that state was the situs of the wrong at issue. In finding that the lex loci delicti rule may no longer be justified in terms of its original rationale, Justice Williams noted in Sexton, supra, pp. 421-423, 320 N.W.2d 843:

[123 MICHAPP 37] "The traditional advantages advanced on behalf of the lex loci rule have included discouraging forum shopping and...