As part of its statutory charge to examine the statutes of the state for the purpose of discovering defects and anachronisms in the law and to recommend needed reform, the Michigan Law Revision Commission undertook a review of M.C.L. § 600.5861; M.S.A. § 27A.5861, Michigans so-called borrowing statute. That statute provides in pertinent part:
An action based upon a cause of action accruing without this state shall not be commenced after the expiration of the statute of limitations of either this state or the place without this state where the cause of action accrued, except that where the cause of action accrued in favor of a resident of this state the statute of limitations of this state shall apply.
This type of statute, enacted in more than half the states, applies or borrows the shorter of either the statute of limitations of the state where the cause of action accrued or of Michigan. First enacted in 1961 and substantially rewritten in 1978, the purpose of the Michigan borrowing statute, and of all borrowing statutes, is to prevent forum shopping by out-of-state plaintiffs who attempt to bring an otherwise time-barred claim in a Michigan court where the applicable limitations period has not yet run.
The Michigan borrowing statute was enacted at a time, and in a legal context, when the governing choice-of-law rule in Michigan, and in most states, was lex loci delicti for torts (i.e., the law of the place of injury), and lex loci contractus for contracts (i.e., the law of the place of contracting). Today, fewer than a dozen states still use the lex loci rules in tort or contract choice-of-law determinations. As explained more fully in Part II of this Report, the legal context in which the borrowing statute was enacted no longer exists in Michigan, which has abandoned the lex loci rules for tort and contract conflicts. Instead, Michigan courts follow a lex fori rule in tort actions (i.e., apply forum law, unless some other state has a greater interest than Michigan in having its law applied), and the most significant relationship test of the Restatement (Second) of Conflict of Laws in contract cases. To use a time-worn metaphor, the Michigan borrowing statute is a round peg that no longer fits well in the square hole of Michigans current choice-of-law rules.
The balance of this Report is divided into three Parts. Part I briefly describes the body of law known as conflicts of laws or choice of law, which is the way in which courts resolve the issue of which jurisdictions law to apply in a multi-state setting. Part II discusses Michigans borrowing statute against the backdrop of the choice-of-law rules currently used by Michigan courts to resolve conflicts problems in the areas of tort and contract. Part III is a section-by- section analysis of the Uniform Conflict of Laws-Limitations Act (UCLLA).
I. AN OVERVIEW OF CHOICE-OF-LAW RULES AND METHODOLOGIES.
This Part of the Report is divided into two sections. The first section provides an overview of the body of rules known in the United States as conflict of laws or, more specifically, choice of law. The second section examines the choice-of-law rules in Michigan that apply in tort and contract cases.
A. A Thumbnail Sketch of Choice-of-Law Rules in the United States.
It is not possible to give more than a brief overview of the subject of choice of law in the limited space allotted in this Report. Suffice it to say that an entire law school course is devoted to the subject, and several treatises have been written on it as well.(1)
The body of law known as conflict of laws or choice of law is a set of rules, largely judge-made, on how to answer a legal problem when the elements of the problem have contacts with more than one state or jurisdiction. In a world in which interstate and international transactions are an everyday occurrence, lawyers, courts, and legislatures ignore the subject at their peril. The most important question that arises in a conflict-of-laws setting is, what law will be applied to resolve the dispute?
Take the following example. A group of Michigan residents contract for a vacation bus tour of Toronto, Ontario. In their home city of Lansing, they board a Lansing Lines bus to Detroit. Lansing Lines is a Michigan corporation. In Detroit, they transfer to a bus owned by Toronto Tours Co., an Ontario corporation. While traveling in Ontario, the bus is hit by a freight train at a railroad crossing, killing or seriously injuring all of the passengers. What law will be applied to resolve this dispute? Under Ontario law, assume that the average recovery per passenger would be substantially lower than the recovery under Michigan law due to differences between Ontario and Michigan law on tort recovery. If plaintiffs sue in Michigan, will a Michigan court apply Michigan law on tort recovery or Ontario law on this issue? This is the question that the body of law known as conflict of laws (sometimes referred to as choice of law) is designed to answer.
Choice-of-law rules are overwhelmingly state-level, judge-made rules. In rare instances state legislatures (most notably, Louisianas(2)) have enacted choice- of-law rules. Federal courts have also adopted choice-of-law rules for cases in which federal law provides the rule of decision.
Choice-of-law rules can be categorized into two legal camps: traditional and modern. The traditional choice-of-law rules are the lex loci (law of the place) rules. Until the early 1960s, choice-of-law rules were largely uniform in the United States: All states used the territorial lex loci rules of the First Restatement of Conflict of Laws, which focused on a single connecting factor within the territory of a state as determinative as to which states law to apply in a multi-state contact setting. In the case of torts, for example, that choice-of- law rule was the monolithic lex loci delicti rule (the law of the place of wrong), that is, all substantive questions relating to the existence of a tort claim are governed by the local law of the place of wrong. That place is the state where the last event necessary to make an actor liable for an alleged tort takes place,(3) i.e., the place where the cause of action accrued. The state where the last event takes place, in turn, is the state where the injury occurred. Today, twelve states still follow the lex loci delicti rule: Alabama, Georgia, Kansas, Maryland, Montana, New Mexico, North Carolina, South Carolina, Vermont, Virginia, West Virginia, and Wyoming.(4)
In the case of lawsuits involving contracts, the traditional choice-of-law rule is the lex loci contractus rule (the law of the place of contracting). The lex loci contractus rule is subdivided into issues of contract validity and contract construction and performance. If the issue turns on whether the parties have entered into a binding contract, that issue is resolved under the law of the state where the contract was made, which would be the place of acceptance of the offer. If the issue is one of performance, the law of the place of performance governs, in the absence of a valid choice-of-law clause in the parties agreement. Today, ten states still follow the lex loci contractus rule: Alabama, Florida, Georgia, Kansas, Maryland, New Mexico, Rhode Island, South Carolina, Tennessee, and Virginia.(5)
Criticism of the First Restatement and of the territorial lex loci rules grew during the 1960s. The most influential critic was Professor Brainerd Currie, who proposed a choice-of-law methodology known as governmental interest analysis. In a nutshell, his approach calls for a three-step analysis. First, the forum must identify the significant contacts that the case presents and match them with the state in which they occurred. Such contacts would include, for example, the domicile of the parties and the place of the wrong in tort cases. Second, the forum must see if the contact states laws are materially different on the specific issue. For example, assume State A has a damages cap law on noneconomic damages, and State B provides for unlimited tort recovery. In that situation, there is a conflict. Third, the forum must identify the policy or governmental interest behind each states law and apply the law of the interested state. For example, assume State As policy for having a damages cap law is to protect defendants (and their insurers) from economic ruin. Since both parties are domiciled in State B with its unlimited recovery, the only interested state is State B, the state where the loss will be felt. Thus, in sharp contrast to the lex loci rule, which would call for application of the law of State A (the place where the accident occurred) interest analysis would apply the law of State B, the law of the common domicile.
Other academics joined the chorus of criticism aimed at the First Restatement in short order. These scholarly camps all advanced a content- selecting system that focuses on the policy behind the competing legal rules, in contrast to the First Restatements jurisdiction-selecting choice-of-law rules.
The critics were successful in winning judicial converts in the 1960s, with the New York Court of Appeals in 1963(6) and the California Supreme Court in 1967 adopting the interest-analysis approach to resolving choice-of-law issues.(7) Both courts broke ranks with the First Restatement and adopted the modern interest analysis methodology for choice-of-law determinations.
The First Restatement, the various scholarly camps, and the early court decisions departing from the lex loci rules were synthesized in 1971 into the Second Restatement of Conflicts. The Second Restatement blends these different choice-of-law approaches into a choice-of-law methodology known as the most significant relationship (MSR) test which directs the forum to apply the law of the state with the most significant relationship to the particular issue. The Second Restatements approach incorporates the First Restatements jurisdiction-selecting rules by providing presumptively valid lex loci rules to resolve many issues. Those lex loci rules are to be applied, unless there is some other state with a more significant relationship to the issue, in which case the lex loci rule is displaced and MSR states law is applied. To guide courts in making the MSR determination, § 6 of the Second Restatement sets forth seven considerations for making a choice-of-law selection:
(1) the needs of the interstate and international systems,
(2) the relevant policies of the forum,
(3) the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue,
(4) the protection of justified expectations,
(5) the basic policies underlying the particular field of law,
(6) certainty, predictability and uniformity of result, and
(7) ease in the administration and application of the law to be applied.
The MSR state is determined by examining a list of connecting factors (e.g., the parties domicile, place of the wrong, seat of the relationship) that are deemed significant in light of the foregoing seven § 6 factors.
The specific choice-of-law provisions of the Second Restatement are organized by subject matter: torts, contracts, property, trusts, status, business corporations, and administration of estates. The list of connecting factors varies with each subject matter.
In tort conflicts, 22 states follow the Restatement Second or a significant contacts approach,(8) and 28 states do likewise in contract conflicts.(9) The other states that no longer follow the traditional lex loci rules, but which at the same time have not adopted the Restatement Seconds MSR approach, use variations on the interest analysis choice-of-law approach.(10)
B. Choice-of-Law Rules in Michigan.
Michigan joined the modern choice-of-law revolution in tort conflicts in 1987,(11) and in contract conflicts in 1995. In tort conflicts, the leading Supreme Court opinion is Olmstead v. Anderson.(12) In Olmstead, a Michigan defendant was involved in a fatal car crash in Wisconsin that killed two Minnesota residents. At the time of the accident, Wisconsin, the place of the wrong, had a damages cap of $25,000 for wrongful death, whereas neither Michigan nor Minnesota limited recovery for wrongful death. After surveying the developments in the choice-of-law field in Michigan and in other states, and concluding that there no longer was any sound justification for the lex loci delicti rule, the Court adopted a lex fori (forum law) rule to resolve tort conflicts.(13) Under the lex fori rule, the law of the forum provides the applicable rule of decision and will only be displaced if it can be shown that some other state has a greater interest than the forum in having its law applied.
In Olmstead, the Court found that damage cap laws are concerned with compensation and the protection of defendants from exorbitant damage awards, not with conduct. Consequently, the state of the place of the wrong -- Wisconsin -- had little or no interest in such compensation and protection when none of the parties resided there.(14) The Court concluded that because neither of the parties was from Wisconsin; because the law in conflict dealt with loss allocation, not conduct regulation (the latter being Wisconsins only legitimate interest under the circumstances); and because there was no conflict in the law of Michigan and Minnesota, forum law (Michigan law) would be applied.(15) Had the Supreme Court followed the traditional choice-of-law rule, lex loci delicti, Wisconsin law would have applied.
In contract conflicts, the Michigan Supreme Court adopted the Second Restatements MSR approach in 1995 in Chrysler Corp. V. Skyline Industrial Services, Inc.(16) The Supreme Court in Skyline recognized that [t]he trend in this Court has been to move away from traditional choice-of-law conceptions toward a more policy-centered approach,(17) noting that the national trend has been to adopt the Second Restatement. [R]esolving conflicts questions requires moving beyond traditional rules,(18) the Court stated, adding:
Much as lex loci delicti had proven too inflexible for resolution of tort conflicts, the rigid law of the place of contracting approach has become outmoded in resolving contract conflicts. Rather, §§ 187 and 188 of the Second Restatement, with their emphasis on examining the relevant contacts and policies of the interested states, provide a sound basis for moving beyond formalism to an approach more in line with modern-day contracting realities.(19)
In the end, the Court upheld the parties contractual choice-of-law clause that made express reference to Michigan law governing the contractual relationship, including the validity of an indemnification claim that was unenforceable under Illinois law, Illinois being the other interested state.
II. CHOOSING THE APPLICABLE STATUTE OF LIMITATIONS.
This Part of the Report is divided into two sections. The first section is an overview of how courts choose the applicable statute of limitations in a multi-state contact case. The second section addresses the fit of Michigans modern choice-of-law rules with the Michigan borrowing statute.
A. Limitation Periods and Choice of Law.
In addition to the tort recovery issue presented in the choice-of-law hypothetical in Part I.A, a threshold issue that sometimes must be resolved in interstate legal problems concerns the applicable statute of limitations. Will the forum-states limitations period invariably apply, or will the limitations period of the other jurisdiction govern?
When the forums choice-of-law rule refers to the law of another jurisdiction, the question becomes just how much of the other jurisdictions law is applied? To answer this question under the traditional conflict-of-laws approach, laws were generally divided into substance and procedure. In resolving a procedural issue (e.g., those dealing with the process of litigation), a court applied the forums own rules. Substantive issues (e.g., those involving the claim of right) were determined by the law of the other jurisdiction.(20)
The next question is, in the substance/procedure dichotomy, into which category do statutes of limitations fall? Traditional conflicts law characterized statutes of limitations as procedural under at least two rationales. The first is that it is the purpose of a statute of limitations . . . to protect both the parties and the local courts against the prosecution of stale claims.(21) The second rationale is that limitations periods affect the remedy, not the underlying right, and it is the forum that dispenses remedies under its own brand of remedial justice.
Before its 1988 revision, § 142 of the Restatement (Second) Conflict of Laws held tenaciously to the characterization of statutes of limitations as procedural. A procedural characterization is, of course, constitutional. In the U.S. Supreme Courts 1988 decision, Sun Oil Co. v. Wortman,(22) the Court held that since statutes of limitations are by tradition procedural, the forum does not violate either the due process or full faith and credit clauses when it applies its own longer statute of limitations to permit an otherwise stale claim to be litigated that is otherwise governed by the substantive law of a sister state.
Because the traditional characterization of statutes of limitations as procedural may encourage forum-shopping in cases where the forum has a longer statute of limitations that has not yet run, two escape devices were developed to cut off forum shopping by plaintiffs.(23)
The first escape device is judge-made. The judge-made exception to the procedural characterization of statutes of limitations treats them as substantive when the sister-state limitation is intended to extinguish the right and not only to bar the remedy. The courts that have adopted this escape device to prevent forum-shopping have restricted its use to statutory rights that have a built in limitations period, although the presence of a limitations period within the statute itself is not conclusive on the substantive nature of the limitation.(24) Typical examples are limitations periods contained in wrongful death statutes.
An alternative formulation of this judge-made escape device is the specificity test. The limitations period is treated as substantive when it is directed to the newly created liability so specifically as to warrant saying that it qualified the right.(25) Unlike the built-in test, which requires that the statute of limitations be an integral part of the statute creating the right, the specificity test is broader in that the limitations period qualifying the right may be found outside the statute creating it.
This judge-made escape device is unpredictable because of the vagueness of the built-in test. It also is limited to situations where the plaintiffs claim is based on statute and not on common law.
The second escape device, adopted by more than half of the states,(26) has been the enactment of borrowing statutes which provide that a cause of action, regardless of whether it is based on statute or common law, is barred in the forum if it is also barred in the state where the claim accrued.(27) The typical borrowing statute provides that the cause of action will be barred in the forum if it is barred where it arose, accrued, or originated. Another typical feature of borrowing statutes, including Michigans, is the exception in favor of forum resident-plaintiffs.(28)
In sum, a sister-state or foreign limitations period is borrowed only if the claim would be barred in the sister state. If the claim is time-barred in the forum, on the other hand, the borrowing statute will not be used. The effect is to apply the shorter of the sister-state or local limitations period.(29)
A third development has been the adoption by six states of the Uniform Conflict of Laws-Limitations Act, discussed below in Part III.
B. The Michigan Borrowing Statute in the Modern Choice-of-Law Era.
The Michigan borrowing statute, with its reference to the place where the cause of action accrued, was drafted and enacted against the backdrop of the lex loci choice-of-law rules, a backdrop that no longer exists in Michigan.
Consistent with the principles of the First Restatement, most jurisdictions hold that the cause of action accrues in the jurisdiction where the last act to give rise to liability occurred.(30) Michigan is no exception.(31) With the advent of modern choice-of-law rules in Michigan, it seems desirable to reevaluate the reference to the place where the cause of action accrued in the borrowing statute to instead align the applicable limitations period with the applicable substantive law. If this is not done, the limitations period of a jurisdiction may be chosen which has no substantial relationship to or interest in the litigation, contrary to the current choice-of-law methodology now used in Michigan.
An illustration of the incongruity that could occur is based on the facts of Olmstead v. Anderson. Even though the Supreme Court concluded that Wisconsin, the place of the accident, had no interest in having its damages cap law applied, under the Michigan borrowing statute the cause of action accrued in Wisconsin, i.e., Wisconsin was the place where the last act necessary to give rise to liability occurred. If Wisconsin had had a limitations period that would have barred the plaintiffs claim, the action would have been dismissed as time barred under judicial construction of the Michigan borrowing statute, even though Wisconsin was a disinterested state whose law did not otherwise apply to the case.(32)
The courts of at least one state, Florida, have construed the language of its borrowing statute to make it fit into that states current choice-of-law methodology.(33) Most states, however, continue to interpret their borrowing statues literally, even when the forum state has abandoned the traditional lex loci choice-of-law approach in other respects.(34)
In order to make the Michigan borrowing statute consistent with Michigans current choice-of-law approach, it will be left to the courts to perform judicial cosmetic surgery on the borrowing statute by torturing the language of the statute (a course most Michigan judges will not take in the face of clear and unambiguous statutory language). Alternatively, the Legislature could amend the borrowing statute to bring it into line with Michigans current choice-of-law regime. If the borrowing statute were amended, the Uniform Conflict of Laws-Limitation Act is one legislative model.
III. THE UNIFORM CONFLICT OF LAWS-LIMITATIONS ACT.
In response to the choice-of-law revolution that swept the United States in the 1970s, the Uniform Conflict of Laws-Limitations Act (UCLLA) was promulgated by the National Conference of Commissioners on Uniform State Laws in 1982 in part to replace borrowing statutes that had been enacted during the lex loci era of choice of law. The UCLLA characterizes statute of limitations as substantive for choice-of-law purposes, thereby pairing the law of the state that governs questions of liability and recovery with that states statute of limitations.
The Uniform Conflict of Laws-Limitation Act(35) provides that the applicable limitations period should be set by the state whose substantive law will be used to decide the case. The UCLLA thus answers the limitations- period question in a predictable and certain way. Six states have adopted the UCLLA: Arkansas, Colorado, Montana, North Dakota, Oregon, and Washington.(36) Colorado and Washington had traditional borrowing statutes that they replaced with the UCLLA.(37)
The operative sections of the UCLLA are sections 2, 3, and 4. Section 2 provides:
§ 2. Conflict of Laws; Limitations Period.
(a) Except as provided by Section 4, if a claim is substantively based:
(1) upon the law of one other state, the limitation period of that state applies; or
(2) upon the law of more than one state, the limitation period of one of those states chosen by the law of conflict of laws of this State applies.
(b) The limitation period of this State applies to all other claims.
Section 2, in short, treats limitation periods as substantive, to be governed by the limitations law of a state whose law governs other substantive issues in the claim, regardless of whether that limitation period is longer or shorter than the forums limitation period.(38)
Section 3 provides:
§ 3. Rules Applicable to Computation of Limitation Period.
If the statute of limitations of another state applies to the assertion of a claim in this State, the other states relevant statutes and other rules of law governing tolling and accrual apply in computing the limitations period, but its statutes and other rules of law governing conflict of laws do not apply.
This section treats all tolling and accrual provisions as substantive parts of the limitations law of any state whose law may be held applicable. This is consistent with current Michigan judicial interpretations of the borrowing statute, which link a sister-states limitations period with its tolling provisions.(39)
Finally, Section 4 of the UCLLA provides:
§ 4. Unfairness.
If the court determines that the limitation period of another state applicable under Sections 2 and 3 is substantially different from the limitation period of this State and has not afforded a fair opportunity to sue upon, or imposes an unfair burden in defending against, the claim, the limitation period of this State applies.
This section is an escape hatch to avoid harsh results. While the comment to this section cautions that it should only be used in extreme cases, it would arguably be possible under this section for a Michigan court to continue the special exception for Michigan resident-plaintiffs found in the borrowing statute that permits application of Michigans longer statute of limitations.
The Commission recommends that the Legislature repeal the Michigan borrowing statute, M.C.L. § 600.5861; M.S.A. § 27A.5861, and enact the Uniform Conflict of Laws-Limitations Act.
(1) See generally Lea Brilmayer, Conflict of Laws (1995); William M. Richman & William L. Reynolds, Understanding Conflict of Laws (1995); Eugene F. Scoles & Peter Hay, Conflict of Laws (1992). Professor William Prosser once described the subject as a dismal swamp.
(2) On January 1, 1992, a new comprehensive conflict-of-laws code took effect in Louisiana. See La. Civ. Code arts. 3515-3549.
(3) RESTATEMENT OF CONFLICT OF LAWS § 377.
(4) See Symeon C. Symeonides, Choice of Law in the American Courts in 1995: A Year in Review, 44 Am. J. Comp. L. 181 (1996)[hereinafter Symeonides].
(5) See Symeonides, supra note 4, at 195.
(6) See Babcock v. Jackson, 12 N.Y.2d 473, 240 N.Y.S.2d 743, 191 N.E.2d 279 (1963). A symposium on this case can be found at 63 Colum. L. Rev. 1212 (1963).
(7) See Reich v. Purcell, 67 Cal.2d 551, 63 Cal. Rptr. 31, 432 P.2d 727 (1967). A symposium devoted to this case can be found at 15 U.C.L.A.L. Rev. 551 (1968).
(8) Alaska, Arizona, Colorado, Connecticut, Delaware, Florida, Idaho, Illinois, Indiana, Iowa, Maine, Mississippi, Missouri, Nebraska, North Dakota, Ohio, Oklahoma, South Dakota, Tennessee, Texas, Utah, and Washington. See Symeonides, supra note 4.
(9) Alaska, Arizona, Arkansas, Colorado, Connecticut, Delaware, Idaho, Illinois, Indiana, Iowa, Kentucky, Maine, Michigan, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, North Carolina, Ohio, Oklahoma, South Dakota, Texas, Utah, Vermont, Washington, West Virginia, and Wyoming. See Symeonides, supra note 4.
(10) The states that use neither lex loci nor the MSR approach in tort conflicts are California, New Jersey, and the District of Columbia, that use interest analysis; Kentucky, Michigan, and Nevada, which use lex fori; Arkansas, Minnesota, New Hampshire, Rhode Island, and Wisconsin, that use Professor Leflars so-called better rule of law approach; and Hawaii, Louisiana, Massachusetts, New York, Oregon, and Pennsylvania, that use a combination of the modern choice-of-law approaches. See Symeonides, supra note 4.
In contract conflicts, Minnesota and Wisconsin use Leflars better-rule-of- law approach; and California, the District of Columbia, Hawaii, Louisiana, Massachusetts, New Jersey, New York, North Dakota, Oregon, and Pennsylvania use a combination of the modern approaches. See Symeonides, supra note 4.
(11) Michigans break from the lex loci delicti rule in tort cases arguably can be traced back to 1982 in Sexton v. Ryder Truck Rental, Inc., 413 Mich. 406, 320 N.W.2d 843, although that decision did not have a majority opinion.
(12) 428 Mich. 1, 400 N.W.2d 292 (1987).
(13) Two other states, Kentucky and Nevada, also use lex fori in tort conflicts. See Motenko v. MGM Dist., Inc., 921 P.2d 933 (Nev. 1996); Foster v. Leggett, 484 S.W.2d 827 (Ky. App. 1972).
(14) Olmstead, 428 Mich. at 28.
(15) Id. at 29-30. A recent wrongful death case where the court applied the Michigan owners liability statute rather than Alabamas guest passenger statute is Burney v. PV Holding Corp., 218 Mich. App. 167, 553 N.W.2d 657 (1996). Applying Olmstead, the Court of Appeals concluded that Michigans interest was greater than Alabamas, even though Alabama was the place of the accident and the plaintiffs domicile at the time of death.
(16) 448 Mich. 113, 528 N.W.2d 698 (1995). In a 1982 decision, Hardy v. Monsanto Enviro-Chem Systems, Inc., 414 Mich. 29, 86 n.60, 323 N.W.2d 270, the Court had cited section 187 of the Second Restatement in upholding the parties contractual choice-of-law clause, but did not squarely adopt the Restatement. The citation to the Second Restatement was inconsequential to the outcome and the methodology. Lower Michigan courts after Hardy continued to apply lex loci contractus. See cases cited in Symeon Symeonides, Choice of Law in the American Courts in 1993 (and in the Six Previous Years), 42 Am. J. Comp. L. 599, 603 n.30 (1994).
(17) Skyline, 448 Mich. at 122-23, 528 N.W.2d at 702.
(18) Id. at 123, 528 N.W.2d at 703.
(20) See generally William M. Richman & William L. Reynolds, Understanding Conflict of Laws § 57 (1995); Eugene F. Scoles & Peter Hay, Conflict of Laws § 3.8 (1992).
(21) Restatement (Second) Conflicts of Laws § 142 cmt. (d). For a detailed analysis of statutes of limitations in the choice-of-law context, see Margaret Rosso Grossman, Statutes of Limitations and the Conflict of Laws: A Modern Analysis, 1980 Ariz. St. L.J. 1.
(22) 486 U.S. 717 (1988).
(23) Forum shopping for a longer statute of limitations is not just a theoretical possibility, but does in fact occur. See, e.g., Ferens v. John Deere Co., 494 U.S. 516 (1990); Keeton v. Hustler Magazine, Inc., 549 A.2d 1187 (N.H. 1988).
(24) See, e.g., Lillegraven v. Tengs, 375 P.2d 139 (Alaska 1962); Bournias v. Atlantic Maritime Co., 220 F.2d 152 (2d Cir. 1956).
(25) Davis v. Mills, 194 U.S. 451, 454 (1904).
(26) See, e.g., Ala. Code § 6-2-17; Alaska Stat. § 09-10.220; Ariz. Rev. Stat. Ann. § 12-506; Del. Code Ann. tit. 10, § 8121; Fla. Stat. Ann. § 95.10 (West); Haw. Rev. Stat. Ann. tit. 36, § 657-9; Ill. Stat. Ann. ch. 83, ¶ 21 (Smith-Hurd); Ind. Code Ann. § 34-1-2-6(b) (West); Iowa Code Ann. § 614.7; Kan. Civ. Proc. Code Ann. § 60-516 (Vernon); Ky. Rev. Stat. Ann. § 413.320; Mass. Gen. Laws Ann. ch. 260, § 9; Miss. Code Ann. § 15-1-65; Mo. Ann. Stat. § 516.190 (Vernon); Neb. Rev. Stat. § 25-215; Nev. Rev. Stat. § 11.020; N.Y. Civ. Prac. L. & R. § 202 (McKinney); N.C. Gen. Stat. § 1-21; Okla. Stat. Ann. tit. 12, §§ 104-108; 42 Pa. Cons. Stat. Ann. § 5521; R.I. Gen. Laws § 9-1-18; Tenn. Code Ann. § 28-1-112; Utah Code Ann. § 78-12-45; Va. Code Ann. § 8.01-247; W. Va. Code § 55-2-17; Wis. Stat. Ann. § 893.07; Wyo. Stat. § 1-3-117.See generally Annotation, Validity, Construction, and Application, in Nonstatutory Personal Injury Actions, of State Statute Providing for Borrowing of Statute of Limitations of Another State, 41 A.L.R. 4th 1025 (1985).
(27) The New Jersey Supreme Court judicially created the equivalent of a borrowing statute in Heavner v. Uniroyal, Inc., 63 N.J. 130, 305 A.2d 412 (1973), where it held that a suit is barred in a New Jersey (1) court when the cause of action arises in another state; (2) the forum has no substantial interest in the matter; (3) the substantive law of the sister state is to be applied; and (4) that states limitations period has expired at the time suit is commenced.
(28) The Michigan borrowing statute was amended in 1978 to make the special allowance for Michigan resident-plaintiffs. 1978 P.A. 542. This discriminatory exception in favor of resident plaintiffs was unsuccessfully challenged in the U.S. Supreme Court under the privileges and immunities clause of Article IV, § 2 of the U.S. Constitution. See Canadian Northern R. Co. v. Eggen, 252 U.S. 553 (1920).
(29) The constitutionality of the forum applying its shorter statute of limitations to bar a sister-state claim has been upheld by the U.S. Supreme Court. Wells v. Simonds Abrasive Co., 345 U.S. 514 (1953).
(30) See, e.g., Colhoun v. Greyhound Lines, Inc., 265 So.2d 18 (Fla. 1972); Boudreau v. Baughman, 322 N.C. 331, 368 S.E.2d 849 (1988).
(31) See Waldron v. Armstrong Rubber Co., 54 Mich. App. 154, 220 N.W.2d 738, revd on other grounds, 393 Mich. 760, 223 N.W.2d 295 (1974); Makarow v. Volkswagen of America, Inc., 157 Mich. App. 401, 403 N.W.2d 563 (1987); Bechtol v. Mayes, 198 Mich. App. 691, 499 N.W.2d 439 (1993); Hover v. Chrysler Corp., 209 Mich. App. 314, 530 N.W.2d 96 (1994).
(32) For examples of this incongruity, see Vick v. Cochran, 316 So.2d 242 (Miss. 1975); Trzecki v. Gruenewald, 532 S.W.2d 209 (Mo. 1976).
(33) See, e.g., Bates v. Cook, Inc., 509 So. 2d 1112 (Fla. 1987), where the court held that where a cause of action arose under the Florida borrowing statute was determined by the same significant relationship test used to choose law in tort actions.
(34) See, e.g., Safecard Services, Inc. V. Halmos, 912 P.2d 1132 (Wyo. 1996); Benne v. Intl Bus. Machines Corp., 87 F.3d 419 (10th Cir. 1996)(applying New York choice of law).
(35) 12 U.L.A. 157 (1996). A copy of the Uniform Act is appended to this Report. See Robert A. Leflar, The New Conflicts-Limitations Act, 35 Mercer L. Rev. 461 (1984).
(36) Ark. Code Ann. §§ 16-56-201 to 16-56-210; Colo. Rev. Stat. Ann. §§ 13-82-101 to 13-82-107; Mont. Code Ann. §§ 27-2-501 to 27-2-507; N.D. Cent. Code §§ 28-01.2-01 to 28-01.2-05; Ore. Rev. Stat. §§ 12.410 to 12.480; Wash. Rev. Code Ann. §§ 4.18.010 to 4.18.904.
(37) See Colo. Rev. Stat. Ann. § 13-80-118; Wash. Rev. Code Ann. § 4.16.290.
(38) For cases construing the UCLLA, see Cropp v. Interstate Distributor Co., 129 Or. App. 510, 880 P.2d 464 (1994); Perkins v. Clark Equipment Co., 823 F.2d 207 (8th Cir. 1987)(federal court sitting in North Dakota applied Iowa limitation period to case governed by Iowa tort law).
(39) See, e.g., Hover v. Chrysler Corp., 209 Mich. App. 314, 318-19, 530 N.W.2d 96, 98 (1994); Makarow v. Volkswagen of America, Inc., 157 Mich. App. 401, 410, 403 N.W.2d 563, 567 (1987).