Amiot v. Ames

Annotate this Case

Amiot v. Ames (96-134); 166 Vt. 288; 693 A.2d 675

[Filed 28-Feb-1997]

NOTICE: This opinion is subject to motions for reargument under
V.R.A.P. 40 as well as formal revision before publication in the Vermont
Reports. Readers are requested to notify the Reporter of Decisions,
Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
any errors in order that corrections may be made before this opinion goes
to press.

No. 96-134

Victor Amiot Supreme Court

On Appeal from
v. Orleans Superior Court

David Ames September Term, 1996

Brian Burgess, J.

Stephen J. Craddock, Montpelier, and Jeffrey W. White, Royalton, for
plaintiff-appellee

Richard H. Wadhams, Jr., and James E. Preston of Pierson, Wadhams,
Quinn & Yates, Burlington, for defendant-appellant

PRESENT: Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.

GIBSON, J. Defendant David Ames seeks interlocutory review of the
Orleans Superior Court's denial of his motion to dismiss, ruling that
Vermont law applies to a motor vehicle accident in Quebec between Canadian
and Vermont residents. Defendant claims the court erred in refusing to
follow the choice-of-law rule of lex loci delicti, which would require
applying Quebec law. In the event this Court agrees with the trial court
and adopts the Restatement's significant-relationship approach, defendant
contends the trial court erred in concluding that Vermont law applies. We
affirm the court's use of the significant-relationship approach to choice
of law, but because of the sparseness of the factual record, we remand for
the trial court to make the choice-of-law determination following
development of an evidentiary record.

In November 1992, defendant Ames struck plaintiff Victor Amiot's
vehicle, in which plaintiff was a passenger, while plaintiff's vehicle was
stopped at Canadian customs just across the Quebec-Vermont border.
Plaintiff, who is a resident of Alberta, Canada, had just left Vermont and
entered Quebec en route from New Brunswick to Alberta. Plaintiff alleges
that

defendant, a resident of Vermont, suffered a complication from diabetes
while driving in Vermont and consequently lost control of his car, missed
his exit, and crossed the border, striking plaintiff's vehicle. As a
result of the accident, plaintiff incurred injuries and was forced into
premature retirement.

In September 1995, defendant filed a motion to dismiss, asserting that
under Vermont's choice-of-law doctrine either Quebec or Alberta law must be
applied to the suit.(FN1) Because Alberta law would require application of
Quebec law and because Quebec statutorily limits liability, defendant
alleges that plaintiff would have no right to recover damages under Vermont
law. In January 1996, the court denied defendant's motion to dismiss. The
court predicted that Vermont would no longer automatically apply the
substantive law of the state or country where the accident occurred and
would instead adopt the significant-relationship approach. Under this
approach, the court concluded that Vermont had the most significant
relationship with the incident. This interlocutory appeal followed.

A motion to dismiss for failure to state a claim upon which relief can
be granted, V.R.C.P. 12(b)(6), should not be granted unless "it appears
beyond doubt" that there exist no facts or circumstances that would entitle
the plaintiff to relief. Levinsky v. Diamond, 140 Vt. 595, 600-01, 442 A.2d 1277, 1280-81 (1982). In reviewing disposition of a motion to
dismiss, we must assume as true all factual allegations pleaded by the
nonmoving party. Association of Haystack Property Owners v. Sprague, 145
Vt. 443, 444, 494 A.2d 122, 123 (1985). All

reasonable inferences that can be drawn from the nonmoving party's
pleadings are accepted, and all contravening assertions in the movant's
pleadings are assumed to be false. White Current Corp. v. State, 140 Vt.
290, 292, 438 A.2d 393, 394 (1981) (per curiam), overruled on unrelated
grounds by Soucy v. Soucy Motors, Inc., 143 Vt. 615, 471 A.2d 224 (1983).

Defendant first argues that the trial court erred in not following the
doctrine of lex loci delicti, whereby Quebec law would apply, noting that
we have resolved past choice-of-law issues in tort actions by holding that
the rights and liabilities of the parties are determined by the laws of the
state or country in which the incident occurred. See Goldman v. Beaudry,
122 Vt. 299, 301, 170 A.2d 636, 638 (1961); Brown v. Perry, 104 Vt. 66, 71,
156 A. 910, 913 (1931). But Goldman was decided under the first
Restatement of Conflict of Laws, which endorsed lex loci. 122 Vt. at 301,
170 A.2d at 638. Since that time, we have not had occasion to revisit the
issue, although we have acknowledged the federal courts' predictions that
we would abandon lex loci in favor of a more flexible approach. Calhoun v.
Blakely, 152 Vt. 113, 116 n.2, 564 A.2d 590, 592 n.2 (1989); see, e.g., In
re Air Crash Disaster, 399 F. Supp. 1106, 1111 (D. Mass. 1975).

Since the decision in Goldman, the Restatement (Second) of Conflict of
Laws has abandoned the doctrine of lex loci in tort actions and adopted the
approach that rights and liabilities should be governed by the state that
has the most significant relationship to the occurrence and the parties.
Restatement (Second) of Conflict of Laws 413 (1969). This reform reflects
changes in our society, where state and national boundaries have become
less significant as people become more mobile and where judges are better
prepared to consider the policies and values that underlie choice-of-law
decisions. Id.

In 1968, we adopted the significant-contacts approach of the
Restatement (Second) for choice-of-law decisions in contract cases. See
Pioneer Credit Corp. v. Carden, 127 Vt. 229, 233, 245 A.2d 891, 894 (1968).
Likewise, today we adopt the Restatement (Second) approach that choice of
law in a tort action that implicates states or countries beyond Vermont
will be determined by which state or country has the most significant
relationship to the occurrence and

the parties. Restatement (Second) of Conflict of Laws § 145(1). We
overrule our prior cases to the extent they hold to the contrary.

Anticipating that this Court might adopt the significant-relationship
theory of choice of law, defendant argues that the trial court erred in
concluding that Vermont law would apply. In a personal injury action, the
state or country (FN2) with the most significant relationship will usually be
that where the injury occurred, see, e.g., Glasscock v. Miller, 720 S.W.2d 771, 774, 776 (Mo. Ct. App. 1986) (court should have applied Colorado law
where parties resided in Missouri but injury and conduct occurred in
Colorado), unless some other jurisdiction has a more significant
relationship, as determined by the principles stated in § 6. Restatement
(Second) of Conflict of Laws § 146. A more significant relationship often
exists where the place of injury has little relationship to the parties or
the place where the causative conduct occurred. Id. § 146 cmt. c; see
Gordon v. Kramer, 604 P.2d 1153, 1158 (Ariz. Ct. App. 1979) (court erred in
applying Utah law where, although accident occurred in Utah, Utah had no
interest in occurrence or parties).

Where the place of injury has little relationship to the parties or
causative conduct, determining the jurisdiction with the most significant
relationship is guided by the general choice-of-law principles of §§ 6 and
145. Factors to consider include:

(a) the needs of the interstate and international systems,

(b) the relevant policies of the forum,

(c) the relevant policies of other interested states and the relative
interests of those states in the determination of the particular issue,

(d) the protection of justified expectations,

(e) the basic policies underlying the particular field of law,

(f) certainty, predictability and uniformity of result, and

(g) ease in the determination and application of the law to be
applied.

Restatement (Second) of Conflict of Laws § 6. In assessing these factors,
the trial court should consider contacts relevant to the incident,
including "(a) the place where the injury occurred, (b) the place where the
conduct causing the injury occurred, (c) the domicil, 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." Id. § 145(2).

But not all § 6 factors carry equal weight. The protection of
justified expectations, policies underlying the field of law, and
certainty, predictability, and uniformity are less important in the field
of torts, with the remaining factors assuming greater importance. Id. §
145 cmt. b; see, e.g., Brown v. DSI Transps., Inc., 496 So. 2d 478, 482-83
(La. Ct. App. 1986) (focus is on needs of interstate systems and interests
and policies of potential states in negligence action; § 6(2)(d), (e), (f)
factors are of minor importance). In addition, a court may decide that the
law governing the standard of conduct is different from that governing
damages. Restatement (Second) of Conflict of Laws § 171 & cmt. b; see
Thomas v. Hanmer, 489 N.Y.S.2d 802, 805 n.* (N.Y. App. Div. 1985).

The sparsity of the record prevents us from deciding which law should
apply. The parties agree in their pleadings that plaintiff is a resident
of Alberta and defendant is a resident of Vermont. But the parties dispute
(and the trial court did not hear evidence on) other factual issues, such
as the location of the conduct that led to the injury. Therefore, we
remand the case for the court to determine which jurisdiction has the most
significant relationship to the event. Cf. Godino v. Cleanthes, 163 Vt.
237, 239, 656 A.2d 991, 992 (1995) (preferable for trial court to conduct
evidentiary hearing on merits of Rule 12(b) motion where there are disputed
issues

of fact); see also Icicle Seafoods, Inc. v. Worthington, 475 U.S. 709, 714
(1986) (where trial court failed to make findings of fact essential to
proper resolution of legal question, proper course is to remand for court
to make findings). The trial court will have to choose the appropriate law
guided by the above principles after the factual record is further
developed.

II.

The question remains as to who should decide the factual basis to
which law applies -- the judge or the jury. In a persuasive analysis of
this issue, the Eastern District of New York concluded that constitutional
guarantees of a trial by jury do not mandate jury determination of every
issue of fact, that a jury is not well-equipped to make the analysis called
for by the Restatement (Second), and that the facts underlying a
choice-of-law decision are generally better left to the judge rather than
the jury. Chance v. E.I. Du Pont de Nemours & Co., 57 F.R.D. 165, 168-70
(E.D.N.Y. 1972). We have held that "[t]hreshold determinations of legal
issues" are properly the province of the court. State v. Ryea, 153 Vt.
451, 456, 571 A.2d 674, 677 (1990). This necessarily includes fact-finding
decisive to such legal issues. Examples include determinations of personal
and subject matter jurisdiction, venue, competency of witnesses, and
admission of evidence. See W. Reese et al., The Role of the Jury in Choice
of Law, 25 Case W. Res. L. Rev. 82, 89 (1974) (discussing preliminary
factual issues appropriate for determination by judge). In such areas, the
pertinent facts are found by the judge even though these facts may be
"intertwined with the ultimate issue on the merits." Chance, 57 F.R.D. at
169.

The Restatement (Second) provides little guidance on who should
determine choice-of-law facts, providing only that "[t]he local law of the
forum determines whether an issue [relevant to a choice-of-law decision]
shall be tried by the court or by a jury." Restatement (Second) of
Conflict of Laws § 129. Nonetheless, except in the rarest of
circumstances, considerations of practicality and necessity strongly point
to the judge, not the jury, as the one who should decide such questions.
While the location of various contacts (set forth in Restatement (Second) §

145(2)) may raise factual issues, the task of evaluating and balancing the
§ 6 factors, as they apply to the facts, is a matter of law rather than
fact and one that is more properly left to the judge. Reese, supra, at
101.

[I]t is almost impossible to imagine a situation in which the judge
could simply charge that judgment should be rendered for one
party or the other if the jury were to find that a particular contact
was situated in a particular state. Instead he would have to resort
to impractical alternatives. Either he would first have to ask the
jury to determine the location of the contact and then, after having
decided the choice-of-law question on the basis of their decision
and of the evaluating and balancing process . . . he would deliver
a second and final charge to the jury on the merits. Or he could
deliver a single charge to the jury in which he would have to spell
out the alternative judgments they should render depending upon
their decision with respect to the location of the contact. The
potential complexities of such a charge make clear the
inadvisability of attempting it.

. . . .

. . . In addition, the judge would frequently have to do
more than simply instruct the jury that their verdict should be for
a given party if the contact in question was found to be located in
a particular state. Sometimes, he would have to go further and
actually inform the jury of the content of the relevant rules of all
states in which the contact could reasonably be placed.

Id. at 101-02, 105.

The situation becomes even more bothersome when the choice-of-law issue
emerges early in the lawsuit before a jury has been impanelled, as is the
case here on defendant's motion to dismiss. Reserving choice-of-law issues
for determination by a jury at trial not only raises the problems described
above, it also precludes the efficient disposal of cases through motions to
dismiss or for summary judgment, forcing parties to undergo the time and
expense of trial only to risk having their case eventually dismissed upon
some collateral jurisdictional ground. See LeBlanc v. Stuart, 342 F. Supp. 773, 775-76 (D. Vt. 1972) (court's grant of summary judgment precluded
wife's action against deceased husband's estate upon conclusion that Rhode
Island, rather than Vermont, law applied). Thus, factual determinations
necessary to decide which state or country has the most significant
relationship to the occurrence and parties are better left to

the court, even when the ultimate determination of the facts is left to a
jury.

The dissent asserts that the law supports this case as one where a
jury should determine which jurisdiction has the most significant
relationship to the incident. Although the dissent cites Marra v. Bushee,
447 F.2d 1282, 1285 (2d Cir. 1971) (defendant entitled to jury's findings
of facts determinative of choice-of-law principles), as the "seminal
decision," post, at 3, there is no indication that other courts have
adopted Marra's approach in the twenty-five years since it was decided.
The Eastern District of New York reviewed Marra in its thorough assessment
of the theoretical, constitutional, and practical considerations that
support judicial determination of choice-of-law facts, and concluded that
"[t]o extend jury trial to the choice of law issues would result in delay
and confusion thereby impairing the right to jury trial on the merits."
Chance, 57 F.R.D. at 171. A case the dissent cites for support merely
noted that no party had argued for jury determination of the choice-of-law
factors, cited Chance and Marra as support for opposing analyses, and
concluded that choice-of-law issues were properly decided by the trial
court. Vaz Borralho v. Keydril Co., 696 F.2d 379, 386-87 & n.8 (5th Cir.
1983), overruled on unrelated grounds by In re Air Crash Disaster Near New
Orleans, La., 821 F.2d 1147 (5th Cir. 1987). Thus, other courts have
generally agreed that choice-of-law determinations are properly left to the
court.

Affirmed; cause remanded for further proceedings consistent with this
opinion.

FOR THE COURT:

_______________________________________
Associate Justice

-----------------------------------------------------------------------------
Footnotes

FN1. Plaintiff contends the trial court abused its discretion in
allowing defendant to file a V.R.C.P. 12(b)(6) motion, in conjunction with
a proposed pleading amendment raising the choice-of-law defense, eleven
months after defendant filed his answer. We have consistently held that
allowing amendment of the pleadings is left to the discretion of the trial
court, and we will reverse such rulings only when the court abuses its
discretion. Lillicrap v. Martin, 156 Vt. 165, 170, 591 A.2d 41, 44 (1989).
Plaintiff makes no showing of prejudice; accordingly, we find the court did
not abuse its discretion in allowing defendant to file his Rule 12(b)(6)
motion. See Brown v. Whitcomb, 150 Vt. 106, 109, 550 A.2d 1, 3 (1988).

FN2. The Restatement (Second) notes that recommended choice-of-law
principles are equally applicable to foreign nations, although there may be
factors in an international case that would call for a different result
than if the choice were between the laws of two or more states. Restatement
(Second) of Conflict of Laws § 10. Factors that call for a different
outcome include consideration of the country's political, social, and legal
institutions; American constitutional safeguards; and foreign legal
relationships unknown under American law. Id. § 10 cmt. d. We do not find
the differences between Canadian and American legal, social, or political
systems to have a significant impact on our analysis.

--------------------------------------------------------------------------------
Concurring and Dissenting

No. 96-134

Victor Amiot Supreme Court

On Appeal from
v. Orleans Superior Court

David Ames September Term, 1996

Brian Burgess, J.

Stephen J. Craddock, Montpelier, and Jeffrey W. White, Royalton, for
plaintiff-appellee

Richard H. Wadhams, Jr., and James E. Preston of Pierson, Wadhams,
Quinn & Yates, Burlington, for defendant-appellant

PRESENT: Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.

MORSE, J., concurring and dissenting. I concur in the Court's
endorsement of the significant-relationship approach to choice of law. I
dissent, however, from its holding that on remand the choice-of-law
determination should be made by the trial court. When an issue of fact
upon which the choice-of-law decision turns is determinative of an ultimate
issue on the merits, resolution of that fact properly rests with a jury.
Our Constitution explicitly provides "[t]hat when any issue in fact, proper
for the cognizance of a jury is joined in a court of law, the parties have
a right to trial by jury, which ought to be held sacred." Vt. Const. ch.
I, art. 12; see Hodgdon v. Mt. Mansfield Co., 160 Vt. 150, 155, 624 A.2d 1122, 1125 (1992). Although many factual issues involving such preliminary
questions as choice of law, jurisdiction, venue, service of process, and
discovery may -- and should -- properly be resolved by a judge, when such
an issue is inextricably intertwined with the merits of the case, in my
view the Constitution requires that it be resolved by a jury.

That is precisely the situation presented here. Plaintiff has alleged
that defendant, a Vermont resident, negligently failed in Vermont to
administer the insulin necessary to control his diabetes, causing defendant
to lose control of his vehicle in Vermont, cross the border into Quebec,
and strike the rear of plaintiff's automobile. In these circumstances, a
consideration of fundamental importance in determining which jurisdiction
has the most significant relationship to the occurrence is the place where
the conduct causing the injury, that is, the negligent conduct, occurred.
Restatement (Second) of Conflict of Laws § 145(2)(b). Indeed, this factor
was given decisive weight in the trial court's decision to apply Vermont
law. As the court explained:

That the site of actual damage was Quebec was merely a
coincidence of defendant's alleged negligence on the Vermont side
of the border.

When [the place] of injury . . . is fortuitous
and, with respect to the particular issue, bears little
relation to the occurrence and the parties, the place
where the defendant's conduct occurred will usually
be given particular weight in determining the state
of the applicable law.

(quoting Restatement (Second) of Conflict of Laws § 145 cmt. e).

The trial court's choice-of-law decision was dispositive of whether
plaintiff even had a valid cause of action. If, as the court ruled,
Vermont law applied, plaintiff could proceed with his civil action against
defendant. If, however, the court had decided that this was simply a
"rear-ender" caused solely by defendant's inattention over the border in
Quebec, plaintiff's case would have been barred by a rule of that Province
limiting plaintiff to an administrative remedy.

On remand, the trial court is ordered by this Court to reconsider its
ruling in light of the facts found in an evidentiary hearing. This can
lead to one of two results. If the trial court decides the evidence
supports plaintiff's claim that defendant's allegedly negligent conduct
occurred in Vermont, it will, presumably, make the same choice-of-law
decision and allow the case to proceed. Having resolved that factual
issue, however, the trial court would presumably

not allow the issue to be relitigated, but rather would instruct the jury
to assume plaintiff's allegation to be true. Thus, defendant would be
denied a jury trial on the ultimate issue in the case. Alternatively,
should the trial court conclude that the evidence does not support
plaintiff's claim that defendant failed to administer the insulin in
Vermont, the case would presumably be dismissed, and plaintiff would be
denied a jury determination on the merits of the ultimate issue.

Thus, this case presents a rare, but nevertheless important occasion
to depart from the general rule that threshold determinations of fact
necessary to a choice-of-law decision should generally be left to the
court. See W. Reese et al., The Role of the Jury in Choice of Law, 25 Case
W. Res. L. Rev. 82, 106 (1974) ("[T]he question whether to submit a [fact
question] to the jury after the close of evidence should normally be
answered in the negative. There may be occasions, however, when . . . the
jury is better qualified than [the court] to decide the issue.")

The Restatement does not address the question whether judge or jury
should make such preliminary determinations, and case law is scarce.
Nevertheless, there is clear support for the proposition that the jury
should prevail when choice-of-law issues and the merits are so "factually
meshed" that a "ruling thereon would have disposed of the merits of the[]
cause of action, and therefore should have been deferred until a trial on
the merits." Vaz Borralho v. Keydril Co., 696 F.2d 379, 387 (5th Cir.
1983), overruled on unrelated grounds by In re Air Crash Disaster Near New
Orleans, La., 821 F.2d 1147 (5th Cir. 1987).

The seminal decision is Marra v. Bushee, 447 F.2d 1282 (2d Cir. 1971).
In that case, judgment for the plaintiff was reversed because of the trial
judge's failure in an action for alienation of affections to submit to the
jury the question whether the defendant's conduct had "primarily occurred"
in New York or Vermont. Id. at 1283. The defendant, a resident of
Vermont, had moved for a directed verdict at the close of the plaintiff's
case, and again at the conclusion of the evidence, asserting that any
alienation of affections had occurred in the plaintiff's home state, New
York, which had abolished the cause of action. The trial court

disagreed. "On the premise that a factual finding territorializing the
defendant's conduct was a jurisdictional matter not within the province of
the jury, the district court itself concluded `that the conduct which
constituted the alienation occurred principally in Vermont and the
applicable law is Vermont law.'" Id. The court of appeals reversed,
holding that where "tort liability turned upon resolution of the
choice-of-law question, . . . the defendant was entitled to the jury's
consideration." Id. at 1284. Marra relied, in turn, upon Orr v. Sasseman,
239 F.2d 182 (5th Cir. 1956), another alienation of affections case in
which the situs of the defendant's conduct, Georgia or Illinois, determined
the choice of law, and the viability of the claim. In affirming judgment
for the plaintiff, the Sasseman court "expressly approved the trial court's
[jury] instruction that if the loss of consortium occurred in Illinois, the
verdict must be for the defendant; but if the claim arose in Georgia there
could be a verdict for the plaintiff." Marra, 447 F.2d at 1284.

Here, similarly, the trial court on remand should be directed to frame
a simple jury interrogatory asking whether the defendant was negligent, and
if so, whether the negligence occurred in Vermont. If the jury answers
both questions in the affirmative, then it may return a verdict for the
plaintiff. If it answers either question in the negative, then the verdict
must be for defendant. Whatever "efficiency" might be lost through this
procedure is more than compensated by the constitutional principle -- the
right to trial by jury -- that it preserves.

_______________________________________
Associate Justice

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