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§3.4.3 Statute of limitations
  • 1 §3.4.3.1 Procedural (forum law)

    • 1.1 §3.4.3.1 (a) Applying the shorter forum statute to bar the claim

      • 1.1.1 Cameron v. Hardisty

        1
        407 N.W.2d 595 (1987)
        2
        Marjorie Anne CAMERON, Plaintiff,
        v.
        Larry E. HARDISTY and Wenger Truck Line, Inc., Defendants-Movants.
        3
        No. 86-1307.
        4

        Supreme Court of Iowa.

        5
        June 17, 1987.
        6

        Richard G. Langdon and Richard N. Winders of Herrick, Langdon & Langdon, Des Moines, for defendants-movants.

        7

        Jerome A. Ritter and Jeffrey J. Fenske of Ritter & Rolshouse, St. Paul, Minn., for plaintiff.

        8

        Considered by REYNOLDSON, C.J., and McGIVERIN, WOLLE, LAVORATO, and NEUMAN, JJ.

        9
        NEUMAN, Justice.
        10

        The United States District Court for the Southern District of Iowa has suggested by way of a certified question that we re-examine the vitality of our general rule that the local law of the forum determines whether an action is barred by the statute of limitations. Given the facts and legal issue posed by the question before us, we are convinced that our approach has not outlived its usefulness.

        11

        The certified facts are as follows:

        12
        On July 15, 1981, in Seward County, Nebraska, a vehicle driven by plaintiff Marjorie Ann Cameron, a citizen of Minnesota, collided with a vehicle driven by defendant Larry E. Hardisty, a citizen of Iowa. At the time of the accident, defendant Hardisty was acting in the scope of his employment with defendant Wenger Truck Line, Inc., an Iowa corporation. As a result of the accident, plaintiff was injured.
        13
        [596] Plaintiff commenced this action on July 15, 1985, four years to the day after the accident. Defendants filed a motion for judgment on the pleadings, contending that under Iowa law statutes of limitations are viewed as procedural and, consequently, plaintiff's claim is barred by the two-year limitations period of Iowa Code section 614.1(2). Plaintiff, on the other hand, argues that the Iowa Supreme Court would now hold statutes of limitation to be substantive, rather than procedural. If so, plaintiff asserts, Nebraska's four-year statute of limitations (Neb. Code § 25-207) should be applied because Nebraska is the state with the most substantial interest in the outcome of the case.
        14

        We are asked to respond to the following question of law:

        15
        Which state's law provides the statute of limitations applicable to a negligence action brought by a Minnesota resident in Iowa against defendants for personal injuries resulting from an automobile accident which occurred in Nebraska when:
        16
        1. The action would be time-barred under Iowa Code § 614.1(2) but not under the statute of limitations of Nebraska; and
        17
        2. The Iowa borrowing statute does not apply?
        18

        Several very fundamental principles of law and fact narrow our analysis of the issue before us. Factually, it is undisputed that plaintiff's action could legitimately have been commenced in Nebraska, the site of the collision, in order to take advantage of its more liberal, four-year limitation. With Iowa as the chosen forum, however, the federal court is bound to apply our choice of law rules. Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941). Iowa's choice of law rule, with two exceptions, requires the application of local law to matters of procedure. Brooks v. Engel, 207 N.W.2d 110, 113 (Iowa 1973). We have traditionally viewed statutes of limitation as being procedural rather than substantive. Harris v. Clinton Corn Processing Co., 360 N.W.2d 812, 814 (Iowa 1985). In Harris we noted that our approach is consistent with the general rule set forth in Restatement (Second) of Conflict of Laws section 142 (1971) which provides:

        19
        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.
        20

        Thus, unless one of the exceptions applies, Iowa law limits commencement of a tort action to two years, regardless of which state's substantive law will govern the case. Iowa Code § 614.1(2) (1987); Harris, 360 N.W.2d at 814.

        21

        Iowa's "borrowing statute," found at section 614.7, provides the first exception to the general rule. Briefly, the section contemplates that a former resident of another jurisdiction cannot, by moving to Iowa, take advantage of a lengthier limitations statute here. Obviously the statute has no application to the case before us.

        22

        The second exception, developed at common law, has most recently been articulated in Harris v. Clinton Corn Processing Co., 360 N.W.2d 812 (Iowa 1985). See also Restatement (Second) of Conflict of Laws § 143. In Harris we observed that the Tennessee statute giving rise to plaintiff's cause of action also specifically limited the time within which the action could be brought. We viewed such a statute as being properly characterized as substantive, rather than procedural, because it operated

        23
        as a grant of immunity to the protected persons upon the passing of the statutory period without regard to when an otherwise actionable injury might occur. [Citation omitted.] In contrast, an ordinary statute of limitations like section 614.1(2) starts to run only after the cause of action accrues and never bars it from arising.
        24

        Harris, 360 N.W.2d at 816.

        25

        We concluded in Harris that a statute of limitation embodied in another jurisdiction's statutory cause of action should not be extended by operation of our own limitation statute, even if longer. Id. The exception [597] is of no avail to plaintiff in this case, however, because she seeks to extend the statute of limitation for an ordinary negligence action, timely if brought in the state in which the cause of action arose but barred by the shorter limitation statute of Iowa, the forum state.

        26

        Nevertheless, plaintiff argues that our procedural-substantive or right-remedy rationale is outdated and she points to commentators criticizing the automatic application of such a maxim regardless of the merit of an individual case. See R. Leflar, American Conflicts Law § 127, at 253 (3d ed. 1977); Heavner v. Uniroyal, Inc., 63 N.J. 130, 135-42, 305 A.2d 412, 415-18 (1973). At the heart of plaintiff's claim is her belief that Iowa has no significant relationship to the case other than serving as the forum. She maintains that since Nebraska's substantive law would apply to the determination of liability, it is unfair to bar her action based on an otherwise unrelated Iowa law.

        27

        We perceive two flaws in plaintiff's reasoning. First, she presumes that no rationale other than the procedural-substantive dichotomy exists for applying this forum's statute of limitation. While we recognize that the Restatement (Second) of Conflicts rejects the mechanistic application of a procedural-substantive distinction, the treatise would nevertheless require us to apply our own statute of limitation in this case. Restatement (Second) of Conflict of Laws § 142. Under the Restatement, the local law of the forum applies, except when the forum's statute of limitation is lengthier than the statute of the otherwise applicable law, because the forum always has a primary interest in protecting its courts and litigants from stale claims.

        28

        Secondly, we reject plaintiff's presumption that Nebraska law will apply to issues of liability and damages. Iowa has adopted the "modern" choice of law rules, formulated in accordance with the Restatement (Second) of Conflicts section 145(1):

        29
        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 ....
        30

        Numerous decisions of this court have recognized and applied this issue-oriented "most significant relationship" doctrine. Goetz v. Wells Ford Mercury, Inc., 405 N.W.2d 842, 843 (Iowa 1987); Zeman v. Canton State Bank, 211 N.W.2d 346, 348-49 (Iowa 1973); Fuerste v. Bemis, 156 N.W.2d 831, 833 (Iowa 1968); Fabricius v. Horgen, 257 Iowa 268, 132 N.W.2d 410 (1965).

        31

        While the certified question confronting us provides little working basis for a substantive choice of law analysis, we presume that the law of liability and damages applicable in Idaho (Cameron's residence at the time of the accident), Nebraska (location of the accident), Iowa (defendants' residence), or Minnesota (plaintiff's current residence) presents no true conflicts in this simple negligence action.

        32

        Thus it appears to us that, given the limited scope of the question before us, Iowa, not Nebraska, has the most significant contact with this litigation. As we have already stated, Iowa's interest in protecting its courts from the trial of stale claims inheres in its status as the forum. Additionally, both defendants are Iowa residents and the possibility of a judgment being rendered against them generates a substantial state interest in the expeditious resolution of the controversy. By contrast, Nebraska's interest in any issue in the case appears to us negligible. Neither plaintiff nor defendants reside there. Nebraska was merely the place of impact. Indeed, Nebraska has less interest in this case than Iowa had in Berghammer v. Smith, 185 N.W.2d 226 (Iowa 1971) a case involving an automobile collision in Iowa between two non-Iowans. In Berghammer, we declined to apply our own substantive law on the issue of consortium because we recognized that Iowa had limited interest in a case in which neither party was a resident. Id. at 231. If Iowa had no interest in Berghammer, Nebraska has even less here. The plaintiff in Berghammer at least commenced the action in Iowa. Plaintiff Cameron, however, chose not to file in Nebraska, [598] where the collision occurred, but in Iowa. We think it unlikely that Nebraska law would apply to any issue in this case and it strikes us as inappropriate to bootstrap Nebraska's statute of limitation with its otherwise inapplicable law.

        33

        In summary, this case presents us with no reason, factually or legally, to depart from the rule expressed in our prior decisions and the Restatement (Second) of Conflicts regarding statutes of limitations. In response to the certified question posed, we hold that Iowa's two-year limitation statute bars plaintiff's action filed in Iowa four years after an accident occurring in Nebraska.

        34

        CERTIFIED QUESTION ANSWERED.

    • 1.2 §3.4.3.1 (b) Applying the longer forum statute to hear the claim

      • 1.2.1 Shewbrooks v. AC And S. Inc.

        1
        529 So.2d 557 (1988)
        2
        Nevin SHEWBROOKS, et ux.
        v.
        A.C. AND S., INC., et al.
        3
        No. 56014.
        4

        Supreme Court of Mississippi.

        5
        May 11, 1988.
        6
        Rehearing Denied July 13, 1988.
        7

        [558] Michael B. Wallace and Julie L. Sneed, Phelps, Dunbar, Marks, Claverie & Sims, Jackson, for appellants.

        8

        Richard L. Forman and Walter G. Watkins, Jr., Butler, Snow, O'Mara, Stevens & Cannada, Natie P. Caraway and John D. Price, Wise, Carter, Child & Caraway, Michael S. Allred and Thomas L. Kirkland, Jr., Satterfield & Allred, Curtis E. Coker and Gary K. Jones, Daniel, Coker, Horton & Bell, Edward J. Currie, Jr., Steen, Reynolds, Dalehite & Currie, Jackson, James O. Dukes, Bryant, Stennis & Colingo, Gulfport, [559] P.N. Harkins, III, William F. Goodman, III, and Douglas J. Gunn, Watkins & Eager, Thomas W. Tardy, III, Thomas, Price, Alston, Jones & Davis, and Don Moore, Jackson, for appellees.

        9

        En Banc.

        10
        ON PETITION FOR REHEARING
        11
        HAWKINS, Presiding Justice, for the Court:
        12

        The Petition for Rehearing is granted and the following substituted for the opinion of the Court.

        13

        Nevin and Anna Mae Shewbrooks have appealed from a judgment of the circuit court dismissing their action against A.C. and S., Inc., and numerous other corporate co-defendants because of lack of personal jurisdiction over the defendants and forum non conveniens. Finding the circuit court in error, we reverse and remand for trial upon the merits.

        14
        FACTS
        15

        Nevin and Anna Mae Shewbrooks, Delaware residents, filed suit in the circuit court of the 1st Judicial District of Hinds County against 18 corporate defendants, none of which had its principal office or was domiciled in Mississippi. The suit was for asbestos poisoning received by Shewbrooks in Delaware, New Jersey and Pennsylvania as a result of mining, manufacturing and distribution of asbestos by the various defendants. The defendants are engaged in business in this state and are subject to process in this state.[1]

        16

        The complaint charges the defendants with knowingly mining, manufacturing and marketing asbestos years after discovery of its dangers, and concealing its hazards from their employees and the public. It also charges a conspiracy between them to conceal such dangers.

        17

        The circuit court sustained motions to dismiss on two grounds: lack of personal jurisdiction over the defendants and forum non conveniens. The circuit court clearly erred in dismissing for lack of jurisdiction.

        18
        LAW
        19

        There is no serious contention on appeal that the circuit court lacked personal jurisdiction of the defendants, all of which do business in Mississippi and are subject to process in this state. This ground of dismissal needs little discussion.

        20

        The fact that a plaintiff and a defendant are non-residents of a state in a transitory cause of action which accrued in another state does not, in and of itself, deprive a court of lawful authority (i.e., "jurisdiction") to hear the case, and this is universally recognized by all courts.

        21

        This familiar principle of law was settled in this state long ago in Pullman Palace Car Co. v. Lawrence, 74 Miss. 782, 22 So. 53 (1897). In that case the plaintiff lived in Illinois, the defendant corporation was domiciled in Illinois, and the assault on the plaintiff by an employee of the defendant occurred in Illinois. Suit, however, was brought in the circuit court of Claiborne County. We then held that there was:

        22
        [I]n our own state, no ground left for dispute that in transitory actions, whether in tort or on contract, our courts were wide open to any suitor, resident or non-resident, against his adversary, whether resident or nonresident, whether a natural person or an artificial one, regardless of where the right of action occurred, if only the courts had jurisdiction of the subject-matter, and could obtain jurisdiction of the party, either by a voluntary [560] appearance, or by service of process. [Emphasis added]
        23

        Id. 74 Miss. at 796, 22 So. at 55. See: Read v. Sonat Offshore Drilling, Inc., 515 So.2d 1229 (Miss. 1987); Slater v. Mexican Nat'l R.R. Co., 194 U.S. 120, 48 L.Ed. 900, 24 S.Ct. 581 (1904); 30 A.L.R. 255.

        24

        We turn then to the other ground for dismissal.

        25
        I.
        26
        WHAT COURTS ARE ALL ABOUT
        27

        Courts of this nation are the passive branch of government. We have no lawful authority to decide any issue or pronounce any law not required from the facts squarely presented in an actual case before us. The converse of this is also true. When we have a case before us which we have the lawful authority to decide, we have no authority not to decide it. We can neither ask for nor invite lawsuits, but at the same time — and just as important — we cannot refuse to hear a case, either. That is, we cannot refuse in conformity with our solemn responsibility as a court.

        28

        In Cohens v. Virginia, 19 U.S. (6 Wheat) 264, 404, 5 L.Ed. 257, 291 (1821), the United States Supreme Court speaking through Chief Justice Marshall, stated:

        29
        It is most true, that this court will not take jurisdiction if it should not: but it is equally true, that it must take jurisdiction, if it should. The judiciary cannot, as the legislature may, avoid a measure, because it approaches the confines of the constitution. We cannot pass it by, because it is doubtful. With whatever doubt, with whatever difficulties a case may be attended, we must decide it, if it be brought before us. We have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given. The one or the other would be treason to the constitution. Questions may occur, which we would gladly avoid; but we cannot avoid them. All we can do is, to exercise our best judgment, and conscientiously perform our duty... . We find no exception to this grant, and we cannot insert one. [Emphasis added]
        30

        That Court in Knox County v. Aspinwall, 65 U.S. (24 How.) 376, 16 L.Ed. 735 (1861), stated:

        31
        [B]ut no court, having proper jurisdiction and process to compel the satisfaction of its own judgments, can be justified in turning its suitors over to another tribunal to obtain justice.
        32

        65 U.S. at 385.

        33

        In Willcox v. Consolidated Gas Co., 212 U.S. 19, 40, 29 S.Ct. 192, 195, 53 L.Ed. 382, 394, 48 LRA NS 1134 (1909), that Court stated: "When a Federal court is properly appealed to in a case over which it has by law jurisdiction, it is its duty to take such jurisdiction." 212 U.S. at 40, 29 S.Ct. at 195, 53 L.Ed. at 394-395.

        34

        This holding was repeated by the United States Supreme Court in England v. Louisiana Medical Examiners, 375 U.S. 411, 415, 84 S.Ct. 461, 464, 11 L.Ed.2d 440, 445 (1964).

        35

        In State v. Killigrew, 202 Ind. 397, 174 N.E. 808 (1931), the Indiana Supreme Court held:

        36
        [W]hen a court has jurisdiction over a class of cases and one seeking relief invokes the jurisdiction of the court in the manner prescribed by law, the particular cause is, ipso facto, under the jurisdiction of the court and the court cannot refuse jurisdiction.
        37

        Id. at 809.

        38

        The Indiana Supreme Court again in Rosenbarger v. Marion Circuit Court, 239 Ind. 132, 155 N.E.2d 125 (1959), held:

        39
        [T]he power to hear and decide carries with it the duty to do so. Mandate will lie to require an inferior court to hear the merits of a cause where it was improperly dismissed.
        40

        Id. at 127.

        41

        In Kruidenier v. McCulloch, 257 Iowa 1315, 136 N.W.2d 546 (1965), the Iowa Supreme Court held:

        42
        [S]tate courts of original jurisdiction have the duty to hear and determine cases properly before them. Such courts may not deny relief to persons properly [561] before them to the extent to which they are entitled and the courts have power to afford under the circumstances.
        43

        Id. at 547.

        44

        In Lansverk v. Studebaker-Packard Corp., 54 Wash.2d 124, 338 P.2d 747 (1959), the Washington Supreme Court held:

        45
        [W]e find nothing in our constitution, our statutes, our rules, or our decisions that recognizes the existence of any discretion in the superior court of any county to decline to exercise the jurisdiction with which it is vested by the constitution and our statutes because of forum non conveniens.
        46

        Id. at 748. See also: Vickers v. Kansas City, 216 Kan. 84, 531 P.2d 113, 121 (1975); Buckman v. United Mine Workers of America, 80 Wyo. 199, 339 P.2d 398, 400 (1959).

        47

        Neither can state courts make a distinction in access to its courts between in-and out-of-state citizens. Article 4, § 2, Paragraph 1 of the United States Constitution provides: "The Citizens of each state shall be entitled to all Privileges and Immunities of Citizens in the several States." In Chambers v. Baltimore & O.R. Co., 207 U.S. 142, 28 S.Ct. 34, 52 L.Ed. 143 (1907), the United States Supreme Court held:

        48
        [D]ifferent states may have different policies, and the same state may have different policies at different times. But any policy the state may choose to adopt must operate in the same way on its own citizens and those of other states. The privileges which it affords to one class it must afford to the other. Any law by which privileges to begin actions in the court are given to its own citizens and withheld from the citizens of other states is void, because it is in conflict with the supreme law of the land.
        49

        207 U.S. at 149, 28 S.Ct. at 35.

        50

        Likewise, a court of this state may not decline jurisdiction because it is based on the law of another state. See: First Nat'l Bank v. United Airlines, Inc., 342 U.S. 396, 72 S.Ct. 421, 96 L.Ed. 441 (1952); Hughes v. Fetter, 341 U.S. 609, 71 S.Ct. 980, 95 L.Ed. 1212 (1951).

        51
        II.
        52
        FORUM NON CONVENIENS
        53

        There is one important qualification to this principle, and that is the doctrine of forum non conveniens. As stated in 20 Am.Jur.2d, Courts, § 172:

        54
        [T]he doctrine of forum non conveniens is a most important qualification of the general theory that a court which has jurisdiction of a case has not only the right, but also the duty to exercise it, ...
        55

        Section 84 of the Restatement (Second) of Conflict of Laws (1971), embraces this proposition:

        56
        § 84. Forum Non Conveniens
        57
        A state will not exercise jurisdiction if it is a seriously inconvenient forum for the trial of the action provided that a more appropriate forum is available to the plaintiff.
        58
        * * * * * *
        59
        (a) Rationale ... The rule has been developed that a court, even though it has jurisdiction, will not entertain the suit if it believes itself to be a seriously inconvenient forum provided that a more appropriate forum is available to the plaintiff.
        60

        Of key importance is a recognition of a clear-cut type of case in which this doctrine has never been applied. In a suit between United States citizens, no court has ever applied the doctrine of forum non conveniens to dismiss a case when there was no other forum available to the plaintiff.

        61

        As was stated by the Supreme Court of Tennessee in Zurick v. Inman, 221 Tenn. 393, 426 S.W.2d 767, 771 (1968):

        62
        The doctrine of forum non conveniens presupposes the court has jurisdiction of both the parties and the subject matter. The doctrine also presupposes there is at least one forum other than the forum chosen where the plaintiff may bring his cause of action, and it is necessary the trial court determine such other forum is available.
        63

        In Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 506-07, 67 S.Ct. 839, 842, 91 L.Ed. [562] 1055 (1947), the United States Supreme Court stated:

        64
        In all cases in which the doctrine of forum non conveniens comes into play, it presupposes at least two forums in which the defendant is amenable to process; the doctrine furnishes criteria for choice between them.
        65

        See also: Koster v. Lumbermen's Mutual Casualty Co., 330 U.S. 518, 67 S.Ct. 828, 91 L.Ed. 1067 (1947); Menendez-Rodriquez v. Pan American Life Ins. Co., 311 F.2d 429, 432 (5th Cir.1962); Bewers v. American Homes Products Corp., 117 Misc.2d 991, 459 N.Y.S.2d 666, 670 (1982); MacLeod v. MacLeod, 383 A.2d 39, 42 (Me. 1978); Holmes v. Cyntex Laboratories, Inc., 156 Cal. App.3d 372, 202 Cal. Rptr. 773, 780 (1984).

        66

        And, there is one classic instance when the doctrine of forum non conveniens will never be applied, and that is to dismiss a case if it is barred elsewhere by a statute of limitations, unless or until the defendant is willing to stipulate that he will waive the statute of limitation defense.

        67

        Thus, in the comment under § 84 of the Restatement, supra, we find the following:

        68
        c. Factors to be considered. The two most important factors look to the court's retention of the case. They are (1) that since it is for the plaintiff to choose the place of suit, his choice of a forum should not be disturbed except for weighty reasons, and (2) that the action will not be dismissed unless a suitable alternative forum is available to the plaintiff. Because of the second factor, the suit will be entertained, no matter how inappropriate the forum may be, if the defendant cannot be subjected to jurisdiction in other states. The same will be true if the plaintiff's cause of action would elsewhere be barred by the statute of limitations, unless the court is willing to accept the defendant's stipulation that he will not raise this defense in the second state.
        69

        To insure an alternative forum is available, the overwhelming authority in this country requires a defendant to waive the statute of limitations before the court will grant a forum non conveniens transfer. See:

        70
        California
        71
        Holmes v. Cyntex Laboratories, 156 Cal. App.3d 372, 202 Cal. Rptr. 773, 780 (1984).
        72
        Colorado
        73
        Kelce v. Touche Ross Co., 37 Colo. App. 352, 549 P.2d 415, 418 (1976).
        74
        Connecticut
        75
        Miller v. United Technologies Corp., 40 Conn. Supp. 457, 515 A.2d 390, 393 (1986).
        76
        District of Columbia
        77
        Mills v. Aetna Fire Underwriters Ins. Co., 511 A.2d 8, 13-14, (App.D.C. 1986).
        78
        Illinois
        79
        Ellis v. Outboard Marine Corp., 132 Ill. App.3d 532, 87 Ill.Dec. 875, 478 N.E.2d 14, 16 (1985).
        80
        Torrijas v. Midwest Steel Erection Co., 130 Ill. App.3d 788, 86 Ill.Dec. 53, 474 N.E.2d 1250, 1255 (1984).
        81
        Wieser v. Missouri Pacific R.R., 98 Ill.2d 359, 74 Ill.Dec. 596, 456 N.E.2d 98, 105 (1983).
        82
        Kansas
        83
        Panhandle Eastern Pipe Line Co. v. Herren, 207 Kan. 400, 485 P.2d 156, 157 (1971).
        84
        Maine
        85
        MacLeod v. MacLeod, 383 A.2d 39, 44 (Me. 1978).
        86
        Michigan
        87
        Bellin v. Johns-Mansville Sales Corp., 141 Mich. App. 128, 366 N.W.2d 20, 23 (1984).
        88
        Missouri
        89
        Besse v. Missouri Pacific R.R., 721 S.W.2d 740, 743 n. 3 (Mo. 1986).
        90
        New Hampshire
        91
        Smith v. Smith, 125 N.H. 336, 480 A.2d 158, 159-60 (1984).
        92
        New Mexico
        93
        State ex rel. Southern Pacific Transp. Co. v. Frost, 102 N.M. 369, 695 P.2d 1318, 1320 (1985).
        94
        [563] New York
        95
        McLeod v. Lovelace, 117 A.D.2d 989, 499 N.Y.S.2d 290, 291 (N.Y. App. Div. 1986).
        96
        Tetra Finance (HK), Ltd. v. Patry, 115 A.D.2d 408, 496 N.Y.S.2d 37, 38 (1985).
        97
        North Carolina
        98
        Motor Inn Management v. Irvin-Fuller Development Co., 46 N.C. App. 707, 266 S.E.2d 368, 371 (1980).
        99
        Pennsylvania
        100
        Daugherty v. Inland Tugs Co., 240 Pa.Super. 527, 359 A.2d 465, 467 (1976).
        101
        Norman v. Norfolk & W. Ry. Co., 228 Pa.Super. 319, 323 A.2d 850, 855 (1974).
        102

        Thus in Torrijas v. Midwest Steel Erection Co., supra, we find the following illustrative statement:

        103
        Since the time limitations involved in certain of these cases may have run, this disposition is conditioned on the defendant's waiver of the statute of limitations, or similar defense, when the particular cause is transferred to another forum. (Foster v. Chicago & North Western Transportation Co., (1984), 102 Ill.2d 378, 385, 80 Ill.Dec. 746, 466 N.E.2d 198.) This disposition with the foregoing condition is applicable individually and severally to each case herein. If the defendant or defendants in any case involved herein refuses to waive the limitations defense, then in such instance plaintiff shall be given leave to reinstate the particular cause in the circuit court of Cook County.
        104

        86 Ill.Dec. at 58, 474 N.E.2d at 1255.

        105

        Federal district courts of this state, as a condition precedent to sustaining a forum non conveniens transfer motion, require the defendant to waive any statute of limitation defense. Tisdale v. Stone & Webster Corp., 595 F. Supp. 1016, 1020 (S.D. Miss. 1984).

        106

        The only authority which may cursorily appear to suggest otherwise is Islamic Republic of Iran v. Pahlavi, 62 N.Y.2d 474, 467 N.E.2d 245, 478 N.Y.S.2d 597 (1984). That case, however, remains markedly different from this case. It involved a suit filed by Ayatollah Khomeini's government of the Islamic Republic of Iran against the former Shah and his wife charging a breach of fiduciary duty to the people of Iran and asking for a judgment against the defendants for $35 billion actual and $20 billion punitive damages. The only argument made by the plaintiff to the motion to dismiss on the ground of forum non conveniens was the unavailability of an alternate forum. The Court of Appeals responded that there would be a question whether the judgment of a New York court would be effective in any event, that the defendants could not defend the claim in any meaningful way because all the records and witnesses were in Iran, and finally if the plaintiff could not proceed to a valid judgment in its own courts, it was its own fault. Thus, the Court of Appeals found all these factors overwhelmingly arrayed against the contention that there was not an alternative forum. The court stated:

        107
        Arrayed against this [unavailability of alternate forum] is the substantial burden upon the courts of this State and the possibility that its judgment may be ineffectual because of its inability to impose a constructive trust on defendant's assets if they are not in New York. Moreover, defendant probably cannot defend this claim in any realistic way because the witnesses and evidence are located in Iran under plaintiff's control and are not subject to the mandate of New York's courts. Indeed, plaintiff's counsel conceded on oral argument that ideally the action should be maintained in Iran but contended that New York was the better forum. If the action cannot be maintained in Iran, however, under laws which result in judgments cognizable in the United States or other foreign jurisdictions where the Shah's assets may be found, then that failure must be charged to plaintiff. It is, after all, the government in power, not a hapless national victimized by its country's policies. Any infirmity in plaintiff's legal system should weigh against its claim of venue, not impose disadvantage on defendant or the judicial system of this State.
        108

        [564] 478 N.Y.S.2d at 601-02, 467 N.E.2d at 249-50.

        109

        We note the following differences in that case and this:

        110
        (1) That case involved foreigners exclusively. The privileges and immunities clause of the United States Constitution was not affected.
        111
        (2) The court of New York doubted if it had the power to afford complete relief, of which there is no doubt in this case.
        112
        (3) If the plaintiff could not get complete relief under the judicial system of Iran, it was the plaintiff's own fault.
        113
        (4) There was no statute of limitations involved in that case.
        114

        That the courts of New York would not apply Islamic Republic to the facts of this case is made clear in McLeod v. Lovelace, 117 A.D.2d 989, 499 N.Y.S.2d 290 (1986), a suit by a Canadian citizen against another Canadian citizen following a one-car accident in New York. The trial court dismissed the case on the ground of forum non conveniens, and the New York Supreme Court affirmed, because it found the New York forum inconvenient, and "another forum is available which best serves the ends of justice and the convenience of the parties." This case, while citing Islamic Republic, concludes:

        115
        [T]o assure the availability of such forum the dismissal is affirmed on condition that defendant stipulates to accept service of process in Canada, to appear in an action commenced there for the same relief demanded in the complaint here and to waive any defense of the Statute of Limitations therein. If defendant fails to do so stipulate within 30 days after service of the order entered herein with notice of entry, the order is reversed, with costs to plaintiff. [Citations omitted; Emphasis added]
        116

        499 N.Y.S.2d at 291.

        117
        III.
        118
        STATUTE OF LIMITATION BAR
        119

        Appellees also contend on appeal that the judgment of dismissal was correct as a matter of law, even though the circuit judge may have assigned the wrong reasons in granting it. It is true that an appellate court has the obligation to affirm a trial court judgment correct as a matter of law, even though the trial court may have been mistaken in its reason for granting the judgment. Hickox v. Holleman, 502 So.2d 626 (Miss. 1987); Allgood v. Bradford, 473 So.2d 401 (Miss. 1985); Tedford v. Dempsey, 437 So.2d 410 (Miss. 1983); Huffman v. Griffin, 337 So.2d 715 (Miss. 1976).

        120

        Limitations on the time within which an action must be brought are created by statute only. They are legislative, not judicial acts. Thus, in State Board of Adjustment v. State, 231 Ala. 520, 165 So. 761, 762 (Ala. 1936), the Alabama Supreme Court held:

        121
        [T]here was no such thing as a limitation of action at common law. The right is wholly statutory, and there are no exceptions to the statute except those made in and by the statute itself.
        122

        In Butler v. Craig, 27 Miss. 628, 61 Am.Dec. 527 (1854), this Court, in answer to a particular argument of the inequity in applying a limitation statute, held:

        123
        [B]ut it has long been the settled doctrine of this court, that no equitable exceptions are to be engrafted upon the statutes of limitation, and that where there is not an express exception the court will not engraft one.
        124

        In Matson v. Matson, 50 N.M. 155, 173 P.2d 484, 489 (1946), the New Mexico Supreme Court held:

        125
        [T]he general principle recognized to-day for the construction of statutes of limitations is that unless some good ground can be found in the statute for restraining or enlarging the meaning of its general words, they must receive a general construction, and that the courts cannot arbitrarily subtract from or add thereto, and cannot create an exception where none exists, even when the exception would be an equitable one.
        126
        * * * * * *
        127
        [565] As a general rule the courts are without power to read into these statutes exceptions which have not been embodied therein, however reasonable they may seem. It is not for judicial tribunals to extend the law to all cases coming within the reason of it, so long as they are not within the letter.
        128
        * * * * * *
        129
        The Legislature having made no exception, the courts of justice can make none, as this would be legislating.
        130

        See also: Fontana Land Co. v. Laughlin, 199 Cal. 625, 250 P. 669 (1926); Baldwin v. City of San Diego, 195 Cal. App.2d 236, 15 Cal. Rptr. 576 (1961); Oberst v. Mays, 365 P.2d 902 (Colo. 1961); Doughty v. Maine Central Transp. Co., 141 Me. 124, 39 A.2d 758 (1944); Gilliam v. Admiral Corp., 111 N.J. Super. 370, 268 A.2d 338 (1970); Woods v. Phillips Petroleum, 207 Okl. 490, 251 P.2d 505 (1952); Evans v. Finley, 166 Or. 227, 111 P.2d 833 (1941).

        131

        The United States Supreme Court has consistently sustained the power of a forum's Legislature to prescribe times in which suits may be brought. Nothing in the Constitution limits this power. M'Cluny v. Silliman, 28 U.S. (3 Pet.) 270, 7 L.Ed. 676 (1830); M'Elmoyle v. Cohen, 38 U.S. (13 Pet.) 312, 10 L.Ed. 177 (1839); Campbell v. Holt, 115 U.S. 620, 6 S.Ct. 209, 29 L.Ed. 483 (1885); The Michigan Ins. Bank v. Eldred, 130 U.S. 693, 9 S.Ct. 690, 32 L.Ed. 1080 (1889); Burnet v. Alvarez, 226 U.S. 145, 33 S.Ct. 63, 57 L.Ed. 159 (1912); Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941); Chase Securities Corp. v. Donaldson, 325 U.S. 304, 65 S.Ct. 1137, 89 L.Ed. 1628 (1945); Wells v. Simonds Abrasive Co., 345 U.S. 514, 73 S.Ct. 856, 97 L.Ed. 211 (1953).

        132

        The only restriction placed on states in hearing out-of-state claims is the Constitutional limit placed on our long-arm statute. So long as an out-of-state litigant has enough minimum contacts in Mississippi so that the maintenance of a suit "does not offend the traditional notions of fair play and substantial justice," our courts have the power to hear a suit. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985); Administrators of Tulane Educational Fund v. Cooley, 462 So.2d 696 (Miss. 1984). So long as the case falls within the prescribed period of when a suit can be brought, our courts must hear the action.

        133

        The Legislature of this State over time has enacted a comprehensive series of acts setting time limits on various types of action, set out in Title 15 Chapter 1 of our 1972 Code. It has also by other statutes provided an extension of one year in case of death, Miss. Code Ann. § 15-1-55. It has provided for tolling in case of:

        134
        (1) legal disability (§ 15-1-57, — 61);
        135
        (2) disability of age or mentality (§ 15-1-59);
        136
        (3) absence from state (§ 15-1-63);
        137
        (4) fraudulent concealment (§ 15-1-67).
        138

        It has passed other statutes making special provisions as to the application of such statutes: Miss. Code Ann. §§ 15-1-73 to -75.

        139

        Also, the Legislature has passed a statute making provision for nonresidents bringing suit on causes accruing in another state. Miss. Code Ann. § 15-1-65, which has been on the books since 1880, provides:

        140
        [W]hen a cause of action has accrued in some other state or in a foreign country, and by the law of such state or country, or of some other state and country where the defendant has resided before he resided in this state, an action thereon cannot be maintained by reason of lapse of time, then no action thereon shall be maintained in this state.
        141

        We have consistently held that this statute applies only to a nonresident who moves to this State after the statute has run on the cause in the other state. It does not apply to the factual situation presented here, and in cases such as this our Mississippi statute of limitations applies. See: White v. Malone Properties, Inc., 494 So.2d 576 (Miss. 1986); Cowan v. Ford Motor Co., 437 So.2d 46 (Miss. 1983); Montgomery v. Yarbrough, 192 Miss. 656, 6 So.2d 305, sugg. of error overruled, 6 So.2d 925 (1942); Louisiana & Mississippi R. Transfer Co. v. [566] Long, 159 Miss. 654, 131 So. 84 (1930); Fisher v. Burk, 123 Miss. 781, 86 So. 300 (1920); New Orleans Great Northern R. Co. v. Fortinberry, 107 Miss. 79, 64 So. 966 (1914); Robinson v. Moore, 76 Miss. 89, 23 So. 631 (1898); Kershaw v. Sterling Drug, Inc., 415 F.2d 1009 (5th Cir.1969); Sheets v. Burman, 322 F.2d 277 (5th Cir.1963). The Legislature, in re-enacting this statute over the years is presumed to have known the construction put on it by this Court and never saw fit to change it. This conclusively demonstrates we have given this statute the precise interpretation the Legislature intended. White v. Williams, 159 Miss. 732, 132 So. 573, 75 A.L.R. 757 (1931).

        142
        IV.
        143
        COMMON LAW APPLICATION OF STATUTE OF LIMITATIONS
        144

        The overwhelming body of common law holds that in applying statutes of limitations, the law of the forum controls. That is, the statute of limitations of the state where suit is filed applies, not the state where the cause accrued.

        145

        The rule has been consistently applied by this Court without problem in Hamilton v. Cooper, 1 Miss. (Walker) 542 (1832); Wright v. Morduant, 77 Miss. 537, 27 So. 640 (1899); Louisiana & Mississippi R. Transfer Co. v. Long, supra; Montgomery v. Yarbrough, supra; New Orleans Great Northern R. Co. v. Fortinberry, supra; Gutherie v. Merchants Nat'l Bank of Mobile, 254 Miss. 532, 180 So.2d 309 (1965); and Cowan v. Ford Motor Co., supra.

        146

        In Vick v. Cochran, 316 So.2d 242, 246 (Miss. 1975), we stated: "(2) the period of limitations, by ancient precedent, is governed by the law of the forum."[2]

        147

        Also, as noted, application of Mississippi law to suits brought in this state has been consistently respected by the federal courts. See: Davis v. Nat'l Gypsum Co., 743 F.2d 1132 (5th Cir.1984); Kershaw v. Sterling Drug, supra; Sheets v. Burman, supra; Fieldman v. Roper Corp., 586 F. Supp. 936 (S.D.Miss. 1984); Price v. Litton Systems, Inc., 607 F. Supp. 30 (S.D. Miss. 1984); Schreiber v. Allis-Chalmers, 448 F. Supp. 1079 (D.Kan. 1978); Steele v. G.D. Searle & Co., 422 F. Supp. 560 (S.D. Miss. 1976); Cummings v. Cowan, 390 F. Supp. 1251 (N.D.Miss. 1975).

        148

        While not involving Mississippi cases, the rule is respected and adhered to in decisions of the United States Supreme Court. See Watkins v. Conway, 385 U.S. 188, 87 S.Ct. 357, 17 L.Ed.2d 286 (1966); Wells v. Simonds Abrasive Co., supra; Davis v. Mills, 194 U.S. 451, 24 S.Ct. 692, 48 L.Ed. 1067 (1904).

        149

        53 C.J.S. Limitations of Actions, states the general rule. Section 27, pp. 970-72:

        150
        [T]he general rule is that in respect of the limitation of actions the law of the forum governs, regardless of where the cause of action arose, or of whether or not the action would be barred in the state in which it arose, and irrespective of the residence of the parties at the time the cause of action accrued.
        151
        * * * * * *
        152
        The general rule applies wherever foreign statutes bar merely the remedy as distinguished from the right, and has been said to have no exceptions other than those which may be found in the law of the forum.
        153

        Section 30, p. 975, gives the one general exception:

        154
        Where by statute a right of action is given which did not exist by the common law, and the statute giving the right fix the time within which the right may be enforced, the time so fixed becomes a limitation or condition on such right, and will control, no matter in what forum the action is brought ...
        155

        See also: 51 Am.Jur.2d Limitations of Actions, §§ 66, 68.

        156

        In addition the following states hold that the forum applies its own statute of limitations:

        157
        Alabama
        158
        Dodd v. Lovett, 287 Ala. 131, 248 So.2d 724 (1971).
        159
        [567] Alaska
        160
        Alaska Airlines, Inc. v. Lockheed Aircraft Corp., 430 F. Supp. 134 (D.Alaska 1977).
        161
        Colorado
        162
        Casselman v. Denver Tramway Corp., 39 Colo. App. 306, 568 P.2d 84, 86 (1977).
        163
        Connecticut
        164
        Raymond-Dravo-Langenfelder v. Microdot, Inc., 425 F. Supp. 614, 619 (D.Del. 1976).
        165
        Thomas Iron Co. v. Ensign-Bickford Co., 42 A.2d 145, 146 (1945).
        166
        Florida
        167
        Aviation Credit Corp. v. Batchelor, 190 So.2d 8, 10 (Fla. Dist. Ct. App. 1966), cert. dismissed, sub nom. Batchelor v. Aviation Credit Corp., 198 So.2d 24 (Fla. 1967).
        168
        Georgia
        169
        Crites v. Delta Airlines, Inc., 177 Ga. App. 723, 341 S.E.2d 264, 265-266 (1986).
        170
        Indiana
        171
        Lee v. Estate of Cain, 476 N.E.2d 922, 924 (Ind. Ct. App. 1985).
        172
        Iowa
        173
        Sedco Intern'l, S.A. v. Cory, 522 F. Supp. 254, 315 (S.D.Iowa 1981).
        174
        Clark v. Figge, 181 N.W.2d 211, 215 (Iowa 1970).
        175
        Maine
        176
        Hossler v. Barry, 403 A.2d 762, 766 (Me. 1979).
        177
        Maryland
        178
        Sokolowski v. Flanzer, 769 F.2d 975, 978 (4th Cir.1985).
        179
        Billingsley v. Lincoln Nat'l Bank, 271 Md. 683, 320 A.2d 34 (1974).
        180
        Michigan
        181
        Fries v. Holland Hitch Co., 12 Mich. App. 178, 162 N.W.2d 672, 674 (1968).
        182
        Nevada
        183
        Seely v. Illinois-California Express, 541 F. Supp. 1307 (D.Nev. 1982).
        184
        Ohio
        185
        Loughan v. Firestone Tire & Rubber Co., 624 F.2d 726, 729 (5th Cir.1980).
        186
        Lee v. Wright Tool & Forge Co., 48 Ohio App.2d 148, 356 N.E.2d 303, 306 (1975).
        187
        Oklahoma
        188
        Mitchell v. Cloyes, 620 P.2d 398, 403 (Okla. 1980).
        189
        Pennsylvania
        190
        Bulkin v. Western Kraft East, Inc., 422 F. Supp. 437, 441 (E.D.Pa. 1976).
        191
        Freeman v. Lawton, 353 Pa. 613, 46 A.2d 205 (Pa. 1946).
        192
        Texas
        193
        Los Angeles Airways, Inc. v. Lummis, 603 S.W.2d 246 (Tex.Civ.App. 1980).
        194
        Washington
        195
        Sobo v. Sobo, 28 Wash. App. 766, 626 P.2d 520 (1981).
        196

        Texas has carried the rule of applying her own statute of limitations to the extent that even though a summary judgment was granted in a foreign state because that state's statute barred the action, nevertheless this did not bar the plaintiff suing in a Texas court. Los Angeles Airways, Inc. v. Lummis, supra. State courts are, and should be chary of relinquishing their right to offer their own state's statute of limitations to causes pending in their courts.

        197

        This Court is not unmindful that the application of this rule has received respectable academic criticism. See: Leflar, The New Conflicts-Limitations Act, 35 Mercer L.Rev. 461 (1984); Lorenzen, The Statute of Limitations and the Conflict of Laws, 28 Yale L.J. 492 (1919); Martin, Statutes of Limitations and Rationality in the Conflict of Laws, 19 Wash.L.J. 403; and Grossman, Statutes of Limitations and the Conflict of Laws: Modern Analysis, 1980 Ariz.St.L.J. 1. Even they are not unanimous, however. See: Ailes, Limitation of Actions and the Conflict of Laws, 31 Mich.L.Rev. 474 (1933).

        198

        Also, the comments under Restatement (Second) of Conflict of Laws (1971), § 142 (amended 1987) recommend a contrary holding. As the Restatement acknowledges, however, this question can be easily addressed by a legislature, and cites the Uniform Conflict of Laws-Limitations Act, which was approved by the National Conference [568] of Commissioners on Uniform Laws in 1982.[3] This, of course, is where the question should be addressed, not through any back-handed legislation from this Court.

        199

        What time limitations should be imposed on litigants filing suit in courts of this state embraces broad matters of public policy, which clearly are matters for the Legislature to decide, as indeed they have throughout history.

        200

        We have clearly established, sound principles of law which we are not inclined to overrule. White v. Malone Properties, supra, and Cowan v. Ford Motor Co., supra.

        201

        REVERSED AND REMANDED.

        202

        DAN M. LEE, P.J., and SULLIVAN, GRIFFIN and ZUCCARO, JJ., concur.

        203

        ROBERTSON, J., dissents with written opinion joined by PRATHER and ANDERSON, JJ.

        204

        ANDERSON, J., dissents with written opinion joined by ROY NOBLE LEE, C.J., and ROBERTSON, J.

        205
        ROBERTSON, Justice, dissenting:
        206
        I.
        207

        As a matter of common sense, the suit brought this day by Nevin and Anna Mae Shewbrooks ought to fail, for what the Shewbrooks have done is forum shop their time barred claims into the courts of this state, a state with no discernible interest in either the parties or the matter complained of.

        208

        This is a Delaware case. Perhaps it could have been brought in Pennsylvania or New Jersey. Nevin Shewbrooks has contracted asbestosis through exposure to asbestos-related products during the course of some twenty-five years of employment in facilities located variously in the states of Delaware, Pennsylvania, and New Jersey. The problem is that the Shewbrooks have slept through the expiration of the wholly applicable two year statute of limitations of those three states. They are here because of our catchall six year statute, Miss. Code Ann. § 15-1-49 (1972), which was never meant to be a torts statute but has become one, and because they have secured the services of inventive counsel.

        209

        Our course would be jurisprudentially more sound if we employed our familiar center of gravity/choice of law rules to hold that the application limitations period is that furnished by the state of most significant relationship to the occurrence and the parties. That state is Delaware, or perhaps Pennsylvania or New Jersey. It is certainly not Mississippi.

        210

        I would hold that the action lies within the subject matter jurisdiction of the Circuit Court of Hinds County, that those parties who have agents for process here are subject to the in personam jurisdiction of that court,[4] and that, inconvenience aside, venue lies there. I would affirm the Circuit Court by crediting the choice of law/statute of limitations defense collectively asserted by Defendants.

        211
        II.
        212

        On April 22, 1982, Nevin and Anna Mae Shewbrooks, residents of Delaware, filed a products liability action in Delaware state court. There Nevin sought recovery for asbestosis, while Anna Mae claimed loss of consortium as a result of Nevin's illness. Named as Defendants were a number of manufacturers of asbestos related products. The Delaware court dismissed the claim as being barred by the applicable statute of limitations. Subsequently, the Shewbrooks filed another claim in Delaware state court, wherein Anna Mae sought recovery for asbestosis and Nevin claimed loss of consortium as a result of Anna Mae's illness. At the time of the [569] instant appeal, the second action was still pending in Delaware.

        213

        On March 23, 1984, the Shewbrooks commenced the present civil action, another products liability suit, this time in the Circuit Court for the First Judicial District of Hinds County, Mississippi. The Shewbrooks asserted the same claims as in both of their Delaware lawsuits. Of the eighteen defendants named here, sixteen allegedly manufactured asbestos products and two were allegedly owners of various facilities where Nevin Shewbrooks worked. And, of these eighteen defendants, eleven are not qualified to do business in Mississippi,[5] while the rest are.

        214

        The Shewbrooks allege that Nevin contracted asbestosis as a result of working with asbestos products either manufactured or distributed by the various defendants. Nevin alleges that he contracted this disease over a twenty-five year period while working in Delaware, New Jersey and Pennsylvania. Nevin and Anna Mae have never resided in Mississippi, never worked in Mississippi, and have never been exposed to any asbestos products in Mississippi. Suffice it to say that nothing in the record indicates that Nevin and Anna Mae have had any contact with Mississippi whatsoever.

        215

        Seventeen of the defendants moved to dismiss the claim based on various grounds including lack of personal jurisdiction, forum non conveniens and statute of limitations, to-wit: the Mississippi "borrowing statute." Miss. Code Ann. § 15-1-65 (1972). The Circuit Court heard the matter on June 1, 1984, on the grounds that "this court does not have personal jurisdiction of the parties and further ... the cause should be dismissed on the basis of forum non conveniens." Consequently, the Shewbrooks bring this appeal.

        216
        III.
        217
        A.
        218

        Forum shopping has long been perceived one of the unfortunate by-products of our federal and multi-state legal system. The mobility of today's society and the interstate complexities of American enterprise exacerbate the situation. An increasing percentage of actions filed are within the competence of multiple venues. There is force in the notion that the outcome of these actions should turn upon factors other than the geographical situs of the courthouse.

        219

        Over the past half-century our law has landed two knock down punches upon the face of its forum shopping foe. In the federal-state choice of law setting Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938) and progeny have established that substantive law governing federal diversity actions shall be the same as would have been enforced had the case been heard in state court. In 1969 the American Law Institute formally adopted the Restatement (Second) of Conflicts of Laws (1968) which set forth the center of gravity test for resolution of state to state conflicts questions.

        220

        Beginning with Craig v. Columbus Compress & Warehouse Co., 210 So.2d 645, 649 (Miss. 1968) (contracts) and Mitchell v. Craft, 211 So.2d 509, 512 (Miss. 1968) (torts), this state has embraced the center of gravity approach to conflicts questions. In those cases we held that an action will ordinarily be determined by reference to the law of the state of most significant relationship to the occurrence and the parties. Since 1968 we have refined and applied the test in a variety of factual and legal contexts. McNeal v. Administrator of Estate of McNeal, 254 So.2d 521, 524-25 (Miss. 1971); Fells v. Bowman, 274 So.2d 109, 112-13 (Miss. 1973); Dunavant Enterprises, Inc. v. Ford, 294 So.2d 788, 791-92 (Miss. 1974); Vick v. Cochran, 316 So.2d 242, 245-48 (Miss. 1975); Spragins v. Louise Plantation, Inc., 391 So.2d 97, 99-101 (Miss. 1980); Tideway Oil Programs, Inc. v. Serio, 431 So.2d 454, 457-48 (Miss. 1983); Boardman v. United Services Automobile Association, 470 So.2d 1024, 1030-39 (Miss. 1985); Kountouris v. Varvaris, 476 So.2d 599, 605-07 (Miss. 1985); [570] White v. Malone Properties, Inc., 494 So.2d 576, 578 (Miss. 1986).

        221

        We sought justice on a number of fronts by adopting the center of gravity doctrine. One such goal is being realized in context of the fact that most other states have adopted center of gravity, assuring, to the maximum extent feasible, that the law governing adjudication of the merits of the claim litigated is the same without regard to what state the case may be tried in, all to the end that forum shopping may be deterred. Compare, e.g., Heavner v. Uniroyal, Inc., 63 N.J. 130, 305 A.2d 412, 418 (1973).

        222

        Two caveats need be noted. First, the center of gravity test is not one that may yield results with mathematical precision. Realism replaces formalism as we identify the interests that ought to be relevant to a neutrally just resolution of the choice of law question and, when all do not direct a like result, we engage in the now familiar balancing process to determine just what state has the most significant relationship with the occurrence and the parties. Second, we entertain no illusion that the center of gravity test attacks effectively all of the vagaries of forum shopping. A number of factors routinely considered by experienced counsel remain untouched — from rules governing the trial process to the perceived prejudices of local judges and juries.

        223

        Then there is the matter of our borrowing statute, Miss. Code Ann. § 15-1-65 (1972), which provides

        224
        When a cause of action has accrued in some other state or in a foreign country, and by the law of such state or country, or of some other state and country where the defendant has resided before he resided in this state, an action thereon cannot be maintained by reason of lapse of time, then no action thereon shall be maintained in this state.
        225

        To be sure, this statute by its terms does not control this case. Section 15-1-65 "is concerned only with non-resident defendants who may move to Mississippi after the accrual of an action against them in the state or country of their former residence." White v. Malone Properties, Inc., 494 So.2d 576, 579 (Miss. 1986). None of today's non-resident defendants has moved to Mississippi.

        226

        What is important for the moment is that this statute implies the existence of a deeper principle of law that, where there has been brought in this state an action that ought to be governed by the law of another state, the viability of any limitations defense should also be adjudged by reference to the law of that other state.

        227
        B.
        228

        I find the Court today confronted with a case of first impression. We have never decided a choice of law/limitations issue on facts quite like these. There are two sources of law possessing great power. The first is our center of gravity doctrine adopted in 1968 in Craig and Mitchell and followed in at least nine cases since that time. The second is Section 15-1-65. Employing accepted stratagems of legal reasoning which I have described elsewhere, see Cuevas v. Royal d'Iberville Hotel, 498 So.2d 346, 357-58 (Miss. 1986) (dissenting opinion); J.L. Teel, Inc. v. Houston United Sales, Inc., 491 So.2d 851, 857-58 (Miss. 1986), the content of the rule that ought govern today becomes readily apparent.

        229

        Our center of gravity doctrine should be further refined so that, in cases not expressly controlled by Section 15-1-65, it would provide something like this: The question whether an action may be maintained against a statute of limitations defense will ordinarily be determined by reference to the occurrence and the parties. This will ordinarily be the state which furnishes the center of gravity under Craig and Mitchell and progeny. This is the sort of test which, if adopted universally, would be likely to produce consistent results regardless of the forum, in the sense that I would ordinarily expect that Delaware or New Jersey would identify as the state of most significant relationship in the same state as we would. See, e.g., Heavner v. Uniroyal, Inc., 305 A.2d 412, 418 (N.J. 1973); Seals v. Langston Co., 206 N.J. Super. 408, 502 A.2d 1185, 1186 (1986), cert. den. 517 A.2d 392. This is the same approach [571] we have employed successfully in interstate child custody controversies. See, e.g., Siegel v. Alexander, 477 So.2d 1345, 1346-47 (Miss. 1985); Walker v. Luckey, 474 So.2d 608, 611-12 (Miss. 1985).

        230

        Under this test I would have our choice of law rules mandate that an action brought in this state be dismissed if it is barred under the applicable statute of limitations of the state of most significant relationship to the occurrence and the parties. As I understand the facts of the case at bar, that state probably is Delaware. The only competitors appear to be Pennsylvania and New Jersey. As each of these two states brought a two year statute of limitations applicable to cases such as this, we need not decide among the three. Suffice it to say that Mississippi has no significant relationship to either the occurrence or the parties, much less the most significant relationship.

        231

        Perhaps there is a sense in which statutes of limitations may be not wholly identical in function with what are commonly called substantive rules of law. I feel unease at the suggestion that we automatically employ conventional choice of law balancing in all limitations conflicts cases. If it could be demonstrated that Mississippi had some substantial interest in the adjudication of this controversy, I might take a different view. If it could be shown that there was present some compelling consideration of remedial justice, I might be more open minded to the Shewbrooks' claim. All we have here are plaintiffs who slept on their rights in the states where they should have brought their action. The fortuitous circumstances that Mississippi has a six year statute of limitations and that the defendants do unrelated business here and that some have designated agents to receive services of process here do not seem enough to take the case out of the general rule.

        232
        C.
        233

        Much of what ought carry the day I have said in my concurring opinion in White v. Malone Properties, Inc., 494 So.2d 576, 579-83 (Miss. 1986). In White, I supported my view with substantial authority from other jurisdictions[6] and with scholarly publications and, as well, articulated as best I could the fallacies in the contrary view. There is no reason to repeat those points here. For the moment I am buoyed in my confidence in the correctness of the views I stated in White by the imminence of the American Law Institute's approval of proposed revisions of Restatement (Second) of Conflicts of Laws, § 142 (1986 Revisions; Supp. April 12, 1988). Suffice it to say that proposed Restatement § 142 and the comments[7] appended thereto comport nicely with my White opinion.

        234

        [572] White was a suit by an injured construction worker brought against his employer. The accident occurred near New Orleans, Louisiana, at a time when Plaintiff White was a resident citizen of Louisiana. Defendant Malone, however, was a Mississippi corporation doing business in Louisiana. And, before he filed suit, Plaintiff White had moved to Mississippi. The suit quite arguably was barred under the exclusiveness of liability section of either the Louisiana or the Mississippi Workers' Compensation Act, whichever applied. Beyond that a choice of law statute of limitations question was presented. Louisiana had a two year statute. The Mississippi statute was six years. The accident occurred on June 20, 1977. White brought his suit in Mississippi on September 16, 1982 — some five years, 88 days after his accident.

        235

        In White, I thought it clear that Louisiana was the state of the most significant relationship to the occurrence and the parties, the state of the center of gravity, if you will. This Court should there have employed its choice of law rules to decree the action barred by the Louisiana two year statute of limitations. The point for the moment is that Mississippi has far less reason to be interested in today's case than White. At least in White the defendant was a Mississippi-domiciled corporation and the plaintiff had moved to Mississippi after the accident. Here we are advised that the Shewbrooks have never so much as set foot in the state of Mississippi. None of the [573] defendant corporations are domiciled here, although some have qualified to do business here and have agents for process while others are doing unrelated business here. In sum, what I said in my separate opinion in White applies with even greater force in the case at bar, and to the end that this action should be finally dismissed on the basis of the defendant's collective choice of law/statute of limitations defenses.

        236
        IV.
        237

        I prefer the choice of law/limitations basis for deciding today's case for several reasons, reasons over and above the obvious credibility of the legal reasoning available there, for I consider the legal reasoning leading to the forum non conveniens dismissal as well correct. First, the choice of law/limitations thesis I have advanced here and in White represents the modern trend in this area of the law. Suffice it to note the authorities cited in my opinion in White and the recent work of the American Law Institute mentioned above. The transparency of the old statutes-of-limitations-are-procedural school of thought has developed to the point where reopaquing is beyond the power of the obscurant. While I regard Justice Anderson's forum non conveniens analysis sound, and for that reason join it, candor requires admission that there is respectable authority in other jurisdictions to the contrary.

        238

        Second, I consider choice of law/limitations to afford a better stratagem for handling similar cases in the future. Conceptually, we are concerned with two separate and distinct juridical inquiries:[8] venue and choice of law. Forum non conveniens concerns the convenience of the parties regarding the trial of the case. Where do the parties and the witnesses live? Conceivably, the Shewbrooks could have moved to Mississippi after Nevin contracted asbestosis and been treated by Mississippi physicians who would have become potential damages witnesses. Those facts could alter significantly the forum non conveniens analysis, but it would not change the fact that Mississippi is not the state of center of gravity/most significant relationship. In short, I consider that the choice of law/limitations theory I urge will produce a just and efficient result in a greater number of cases than will forum non conveniens. The choice of law/limitations glove affords a better fit.

        239

        Finally, there is something to be said for the idea that the case is here and our courts ought to decide it. The Shewbrooks' complaint asserts claims within the subject matter jurisdiction of any circuit court in this state. The Circuit Court of Hinds County has had its jurisdiction invoked by the filing of the complaint. All parties have been subjected to the personal jurisdiction of the Circuit Court. The assorted Rule 12(b)(2) motions filed by the various defendants should have been denied.

        240

        In this setting, I cannot say I feel no sting from the charge that we ought go forward and adjudge the case. I think we should, though jurisdiction imports authority of judicial competence regarding a matter, a concept rather neutral in its application and effect. We ought go ahead and bring this litigation to a final judgment. That process, of course, involves finding the facts, identifying the content of the appropriate rules of law and than applying those rules to the facts. Boardman v. United Services Automobile Association, 470 So.2d 1024, 1029 (Miss. 1985). Each of the Defendants has pleaded limitations as an affirmative defense. See Rule 8(c), Miss.R.Civ.P.

        241

        The electromagnetic force emanating from Craig, Mitchell, and progeny, and as well from Section 15-1-65, forcefully generates a rule of law that an action brought in this state be held time barred if it is time barred under the law of the state of most significant relationship to the occurrence and the parties, and absent a substantial Mississippi interest in the maintenance of [574] the action and absent compelling considerations of remedial justice. As explained above, that rule when applied to the facts of this case yields a judgment for the defendants.

        242

        These things said, I am of the view that the judgment of the Circuit Court should be affirmed.

        243
        PRATHER and ANDERSON, JJ., concur.
        244
        ANDERSON, Justice, dissenting:
        245

        With great respect for my colleagues of today's majority, I dissent. It is not just that we have obligated our courts to decide this particular controversy in spite of the fact that no sane person could imagine that it has any relation to our state. One such incident could be borne, albeit with some grumbling. The greater evil is that the present litigants are but the scouts for the plague of locusts that will inevitably descend upon us in response to today's engraved invitation. We have doomed Mississippi to become a dumping ground for the nation's homeless tort litigation.

        246

        If there was ever a case that did not belong in a Mississippi court, this is surely it. The plaintiffs are residents of Delaware; it is not clear from the record that either of them has ever so much as entered Mississippi. The numerous co-defendants are all foreign corporations; none has its principal place of business in Mississippi. The cause of action arises from injuries sustained on the other side of the continent. In short, we have a controversy that has about as much to do with Mississippi as does a feud between two nomadic tribes in the Gobi Desert. Yet, in defiance of all sense, it must now be tried here.

        247

        It didn't have to be this way. There were ways to avoid placing such burdens on the shoulders of our long-suffering trial judges. Our predecessors closed off one avenue when they virtually read our borrowing statute, Mississippi Code Annotated, Section 15-1-65 (1972) out of the law books. I do not propose to dwell on this statute, which is discussed at length in Justice Robertson's opinion, rather, I will talk about the promising babe we are strangling in its cradle. Discretionary use of forum non conveniens to dismiss inappropriate litigation, even though the dismissal means the action will be entirely lost, is indeed an innovation. But it is neither unprecedented nor unsupported by sound reasons of policy.

        248

        I agree with the majority that there are no constitutional or statutory obstacles to the exercise of in personam jurisdiction over these parties in Mississippi's courts. Nor do I object to the general principal that where a court has jurisdiction, it ought not ordinarily to decline it. But I think the majority has given this principle far too broad a reading. A court may, in its sound discretion, decline to exercise its jurisdiction for weighty reasons. E.g., Jones v. Jones, 54 Wis.2d 41, 194 N.W.2d 627, 6530 (1972). It has been held that in actions by a foreign plaintiff against a foreign corporation on a foreign cause of action, a court need not assert its jurisdiction, even where there is no dispute about it. 21 C.J.S. Courts, § 77b. See also, e.g., Atchison, Topeka & Santa Fe Rwy. Co. v. Dist. Court of Creek County, 298 P.2d 427, 430 (Okla. 1956) (trial court is entitled to "stop the wholesale and indiscriminate importation of foreign cases.")

        249

        I am of the opinion that the dismissal of the present action for forum non conveniens was made for compelling reasons and that we should hold it within the trial judge's sound discretion. We should bear in mind that where forum non conveniens is involved, the ruling of the trial judge is entitled to "substantial deference," Piper Aircraft Co. v. Reyno, 454 U.S. 235, 257, 102 S.Ct. 252, 256, 70 L.Ed.2d 419, 436 (1981), as opposed to the cavalier second-guessing the trial judge has received from us today. I am also persuaded that it is bad federalism to make the exercise of that discretion depend absolutely on the legal status of the cause in other states. There is no natural law of forum non conveniens, nor are the decisions of the courts of our sister states or of the United States binding upon us as to state law questions, though we may, of course, follow them if we find them persuasive. Each state of [575] the Union is competent to chart the boundaries of its common-law doctrines, subject only to the provisions of the state and federal constitutions. To decide whether Mississippi will have a doctrine of forum non conveniens and to declare what that doctrine will contain, are the prerogatives of this Court and this Court alone.

        250

        I can see no constitutional barriers to the dismissal of the present action. Article 3, § 24, of the Mississippi Constitution (1890) relied upon by the majority, is a general statement of policy and principle. I know of no case standing for the absurd proposition that it disables the state from setting reasonable standards for the operation of its courts.

        251

        Nor do I believe that the Privileges and Immunities Clause (Art. IV, § 2) of the U.S. Constitution is a bar to the dismissal. For one thing, the citizenship of the Shewbrooks was but one of the reasons for dismissal. Furthermore, under the majority view, any state borrowing statute would be unconstitutional as applied to a plaintiff whose home state had a shorter statute of limitations than the forum state. After all, such a statute would give state residents the right to sue on a cause of action not available to the non-resident plaintiff. But the Supreme Court has explicitly rejected that argument, holding that such statutes do not contravene the Privileges and Immunities Clause. Canadian Northern RR Co. v. Eggen, 252 U.S. 553, 40 S.Ct. 402, 64 L.Ed. 713 (1920).

        252

        But the principal reason urged against allowing forum non conveniens here is the so-called alternate forum requirement. A large majority of courts have held that a suit may not be dismissed for forum non conveniens unless it can be actually tried in some other forum. The array of cases cited by the majority is very impressive except to those who believe that cases should be weighed as well as counted. The alternate-forum doctrine seems to be a holdover from the halcyon days of Pennoyer v. Neff, 95 U.S. (5 Otto) 714, 24 L.Ed. 565 (1877), when territorial constraints on in personam jurisdiction made it unnecessary for judges to seek out other expedients for screening out inappropriate foreign actions. It appears that some courts still cling to doctrine though the conditions under which it made sense are long gone. But "modification implies growth. It is the life of the law." Washington v. W.C. Dawson & Co., 264 U.S. 219, 236, 44 S.Ct. 302, 308, 68 L.Ed. 646, 656 (1924) (Brandeis, J.)

        253

        Moreover, the doctrine rests on the tacit premise that if a plaintiff allows his action to die in his own state, Mississippi has a positive duty to resuscitate it for him. I know of no such duty, nor can I perceive any sound reasons for declaring it. On the contrary, I think it is high time somebody stood up and made some comments on the emperor's wardrobe. Now I find that at least one of our trial judges has done just that, and been knocked on the head for his trouble.

        254

        I would not hesitate to take this position even if I thought myself alone. Such is not the case. One of the nation's premier courts has led the way. The issue has been perceptively discussed by the New York Court of Appeals in Islamic Republic of Iran v. Pahlavi, 62 N.Y.2d 474, 467 N.E.2d 245, 478 N.Y.S.2d 597 (1984) cert. den. 469 U.S. 1108, 105 S.Ct. 783, 83 L.Ed.2d 778 (1985). The New York court began from the sound premise that

        255
        our courts are not required to add to their financial and administrative burdens by entertaining litigation which does not have any connection with this State.
        256

        62 N.Y.2d at 478, 467 N.E.2d at 247, 478 N.Y.S.2d at 599. Islamic Republic holds forum non conveniens a discretionary doctrine applied "after considering and balancing the various competing factors."

        257
        Among the factors to be considered are the burden on the New York courts, the potential hardship to the defendant, the unavailability of an alternative forum in which the plaintiff may bring suit [citations omitted]. The court may consider that both parties to the action are non-residents [citation omitted] and that the transaction out of which the cause of action arose occurred primarily in a foreign [576] jurisdiction. [citation omitted] No one factor is controlling. (Emphasis added).
        258

        62 N.Y.2d at 479, 467 N.E.2d at 248, 478 N.Y.S.2d at 600. The New York Court then moved to a specific consideration of the alternative forum requirement, accenting its point by the fact that in the case before it, the plaintiff, as a practical matter, had available no alternative forum. The Court described the availability of an alternative forum as "a most important factor" but added "we have never held that it was a prerequisite for applying the conveniens doctrine." [emphasis in original]. 62 N.Y.2d at 481, 467 N.E.2d at 249, 478 N.Y.S.2d at 601. The Court observed that the idea that availability of an alternative forum was a firm precondition to forum non conveniens dismissal found its original in dicta in Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 507, 67 S.Ct. 839, 842, 91 L.Ed. 1055, 1061 (1947). The Gilbert statement is labeled dicta because in that case the plaintiff clearly had an alternative forum. 62 N.Y.2d at 480, 467 N.E.2d at 248-249.

        259

        In the end Islamic Republic holds:

        260
        In sum, the record does not demonstrate a substantial nexus between this state and plaintiff's cause of the action. That being so the courts below could, in the exercise of their discretion, dismiss the action on grounds of forum non conveniens notwithstanding the fact that the record does not establish an alternative forum where the action may be maintained and they could do so without conditioning their dismissal on defendant's acceptance of process in another jurisdiction. 62 N.Y.2d at 483-84, 467 N.E.2d at 250, 478 NYS 2d 602.
        261

        The majority's attempt to distinguish Islamic Republic from the present case is unconvincing. For one thing, the majority seem to have forgotten their own premise. If, as they contend, lack of an alternate forum were an absolute bar to the use of forum non conveniens, it would be unnecessary to enumerate the circumstances that made the Islamic Republic plaintiffs so repulsive. By listing all of the factors, the court underscored what it had said earlier: they were all factors to be considered in a balancing test. "No one factor is controlling."

        262

        The majority also alleges:

        263

        1. That the case involved only foreign nationals and that the Privileges and Immunities Clause was not implicated. As discussed above, it was not implicated in our case either.

        264

        2. That the New York courts doubted their ability to give complete relief. A factor weighing against forum non conveniens, but not in itself decisive.

        265

        3. That if the plaintiffs could not get relief in an Iranian court, it was their own fault. And who was responsible for the running of the statutes of limitation in our case?

        266

        4. That Islamic Republic involved no statute of limitations. True, but of little evident weight.

        267

        In fact, New York had more of an interest in Islamic Republic than we have in the Shewbrooks' action. The Shah's family, although aliens, were at least residing in the state. Presumably, some of the property they absconded with was there also.

        268

        Nor is it true that McLeod v. Lovelace, 117 A.D.2d 989, 499 N.Y.S.2d 290 (1986) shows that the rule of Islamic Republic would not be applied in the present case. The controversy in McLeod had at least some connection with New York; the cause of action accrued there, and (presumably) the substantive law of New York would have controlled the action. Since New York did have an interest in McLeod, it was natural for it to attach more stringent conditions to the sacrifice of its jurisdiction.

        269

        I believe we should hold that the requirements of forum non conveniens are satisfied if there is another forum in which the defendants are amenable to process. Gulf Oil Co. v. Gilbert, supra, 330 U.S. at 507, 62 S.Ct. at 842, 91 L.Ed. at 1061. Forum non conveniens, like other rules of law, contemplates equal fairness to both plaintiffs and defendants. It is not fair to a defendant to make him give up defenses [577] available to him in the state of origin in order to obtain a forum non conveniens dismissal here.

        270

        There is a difference between keeping the courthouse doors open and making yourself the doormat. Thanks to today's decision, our trial judges are about to learn that distinction — the hard way.

        271

        ROY NOBLE LEE, C.J., and ROBERTSON, J., join this dissent.

        272

        [1] The corporate defendants are: A.C. and S. Inc., a/k/a Acands, Inc., and formerly known as Armstrong Contracting and Supply Corporation; Amoco Chemicals Corporation; Armstrong World Industries, Inc., formerly known as Armstrong Cork Company; Atlas Turner, Ltd; Bell Asbestos Mines, Ltd.; The Celotex Corporation, successor-in-interest to The Philip Carey Manufacturing Company, Philip Carey Corporation, Briggs Manufacturing, and Panacon Corporation; Eagle-Picher Industries, Inc.; E.I. DuPont de Nemours & Company, Inc.; Fibreboard Corporation; Forty-Eight Insulations, Inc.; Gale Corporation; Keene Corporation; Pittsburgh Corning Corporation; GAF Corporation, successor-in-interest to Ruberoid Corporation; Southern Textile Corporation, formerly known as Southern Asbestos, a wholly-owned subsidiary of H.K. Porter Company, Inc.; Nicolet, Inc.; and Owens-Illinois, Inc.

        273

        [2] Indeed it is ancient, in this country as well as England. See: Campbell v. Stein, 6 Dow. 116 at 134, 3 Eng.Rpr. 1417 (1818); M'Elmoyle v. Cohen, 13 Pet. (38 U.S.) 312, 10 L.Ed. 177 (1839).

        274

        [3] This Uniform Act has been enacted by four states, Arkansas, Colorado, North Dakota and Washington. A copy is made an appendix to this opinion.

        275

        [4] I consider that there is a serious question — unanswered by the majority — regarding in personam jurisdiction over those non-resident defendants that have not done, or qualified to do, business in this state.

        276

        [5] See footnote 1, supra.

        277

        [6] See also Allen v. Volkswagen of America, Inc., 555 F.2d 361 (3d Cir.1977); Henry v. Richardson-Merrell, Inc., 508 F.2d 28 (3d Cir.1975); Farrier v. May Department Stores, Inc., 357 F. Supp. 190 (D.D.C. 1973); and particularly Ferens v. Deere & Co., 819 F.2d 423 (3d Cir.1987) (holding application of the six year Mississippi statute of limitations a violation of defendants' rights secured by due process and full faith and credit clauses of the U.S. Constitution).

        278

        [7]Comment g. to proposed Restatement § 142 bears quotation in full.

        279

        As stated in Comment e, the earlier view was that statutes of limitations should usually be characterized as procedural. Accordingly, a claim would be maintained, subject to one exception, if it was not barred by the statute of limitations of the forum even though it would be barred by the statute of limitations of the alternate forum. This exception, as stated in Comment e, covered the relatively rare situation where the forum would characterize as substantive a statute of the alternative forum on the ground that the statute was deemed to bar the right and not merely the remedy. In such circumstances, the forum would not entertain an action that was barred by the statute of limitations of the latter state. It was for the forum court to determine whether a foreign statute of limitations barred the right and not merely the remedy. The almost invariable prerequisite was that the liability sought to be enforced was created by statute. Once this requirement had been met, the usual test was whether, in the opinion of the forum, the limitation provision was directed to the right "so specifically as to warrant saying that it qualified the right." Davis v. Mills, 194 U.S. 451, 454 [24 S.Ct. 692, 694, 48 L.Ed. 1067] (1904). Other tests were at times employed, such as whether the statute of limitations had attributes in the state of its enactment which the forum would characterize as substantive; for example, that the defense could be raised even though not pleaded or that the obligation could not be revived after the statutory period had elapsed. Situations where a statute of limitations was held to bar the right were most commonly those where the statute created a right of action and also contained a provision limiting the time in which a suit to enforce the right of action could be brought. Wrongful death statutes were typically statutes of this sort.

        280

        The view that statutes of limitations should ordinarily be characterized as procedural has been abandoned in many recent decisions. Under these decisions, the question whether a statute bars the right and not merely the remedy has lost its significance. The forum will no longer entertain a claim with which it has otherwise no contact simply because the action is not barred by its own statute of limitations. Entertainment of the claim under such circumstances would disserve the forum's general policy against the prosecution of stale claims and would not serve any other forum interest. Likewise, entertainment of the claim would frustrate the policy of all other states having a substantial interest in the case and under whose statute of limitations the action would be barred.

        281

        The view that the forum would entertain a claim that was not barred by its own statute of limitations, even though the forum had no other contact with the case, could lead on occasion to egregious examples of forum shopping. See, e.g., Keeton v. Hustler, 465 U.S. 770, 104 S.Ct. 1473, 79 L.Ed.2d 790 (1984); Cowan v. Ford Motor Co., 694 F.2d 104 (5th Cir.1982); 713 F.2d 100 (5th Cir. 1983); 719 F.2d 785 (5th Cir.1983). [Note: Cowan is a "Mississippi case" brought in federal court via diversity of citizenship jurisdiction.]

        282

        * * * * * *

        283

        Decision becomes difficult in situations where, although the forum is not the state of most significant relationship to important issues in the case, some forum interest would be served by entertainment of the claim, but this would be at the expense of the interests of another state which has a closer connection with the case and under whose statute of limitations the claim would be barred. One such situation is where the domicil of the plaintiff is in the state of the forum and that of the defendant is in the other state with the most significant relationship to important issues in the case. In such a situation, the forum should only entertain the claim in extreme and unusual circumstances.

        284

        Turning to the other extreme, the forum should not entertain a claim when doing so would not advance any local interest and would frustrate the policy of a state with a closer connection with the case and whose statute of limitations would bar the claim. Thus, the claim should not be entertained when the state of the forum has only a slight contact with the case and the parties are both domiciled in the alternative forum under whose statute of limitations the claim would be barred. Similarly, the claim should not be entertained when the forum has no contact with the case and the parties except that the defendant does unrelated business in the state and has designated an agent to receive service of process there. [Emphasis supplied.]

        285

        Speaking generally, a claim that is not barred by the local statute of limitations should not be entertained if no interest of the forum state would be served by entertaining the claim. The claim would be barred by the statute of limitations of the alternative forum. Entertainment of the claim under such circumstances would add to the burden on the local courts and bring no countervailing advantage. This will be so even in situations where entertainment of the claim would not be adverse to the interests of the other states.

        286

        [8] Indeed, there is a third that should be mentioned: personal jurisdiction. The three are similar. They overlap. Many lawyers and jurists confuse them. Yet I regard the failure to keep them distinct the source of mischief. See Boardman v. United Services Automobile Association, 470 So.2d 1024, 1035 (Miss. 1985).

      • 1.2.2 Nez v. Forney

        1
        783 P.2d 471 (1989)
        2
        109 N.M. 161
        3
        Jimmy and Elizabeth NEZ, Husband and Wife, Plaintiffs-Appellants,
        v.
        Max FORNEY, d/b/a Albuquerque Recovery Bureau, and "M" Bank, formerly known as State National Bank, Defendants-Appellees.
        4
        No. 18228.
        5

        Supreme Court of New Mexico.

        6
        December 5, 1989.
        7

        Robert Finkelstein, San Juan County Legal Services, Farmington, for plaintiffs-appellants.

        8

        Celia F. Rankin, Albuquerque, for defendants-appellees.

        9
        OPINION
        10
        BACA, Justice.
        11

        Plaintiffs, Jimmy and Elizabeth Nez (Nez), appeal the district court's order granting summary judgment in favor of defendants M Bank and Max Forney. M Bank is a Texas corporation with its principal place of business in El Paso, Texas. Max Forney does business as Albuquerque Recovery Bureau. Nez raises two issues on appeal: (1) whether the district court should apply the New Mexico or Texas statutes of limitation in the instant case; (2) if the Texas statutes of limitation are applicable, whether the two-year or four-year statute of limitations should be used. We reverse.

        12

        In 1982, Nez entered into a retail installment contract with Kemp Ford, Inc., in El Paso, Texas, to purchase a Ford truck and listed an El Paso address below the buyer's signature line. Kemp Ford assigned the contract to M Bank. This contract contained a clause stating: "This contract shall be governed by the laws of the State of Texas." Subsequently, Nez moved to New Mexico and resided within the territorial jurisdiction of the Navajo Nation. On September 25, 1985, Bradford Clement, an agent of M Bank, repossessed Nez' truck from their house on the Navajo reservation. M Bank denies that Bradford Clement was its agent.

        13

        On April 26, 1988, approximately two and one-half years after the repossession, Nez filed a complaint in district court alleging [472] conversion, wrongful repossession, an unfair trade practice violation, and violation of Navajo Tribal Code Section 607. Nez sought actual and punitive damages under the conversion count; various statutory damages under NMSA 1978, Sections 55-9-502 and 55-9-504 to 55-9-507 (Repl.Pamp. 1987) of the Uniform Commercial Code; $300 or three times actual damages under NMSA 1978, Section 57-12-10 (Repl.Pamp. 1987) of the Unfair Practices Act; and statutory damages under the Navajo Tribal Code Section 609. Defendants then moved for summary judgment against Nez with a supporting brief. In their brief, defendants argued summary judgment was proper on all claims because Nez brought suit after the time expired under a Texas statute of limitations. Defendants also asserted that Nez could not base his claims on violations of New Mexico law because New Mexico had no connection with the transaction at issue. Defendants contended that Texas law should apply, and the parties' choice of law provision should be honored. We do not reach this second argument. This opinion only turns on the question of the applicability of the statute of limitations. The court granted defendants' motion, and Nez appealed.

        14

        We first address defendants' argument in its brief-in-chief that, as the parties chose to be governed by Texas substantive and remedial law pursuant to the choice of law provision, application of Texas statutes of limitation barring Nez' claims was appropriate. Nez correctly asserts that we have viewed statutes of limitation as procedural for choice of law purposes. In Sierra Life Ins. Co. v. First National Life Ins. Co., 85 N.M. 409, 512 P.2d 1245 (1973), plaintiff Sierra Life, a New Mexico corporation, brought an action for breach of contract or, alternatively, for specific performance, against defendant First National, an Arizona corporation, in a New Mexico district court. First National argued to the trial court that Arizona's four-year statute of limitations was applicable, and therefore, plaintiff's claims were barred. On appeal, we ruled that under New Mexico law statutes of limitation are procedural and that the law of the forum governs matters of procedure. Thus, we held that plaintiff's claims were not barred, applying a six-year New Mexico statute of limitations. See also Slade v. Slade, 81 N.M. 462, 468 P.2d 627 (1970) (statutes of limitation are not substantive in nature, and the law favors the right of action, not the right of limitation). Texas courts also view statutes of limitation as procedural for choice of law purposes. See, e.g., Los Angeles Airways, Inc. v. Lummis, 603 S.W.2d 246, 248 (Tex.Civ.App. 1980), cert. denied, 455 U.S. 988, 102 S.Ct. 1610, 71 L.Ed.2d 847 (1982). Finally, our holdings are consistent with a recent Supreme Court opinion, Sun Oil Co. v. Wortman, 486 U.S. 717, 108 S.Ct. 2117, 100 L.Ed.2d 743 (1988). In Sun Oil, the Supreme Court held that traditionally statutes of limitation are procedural; therefore, a Kansas forum did not violate the Due Process and Full Faith and Credit clauses by applying its own longer statute of limitations to a claim governed by the substantive law of other states.

        15

        Defendants also assert that New Mexico recognizes parties may include remedial law in their choice of law agreement, citing to Jim v. CIT Financial Services Corp., 87 N.M. 362, 533 P.2d 751 (1975). We faced facts similar to the instant case in Jim. Jim, a Navajo, purchased a truck in Farmington, New Mexico, and CIT financed the purchase. Later, Jim defaulted on his payments. While Jim resided on the Navajo reservation in New Mexico, two agents of CIT repossessed the truck on the reservation without Jim's written consent. Subsequently, Jim brought suit in the district court for violations of Navajo Tribal Code Sections 307 and 309 (now Sections 607 and 609). CIT responded, filing a motion for failure to state a claim upon which relief can be granted, which was apparently based on the theory that New Mexico, not Navajo law, applied and under NMSA 1953, Section 50A-9-503 of the Uniform Commercial Code, CIT had the right to self help repossession without breach of the peace. The court, treating the defense as a motion to dismiss, dismissed the case with prejudice.

        16

        [473] We held in Jim that parties can choose by contract a law to govern the performance and enforcement of contractual arrangements between them, quoting from NMSA 1953, Section 50A-1-105 of the Uniform Commercial Code for support. Unfortunately, this court did not have either a copy of the conditional sales contract between Jim and CIT before it, or any other evidence indicating the parties' choice as to the applicable law governing the contract. We, therefore, held the court erred in dismissing Jim's complaint and remanded with the following directions:

        17
        Perhaps the contract will conclusively answer the question as to whether the parties made a choice, not only as to the law governing the validity and interpretation of the contract, but also as to that governing the remedies for an admitted breach of an admittedly valid contract. Failing such provision in the contract, it is only then that a choice of law analysis, would come into play.
        18

        Id. at 364, 533 P.2d at 753.

        19

        We recognized in Jim that parties may include a time to sue provision in a contract. In other words, parties can put their own statute of limitations period in a contract, and our courts will honor it. See Electric Gin Co. v. Firemen's Fund Ins. Co., 39 N.M. 73, 39 P.2d 1024 (1935) (fire insurance policy contained a provision that a suit must be commenced within twelve months after loss, which this court upheld); Turner v. New Brunswick Fire Ins. Co., 45 N.M. 126, 112 P.2d 511 (1941) (insurance policy provision stipulating a one-year limitation period is not void when it shortens a general six-year contract statute of limitations period); Wiseman v. Arrow Freightways, Inc., 89 N.M. 392, 552 P.2d 1240 (Ct.App.), cert. denied, 90 N.M. 9, 558 P.2d 621 (1976) (trial court erred in failing to give effect to a time to sue provision found in an insurance policy). However, in Sandoval v. Valdez, 91 N.M. 705, 580 P.2d 131 (Ct.App. 1978), our court of appeals held that a one-year limitation period in an insurance contract was not controlling when it conflicted with New Mexico public policy set forth in our uninsured motorist statute. Therefore, in Sandoval, without deciding if the applicable time limitation should be based on the personal injury or contract statute of limitations, the court of appeals concluded that the plaintiff's personal injury suit was not barred.

        20

        Here, we observe that the choice of law provision only stated that the retail installment contract would be governed by Texas law. It failed, however, to include a statute of limitations/time to sue provision. In line with Jim and time to sue cases, we believe a choice of law provision must specifically describe remedial limitations, if such aspects are to be covered in addition to substantive aspects of the contract. The choice of law provision in the instant case should be limited only to substantive matters, such as contractual interpretation. We conclude that the district court erred as a matter of law in not applying a New Mexico statute of limitations here, because New Mexico courts should apply the forum state's statute of limitations.

        21

        Having found that the district court should have applied a New Mexico statute of limitations, we must determine which statute is appropriate. This action is primarily one for wrongful repossession, which arises from plaintiffs' and defendants' execution of a security agreement creating a security interest in the sellers. The Nezes granted sellers a purchase money security interest. In Bank of New Mexico v. Sholer, 102 N.M. 78, 691 P.2d 465 (1984), we implicitly interpreted a security agreement to be a contract. See First City Bank-Farmers Branch, Texas v. Guex, 677 S.W.2d 25 (Tex. 1984); Texas Nat'l Bank v. Karnes, 717 S.W.2d 901 (Tex. 1986) (actions seeking recovery for wrongful repossession and other repossession-related U.C.C. violations sound in contract). Nez, in his docketing statement and brief-in-chief, argued that the New Mexico contractual statute of limitations, NMSA 1978, Section 37-1-3 or 37-1-4 should be applied. Because we find that Nez brought claims within the applicable New Mexico statute of limitations period under either statute, we do not decide which statute the district court should have applied. We simply hold that Nez' claims were not barred under [474] either statute. We, therefore, do not reach the issue of which Texas statute of limitations is applicable here.

        22

        IT IS SO ORDERED.

        23
        RANSOM, J., concurs.
        24
        MONTGOMERY, J., specially concurs.
        25
        MONTGOMERY, Justice (specially concurring).
        26

        I concur in the result in this case as set out in the plurality opinion, but I do not concur in all of the rationale.

        27

        The elusiveness of the distinction between "substance" and "procedure" is well known, especially as that distinction relates to statutes of limitations. Sun Oil, as the plurality opinion points out, stands for the notion that statutes of limitations are often viewed as "procedural" as a matter of tradition. But Sun Oil more starkly stands for the proposition that much confusion exists because statutes of limitations can be both procedural and substantive, depending upon context. The Supreme Court noted that whether or not a statute of limitations is substantive or procedural depends upon whether the question is being asked for conflict of laws, full faith and credit or Erie doctrine purposes. Justice Scalia said that, "[e]xcept at the extremes, the terms `substance' and `procedure' precisely describe very little except a dichotomy, and what they mean in a particular context is largely determined by the purposes for which the dichotomy is drawn." Sun Oil, 486 U.S. 717, ___, 108 S.Ct. 2117, 2124. In his concurrence, Justice Brennan amplified on this chameleon-like dichotomy.

        28
        Statutes of limitations ... defy characterization as either purely procedural or purely substantive. The statute of limitations a State enacts represents a balance between, on the one hand, its substantive interest in vindicating substantive claims and, on the other hand, a combination of its procedural interest in freeing its courts from adjudicating stale claims and its substantive interest in giving individuals repose from ancient breaches of law. A State that has enacted a particular limitations period has simply determined that after that period the interest vindicating claims becomes outweighed by the combination of the interests in repose and avoiding stale claims. One cannot neatly categorize this complicated temporal balance as either procedural or substantive.
        29

        Id., 486 U.S. at ___, 108 S.Ct. at 2129.

        30

        We need not and should not rely on the tenuous difference between substance and procedure to decide this case. In an appropriate case, a foreign state's statute of limitations might very well be applied to a claim asserted in this forum, even though statutes of limitations are generally regarded as "remedial."

        31

        To illustrate: It is undisputed that Mr. and Mrs. Nez were residents of El Paso at the time they purchased the truck. If they had remained residents of El Paso and defendants had repossessed the truck during a casual visit by the Nezes to some friends in San Juan County, and if Mr. and Mrs. Nez had thereafter brought suit in San Juan County against defendant M Bank for breach of contract, we might well hold that the Texas statute of limitations was applicable to this breach-of-contract claim. In that case New Mexico would have very little relation to the parties' dispute; the lawsuit would be between residents of Texas suing for breach of a Texas contract.

        32

        Thus, I disagree with the statement in the plurality opinion that a choice-of-law provision must specifically describe remedial limitations and that, absent such a specific reference to remedial matters, the choice-of-law provision relates only to substantive matters such as interpretation of the contract. I see no reason why the contract must spell out in detail everything covered by the provision and why a simple statement such as "This contract shall be governed by the laws of the State of Texas" should not, in an appropriate case, be given effect and applied to all disputes based on the contract. This would include disputes about the validity and interpretation of the contract, as well as questions concerning its performance or breach, and might even include questions concerning the statute of limitations applicable to a claim arising from a breach.

        33

        [475] Here, however, Mr. and Mrs. Nez were residents of New Mexico at the time the truck was repossessed and when suit was brought. They sued for conversion and for violations of the New Mexico Uniform Commercial Code and the New Mexico Unfair Practices Act. (In addition, they sued under the Navajo Tribal Code for wrongful repossession; but we need not, on this appeal, consider any questions of choice of law which might arise in applying Navajo law in a New Mexico court.) In other words, New Mexico residents sued in a New Mexico court for violations of New Mexico law. In these circumstances I see no reason not to give them the benefit of the New Mexico statute of limitations on their claims, assuming it is longer than the corresponding Texas statute.

        34

        Mr. and Mrs. Nez also sued for breach of contract, and this might raise the question whether the New Mexico or the Texas statute of limitations on claims for breach of contract is applicable. However, it appears that the Texas limitations period for actions sounding in contract is four years (Tex.Civ.Prac. & Rem.Code Ann. § 16.004 (Vernon 1986)), whereas the two-year period relied on by defendants and the district court applies to the torts of trespass, conversion, taking or detaining of personal property of another, personal injury, forcible entry and detainer, and forcible detainer (id. § 16.003(a)). Thus, even if the Texas statute of limitations for breach of contract applies, the Nez' claims for breach of contract were timely filed.

        35

        Accordingly, focusing on plaintiff's claims for various torts (injuries to property) under New Mexico law, I would hold that the New Mexico four-year statute of limitations (NMSA 1978, § 37-1-4) applies. Focusing on plaintiffs' breach-of-contract claims, I conclude that those claims were timely filed under either the Texas statute or New Mexico's six-year statute of limitations (NMSA 1978, § 37-1-3). I therefore agree that the summary judgment below was erroneous.

      • 1.2.3 Gantes v. Kason Corp.

        1
        145 N.J. 478 (1996)
        2
        679 A.2d 106
        3
        SAMUEL GANTES, ADMINISTRATOR AD PROSEQUENDUM OF GRACIELA GONZALEZ, ON BEHALF OF THE ESTATE OF GRACIELA GONZALEZ AND ON BEHALF OF THE HEIRS-AT-LAW OF GRACIELA GONZALEZ, PLAINTIFF-APPELLANT,
        v.
        KASON CORPORATION, DEFENDANT-RESPONDENT, AND OTTO CUYLER ASSOCIATES AND XYZ CO. I-V (BEING FICTITIOUS BUSINESS ENTITIES WHOSE IDENTITIES ARE CURRENTLY UNKNOWN), DEFENDANTS.
        4

        The Supreme Court of New Jersey.

        5
        Argued October 10, 1995.
        6
        Decided July 23, 1996.
        7

        [481] Alan Y. Medvin argued the cause for appellant (Medvin & Elberg, attorneys).

        8

        Peter B. Van Deventer, Jr., argued the cause for respondent (Robinson, St. John & Wayne, attorneys; Douglas H. Amster and John S. Wisniewski, on the brief).

        9
        The opinion of the Court was delivered by HANDLER, J.
        10

        In this case, a young woman, working in a chicken processing plant in Georgia, was killed when struck in the head by a moving part of a machine. The machine had been manufactured more than thirteen years before the fatal accident by a New Jersey corporation with its principal place of business in Linden, New Jersey.

        11

        Representatives of the decedent, asserting that the machine was defective, brought this personal-injury action based on claims of survivorship and wrongful-death against the New Jersey manufacturer [482] in the Law Division in Union County. The action was filed within New Jersey's two-year statute of limitations for personal-injury actions, but beyond Georgia's ten-year statute of repose applicable to products-liability claims against manufacturers. Because of the conflict between the two statutes, the case poses a fundamental choice-of-law issue over which statute applies and whether, depending on that choice, the action will be barred.

        12
        I
        13

        Graciela Gonzalez was a twenty-two year-old who lived in Georgia with her husband and two small children. She was employed at a chicken processing plant called Dutch Quality House in Gainesville, Georgia. On February 27, 1991, Ms. Gonzalez was killed at work when she was struck in the head by a moving part of a shaker machine. Plaintiff Samuel Gantes, also a Georgia resident, is the administrator ad prosequendum for the estate and heirs of the decedent.

        14

        The shaker machine was manufactured by defendant Kason Corporation, which is a New Jersey corporation with its principal place of business in Linden, New Jersey. It was disputed below whether the machine was manufactured at defendant's New Jersey plant, or at one of its plants in New York. However, for purposes of the disposition by summary judgment, the courts below assumed that defendant manufactured the machine in New Jersey.

        15

        Evidence indicating New Jersey manufacture included the original certification to the trial court of Kason's president, Lawrence H. Stone. This certification expressly stated that defendant manufactured the shaker machine, a forty-eight inch "Kason Vibroscreen," in the Linden, New Jersey plant. In addition, numerous documents affixed to Stone's original certification, consisting of correspondence, invoices, receipts, and the like, indicate that the machine was manufactured in and shipped from New Jersey. They indicate that defendant originally sold the shaker machine in 1977 to Salvo Corporation of Fall River, Massachusetts, for shipment [483] to Snyder's Potato Chips in Berlin, Pennsylvania. Thus, all of the correspondence from defendant regarding that original sale and shipment to Snyder's Potato Chips contain a New Jersey return address. With one exception, all of the receipts, invoices and other similar documents regarding that sale and shipment contain defendant's New Jersey letterhead. In addition, the "purchase order" sent from Salvo Corporation to defendant was directed to a New Jersey address belonging to defendant. Finally, the Federal Express invoice that documents the shipment of the machine to Snyder's Potato Chips reflects that defendant made that shipment from its offices in Linden, New Jersey. The "Instruction Manual" for the Kason Vibroscreen, another document affixed to Stone's original certification, also supports the conclusion that defendant manufactured the machine in New Jersey. That manual lists defendant's Linden, New Jersey address and telephone number as the point of contact for "additional information or assistance."[1]

        16

        It is undisputed that defendant placed the shaker machine into the stream of commerce in November 1977 when it shipped the machine to Snyder's Potato Chips in Pennsylvania. After April 1985, Snyder's Potato Chips sold the machine to Otto Cuyler Associates. Otto Cuyler Associates later sold the machine to Dutch Quality House, Ms. Gonzalez's Georgia employer.

        17

        On February 23, 1993, plaintiff filed this action on behalf of the estate and heirs of Ms. Gonzalez against defendant Kason Corporation and Otto Cuyler Associates and various unidentified business [484] entities. The complaint seeks money damages based on strict liability. Defendant filed an answer that contained a general denial of liability, as well as numerous affirmative defenses, crossclaims for contribution and indemnification against all co-defendants. The trial court, in a published opinion, 278 N.J. Super. 473, 651 A.2d 503 (Law Div. 1993), determined that Georgia's statute of repose applies and bars plaintiff's action, and granted defendant's motion for summary judgment. The Appellate Division affirmed that judgment. 276 N.J. Super. 586, 648 A.2d 517 (App.Div. 1994). Based on a dissent in the Appellate Division, the appeal is before us as of right. R. 2:2-1(a)(2).

        18
        II
        19

        The issue before the Court is whether to invoke the Georgia statute of repose or the New Jersey statute of limitations. Because the action was brought in New Jersey, the issue must be determined in accordance with this State's choice-of-law rule. New Jersey's rule applies a flexible "governmental-interest" standard, which requires application of the law of the state with the greatest interest in resolving the particular issue that is raised in the underlying litigation. Veazey v. Doremus, 103 N.J. 244, 247-49, 510 A.2d 1187 (1986); see State Farm Mutual Automobile Ins. Co. v. Estate of Simmons, 84 N.J. 28, 36-37, 417 A.2d 488 (1980); O'Keeffe v. Snyder, 83 N.J. 478, 490, 416 A.2d 862 (1980).

        20
        A.
        21

        The initial prong of the governmental-interest analysis entails an inquiry into whether there is an actual conflict between the laws of the respective states, a determination that is made on an issue-by-issue basis. Veazey, supra, 103 N.J. at 248, 510 A.2d 1187. The particular issue to be resolved in this case — whether the action was filed timely — is subject to an obvious and direct conflict between Georgia's ten-year statute of repose and New Jersey's two-year statute of limitations.

        22

        [485] The Georgia statute of repose bars the commencement of strict products-liability actions "after ten years from the date of the first sale for use or consumption of the personal property causing or otherwise bringing about the injury." O.C.G.A. § 51-1-11(b)(2). See Chrysler Corp. v. Batten, 264 Ga. 723, 450 S.E.2d 208, 212 (noting "strict-liability actions filed more than ten years after the `date of the first sale for use or consumption of' the product are completely barred"), rev'd on other grounds, 264 Ga. 723, 450 S.E.2d 208 (1994); LFE Corp. v. Edenfield, 187 Ga. App. 785, 371 S.E.2d 435, 436 (1988) (ruling that where statute of repose was enacted both before injury occurred and before complaint was filed, statute applies even if first sale occurred before statute's enactment). Ms. Gonzalez's accident occurred more than ten years after defendant made its "first sale for use" of the shaker machine, in November 1977. It is undisputed that this action is barred by Georgia's ten-year statute of repose applicable to products-liability actions.

        23

        New Jersey law provides that personal-injury actions, including those based on strict-products liability, are governed by a two-year statute of limitations. N.J.S.A. 2A:14-2. It is clear that under New Jersey's statute of limitations, plaintiff's suit would not be barred because the complaint was filed less than two years after Ms. Gonzalez' accident.

        24
        B.
        25

        The second prong of the governmental-interest analysis seeks to determine the interest that each state has in resolving the specific issue in dispute. That analysis requires the court to "identify the governmental policies underlying the law of each state and how those policies are affected by each state's contacts to the litigation and to the parties." Veazey, supra, 103 N.J. at 248, 510 A.2d 1187. We look first to the policies that underlie the respective state statutes that are in conflict in this case.

        26

        In 1978, the Georgia legislature enacted its statute of repose, O.C.G.A. § 51-1-11(b)(2), as an amendment to its strict products-liability [486] statute. Daniel v. American Optical Corp., 251 Ga. 166, 304 S.E.2d 383, 384 (1983). In Love v. Whirlpool Corporation, 264 Ga. 701, 449 S.E.2d 602 (1994), the Georgia Supreme Court explained that its legislature adopted the statute of repose to serve the dual purposes of stabilizing insurance underwriting and eliminating stale claims. In so concluding, the court indicated that the statute of repose was the legislature's response to a 1978 report of the Senate Products Liability Study Committee that addressed insurance-industry problems generated by the open-ended liability of manufacturers, and recommended "that a ten-year statute of repose be enacted." Id. 449 S.E.2d at 605. Just one month after its decision in Love, the Georgia Supreme Court again had occasion to address the statute of repose. Chrysler Corp., supra, 450 S.E.2d at 211-13. There the court reiterated: "The ten-year statute of repose was enacted in order to address problems generated by the open-ended liability of manufacturers so as to eliminate stale claims and stabilize products liability underwriting." Id. at 212.

        27

        New Jersey's statute of limitations applicable to personal-injury actions reflects well-articulated policy. In Rivera v. Prudential Property & Casualty Ins. Co., 104 N.J. 32, 39, 514 A.2d 1296 (1986), the Court stated the rationale for statutes of limitation:

        28
        The purposes of statutes of limitations, oft-repeated by this Court, are two-fold: (1) to stimulate litigants to pursue a right of action within a reasonable time so that the opposing party may have a fair opportunity to defend, thus preventing the litigation of stale claims, and (2) `to penalize dilatoriness and serve as a measure of repose.' E.g., Ochs v. Federal Ins. Co., 90 N.J. 108, 112, 447 A.2d 163 (1982) (quoting Farrell v. Votator Div. of Chemetron Corp., 62 N.J. 111, 115, 299 A.2d 394 (1973).
        29

        The purpose underlying any statute of limitations is "to `stimulate to activity and punish negligence' and `promote repose by giving security and stability to human affairs.'" Savage v. Old Bridge-Sayreville Medical Group, P.A., 134 N.J. 241, 248, 633 A.2d 514 (1993) (quoting O'Keeffe, supra, 83 N.J. at 491, 416 A.2d 862 (quoting Wood v. Carpenter, 101 U.S. 135, 139, 25 L.Ed. 807, 808 (1879))). In addition to encouraging the diligent and timely [487] prosecution of claims, the statute of limitations is subject to the "discovery rule." See Savage, supra, 134 N.J. at 246-50, 633 A.2d 514. That dimension of the statute of limitations incorporates flexible, equitable considerations based on notions of fairness to the parties and the justice in allowing claims to be resolved on their merits. O'Keeffe, supra, 83 N.J. at 491, 416 A.2d 862. We note, further, that New Jersey's statute of limitations applies to all personal-injury actions, including those based on strict products-liability. Apgar v. Lederle Laboratories, 123 N.J. 450, 455, 588 A.2d 380 (1991); Vispisiano v. Ashland Chemical Co., 107 N.J. 416, 426, 527 A.2d 66 (1987). New Jersey has no special rule, similar to Georgia's statute of repose, governing the accrual or limitation of products-liability actions.

        30

        Whether the policy that underlies the law of a state gives rise to a governmental interest calling for the application of that state's law depends on the nature of the contacts that the state has to the litigation and to the parties. The kind of analysis of those contacts to be undertaken is exemplified by Heavner v. Uniroyal, Inc., 63 N.J. 130, 305 A.2d 412 (1973) and an earlier decision, Marshall v. Geo. M. Brewster & Son, Inc., 37 N.J. 176, 180 A.2d 129 (1962).

        31

        In Heavner, residents of North Carolina sued a New Jersey corporation for personal injury that resulted when a truck tire manufactured by the defendant blew out while one of the plaintiffs was driving a truck in North Carolina. 63 N.J. at 133-34, 305 A.2d 412. The defendant was a national corporation whose only contact with New Jersey was that it was incorporated here. Id. at 134, 305 A.2d 412. There was no allegation that defendant had actually manufactured the allegedly defective tire in New Jersey. The Court concluded that New Jersey had "no substantial interest in the matter," and consequently the statute of limitations of North Carolina would be applied. Id. at 141, 305 A.2d 412.

        32

        Marshall involved an action by an Ohio resident against various New Jersey corporations that were part of a joint venture doing construction work on a railroad crossing in Pennsylvania. 37 N.J. [488] at 178, 180 A.2d 129. The plaintiff's decedent was killed in an automobile accident at that railroad crossing. Ibid. The defendants in Marshall were not merely incorporated in New Jersey, but actually had their principal places of business here. Id. at 188, 180 A.2d 129. The Court approved of the application of New Jersey limitations law, rather than Pennsylvania's more restrictive limitations law. Id. at 176, 180 A.2d 129.

        33

        The Court in Heavner acknowledged the analysis and result reached in the Marshall case. It noted that Marshall, in contrast to Heavner, "presented a different factual picture," and that Marshall exemplified a case where "there may very well be" a significant interest that could require the application of New Jersey limitations law. Heavner, supra, 63 N.J. at 141 n. 6, 305 A.2d 412. As explained by Judge Pressler in her dissenting opinion below, the critical factual distinction between Heavner and Marshall was that the defendant in Marshall had a significant presence in New Jersey by virtue of its doing business here, while the defendant in Heavner had a "virtual nonpresence" because its only contact with New Jersey was that it was incorporated in this State. 276 N.J. Super. at 593, 648 A.2d 517.

        34

        In this case, as in Marshall, the machine causing the fatal injury was manufactured in, and placed into the stream of commerce from, this State. The question thus posed is whether, in the context of this litigation, those contacts give rise to a substantial governmental interest that would be served by applying New Jersey's statute of limitations and permitting this action to proceed.

        35

        The courts below acknowledged that, in this case, the only New Jersey interest implicated by its contacts with the parties is that derived from the status of the defendant as a domestic manufacturer. That interest is in deterring the manufacturing of unsafe products within its borders. However, both the trial court and Appellate Division majority determined that a deterrent interest is not significant enough to warrant the application of New Jersey's [489] limitations law. 278 N.J. Super. at 478-79, 651 A.2d 503, 276 N.J. Super. at 589-90, 648 A.2d 517.

        36

        This Court has recognized generally that a purpose of the tort laws is to encourage reasonable conduct, and, conversely, to discourage conduct that creates an unreasonable risk of injury to others. E.g., Hopkins v. Fox & Lazo, 132 N.J. 426, 448, 625 A.2d 1110 (1993); People Express Airlines, Inc. v. Consolidated Rail Corp., 100 N.J. 246, 255, 495 A.2d 107 (1985). That deterrent goal of the tort laws is effectuated through the recognition of a duty to exercise reasonable care and the imposition of liability for the breach of such a duty. E.g. Weinberg v. Dinger, 106 N.J. 469, 486-87, 524 A.2d 366 (1987). We note also that Georgia has recognized that "courts are concerned not only with compensation of the victims but with admonition of the wrongdoer" and that the "`prophylactic' fact of preventing future harm has been quite important in the field of torts." Denton v. Con-Way Southern Express, Inc., 261 Ga. 41, 402 S.E.2d 269, 270 (1991) (quoting Prosser & Keeton on Torts § 4 at 25 (5th ed. 1984)), overruled on other grounds, McKin v. Gilbert, 208 Ga. App. 788, 432 S.E.2d 233 (1993).

        37

        The interest in deterrence has been recognized as a relevant factor to be considered in choice-of-law decisions. See, e.g., Pfau v. Trent Aluminum Co., 55 N.J. 511, 524, 263 A.2d 129 (1970) (noting "We are not certain that a defendant's domicile lacks an interest in seeing that its domiciliaries are held to the full measure of damages or the standard of care which that state's law provide[s] for."); Mueller v. Parke Davis, 252 N.J. Super. 347, 354-55, 599 A.2d 950 (App.Div. 1991); Seals v. Langston Co., 206 N.J. Super. 408, 412, 502 A.2d 1185 (App.Div.), certif. denied, 104 N.J. 386, 517 A.2d 392 (1986); Pine v. Eli Lilly & Co., 201 N.J. Super. 186, 192, 492 A.2d 1079 (App.Div. 1985); Deemer v. Silk City Textile Mach. Co., 193 N.J. Super. 643, 650, 475 A.2d 648 (App.Div. 1984).

        38

        The goal of deterrence, acknowledged generally to be part of tort law, is especially important in the field of products-liability [490] law. In Fischer v. Johns-Manville Corp., 193 N.J. Super. 113, 124, 472 A.2d 577 (1984), aff'd, 103 N.J. 643, 512 A.2d 466 (1986), the Appellate Division noted that since Henningsen v. Bloomfield Motors, Inc., 32 N.J. 358, 161 A.2d 69 (1960), this State's judiciary has been "in the vanguard of the development of a responsive and progressive products liability law" and "has led the country in its ideological commitment to the protection of consumers and concomitant consequence of inducing those who place products into the stream of commerce to act with social responsibility." Judge Pressler observed in her dissent below "the development of [products liability law in New Jersey] and the consequent imposition of strict liability on manufacturers has been a powerful force — perhaps the most powerful force — in effecting, over the last two and a half decades, product safety and social responsibility by industry." 276 N.J. Super. at 594, 648 A.2d 517.

        39

        We conclude that this State has a strong interest in encouraging the manufacture and distribution of safe products for the public and, conversely, in deterring the manufacture and distribution of unsafe products within the state. That interest is furthered through the recognition of claims and the imposition of liability based on principles of strict products-liability law.

        40

        Both the Appellate Division majority and the trial court found that the interest in deterrence would be outweighed by the possibility of unduly discouraging manufacturing in New Jersey if products-liability actions were allowed in circumstances where they would be barred in the courts where the cause of action arose. 278 N.J. Super. at 479, 651 A.2d 503 (quoting Deemer, supra, 193 N.J. Super. at 650-652, 475 A.2d 648); 276 N.J. Super. at 589-90, 648 A.2d 517. The courts below relied on Seals, supra, 206 N.J. Super. 408, 502 A.2d 1185.

        41

        Seals involved a New Jersey action for damages for injuries caused in Louisiana by a defective machine manufactured in New Jersey by a New Jersey corporation. 206 N.J. Super. at 409, 502 A.2d 1185. The court recognized a "noticeable difference" between Heavner and the case before it, namely, that in Seals, New [491] Jersey was the place of manufacture of the allegedly defective machine. Id. at 411, 502 A.2d 1185. Notwithstanding that difference, the court found Louisiana's limitations law applicable, Ibid., concluding that New Jersey's deterrence interest did not warrant the application of New Jersey's limitations law. 206 N.J. Super. at 413-14, 502 A.2d 1185. It also observed that the court has "no significant interest in exposing New Jersey manufacturers to greater jeopardy in our courts than they would face where a cause of action against them arose, or in a disinterested forum provided by another state," further explaining that "if we were to apply rules that favor foreign plaintiffs against local manufacturers, when we could not do so against foreign ones, we would pointlessly discriminate against our own residents." Id. at 412-13, 502 A.2d 1185.

        42

        We disagree with the rationale employed in Seals and the lower courts' reliance on that decision. In light of this State's commitment to protection of the public against the manufacture and distribution of unsafe products and the strong governmental interest in deterrence against such practices, it does not seem "pointless" to apply this State's statute of limitations to resident manufacturers, even if the suit would be barred against foreign manufacturers. The difference in result is grounded in the distinctive policy concerns that each state has in making its domestic manufacturers amenable to suits. A governmental interest based on a policy of deterrence that seeks to discourage domestic manufacturers from the manufacture and distribution of unsafe products through the allowance of a products-liability action is not unnecessarily burdensome nor is it discriminatory or baseless.

        43

        It is significant that New Jersey's statute of limitations does not single out manufacturers or distributors of manufactured products as a class meriting special protection from personal-injury tort actions. New Jersey recently enacted a statute that provides and clarifies certain standards in products-liability actions, yet leaves intact many common-law principles that define that cause of action. N.J.S.A. 2A:58C-1 to -11; Senate Judiciary Committee, [492] Statement to Senate Bill No. 2805 at 1 (July 22, 1987). See, e.g., Roberts v. Rich Foods, Inc., 139 N.J. 365, 374-75, 654 A.2d 1365 (1995). That statute does not prescribe a limitations period that is more lenient toward or protective of manufacturers than the general personal-injury limitations law applicable to other tortfeasors. It is also significant in the circumstances of this litigation, a strict-products liability action, that New Jersey does not have a statute of repose that qualifies or limits the liability of manufacturers. Although our Legislature has enacted a statute of repose for certain causes of actions, see N.J.S.A. 2A:14-1.1 (creating ten-year statute of repose for claims arising out of defective and unsafe conditions of improvements of real property), it has not enacted such a statute for personal-injury actions based on unsafe products.

        44

        The lower courts also concluded that application of New Jersey's statute of limitations would encourage forum shopping, which would increase litigation and needlessly burden the courts of this State. 278 N.J. Super. at 479, 651 A.2d 503 (quoting Deemer, supra, 193 N.J. Super. at 650-653, 475 A.2d 648); 276 N.J. Super. at 589-90, 648 A.2d 517. However, this State's interest against forum shopping will not be compromised by the application of New Jersey's statute of limitations in the circumstances of this litigation. In essence, the policy against forum shopping is intended to ensure that New Jersey courts are not burdened with cases that have only "slender ties" to New Jersey. See Henry v. Richardson-Merrell, Inc., 508 F.2d 28, 35 (3d Cir.1975). In this case, plaintiff does not seek to use New Jersey's court system to litigate a dispute that has only a slight link to New Jersey and where the only plausible reason to select this State is because it is a hospitable forum. This action is materially connected to New Jersey by the fact that the allegedly defective product was manufactured in and then shipped from this State by the defendant-manufacturer.

        45

        We are satisfied, therefore, that New Jersey in this case has a cognizable and substantial interest in deterrence that would be [493] furthered by the application of its statute of limitations, and that interest is not outweighed by countervailing concerns over creating unnecessary and discriminatory burdens on domestic manufacturers or by fears of forum shopping and increased litigation in the courts of this State.[2]

        46
        C.
        47

        The determination that New Jersey in this litigation has a cognizable and substantial interest does not end the inquiry into whether the choice of its statute of limitations law is appropriate to resolve the conflict over whether this action is time barred. New Jersey's interest in deterrence must be compared and weighed against any governmental interest that Georgia has in applying its statute of repose in light of Georgia's contacts with the litigation and the parties.

        48

        The Appellate Division upheld the conclusion of the trial court that Georgia has an important governmental interest derived from its statute of repose. In effect, the trial court characterized the Georgia statute of repose as expressing a broad policy to encourage manufacturing generally by barring products-liability actions after ten years from the date of sale of an alleged unsafe product; it rejected as "parochial" the notion that Georgia's intended by its statute of repose to benefit only Georgia manufacturers. 278 N.J. Super. at 479, 651 A.2d 503. However, Georgia's statute of repose was not enacted to create generally a favorable environment for manufacturing. Rather, the Georgia statute of repose was enacted as an effort to stabilize the Georgia insurance industry and to keep stale claims out of Georgia courts. Love, supra, 449 S.E.2d at 605. See discussion, supra at 485, 679 A.2d at 109. [494] Thus, the question to be addressed is whether, in this case, those policy concerns give rise to a governmental interest that calls for the application of Georgia's statute of repose.

        49

        The answer is clear. Georgia has no contacts with the defendant manufacturer or with this lawsuit. Hence, its special policy concerns over the impact of "open-ended liability" on its insurance industry and stale claims on its courts do not, in the context of this litigation, give rise to a governmental interest that must be protected by applying its statute of repose to foreclose this suit in New Jersey.

        50

        The dissent asserts that a decision to allow the action to go forward in New Jersey would run counter to Georgia's interest in stabilizing the products-liability insurance rates in Georgia. Ante at 484-85, 679 A.2d at 108-09. It suggests the decedent's employer may become involved in the New Jersey litigation on the issue of whether it misused or substantially changed the machine that is the subject of this products liability action. It is not contended, however, that the Georgia manufacturer could become a party to this action. See O.C.G.A. § 34-9-11 (providing that, where applicable, workers' compensation remedy is employee's exclusive remedy against statutory employer); Smith v. Gortman, 261 Ga. 206, 403 S.E.2d 41 (1991) (holding that policy of the exclusive remedy provision of the worker's compensation law is served equally whether employee is injured or killed). Nor is it likely that the inconvenience to the decedent's employer that may be entailed in participating in discovery or in responding to subpoenas in conjunction with the New Jersey litigation could have any significant underwriting influence in respect of products-liability insurance rates in Georgia.

        51

        The Deemer case, relied on by the lower courts to reach a different conclusion, is distinguishable. In that case, the court found that the application of New Jersey law to allow an action brought by the North Carolina resident against a manufacturer that was no longer in New Jersey would actually "frustrate the policies of North Carolina's workers' compensation laws." 193 [495] N.J. Super. at 651, 475 A.2d 648. No Georgia law is frustrated by the application of New Jersey's statute of limitations to allow the action to proceed in this State.

        52

        The lower courts were also persuaded by the fact that Georgia's substantive law would apply to the case, and that the Georgia statute at issue is one of repose, as opposed to a standard statute of limitations. 276 N.J. Super. at 589, 648 A.2d 517, 278 N.J. Super. at 480, 651 A.2d 503. The Appellate Division majority noted that "New Jersey holds that a statute of repose prevents what might otherwise be a cause of action from arising, whereas a statute of limitations concerns when a cause of action arises, or, once arisen, when it is barred." Id. at 589 n. 2, 648 A.2d 517 (citing E.A. Williams, Inc. v. Russo Development Corp., 82 N.J. 160, 167, 411 A.2d 697 (1980)). The lower courts reasoned that because the statute of repose was a substantive law under which "[p]laintiffs have no cause of action in Georgia," id. at 589, 648 A.2d 517, it was entitled to more weight than a statute of limitations that could serve only as a bar to plaintiff's "Georgia-based right." 278 N.J. Super. at 480, 651 A.2d 503, 276 N.J. Super. at 588-89, 648 A.2d 517.

        53

        That statutes of repose are generally considered substantive in nature does not compel its selection in this case, even though it is conceded that Georgia's substantive tort law will be applied. Whether Georgia's statute of repose must be applied as a constituent part of its substantive tort law depends not on its characterization as substantive law but on the issue-specific analysis that governs choice-of-law determinations and on whether the contacts that Georgia has with the parties and the litigation create a governmental interest that requires the application of its statute of repose to settle that issue.

        54

        The Court in Veazey dealt with an analogous issue in deciding whether Florida's marital immunity doctrine should be applied to an action brought in New Jersey involving Florida domiciliaries for injuries arising out of a New Jersey automobile accident. The plaintiff was a passenger in the automobile driven by her husband, [496] one of the defendants. The conflict posed in that action was whether Florida's marital immunity law or New Jersey law abrogating interspousal immunity should be followed. New Jersey's substantive tort law would apply because the accident occurred in New Jersey; the marital-immunity doctrine was a substantive law. See, e.g., Tevis v. Tevis, 79 N.J. 422, 400 A.2d 1189 (1979); Merenoff v. Merenoff, 76 N.J. 535, 388 A.2d 951 (1978). The critical contact of the State of Florida to the parties was their domicile; that contact served to create an interest on the part of Florida in their marital relationship and whether they should be able to sue one another in light of its policy of marital immunity. In contrast, New Jersey's only contact with these parties was as the geographical site of the automobile accident. New Jersey thus had no governmental interest in the marital relationship of the parties and whether they should be able to sue one another. Accordingly, the Court ruled that New Jersey had no interest that would call for the application of its own policy abrogating inter-spousal immunity, and, therefore, the Florida marital-immunity doctrine should apply, notwithstanding New Jersey's substantive law would otherwise govern the adjudication.

        55

        Here, although the plaintiffs are Georgia residents, that contact with the State of Georgia does not implicate the policies of its statute of repose, which is intended only to unburden Georgia courts and to shield Georgia manufacturers from claims based on product defects long after the product has been marketed or sold. Consequently, the application of Georgia's substantive law in these circumstances does not dictate the inclusion of its statute of repose.

        56

        The majority of the Appellate Division further emphasized that "the weight of authority clearly favors following the law of the state with the interest of compensating its residents, where such law conflicts with that of the state having solely a deterrence interest." Id. at 590, 648 A.2d 517. However, the cases relied on by the majority as making up that "weight of authority" do not suggest, much less require, that the deterrence interest of New [497] Jersey as the domicile and locus of the defendant manufacturer must yield in this case to the compensation interest of Georgia as the state of domicile of the claimants. See Mueller, supra, 252 N.J. Super. at 355, 599 A.2d 950 (citing Schum v. Bailey, 578 F.2d 493, 503 (3rd Cir.1978); Allen v. Volkswagen of America, Inc., 555 F.2d 361, 364 (3d Cir.1977); Henry, supra, 508 F.2d at 33; Heavner, supra, 63 N.J. at 130, 305 A.2d 412; Rose v. Port of New York Authority, 61 N.J. 129, 140, 293 A.2d 371 (1972); Pine, supra, 201 N.J. Super. at 193, 492 A.2d 1079; Deemer, supra, 193 N.J. Super. at 651-52, 475 A.2d 648). The results in those cases were based on the particular configuration of state interests to be balanced, and the relative weight of those interests, as dictated by the relevant contacts with the parties. Those cases may be distinguished from the present case on one of two grounds, either because the state with the deterrent interest had insubstantial contacts with the defendant, thus minimizing the weight of the deterrence interest in comparison to the compensation interest of the plaintiff's domicile, see, e.g., Allen, supra, 555 F.2d at 364; Henry, supra, 508 F.2d at 33; Pine, supra, 201 N.J. Super. 186, 492 A.2d 1079; Deemer, supra, 193 N.J. Super. at 651-52, 475 A.2d 648; or because both states in the conflict had deterrent interests so that the interests of the state with both a compensation and a deterrence interest outweighed the interest of the state having only a deterrence objective, see, e.g., Schum, supra, 578 F.2d at 503; Rose, 61 N.J. at 140, 293 A.2d 371.

        57

        By contrast, New Jersey's policy in deterring tortious conduct of manufacturers is implicated by the defendant's material contacts with this State, and thus represents a substantial interest to be weighed against Georgia's interest in compensation of its resident plaintiffs. In the context of this litigation, Georgia's policy of fair compensation for injured domiciliaries is one that allows compensation, except if recovery is sought from a Georgia manufacturer because the defective product causing the accident was sold by that manufacturer more than ten years before the accident. The limitation on fair compensation expressed by that narrow exception is not raised in this case. Application of New [498] Jersey law will not undermine Georgia's interest in compensating its injured residents because that interest is not actually implicated or compromised by allowing a products-liability action brought by Georgia residents to proceed against a non-Georgia manufacturer.

        58

        Finally, we note the trial court's conclusion that in their totality Georgia had more contacts than New Jersey and therefore was the "controlling state," whose law should be applied. See, e.g., Dara Patrick Karam, Note, "Conflicts of Laws — Liberative Prescription," 47 La.L.Rev. 1153, 1167 n. 85 (1987). Although the contacts with each state must be compared and weighed, that analysis encompasses only those contacts that bear on the specific issue that is the focus of the legal conflict between the two states. The Appellate Division dissent explained:

        59
        As is made clear by Veazey v. Doremus, 103 N.J. 244, 248, 510 A.2d 1187 (1986), in a proper government interest analysis, choice of law is not a single, immutable decision governing the entire action and all the issues therein arising. Rather, the decision as to whose law to apply must be made issue by issue on the basis of which state has the greatest interest in the application of its own law to that issue.
        60
        [276 N.J. Super. at 591, 648 A.2d 517.]
        61

        Here, the narrow issue is whether the action will be deemed time-barred. Georgia's contacts with the litigation and the parties, though numerically greater, are not more significant or weighty than those of New Jersey in generating an interest that calls for the invocation of its laws to preclude a claim in New Jersey solely because of the passage of time.

        62
        III
        63

        Defendant argues that it is entitled to summary judgment based on the doctrine of forum non conveniens. It contends specifically that "the proofs, witnesses, medical records, and scene of the accident are all in Georgia." Defendant further contends that because the witnesses reside in Georgia, some if not all of them may be unavailable for trial and "there is no method for a New Jersey Court to compel their attendance here for trial."

        64

        [499] Neither the trial court nor the Appellate Division addressed defendant's forum non conveniens argument. Moreover, defendant did not file a petition for certification in conjunction with this appeal as of right. Therefore, the forum non conveniens issue is not properly before the Court. R. 2:2-1(a)(2); Brandenburg v. Brandenburg, 83 N.J. 198, 203, 416 A.2d 327 (1980).

        65

        We note, however, that a dismissal pursuant to the doctrine of forum non conveniens cannot occur if the transfer will result in significant hardship to the plaintiffs. Wangler v. Harvey, 41 N.J. 277, 286, 196 A.2d 513 (1963). Here, without doubt, a dismissal of this action will cause severe hardship to plaintiff. If this action cannot proceed in New Jersey, plaintiff will be left with no forum in which to proceed and will be denied recovery altogether. This Court's case law teaches that where the plaintiff will be so adversely affected by the transfer of jurisdiction, the court may not dismiss the action under the doctrine of forum non conveniens.

        66
        IV
        67

        The judgment of the Appellate Division is reversed, summary judgment is vacated, and the matter is remanded for a determination of the underlying disputed facts and the application of those facts to the choice-of-law question, consistent with this opinion.

        68
        GARIBALDI, J., dissenting.
        69

        In this appeal, the only issue is whether, in applying New Jersey's "governmental interests" conflicts of law test, Georgia or New Jersey has the paramount interest in this personal injury case. This case arose when a Georgia resident, working at a Georgia food processing factory, was killed when struck by a part from a shaker machine that was manufactured by a New Jersey corporation and placed into commerce more than ten years before the accident. The majority's opinion subjects New Jersey businesses to an increased risk of litigation that would be time-barred in the state where the injured person lives and where the accident [500] occurred, increases forum shopping and further taxes an already overburdened court system, without offering any countervailing benefit to a New Jersey resident or business. For those reasons, I dissent.

        70
        I
        71

        It is undisputed that if Georgia law applies, decedent's claim is barred pursuant to Georgia's ten-year statute of repose. Because the machine that caused the injury was sold in 1977 and the injury occurred on February 27, 1991, more than ten years after the initial sale, Georgia's statute of repose bars this action. Conversely, should New Jersey law apply, the claim is not barred as there exists no statute of repose and the claim was brought within New Jersey's two-year statute of limitations.

        72

        New Jersey's "governmental interest" conflicts of law test is not based on where a litigant will have the greatest likelihood of success. Instead, the "governmental interest" test requires the court to apply the law of the state with the greatest interest in resolving the issue in the underlying litigation. Veazey v. Doremus, 103 N.J. 244, 247-49, 510 A.2d 1187 (1986); see State Farm Mutual Automobile Ins. Co. v. Estate of Simmons, 84 N.J. 28, 36-37, 417 A.2d 488 (1980); O'Keeffe v. Snyder, 83 N.J. 478, 490, 416 A.2d 862 (1980).

        73
        [T]he governmental interest approach to choice of law questions ... requires a two-step analysis in resolving conflicts questions: the court determines first the governmental policies evidenced by laws of each related jurisdiction and second the factual contacts of the parties with the related jurisdiction.
        74
        [Deemer v. Silk City Textile Mach. Co., 193 N.J. Super. 643, 649, 475 A.2d 648 (App.Div. 1984) (citations omitted)].
        75

        Applying the two-prong test I am convinced, as was the trial court, Gantes v. Kason Corp., 278 N.J. Super. 473, 651 A.2d 503 (1993) and the majority of the Appellate Division, Gantes v. Kason Corp., 276 N.J. Super. 586, 648 A.2d 517 (1994), that Georgia has the paramount interest in this matter, and its law should apply. Indeed, the majority concedes that Georgia's substantive tort law will be applicable. Ante at 494, 679 A.2d at 114.

        76

        There are two major problems with the majority's reasoning. First, it substantially underestimates, misinterprets and misapplies [501] Georgia's strong policy in having its statute of repose apply; and second, it focuses solely on New Jersey's interest in deterring the marketing of a defective product and ignores New Jersey's other substantial interests. I turn first to a discussion of Georgia's interest.

        77
        II
        78

        As the majority in the Appellate Division stated, "[T]he weight of authority clearly favors following the law of the state with the interest of compensating its residents, where such law conflicts with that of the state having solely a deterrence interest." Gantes, supra, 276 N.J. Super. at 590, 648 A.2d 517. "[F]air compensation of a tortiously injured party is the predominant concern of a personal injury claim for the state of domicile of the injured party, particularly where it is the locus of an industrial accident." Id. at 589, 648 A.2d 517 (citations omitted). New Jersey's interest in the tortious injury action of a non-domiciliary resident is nonexistent. Deemer, supra, 193 N.J. Super. at 649, 475 A.2d 648. Here the accident occurred in Georgia, the machine was being used in a Georgia factory, decedent was a resident of Georgia who died in Georgia, and decedent's heirs also are residents of Georgia. Accordingly Georgia's contacts to this litigation and its interest in its residents and in accidents that occur in its state are substantially greater than New Jersey's interest.

        79

        The majority wrongly concludes that the Georgia Legislature's motives in enacting its ten-year statute of repose are limited solely to parochial concerns within the Georgia court system and the Georgia insurance market, and that those policies therefore are not implicated in the current case. "There is nothing to indicate Georgia's interest is parochial, limited to protecting only manufacturers within its borders." Gantes, supra, 278 N.J. Super. at 479, 651 A.2d 503. Georgia enacted its statute of repose to address the problems generated by the open-ended liability of manufacturers. Love v. Whirlpool Corporation, 264 Ga. 701, 449 S.E.2d 602, 605 (1994). It was "a deliberate recognition of that state's government [502] interest in allowing its businesses to operate free of the concern that alleged defects will produce product liability claims after the passage of a set period of time." Gantes, supra, 278 N.J. Super. at 479, 651 A.2d 503. Specifically, that statute's purpose was to eliminate stale claims and to reduce and stabilize product-liability insurance rates. Those policy concerns extend to cases, such as this one, outside Georgia's courts.

        80

        First, the policy against stale claims is a general concern with respect to all lawsuits. Georgia's policy is certainly implicated if its residents, both individuals and corporations, have to go to other states to testify in cases that would be barred under its statute of repose. This case presents a perfect example of the inconveniences that will be imposed on Georgia residents when barred claims are allowed to be litigated in foreign states. Here the proofs, the witnesses, and medical records, as well as the scene of the accident, are in Georgia. Undoubtedly, to litigate this case, several Georgia residents will have to be witnesses and will have to come to New Jersey to testify. For example, the decedent's fellow employees who previously used the machine and who were present when the accident occurred, most likely will have to testify. Defendant also claims that the sheriff officers who investigated the accident and the medical examiner who performed the autopsy will be called to testify. Thus, Georgia residents will now be forced to participate in litigation on a stale claim, that would be barred under Georgia's statute of repose.

        81

        Similarly, allowing lawsuits in New Jersey about accidents that occur in Georgia might well increase insurance costs in that State. In product liability cases, the original manufacturer's defense often is that the product was substantially changed or misused after it left that manufacturer's hands. Brown v. United States Stove Co., 98 N.J. 155, 172, 484 A.2d 1234 (1984). That defense is particularly relevant in cases where the product has been used for several years by many different companies. The shaker machine at issue was sold in 1977 to Salvo Corp. of Massachusetts for shipment to Snyder's Potato Chips of Berlin, Pennsylvania. It [503] was subsequently sold around 1985 to Otto Cuyler Associates of New York, who, in turn, sold the machine to the decedent's employer, Dutch Quality House. At this stage of the proceedings, it is impossible to determine whether those were the only companies through whose hands the shaker machine passed and whether any of those companies substantially changed or misused that machine. However, it is reasonable to assume that defendant's attorney will investigate and question the subsequent owners of the machine, including Dutch Quality House, the decedent's employer, to determine if any one of them had substantially changed or misused the shaker machine. It is not unreasonable to assume that, when this case is tried, defendant may seek to join in this lawsuit those prior companies, including the Georgia company, Dutch Quality House, which may be held liable to defendant for a portion of its losses. Such a result will undoubtedly increase the product liability insurance rates in Georgia and contribute to instability in that insurance market.

        82
        III
        83

        New Jersey's contacts to this litigation, on the other hand, are at best de minimus. The only connection New Jersey has to this claim is that the machine may have been manufactured in New Jersey. Although we assume this fact for purposes of the summary judgment motion, there was considerable evidence presented suggesting that the machine was in fact manufactured in New York.[3]

        84

        Although the policy identified by the majority, deterring the manufacturing of unsafe products by suing the manufacturer is a laudable goal, its results are problematic. As New Jersey courts have previously recognized, liability judgments only have "incidental benefits ... towards the correction of a defective design or the [504] deterrence of wrongful conduct with respect to the future distribution of a product." Deemer, supra, 193 N.J. Super. at 651, 475 A.2d 648. As the Appellate Division observed the majority ignores the other important New Jersey interests suggested in Heavner v. Uniroyal, Inc., 63 N.J. 130, 305 A.2d 412 (1973) and clearly enunciated in Deemer, supra, 193 N.J. Super. at 650-51, 475 A.2d 648, Mowrey v. Duriron Co., Inc., 260 N.J. Super. 402, 408, 616 A.2d 1300 (App.Div. 1992), and in Seals v. Langston, 206 N.J. Super. 408, 412, 502 A.2d 1185 (App.Div.), certif. denied 104 N.J. 386, 517 A.2d 392 (1986). See Gantes, supra, 276 N.J. Super. at 589, 648 A.2d 517. Those other "important interests" were listed by the Appellate Division majority as follows:

        85
        to prevent "exposing New Jersey manufacturers to greater jeopardy in our courts than they would face where a cause of action against them arose, or in a disinterested forum provided by another state", and to avoid forum shopping, overuse of our judicial system, or requiring us to treat local manufacturers sued by foreign plaintiffs more rigorously than foreign manufacturers sued in our courts by foreign plaintiffs.
        86
        [Gantes, supra, 276 N.J. Super. at 589-90, 648 A.2d 517 (quoting Seals, supra, 206 N.J. Super. at 412, 502 A.2d 1185).]
        87

        This case involves those "other important interests" identified by the Appellate Division majority. By ignoring those other interests, the majority subjects New Jersey manufacturers to an increased risk of litigation that would otherwise be time-barred in the state where the injured person lives and where the accident occurred. Such a result will have a chilling effect on new businesses coming into New Jersey.

        88

        Despite the majority's attempt to distinguish prior New Jersey cases, our prior cases all support my conclusion. In Heavner, supra, 63 N.J. 130, 305 A.2d 412, plaintiff, a resident of North Carolina, purchased a truck tire from Pullman, in North Carolina. 63 N.J. at 133, 305 A.2d 412. The tire was manufactured by Uniroyal, a New Jersey corporation. Ibid. Plaintiff sought recovery for personal injuries sustained by him and contemporaneous damages to his car, when a defect in the tire induced a blow out, causing plaintiff to crash. Ibid. Plaintiff brought a personal injury action against Pullman and Uniroyal. Id. at 134, 305 A.2d 412. [505] No cause of action was ever commenced in North Carolina. Ibid. By the time the action was commenced in New Jersey, the statute of limitations in North Carolina had expired, barring any claims. Ibid.

        89

        The Heavner court rejected the mechanical rule that the Statute of Limitations of the forum state must be applied in every action involving a foreign cause of action. Id. at 140-41, 305 A.2d 412. The court explained:

        90
        We need go no further now than to say that when a cause of action arises in another state, the parties are all present in and amenable to the jurisdiction of that state, New Jersey has no substantial interest in the matter, the substantive law of the foreign state is to be applied, and its limitation period has expired at the time the suit is commenced here, New Jersey will hold the suit barred.
        91
        [Id. at 141, 305 A.2d 412].
        92

        The court further identified plaintiff's decision to bring the action in New Jersey as "forum shopping," explaining that the plaintiff's motivation was to seek a forum "more favorable than that of North Carolina." Id. at 134 n. 3, 305 A.2d 412. Holding that New Jersey law should not apply, the court observed: "[W]e do not believe that New Jersey has any sufficient interest in this action to call for the application of its substantive law in preference to that of North Carolina under the governmental interests choice-of-law principles." Id. at 135 n. 3, 305 A.2d 412. The only possible interest, the court noted, was that Uniroyal was incorporated in New Jersey. However, the court remarked "that is not enough." Ibid.

        93

        As in Heavner, the cause of action in this case arose in the foreign state, all parties were present and amenable to suit in the foreign state and New Jersey had no substantial interest in resolving the issue. Finally, as in Heavner, the plaintiffs in this case forum shopped, seeking a forum state that would yield a more favorable result. In view of Georgia's interest in the enforcement of its statute of repose and the fact that all contacts with this case are in Georgia, to permit the application of New Jersey law would encourage the very type of forum shopping this Court rejected in Heavner.

        94

        [506] Deemer, supra, is a case substantially similar to this case. There, a wrongful death action was instituted in the New Jersey Superior Court by plaintiff, individually, and as administratrix ad prosequendum of her deceased husband's estate against Silk City Textile Machinery Co. (Silk City). 193 N.J. Super. at 647, 475 A.2d 648. Plaintiff's husband, Deemer, suffered a crush-type injury to his left ankle while performing maintenance work on a shear-cut batcher manufactured by Silk City. Ibid. Ultimately, Deemer died and the action was instituted, asserting that his death was caused by the injury. Ibid. At the time the machine was sold and when the accident occurred, Silk City was a New Jersey corporation doing business nationwide. Id. at 648, 475 A.2d 648. The machine was also manufactured in New Jersey. At the time of the accident, the machine was being used in a factory in North Carolina. The decedent was, at the time of the accident and the time of his demise, a resident of North Carolina. The decedent also filed a worker's compensation claim in North Carolina. Finally, plaintiff was a resident of North Carolina. Ibid.

        95

        Reversing the trial court's decision to apply New Jersey law, the Deemer court held that "the trial court erred in concluding that the substantive law of New Jersey governed this matter." Id. at 649, 475 A.2d 648. The court explained that "New Jersey has no interest in protecting the compensation rights of a non-domiciliary resident." Ibid. Citing Heavner, supra, the Deemer court recognized that this Court "appears to evidence a policy of discouraging forum shopping where, as here, the contacts with the state are at best tenuous." Ibid.

        96

        In applying the two-prong governmental interests test, the Deemer court contended that the competing policies at issue are: "(1) those relating to the defect free design and manufacturing of a product and (2) those that regulate the full and fair compensation of the injured party." Id. at 650-51, 475 A.2d 648. The Deemer court concluded:

        97
        [507] Whatever incidental benefits a liability judgment may contribute towards the correction of a defective design or the deterrence of wrongful conduct with respect to the future distribution of a product, the principal aim of a product liability or personal injury claim is fairly to compensate the injured party. We therefore determine that the second of the two noted policies must control.
        98
        [Id. at 651, 475 A.2d 648].
        99

        Additionally, the court identified plaintiff's attempt to bring suit in New Jersey as forum shopping. Ibid. The North Carolina Legislature, the court explained, did not adopt strict liability in product liability cases. The Deemer court held: "North Carolina, having chosen not to afford its own residents the protection of strict liability, there is no compelling reason for us to extend to such non-domiciliary plaintiffs the benefit of our decisional law." Ibid.

        100

        Furthermore, the court recognized the adverse effect on New Jersey manufacturers of applying New Jersey law under those circumstances.

        101
        [T]he effect of holding New Jersey law to be applicable in a matter of this kind is to subject any corporation conducting manufacturing activities in this state against whom a product liability claim is asserted to suit in New Jersey under New Jersey law. Such a holding would have the undesirable consequence of deterring the conduct of manufacturing operations in this state and would likely result in an unreasonable increase in litigation and thereby unduly burden our courts.
        102
        [Ibid.]
        103

        Similarly, in Seals, supra, the Appellate Division upheld the application of Louisiana's more restrictive statute of limitations over that of New Jersey, notwithstanding this State's interest in deterring the marketing of defective products by local manufacturers. 206 N.J. Super. at 410, 502 A.2d 1185. Seals involved a New Jersey action for damages for injuries caused in Louisiana by a defective machine manufactured in New Jersey by a New Jersey corporation. Id. at 409, 502 A.2d 1185. Under Louisiana's statute of limitations, the plaintiff's action was time-barred, but under New Jersey limitations law, it was not. Ibid.

        104

        In Seals, the Appellate Division recognized a "noticeable difference" between Heavner and the case before it: in Seals, New [508] Jersey was the place of manufacture of the allegedly defective machine. Id. at 411, 502 A.2d 1185. Notwithstanding that difference, the court found Louisiana's limitations law applicable. Id. at 413, 502 A.2d 1185. The court in Seals concluded that New Jersey's deterrence interest did not warrant the application of New Jersey's limitations law, reasoning:

        105
        We see no significant interest in exposing New Jersey manufacturers to greater jeopardy in our courts than they would face where a cause of action against them arose, or in a disinterested forum provided by another state. Such a course would encourage forum shopping to avoid the statute of limitations of the state where the cause of action arose. It would also encourage overuse of our judicial system, and would require us to treat local manufacturers more rigorously than foreign manufacturers sued in our courts by foreign plaintiffs.
        106
        [Id. at 412, 502 A.2d 1185].
        107

        The court further reasoned that "if we were to apply rules that favor foreign plaintiffs against local manufacturers, when we could not do so against foreign ones, we would pointlessly discriminate against our own residents." Id. at 413, 502 A.2d 1185. The court concluded, "Consistent with Deemer, [supra, 193 N.J. Super. at 651, 475 A.2d 648], we hold that New Jersey has no significant interest under the Heavner test in deterring and correcting the marketing by local manufacturers of defective machines." Seals, supra, 206 N.J. Super. at 413-14, 502 A.2d 1185.

        108

        As in Deemer and Seals, the injury-causing product involved in this case was manufactured in New Jersey by a New Jersey corporation. As in Heavner, Deemer and Seals, all other contacts occurred in a foreign state, here Georgia. The plaintiffs and decedents were residents of that foreign state, Georgia, the shaker machine was located in Georgia, the accident occurred in Georgia and plaintiff and decedent's heirs are Georgia residents.

        109
        IV
        110

        In this case the respective contacts of the two states dictate the application of Georgia law. Georgia by far has the paramount interest and its law should apply.

        111

        Moreover, as the majority of the Appellate Division concluded:

        112
        [509] Choice of law in this case requires recognition that deterrence is but one of New Jersey's interests, and that it is outweighed by our policy against forum shopping which exposes local manufacturers to greater burdens than they would face in the state having the most interest in compensation of the injured party.
        113
        [Gantes, supra, 276 N.J. Super. at 590, 648 A.2d 517].
        114

        I agree with Heavner, Deemer, Seals, and the majority in the Appellate Division. The effect of the Court's decision is that every manufacturer located in New Jersey will remain potentially liable regardless of where the accident occurs. The majority's opinion also will open the door to forum shopping. With an already overburdened court system, our goal should be to lessen the strain on the court's limited resources, not to further deplete them.

        115

        I would affirm the judgment of the Appellate Division.

        116
        Justice COLEMAN, joins in this opinion.
        117

        For reversal — Justices HANDLER, POLLACK, O'HERN and STEIN — 4.

        118

        For affirmance — Justices GARIBALDI and COLEMAN — 2.

        119

        --------

        120

        [1] Other evidence indicates that defendant manufactured the shaker machine at its plant in Champlain, New York. For example, defendant's president's supplemental certification asserts that the serial number assigned to the machine at issue indicates that defendant manufactured the machine in Champlain, New York, although, that supplemental certification neither denies nor explains the president's earlier, unequivocal statement that the machine in question was manufactured in New Jersey. In addition, a "specification sheet" for the machine, which reflects the shipment of the shaker machine to Snyder's Potato Chips in Pennsylvania, contains a stamp that reads, "Rec'd Kason Corporation, Champlain, N.Y., Sep. 9 1977."

        121

        [2] Judge Pressler also recognized two other New Jersey interests in applying New Jersey limitations law to this action. These were (1) "our jurisprudential commitment to the victims of defective products" and (2) "the recognition that the place where a product manufactured here ultimately comes to rest and causes injury is a matter of pure fortuity." 276 N.J. Super. at 596, 648 A.2d 517 (Pressler, J., dissenting).

        122

        [3] For example, evidence was presented indicating that the letter prefix on the product's serial number was a code designation indicating the Champlain, New York plant as place of manufacture.

      • 1.2.4 Sutherland v. Kennington Truck Service

        1
        562 N.W.2d 466 (1997)
        2
        454 Mich. 274
        3
        Larry G. SUTHERLAND and Donna Sutherland, husband and wife, Plaintiffs-Appellants,
        v.
        KENNINGTON TRUCK SERVICE, LTD., an Ontario corporation, Elgin Leasing Ltd., a Division of Western Ontario Truck Centre, Inc., an Ontario corporation, Canadian Timken, Ltd., an Ontario corporation, and Gregory R. Zavitz, jointly and severally, Defendants-Appellees.
        4
        Docket No. 102290, Calendar No. 15.
        5

        Supreme Court of Michigan.

        6
        Argued November 14, 1996.
        7
        Decided May 13, 1997.
        8

        [467] Steinberg, O'Connor, Paton & Burns, P.L.L.C. by Richard L. Steinberg, Detroit, Philo, Atkinson, White, Stephens, Whitaker & Keenan by Harry M. Philo, Detroit, Gallon & Takacs, Co., L.P.A. by Jack Gallon, Toledo, OH, and Bendure & Thomas by Mark R. Bendure, Detroit, for plaintiffs-appellants.

        9

        Braunlich, Russow & Braunlich by William H. Braunlich, Monroe, for defendants-appellees.

        10
        MALLETT, Chief Justice.
        11

        In this choice of law case, an Ontario driver and an Ohio driver collided while on a Michigan highway. Plaintiffs filed suit in Michigan two years and twenty-two days after the accident. Both Ohio and Ontario have two-year statutes of limitations, while Michigan has a three-year statute of limitations. The trial court applied Ontario's statute of limitations, holding that Michigan had no interest in the litigation. We reverse and hold that because neither Ohio nor Ontario have an interest in having its law applied, Michigan law will apply.

        12
        I
        13
        Facts and Proceedings
        14

        The facts in this case are fit for a law school choice of law examination. On August 14, 1989, two trucks collided on Interstate 75 in Monroe County, Michigan. The driver of one truck, Larry G. Sutherland, is a resident of Ohio and was operating a truck licensed in Ohio. The driver of the other truck, Gregory Zavitz, is a citizen of Ontario, Canada. He was employed by Kennington Truck Service, an Ontario corporation. Zavitz's truck was owned by Elgin Leasing, which had leased the truck to Canadian Timken. Both Elgin Leasing and Canadian Timken are Ontario corporations.

        15

        On September 5, 1991, two years and twenty-two days after the accident, Mr. Sutherland and his wife sued defendants in Monroe Circuit Court, alleging negligence. Defendants moved for summary disposition pursuant to MCR 2.116(C)(7), arguing that the court should apply either Ohio's or Ontario's statute of limitations. Both of these jurisdictions bar negligence actions filed more than two years after the cause of action arose.[1] In response, plaintiffs argued that the case should be governed by Michigan's three-year statute of limitations.[2]

        16

        The trial court granted the motion for summary disposition. Applying "interest analysis," the court found that Michigan had no interest in the outcome of this litigation because none of the parties are Michigan citizens. The court further found that Ontario had an interest in protecting its citizens from stale claims. On this basis, the court held that Ontario's two-year statute of limitations would apply.

        17

        In an unpublished opinion per curiam, the Court of Appeals affirmed.[3] The Court stated:

        18

        The trial court did not err in applying the Ontario statute. The trial court properly conducted an interest analysis to decide which state had the greatest interest in applying its statute of limitation. Although Michigan law once favored application of the law of the forum to procedural matters, such is no longer the case. Recent decisions have criticized the distinction between procedure and substance for conflict of law analysis, recognizing that it has often been used in a manipulative manner. See Olmstead v. Anderson, 428 Mich. 1, 28, 400 N.W.2d 292 (1987); Sexton v. [468] Ryder Truck Rental, 413 Mich. 406, 419-423, 320 N.W.2d 843 (1982); Mahne v. Ford Motor Co., 900 F.2d 83, 87 (C.A.6, 1990); Penwest Development Corp. v. Dow Chemical Co., 667 F.Supp. 436, 442 (E.D.Mich., 1987); Farrell v. Ford Motor Co., 199 Mich.App. 81, 501 N.W.2d 567 (1993). Neither party in this action is a citizen of this state, both parties are residents of states that have a two-year statute of limitations, and the statute of limitation issue is not an issue involving conduct. We find no error in the trial court's analysis.

        19

        We granted leave to appeal on plaintiffs' motion for reconsideration.

        20
        II
        21
        The Choice of Law "Revolution"
        22

        Before 1963, American choice of law jurisprudence for tort cases was uniform. All fifty states adhered to the doctrine of lex loci delicti, or the law of the place of the wrong, as espoused by Professor Beale in the First Restatement on Conflicts of Law. Under this doctrine, tort cases were governed by the law of the jurisdiction in which the wrong occurred. Thus, a suit by Michigan citizens who were involved in an accident in another jurisdiction would be governed by the law of the other jurisdiction, even if the suit were brought in this state.[4] The primary advantage of this rule was that conflicts of law questions were easy to resolve, at least in theory. Parties in litigation could usually predict what law would govern the case by determining the state where the last act necessary to create liability occurred.[5]

        23

        While all states purported to adhere to the rule of lex loci delicti in the first half of this century, many state courts expressed discomfort with the rigidity of the rule. In order to mitigate what were seen as harsh results, courts developed several "escape devices" to the lex loci delicti rule. For example, a forum court would decline to apply the law of another jurisdiction if that law conflicted with an important public policy of the forum state. Courts would also characterize issues as "procedural," instead of substantive, in order to apply the law of the forum. While the application of these escape devices avoided what were seen as unjust results, they also undermined the predictability of the lex loci delicti rule.[6]

        24

        In 1963, New York became the first state to explicitly abandon the traditional approach to conflicts of law. In the seminal case of Babcock v. Jackson, 12 N.Y.2d 473, 484, 240 N.Y.S.2d 743, 191 N.E.2d 279 (1963), the New York Court of Appeals stated that the traditional rule "fail[ed] to take into account essential policy considerations and objectives...." Instead of adhering to the lex loci delicti rule, the New York Court of Appeals asserted that it would consider the contacts of the tort with each jurisdiction and the interests that each government had in having its law applied.[7]

        25

        Babcock sparked a "revolution" in conflicts of law jurisprudence. Freed from the monolithic adherence to the traditional rule, state after state revisited its conflicts rules and expressed its frustration with the lex loci delicti doctrine. By 1980, thirty-one states had abandoned the traditional rule. Currently, only ten states still purport to apply the lex loci delicti rule.[8]

        26

        [469] While Babcock slew the lex loci delicti dragon, it has not produced a consensus on how to deal with conflicts of law questions in the absence of the traditional rule. On lex loci's grave, several competing theories have sprouted. The most prominent of these "modern" theories is " interest analysis," an approach that the late Brainerd Currie has advocated.[9] Under this approach, courts examine the governmental interests of the involved jurisdictions. If the forum state has no interest in having its law applied but the other jurisdiction does, the law of the other jurisdiction should be chosen. If the forum state has an interest and the other does not, the court should choose forum law. If both the forum state and the alternate have an interest in having its law applied and the laws conflict, then the court should apply the forum's law. If neither jurisdiction is interested, the court should again apply forum law.

        27

        While several states have adopted interest analysis, it competes for attention with other theories. Under Professor Leflar's "choice influencing considerations," for example, courts ask which jurisdiction has the "better rule of law."[10] The approach that the Second Restatement on the Conflicts of Law proposes, on the other hand, would require courts to determine which jurisdiction has the "most significant relationship" to the tort.[11] At least one state, Kentucky, has adopted a blanket lex fori approach, in which forum law will always be applied.[12]

        28

        Proponents of these various approaches have engaged in a vigorous debate over the advantages and disadvantages of each approach. As Justice Riley has noted, conflicts of law has become a fecund milieu for academic scholarship.[13] While this debate is illuminating, much of it ignores the fact that, in practice, all the modern approaches to conflicts of law are relatively uniform in the results they produce. Professor Borchers has surveyed cases that purport to apply the various modern approaches and concluded that none of the modern approaches differ significantly from the others in three important respects: the percentage of times that courts apply forum law, the percentage of times that plaintiffs recover, or the percentage of times that local parties prevail.[14]

        29

        In fact, Professor Borchers' research shows that each of the modern approaches tend to favor significantly the application of forum law. Applying the modern approaches, courts select forum law between approximately fifty-five and seventy-seven percent of the time.[15] This has led one commentator to note:

        30
        On reading a substantial number of these cases over the years, one has a feeling that the courts may not be doing what they purport to do, that is, employing the modern choice-of-law theories in a neutral way to determine what law applies. Rather, one suspects that courts employing the new theories have a very strong preference for forum law that frequently causes [470] them to manipulate the theories so that they end up applying forum law.[[16]]
        31

        Likewise, Professor Sedler has noted:

        32
        [T]he results in actual cases that arise are not likely to differ depending on which particular "modern" approach a court is purportedly applying or on whether a court even commits itself to a particular approach. Moreover, there seems to be little dispute among the commentators that the courts are generally reaching functionally sound and fair results in the cases coming before them for decision.[[17]]
        33

        This preference for forum law is hardly surprising. The tendency toward forum law promotes judicial economy: judges and attorneys are experts in their state's law, but have to expend considerable time and resources to learn another state's law.

        34

        Thus, on surveying current conflicts of law jurisprudence, one can reasonably conclude that only two distinct conflicts of law theories actually exist. One, followed by a distinct minority of states, mandates adherence to the lex loci delicti rule. The other, which bears different labels in different states, calls for courts to apply the law of the forum unless important policy considerations dictate otherwise.

        35
        III
        36
        The Development of Michigan's Choice of Law Jurisprudence
        37

        The evolution of Michigan's choice of law jurisprudence has paralleled national trends. In Abendschein v. Farrell, 382 Mich. 510, 170 N.W.2d 137 (1969), this Court declined to join the emerging conflicts of law movement. In adhering to the doctrine of lex loci delicti, the Court asserted that

        38
        the quagmire of unanswered and perceivably unanswerable questions arising out of the proposed new doctrine appears less attractive than our admittedly hard and fast—and occasionally unjust, it is true— rule that the law of the place of the wrong is applied when the forum is a Michigan court. [Id. at 516, 170 N.W.2d 137.]
        39

        Despite adherence to the traditional rule, Michigan courts continued to employ various "escape devices" in order to mitigate harsh consequences. See, e.g., Sweeney v. Sweeney, 402 Mich. 234, 262 N.W.2d 625 (1978); Shaheen v. Schoenberger, 92 Mich.App. 491, 285 N.W.2d 343 (1979); Branyan v. Alpena Flying Service, Inc., 65 Mich.App. 1, 236 N.W.2d 739 (1975). In these cases, courts readily found public policy reasons to displace the lex loci delicti with forum law.

        40

        A majority of this Court finally abandoned the lex loci delicti rule in the companion cases of Sexton v. Ryder Truck Rental and Storie v. Southfield Leasing, 90 Mich.App. 612, 282 N.W.2d 417 (1979). After exhaustively reviewing the history of choice of law jurisprudence in Michigan, the Court noted that the purported advantages of the traditional rule were, in practice, nonexistent. The Court stated:

        41
        Review of the arguments for lex loci and the alternate choice-of-law methodologies convinces us that slavish devotion to the rigidities of lex loci no longer is either the reasonable policy to follow or the generally accepted law in the United States. As a matter of fact, the courts of Michigan have frequently departed from lex loci in individual instances. [Sexton, supra at 425, 320 N.W.2d 843.]
        42

        While Sexton marked the end of the lex loci delicti rule in Michigan, it did not produce a consensus on the appropriate choice of law methodology to be applied. Justice Williams' opinion[18] expressly declined to embrace any of the "modern" approaches to conflicts of law. Id. at 433, 320 N.W.2d 843. Instead, his opinion held that forum law would be applied when Michigan residents or corporations doing business in Michigan are involved in accidents in another state and [471] appear as plaintiffs and defendants in Michigan courts. Id.

        43

        Justice Levin, on the other hand, wished to create a presumption in favor of forum law for all tort cases involving personal injury or property damage. He stated:

        44
        [W]e should go the distance and declare that Michigan law will apply in all personal injury and property damage actions without regard to whether the plaintiffs and defendants are all Michigan persons unless there is some compelling reason for applying the law of some other jurisdiction, and that merely because the injury arose out of an occurrence in another state is not such a reason. [Id. at 442, 320 N.W.2d 843 (Levin, J., concurring).]
        45

        Because Sexton did not produce a clear majority, lower courts struggled with its application. Some courts read Sexton to apply only to cases in which all the parties are Michigan residents and adhered to the lex loci delicti rule for all other cases.[19] Other courts have read Sexton to require a balancing of interests of the various states in the event that one of the parties is not from Michigan.[20]

        46

        This Court clarified much of the confusion surrounding Sexton in Olmstead v. Anderson, supra. Olmstead involved an automobile accident in Wisconsin between a Michigan driver and two Minnesota residents. The plaintiff, the administratrix of the estates of the deceased Minnesota residents, originally filed suit in Minnesota, but this suit was dismissed for improper venue and lack of jurisdiction. The plaintiff then filed suit in Michigan.

        47

        The choice of law issue was vitally important in Olmstead, because Wisconsin law at the time limited recovery in wrongful death cases to $25,000. Neither Michigan nor Minnesota limited recoverable damages at that time. In addressing the choice of law question, this Court began with the presumption that Michigan law would apply. Id. at 24, 30-31, 400 N.W.2d 292. The Court then asked whether "reason requires that foreign law supersede the law of this state." Id. at 24, 400 N.W.2d 292.

        48

        In analyzing whether a rational justification for displacing Michigan law existed, the Court in Olmstead reviewed Wisconsin's interests in having its law applied. The Court noted that neither party was a resident of Wisconsin, and that Wisconsin therefore did not have any interest in seeing its limitation of damages provision applied to this case. The Court also noted that because the insurance companies of both parties knew of the possibility of unlimited liability, no unfairness would result from the application of Michigan law. Id. at 25, 400 N.W.2d 292. Because Wisconsin did not have an interest in having its law applied, the lex fori presumption was not overcome, and the Court did not undertake an analysis of Michigan's interests.

        49
        IV
        50
        Analysis
        51

        Olmstead provides the analytical framework for deciding this case. That is, we will apply Michigan law unless a "rational reason" to do otherwise exists. In determining whether a rational reason to displace Michigan law exists, we undertake a two-step analysis. First, we must determine if any foreign state has an interest in having its law applied. If no state has such an interest, the presumption that Michigan law will apply cannot be overcome. If a foreign state does have an interest in having its law applied, we must then determine if Michigan's interests mandate that Michigan law be applied, despite the foreign interests. Id. at 24, 29-30, 400 N.W.2d 292.

        52

        Ohio and Ontario are the only two foreign jurisdictions that potentially have an interest in having their law applied in this case. Ohio, where the plaintiffs reside, has a [472] two-year statute of limitations for these types of actions.[21]

        53

        However, a court could not apply Ohio law to this case without violating the defendants' due process rights. As Justice Brennan stated in Allstate Ins. v. Hague, 449 U.S. 302, 313, 101 S.Ct. 633, 640, 66 L.Ed.2d 521 (1981), in order for a court to choose a state's law, "[the] State must have a significant contact or significant aggregation of contacts, creating state interests, such that choice of its law is neither arbitrary nor fundamentally unfair."[22] In this case, the only contact that Ohio has with this litigation is that plaintiffs are Ohio residents. The United States Supreme Court has stated that the plaintiff's residence, with nothing more, is insufficient to support the choice of a state's law. Home Ins. Co. v. Dick, 281 U.S. 397, 408, 50 S.Ct. 338, 341-342, 74 L.Ed. 926 (1930); see also John Hancock Mut. Life Ins. Co. v. Yates, 299 U.S. 178, 57 S.Ct. 129, 81 L.Ed. 106 (1936).

        54

        Because Ohio does not have an interest in seeing the court apply its law, Ontario is the only remaining candidate. Ontario, like Ohio, has a two-year statute of limitations.[23] Defendants claim that because Ontario law would benefit the Ontario defendants by barring the claim, Ontario has an interest in having its statute of limitations applied. Certainly, one purpose of a statute of limitations is to protect defendants from stale claims. We do not agree, however, that Ontario has an interest in protecting the defendants from stale claims in this situation. In fact, according to Canadian and Ontario law, Ontario has an interest in having Michigan's statute of limitations applied in this case.

        55

        In the companion cases of Tolofson v. Jensen and Lucas v. Gagnon, 120 DLR4th 289 (1994), the Supreme Court of Canada adopted the lex loci delicti rule and held that Canadian courts must apply the substantive law of the jurisdiction where the tort occurred.[24] The court also stated that statutes of limitation are substantive, not procedural, for choice of law purposes. Tolofson, supra Thus, under Tolofson, Canadian courts must apply the statute of limitations of the jurisdiction in which the tort occurred.

        56

        Tolofson involves residents of British Columbia who were injured in an automobile accident in Saskatchewan, and thus does not present an international choice of law problem. Justice La Forest, speaking for the court, noted that an exception to the lex loci delicti rule may exist in international tort litigation if application of the law of a foreign country "could give rise to [an] injustice." Id. at 308. Justice La Forest continued, however, to state that he could only "imagine few cases where this would be necessary." Id.

        57

        We seriously doubt that an Ontario court would find that the application of Michigan's three-year statute of limitations in this case [473] would "give rise to injustice." Certainly, no Ontario court has expressed qualms about applying American law. In Ostronski v. Global Upholstery Co, 1995 Ont C J LEXIS 4668, for example, the Ontario Court of Justice applied Pennsylvania's statute of limitations to a tort suit commenced in Ontario.[25] Ontario's courts have even applied American law when that law is detrimental to Canadian litigants. See In re Hanlan, 1996 Ont C A Lexis 754, rev'g Hanlan v. Sernesky, 1996 Ont C J LEXIS 2538.

        58

        Thus, had plaintiffs filed this suit in Ontario, Ontario's courts would have applied Michigan's three-year statute of limitations.[26] Because even Ontario courts would not allow the defendants to escape this claim through application of Ontario law, we do not see how Ontario can have an interest in having Michigan courts apply Ontario law.

        59

        Therefore, no foreign state has an interest in having its law applied to this case. The lex fori presumption is not overcome, and we need not evaluate Michigan's interests. Olmstead at 30, 400 N.W.2d 292. Michigan's three-year statute of limitations will apply to this case.

        60
        V
        61

        For these reasons, we reverse the judgment of the Court of Appeals and remand the case to the trial court for further proceedings.

        62
        MICHAEL F. CAVANAGH, BOYLE, and WEAVER, JJ., concurred MALLETT, C.J.
        63
        MARILYN J. KELLY, J., not participating.
        64
        BRICKLEY, Justice (concurring in part and dissenting in part).
        65

        I concur in the result reached by the majority. However, I write separately to express my view that the time has come for this state to abandon the interest-analysis-based approach detailed by the majority. Rather, I would adopt a lex fori approach to choice of law questions.

        66

        I am troubled by the choice of law analysis defined by the majority. It describes this state's choice of law rules as:

        67
        [W]e will apply Michigan law unless a "rational reason" to do otherwise exists. In determining whether a rational reason to displace Michigan law exists, we undertake a two-step analysis. First, we must determine if any foreign state has such an interest in having its law applied. If no state has such an interest, the presumption that Michigan law will apply cannot be overcome. If a foreign state does have an interest in having its law applied, we must then determine if Michigan's interests mandate that Michigan law be applied, despite the foreign interests. [Maj. op. at 471, citing Olmstead v. Anderson, 428 Mich. 1, 24, 29-30, 400 N.W.2d 292 (1987).]
        68

        This two-part test requires lower courts to engage in the speculative endeavor of ascertaining another jurisdiction's interests. The majority does this by examining two factors:[27] 1) the constitutionality of applying a foreign jurisdiction's law, Maj. op. at 471, [474] and 2) the foreign jurisdiction's choice of law rules, maj. op. at 472. However, each of these factors are likely to cause confusion and inconsistent outcomes.

        69

        Under the first factor, the majority, despite recognizing that choice of law and jurisdiction are doctrinally distinct, fails to clarify the distinction between the minimum-contacts test for personal jurisdiction with the constitutional limits on choice of law. Maj. op. at 472, n. 22. As cited by the majority, the United States Supreme Court required that a forum state have sufficient contacts to a case so that the application of its law is "neither arbitrary nor fundamentally unfair." Allstate Ins. v. Hague, 449 U.S. 302, 313, 101 S.Ct. 633, 640, 66 L.Ed.2d 521 (1981). Though Allstate did discuss choise of law in terms of contacts and fundamental fairness, it did not state that this test was identical to the analysis for determining personal jurisdiction. Further, it has been recognized that choice of law and jurisdiction are fundamentally distinct concepts.[28] Indeed, the analysis for determining jurisdiction is concerned with the court's contacts with a party, while the test for choice of law examines contacts with a party and the occurrence or transaction giving rise to the litigation. Id. at 308, 313, 101 S.Ct. at 637-638, 640. The majority's constitutional analysis oversimplifies this area of the law.

        70

        The majority's second factor demonstrates how its concern with the interests of other jurisdictions will result in confusion. To ascertain the interest of Ontario, the majority examines the choice of law rules of Ontario, and determines that an Ontario court would apply Michigan law if this case were before it. Maj. op. at 472-73. Therefore, the majority concludes that Ontario has no interest in this litigation. Id. Thus, the majority requires the courts of this state to decipher and apply the choice of law rules of potentially every jurisdiction in the country, and possibly the world, before it can determine which law to apply. This is simply too great a burden. The potential for confusion and error is clear. The bench and bar of this state are experts in Michigan law. To require expertise in the choice of law rules of any number of foreign jurisdictions is certain to lead to widespread confusion. These cases, and the appeals that they will most surely generate, will tax the resources of this state's judiciary on all levels.

        71

        Nonetheless, the majority's analysis is consistent with this state's current choice of law rules. This leads me to conclude that the problems in the majority's opinion stem from this underlying methodology. The most fundamental flaw in this approach to choice of law is that it requires the courts of this state to choose between the laws of Michigan and those of foreign jurisdictions. As a matter of policy, the courts of this state should apply Michigan law. The application of foreign law requires a Michigan court to interpret and apply that law as if the court was sitting in that foreign jurisdiction. State courts should not presume to speak for other jurisdictions in this manner. Further, the majority's analysis requires Michigan courts to apply the law of another jurisdiction in certain cases. However, before a court can do this, it must first expressly refuse to apply the laws of this state.[29] This refusal ignores and defeats the express will of the Legislature. Clearly, the courts of this state should avoid this outcome.[30]

        72

        Moreover, there is an increased likelihood of error when Michigan courts attempt to rule on foreign laws.[31] The courts of this state must examine foreign laws in both phases of the majority's analysis. In the [475] first phase, Michigan courts are apparently required to interpret and apply foreing choice of law rules and to examine the interests of a foreign jurisdiction by determining the purpose or intent of its law. In this case, the majority determines that Ontario would apply michigan law.[32] In the second phase of the majority's analysis, a michigan court would have to apply foreing law if a jurisdiction is found to have sufficient interests to displace Michigan courts should avoid deciding cases through the application of foreign laws.

        73

        A second flaw with this state's choice of law methodology is that it is unpredictable. Olmstead sought to create a system that would allow parties to accurately forecast the law that governs any given litigation. However, this case shows that this has not been the result. Rather, these parties have been delayed for over five years as the courts of this state have struggled to determine the governing law.[33] Further, the majority does not make this system any more predictable. Instead, it fails to define a systematic approach for determining the interests of other jurisdictions. It examines two factors in determining that neither Ontario nor Ohio can be interested in this case. Yet, it is far from clear that these are the only factors to be considered.[34] Indeed, the crucial factor in Olmstead was the citizenship of the parties.[35] By undertaking its approach, the majority removes any certainty regarding what factors will be applied to determine if a state has an interest.

        74

        Moreover, the second part of the majority's test requires a court to weigh any foreign interests against those of Michigan. However, by finding that no other state has an interest, the majority avoids explaining how competing interests are to be weighed. Future litigants have no way to predict the methodology, let alone the outcome, when a court is required to weigh interests. Thus, under the majority's interpretation of the current choice of law system, parties have little certainty concerning the law that will be applied to their dispute.

        75

        The third flaw in this choice of law approach is that it allows hidden, pro-forum manipulation. The majority recognizes that courts manipulate apparently neutral choice of law rules in order to justify the application of forum law. Maj. op. at 469. This defeats the parties' expectation that choice of law rules will be neutrally applied. I agree with the majority's comment that this preference is not surprising. Id. However, the majority fails to take steps to eliminate this problem. Indeed, the analysis that the majority uses to determine that Ohio and Ontario have no interest in this litigation is an example of that approach.

        76

        These serious flaws in what is now the choice of law rules of this state lead me to believe that Michigan should select a new choice of law approach. I feel that lex fori should be adopted. This approach will avoid the three evils of the majority's methodology. First, under lex fori, Michigan courts will only apply Michigan law in most cases. This eliminates the problems that result when a Michigan court applies the laws of another jurisdiction. Second, a lex fori approach will bring clarity and predictability to this area of the law. All parties entering a Michigan court would know that they are to be governed by Michigan law.

        77

        Finally, courts would not be tempted to manipulate the choice of law rules. The lex fori approach would eliminate the need for a court to employ one of the two primary techniques that courts have used to avoid the [476] application of a foreign jurisdiction's law. The court would not have to invoke a public policy exception to a rule requiring the application of another jurisdiction's law and would not have to resort to recharacterizing an issue as procedural, rather than substantive, to allow the application of the forum's law.[36] The lex fori rule would generally eliminate the need for a court to distinguish between substantive and procedural law. Rather, the laws of Michigan, substantive and procedural, would clearly govern without any possibility for manipulation. This would ensure that courts fulfill the legitimate expectation of the litigants that laws be applied evenly and fairly.

        78

        I am aware that the lex fori approach has been criticized for encouraging forum shopping. This supposed evil is greatly exaggerated and should not deter this state's adoption of the lex fori approach. Forum shopping is thought to be an evil because it allows a plaintiff to expose a defendant to the laws of a forum that has little involvement in the litigation, assuming that the forum has jurisdiction over the defendant. Olmstead, 428 Mich. at 26, 400 N.W.2d 292. Under the approach I propose, an entity may be subjected to Michigan law concerning a cause of action that may have arisen elsewhere, if all constitutional requirements are satisfied. However, this should not prevent the adoption of the lex fori approach in this state.

        79

        Initially, it is important to recognize that a forum shopping party who chooses Michigan is asking the courts of this state to effectuate the laws and policies of Michigan. There is no reason why Michigan courts should summarily refuse this request. Rather, it is the duty of Michigan courts to effectuate these laws and policies. Assume that a plaintiff chooses to file suit in Michigan because Michigan law recognizes his claim. The application of Michigan law to this plaintiff's claim will fulfill the policy expressed by the Michigan Legislature, which recognizes the claim. Thus, forum shopping is not necessarily problematic to the extent that it leads to the fulfillment of the laws and policies of this state.

        80

        Forum shopping is also commonly assumed to be unfair to defendants. This view is based on the premise that the plaintiff has selected an unfair forum.[37] However, the law that the defendant would have the court apply is likely to be just as unfair.[38] Indeed, the defendant will likely urge the court to apply the law of the jurisdiction that is most certain to lead to a dismissal.[39] Thus, while the plaintiff may "shop" for a forum whose law is beneficial to its case, the defendant is just as likely to "shop" for law favorable to it. Thus, there is really no innocent party in these situations. The fairest way to resolve this is to rely on the traditional notion that the plaintiff is the master of his lawsuit, and, as such, is entitled to choose the forum.[40] Also, in the vast majority of cases, an entity that has sufficiently connected itself to Michigan so that a Michigan court has jurisdiction over it will not be unfairly burdened by the application of Michigan's laws.

        81

        Finally, it should be pointed out that choice of law rules that focus on interests do not automatically discourage forum shopping. Indeed, choice of law methodologies that focus [477] on abstract interests are also vulnerable to manipulation.[41] Thus, no choice of law system is entirely free from forum shopping. However, I feel that any negative effects that would result from forum shopping as a result of the adoption of a lex fori approach would be outweighed by the benefits of maintaining a clear, predictable choice of law system that would require Michigan courts to give effect to Michigan law.

        82

        The only limits placed on a lex fori system should be those required by the United States Constitution. In Allstate, a plurality of the United States Supreme Court found that a state could apply its law to a case if it had "significant contact or significant aggregation of contacts, creating state interests, with the parties and the occurrence or transaction." Allstate, 449 U.S. at 308, 101 S.Ct. at 637-638. While this seems to be a fairly stringent test, the Court found that only a few tangential contacts were needed to satisfy it.[42] The United States Supreme Court affirmed the Allstate significant-contacts test in Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 814-823, 105 S.Ct. 2965, 2975-2980, 86 L.Ed.2d 628 (1985). It found that a Kansas court could not apply Kansas contract and equity law to every claim made by over 28,000 class action plaintiffs when less than three percent of the plaintiffs and less than one percent of the disputed leases had any connection to Kansas. Thus, there is clearly some threshold level of contacts below which a forum state may not constitutionally apply its law.[43] However, it appears that this threshould is very low.[44] Thus, the United States Constitution does not substantially limit Michigan's ability to adopt a lex fori approach.

        83

        Thus, I would adopt the lex fori approach in all tort cases involving choice of law issues. As discussed above, the United States Constitution prohibits the application of lex fori in some cases. Indeed, Shutts shows that a court may have jurisdiction over a case, but not be able to apply its substantive law. In those cases where a Michigan court has jurisdiction, but Michigan has insufficient contacts to the litigation or the parties so that the application of Michigan law would be arbitrary or unfair, a court should select the law of the most interested jurisdiction, guided by the principles set forth in Olmstead.

        84

        In this case, lex fori should be applied because no constitutional limitations on lex fori are applicable. The United States Supreme Court has found that forum states have complete authority to apply their own procedural rules, including statutes of limitation. Sun Oil Co. v. Wortman, 486 U.S. 717, 725-730, 108 S.Ct. 2117, 2123-2126, 100 L.Ed.2d 743 (1988). Michigan classifies statutes of limitation as procedural. Stephens v. Dixon, 449 Mich. 531, 534, 536 N.W.2d 755, 756 (1995); People v. Russo, 439 Mich. 584, 595, 487 N.W.2d 698, 702 (1992). Further, Michigan has significant contacts with this the case to constitutionally apply its law because the accident occurred in Michigan and a Michigan court is the forum. Thus, I concur with the majority that Michigan's statute of limitations should apply in this case. However, I cannot agree with the choice of law [478] methodology employed by the majority. I would adopt a lex fori approach.

        85
        RILEY, J., concurred BRICKLEY, J.
        86

        [1] Ohio's statute of limitations is Ohio Rev.Code Ann. 2305.10. Ontario's is Ch. H.8, Ont.Rev.Stat. 206.

        87

        [2]M.C.L. § 600.5805(8); M.S.A. § 27A.5805(8). Because of the action accrued within the State of Michigan, Michigan's borrowing statute, M.C.L. § 600.5861; M.S.A. § 27A.5861, does not apply. M.C.L. § 600.5861; M.S.A. § 27A.5861 states:

        88

        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 amendatory act shall be effective as to all actions hereinafter commenced and all actions heretofor [sic] commenced now pending in the trial or appellate courts.

        89

        [3] Issued November 3, 1994 (Docket No. 152177).

        90

        [4] See, e.g., Kaiser v. North, 292 Mich. 49, 289 N.W. 325 (1939) (applying Ontario's guest statute to a suit by Michigan plaintiffs who were involved in an automobile accident in Ontario).

        91

        [5] Scoles & Hay, Conflict of Laws, § 17.2 (2d ed).

        92

        [6] Id. at § 17.7.

        93

        [7] Babcock, supra at 482, 240 N.Y.S.2d 743, 191 N.E.2d 279. In Babcock,the plaintiff and the defendant were taking a weekend trip together from New York to Ontario. Both parties were residents of New York, and the automobile was garaged and licensed in New York. While in Ontario, the defendant lost control of the car and crashed into a wall.

        94

        The plaintiff sued in New York. Under Ontario's guest statute, the suit would have been barred. The New York Court of Appeals, however, stated that Ontario had no interest in seeing its law applied to this case, because all the parties were from New York.

        95

        [8] These states are Alabama, Georgia, Kansas, Maryland, New Mexico, North Carolina, South Carolina, Virginia, West Virginia, and Wyoming. Solimine, The impact of Babcock v. Jackson: An empirical note, 56 AlbLR 773 (1993).

        96

        [9] Currie, Selected Essays on the Conflict of Laws, pp 177-187.

        97

        [10] Leflar, Choice-influencing considerations in conflicts law, 41 NYULR 267, 282 (1966). Three states, Minnesota, New Hampshire, and Wisconsin have adopted this approach. See Milkovich v. Saari, 295 Minn. 155, 203 N.W.2d 408 (1973); Clark v. Clark, 107 N.H. 351, 222 A.2d 205 (1966); Zelinger v. State Sand & Gravel Co., 38 Wis.2d 98, 156 N.W.2d 466 (1968).

        98

        [11] Restatement Conflicts of Law, 2d, § 145, p 414.

        99

        [12] Foster v. Leggett, 484 S.W.2d 827 (Ky.App.1972).

        100

        [13] Olmstead v. Anderson, supra at 9, n. 6, 400 N.W.2d 292.

        101

        [14] Borchers, The choice-of-law revolution: An empirical study, 49 Wash & Lee LR 357 (1992).

        102

        [15] According to Professor Borchers' research, the Second Restatement's approach results in the application of forum law fifty-five percent of the time, with a margin of error of five percent. Interest analysis results in forum law sixty-three percent of the time, with a margin of error of ten percent. Leflar's approach yields forum law in sixty-five percent of cases, with a margin of error of eleven percent. The lex fori rule yields lex fori in seventy-seven percent of cases, with a twenty-three percent margin of error. When one considers the margins of error, one can conclude that there is no statistically significant difference between the modern approaches in terms of the application of forum law. Id., n. 15 supra at 374-375.

        103

        [16] McDougal, The real legacy of Babcock v. Jackson: Lex fori instead of lex loci delicti and now it's time for a real choice-of-law revolution, 56 AlbLR 795, 797 (1993).

        104

        [17] Sedler, Choice of law in Michigan: Judicial method and the policy-centered conflict of laws, 29 Wayne LR 1193, 1198-1199 (1983).

        105

        [18] This opinion was also signed by Justices Levin and Moody.

        106

        [19] See, e.g., Severine v. Ford Aerospace, 118 Mich.App. 769, 325 N.W.2d 572 (1982); Hamann v. American Motors Corp., 131 Mich.App. 605, 345 N.W.2d 699 (1983).

        107

        [20] See, e.g., Bennett v. Enstrom Helicopter Corp., On Reconsideration, 686 F.2d 406 (C.A.6, 1982); Vogh v. American Int'l Rent-A-Car, Inc., 134 Mich.App. 362, 368, 350 N.W.2d 882, 884 (1984); Hampshire v. Ford Motor Co., 155 Mich.App. 143, 399 N.W.2d 36 (1986).

        108

        [21] Ohio Rev.Code Ann. 2305.10.

        109

        [22] The "significant contacts" required for choice of law purposes is similar to the "minimum contacts" required for jurisdictional purposes. That is, Int'l Shoe Co. v. Washington,326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945), holds that a state may not exercise jurisdiction over a defendant unless the defendant and state have "minimum contacts" so that "traditional notions of fair play and substantial justice" are not offended.

        110

        The United States Supreme Court has never determined the relationship between the "significant" contacts required for choice of law and "minimum" contacts required for jurisdiction. Scoles & Hays, n 5 supra at §§ 3.28-3.29; Martin, Personal jurisdiction and choice of law, 78 Mich.LR 872 (1980). However, at least one commentator has argued that the standards should be the same. Id. Intuitively, at least as many contacts should be required for choice of law purposes than for jurisdictional purposes. It would make little sense to say that state X does not have enough contacts to exercise jurisdiction, but yet allow state Y to apply state X's law.

        111

        [23] Ch. H.8, Ont.Rev.Stat. 206.

        112

        [24] The Supreme Court of Canada has superintending control over the interpretation of all federal and provincial laws. Tolofson, supra. Thus, choice of law jurisprudence is uniform throughout the provinces. This stands in sharp contrast to the American experience, where the United States Supreme Court has shown a deep reluctance to federalize choice of law. See Sun Oil Co. v. Wortman,486 U.S. 717, 108 S.Ct. 2117, 100 L.Ed.2d 743 (1988).

        113

        Interestingly, Canadian choice of law jurisprudence is moving in exactly the opposite direction from American choice of law jurisprudence. While American courts are moving from a lex loci delicti standard to lex fori, Canadian courts have moved from lex fori to lex loci delicti. See Tolofson, supra.

        114

        [25] See also Abb Power Generation v. CSX Transportation, 1996 Ont C J LEXIS 1029 (stating that Ohio tort law will apply to a suit commenced in Ontario).

        115

        [26] In looking at Ontario's statute of limitations, we in no way intend to breathe life into the doctrine of renvoi. Under renvoi, once a court determines that it will apply the law of another jurisdiction, it applies the entire law of that jurisdiction, including its choice of law rules. Thus, the choice of law rules of the chosen state could point the court to a third state or back to the forum state. Renvoi creates the potential for circular analysis and has been criticized by American courts. See, e.g., Haumschild v. Continental Casualty Co.,7 Wis.2d 130, 142, 95 N.W.2d 814 (1959).

        116

        In this case, we do not engage in renvoi because we decline to apply any of Ontario's law. We look at Ontario's choice of law rules merely to determine Ontario's interests.

        117

        [27] The majority fails to specify whether there are other appropriate methods of analyzing a state's interest. Indeed, Olmstead identified the interests of the parties with their citizenship and did not explore any of the methods used by the majority. Id. at 28, 400 N.W.2d 292 (finding that Wisconsin had no interest because none of the parties were residents of that state). Thus, the proper method for analyzing interests remains unclear.

        118

        [28] See Brown, The ideologies of forum shopping—Why doesn't a conservative court protect defendants, 71 NCLR 649, 700-701 (1993).

        119

        [29] See Weinberg, Against comity, 80 GeoLJ 53, 70 (1991).

        120

        [30] It should be noted that choosing another jurisdiction's law is fundamentally different from adopting another state's approach to a given issue. In the choice of law context, a Michigan court acts as if it is a court in a foreign jurisdiction and purports to speak on that jurisdiction's laws. However, when a Michigan court finds another state's approach on an issue persuasive and adopts it, the court merely refines Michigan law. Thus, its holding only addresses the laws of this state.

        121

        [31] This is especially true when the law is from a foreign country, such as the Ontario choice of law rules examined by the majority.

        122

        [32] See Cox, Razing conflict facades to build better jurisdiction theory: The foundation—There is no law but forum law, 28 ValULR 1, 42 (1993) (arguing that courts have no authority to interpret the intentions of foreign legislatures).

        123

        [33] The original complaint was filed on September 5, 1991.

        124

        [34] The majority does not even apply these factors to both jurisdictions. Rather, it applies the constitutional factor to eliminate the possible application of Ohio law, and the choice of law rule inquiry to determine that Ontario has no interest in this litigation. It also fails to explain why it employs this approach.

        125

        [35] Id. at 28, 400 N.W.2d 292. ("Since neither party in this case is a citizen of Wisconsin [where the accident occurred], that state has no interest in seeing its limitation of damage provision applied").

        126

        [36] In Olmstead, supraat 9-10, 400 N.W.2d 292, this Court stated:

        127

        As noted in [Sexton v. Ryder Truck Rental, Inc., 413 Mich. 406, 426-431, 320 N.W.2d 843 (1982) ], courts employed escape devices to avoid potentially harsh results [from the common-law rule of lex loci delicti]. The two main manipulative techniques were "procedural characterization" and the "public policy" exception. Id. at 426, 320 N.W.2d 843. Procedural characterization involves characterization of an issue as procedural rather than substantive, and then applying forum law to the procedural issues. Courts, thus, were able to evade applying the law of the state in which the wrong occurred.

        128

        The public policy exception was invoked when the application of a foreign law would be violative of Michigan public policy.

        129

        [37] See Weinberg, n 4 supra at 64.

        130

        [38] See id.

        131

        [39] See id. at 71.

        132

        [40] See Brown, n 2 supra at 668-672 (discussing the ways in which the American legal system is benefited when the plaintiff is allowed to choose the forum, and the forum applies the lex fori).

        133

        [41] See Brown, n supra at 674, quoting Gottesman, Draining the dismal swamp: The case for federal choice of law statutes, 80 GeoLJ 1, 9 (1991) (explaining that parties will choose a forum whose choice of law rules lead to the adoption of favorable foreign law).

        134

        [42] The suit involved an automobile accident that had occurred in Wisconsin involving only Wisconsin residents. Allstate, 449 U.S. at 305, 101 S.Ct. at 636. However, the decedent had worked in Minnesota. Id. Further, the decedent's widow moved to Minnesota after the accident. Id. The widow then sued in Minnesota under an insurance policy issued by a company that did business in Minnesota. Id. at 305, 317, 101 S.Ct. at 636, 642. The Court found these contacts sufficient to uphold the application of Minnesota law by a Minnesota court. Id. at 313-319, 101 S.Ct. at 640-644. See also Brown, n 2 supra at 696 (describing the Allstate test as easily met).

        135

        [43] See Richman & Reynolds, Understanding Conflict of Laws (2d ed), § 94[b][2], p 279.

        136

        [44] See id. at § 94[d], pp 281-282 (explaining why there is only a "remote" chance that the United States Supreme Court would upset a state's choice of law). See also Weinberg, n 4 supra at 68-69 (arguing that the Supreme Court has weakened Allstate and is very tolerant of the states' choice of law results).

    • 1.3 3.4.3.1 (c) Procedural unless the forum is disinterested

      • 1.3.1 Restatement (Second) §142 (as amended in 1988) (Supp. 1989)

      • 1.3.2 New England Telephone & Tel. v. Gourdeau Constr. Co.

        1
        419 Mass. 658 (1995)
        2
        NEW ENGLAND TELEPHONE & TELEGRAPH COMPANY
        vs.
        GOURDEAU CONSTRUCTION COMPANY, INC.
        3

        Supreme Judicial Court of Massachusetts, Suffolk.

        4
        November 10, 1994.
        5
        March 9, 1995.
        6

        Present: LIACOS, C.J., WILKINS, ABRAMS, NOLAN, & GREANEY, JJ.

        7

        Leonard F. Zandrow, Jr. (Robert L. Farrell & Kevin J. O'Leary with him) for the defendant.

        8

        James E. Caffrey for the plaintiff.

        9
        WILKINS, J.
        10

        The plaintiff telephone company (NET) alleged in its June, 1992, complaint that, as the result of construction work that the defendant (Gourdeau) performed at NET's building in Nashua, New Hampshire, Gourdeau, in breach of its contractual obligations, caused damage to NET's equipment. NET's breach of contract claim, based on [659] damage that allegedly occurred in August, 1986, is barred under a New Hampshire three-year statute of limitations, if it is applicable. N.H. Rev. Stat. Ann. § 508:4 (Supp. 1994) (three-year statute of limitations, effective July 1, 1986 [1986 N.H. Laws c. 227, § 12]). On the other hand, the Massachusetts statute of limitations for contract actions is six years (G.L.c. 260, § 2 [1992 ed.]), and, if that is the appropriate statute of limitations to apply in this action, NET's claim is not barred.

        11

        A judge of the Superior Court recognized that, pursuant to decided cases in the Commonwealth, the statute of limitations of Massachusetts, the forum State, should be applied in this case because statutes of limitations have been viewed as a procedural matter. She, therefore, denied Gourdeau's motion for summary judgment on the contract count of NET's complaint. In a thorough memorandum in response to Gourdeau's request for a report of the issue to the Appeals Court, the judge stated that there is a trend elsewhere toward "abandoning the former policy of automatically applying the statute of limitations of the forum State. Many jurisdictions are now applying the statute of limitations of the place with the most significant relationship to or interest in the matter," citing cases. She added, citing authorities, that "[m]any commentators have criticized the traditional conflicts analysis that treated statutes of limitation as `procedural' rather than `substantive' and have urged courts to consider alternative approaches." She further recognized that the principle stated in a 1988 amendment to the Restatement (Second) of Conflict of Laws § 142 (Supp. 1989) reflects a shift away from the automatic use of a forum's statute of limitations.[1] Pursuant to Mass. R. Civ. P. 64, 365 Mass. 831 (1974), the judge reported the propriety of her order denying [660] Gourdeau's motion for summary judgment, and we allowed Gourdeau's application for direct appellate review.

        12

        Massachusetts precedent calls for the application of the Massachusetts statute of limitations to NET's contract claim. That rule is stated in Clark v. Pierce, 215 Mass. 552, 553 (1913), which relies on the opinion of Chief Justice Shaw in Bulger v. Roche, 11 Pick. 36, 39-40 (1831). Last year in a case involving the question whether to apply a foreign jurisdiction's statute of repose, we said in dicta that "[t]he Commonwealth considers statutes of limitations as procedural: `Massachusetts views statutes of limitation as relating to the remedy, and it applies its own law as the law of the forum.' Wilcox v. Riverside Park Enters., 21 Mass. App. Ct. 419, 421 (1986), S.C., 399 Mass. 533 (1987), and cases cited." Cosme v. Whitin Mach. Works, Inc., 417 Mass. 643, 645 (1994). The Cosme opinion is interesting for our purposes because the court concluded that it would take a functional approach in determining the choice of law issue, because statutes of repose were not clearly procedural for choice of law purposes in the Commonwealth. Id. at 645-646. It is this same functional approach that this court has applied in selecting which State's substantive law to apply (see, e.g., Bushkin Assocs. v. Raytheon Co., 393 Mass. 622, 631-632 [1985]) and that Gourdeau urges this court to use now in deciding which statute of limitations to apply.[2] The argument [661] is that we should apply the New Hampshire statute of limitations because New Hampshire has a more significant relationship to the occurrence and the parties.

        13

        We discuss first whether consideration of the more significant relationship test would direct us to New Hampshire's statute of limitations, because, if it would not, both the traditional rule and the significant relationship test would lead us to apply the Massachusetts statute of limitations. Our focus should be on which State has the more significant relationship to the occurrence and to the parties with respect to the issue of limitations. See Restatement (Second) of Conflict of Laws § 142 comment e (Supp. 1989). See also id. comment g ("the forum should not entertain a claim when doing so would not advance any local interest and would frustrate the policy of a state with a closer connection with the case and whose statute of limitations would bar the claim").[3]

        14

        [662] The motion judge concluded that "Massachusetts has no substantial interest in NET's claim against Gourdeau" and that New Hampshire has a far more significant relationship to the parties and the occurrence because the events in question occurred in New Hampshire and the construction contract provided that "[t]he Contract shall be governed by the law of the place where the Project is located."[4] Gourdeau repeats these points but does not argue that the quoted contract language dictates that New Hampshire's statute of limitations must be used. NET argues, on the other hand, that (1) both parties have principal places of business in Massachusetts; (2) Gourdeau is a Massachusetts corporation; (3) the contract was executed in Massachusetts; and (4) at the time that the contract was entered into, each State had a six-year statute of limitations.[5] NET also argues that the use of the forum's statute of limitations in all instances involves a rule of easy application and eliminates the uncertainty that the use of a balancing test often will create.

        15

        [663] The functional approach calls for consideration of the choice of law question, not generally (as the Uniform Act would have us do [see last paragraph of note 3 above]), but with particular reference to the statute of limitations issue. See Restatement (Second) of Conflict of Laws § 142 comment e (the emerging trend is to bar a claim if barred by "the state which, with respect to the issue of limitations is the state of most significant relationship to the occurrence and to the parties under the principles stated in § 6" [emphasis supplied]).

        16

        Certainly the Legislature has the right, within constitutional limits, to prescribe the answer to the statute of limitations issue. See Sun Oil Co. v. Wortman, 486 U.S. 717 (1988). See Restatement (Second) of Conflict of Laws § 6 (1) (court should follow any statutory directive on choice of law). Massachusetts has a statutory provision under which the statute of limitations of another State will be applied or "borrowed" in certain limited situations. See G.L.c. 260, § 9 (1992 ed.). The scope of that statute is narrow. See Wilcox v. Riverside Park Enters., Inc., 399 Mass. 533, 539 (1987). The legislative decision to enact only a limited exception to the general common law rule is entitled to weight as a statement of the Commonwealth's policy interests.

        17

        Restatement § 142 (2) (a) states that Massachusetts should apply its own statute of limitations permitting a claim to be asserted unless "maintenance of the claim would serve no substantial interest of [Massachusetts]." Massachusetts has a substantial interest in letting NET's claim go forward. Each party has its principal place of business here; the contract was executed here; Massachusetts has expressed a preference that contracts be enforceable within six years of the accrual of the cause of action; Massachusetts could have, but has not, enacted broad legislation importing the statutes of limitations of other States; and the predictability of our judicial processes in providing answers with respect to completed transactions would be lessened by an abrupt change of law in this case. The fact of the amendment of the New Hampshire statute, adopted after the contract was entered into and [664] shortly before the alleged cause of action arose (reducing the limitations period from six years to three), does not offer a proper basis to change the result that unquestionably would have obtained if the New Hampshire statute had not been amended. In amending its statute of limitations as it did after the opinion in Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 778 n. 10 (1984), New Hampshire itself stated its continuing preference for the application of the forum's statute of limitations.[6]

        18

        The judge was correct in denying Gourdeau's motion for summary judgment on the contract count. We state for the future that this court's treatment of the application of statutes of limitations as procedural will no longer be continued. The certainty of the traditional answer as to which statute of limitations to apply does not justify a refusal to apply the statute of limitations of another jurisdiction in particular circumstances. The order denying the motion of Gourdeau Construction Company for summary judgment on the contract count of its complaint is affirmed.

        19

        So ordered.

        20

        [1]Section 142 of the Restatement (Second) of Conflict of Laws, as amended in 1988, provides:

        21

        "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:

        22

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

        23

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

        24

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

        25

        "(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."

        26

        [2]Section 142 of the Restatement directs that the principles of § 6 of the Restatement shall determine whether a claim may be maintained against the defense of the statute of limitations. Restatement (Second) of Conflicts of Law § 6 (1971), which sets forth choice of law principles, states:

        27

        "(1) A court, subject to constitutional restrictions, will follow a statutory directive of its own state on choice of law.

        28

        "(2) When there is no such directive, the factors relevant to the choice of the applicable rule of law include

        29

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

        30

        "(b) the relevant policies of the forum,

        31

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

        32

        "(d) the protection of justified expectations,

        33

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

        34

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

        35

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

        36

        [3] Since the adoption of § 142, there has been no movement toward, or in some cases even recognition of, the Restatement position. Compare Etheredge v. Genie Indus., Inc., 632 So.2d 1324, 1326-1327 (Ala. 1994) (procedural, apply forum statute of limitations; § 142 not cited); Champagne v. Raybestos-Manhattan, Inc., 212 Conn. 509, 525 (1989) (same); Huang v. D'Albora, 644 A.2d 1, 4 (D.C. 1994) (same); Williams v. Taylor Mach., Inc., 529 So.2d 606, 609 (Miss. 1988) (rejecting application of Restatement § 142); Keeton v. Hustler Magazine, Inc., 131 N.H. 6, 17 (1988) (New Hampshire statute of limitations is essentially procedural rule) (three-two decision); and Nez v. Forney, 109 N.M. 161, 162-163 (1989) (procedural even where contract provided it was governed by law of another State; § 142 not cited) with Taylor v. Liberty Mut. Ins. Co., 579 So.2d 443, 447 (La. 1991) (using interest analysis, statute of limitations of forum not applied; but see amendment to Louisiana Civil Code, effective January 1, 1992, discussed in Seagrave v. Delta Airlines, Inc., 848 F. Supp. 82, 84-85 [E.D. La. 1994]); and Keeton v. Hustler Magazine, Inc., supra at 22, 26-28 (Souter, J., dissenting) (citing § 142 and numerous criticisms of the treatment of statute of limitations as procedural). In addition to the scholarly criticisms of the treatment of statutes of limitations as procedural cited in the dissent in Keeton v. Hustler Magazine, Inc., supraat 26-28, see Weinberg, Choosing Law: The Limitations Debates, 1991 U. Ill. L. Rev. 683, 691.

        37

        Under § 2 of the Uniform Conflict of Laws - Limitations Act, which has been adopted in six States, the law of the State on which the claim is based generally is used to determine the applicable limitations period. 12 U.L.A. 61, 63 (1994 Supp.).

        38

        [4] The quoted language appeared in an American Institute of Architects' form of general conditions that was incorporated by reference in the standard form of agreement between owner and contractor.

        39

        [5] Gourdeau objects that NET did not argue below that Massachusetts had a substantial relationship to the parties and to the cause of action and asserts that it is too late to do so now. We make a distinction between new nonjurisdictional arguments made by an appellant, which are rarely considered, and new arguments made by an appellee. An appellee may generally argue any issue, fairly open on the record, that supports the decision below. Aetna Casualty & Sur. Co. v. Continental Casualty Co., 413 Mass. 730, 734-735 (1992). NET's argument, even if not made below, is not too late.

        40

        [6] Our analysis does not reach the question presented by § 142 (2) (b), under which the State with the more significant relationship to the parties and the occurrence must be determined. Section 142 first states that the principles of § 6 will determine whether a claim may be maintained against the defense of the statute of limitations. The balance of § 142 seems to set forth the way in which the principles of § 6 will be implemented in almost all instances. It may be, as a practical matter, that the principles of § 6 have no important role to play in § 142 until a court comes to consider which State has the more (or most) significant relationship to the parties and the occurrence.

  • 2 3.4.3.2 Substantive (situs law)

    • 2.1 §3.4.3.2 (a) Applying the shorter situs statute to bar the claim

      • 2.1.1 Perkins v. Clark Equipment Co. Melrose Div.

        1
        823 F.2d 207 (1987)
        2
        Ray and Marilyn PERKINS, Appellants,
        v.
        CLARK EQUIPMENT COMPANY, MELROSE DIVISION, Appellee.
        3
        No. 86-5455.
        4

        United States Court of Appeals, Eighth Circuit.

        5
        Submitted May 12, 1987.
        6
        Decided July 6, 1987.
        7

        [208] Charles A. Collins, Minneapolis, Minn., for appellants.

        8

        John D. Kelly, Fargo, N.D., for appellee.

        9

        Before HEANEY, Circuit Judge, FLOYD R. GIBSON, Senior Circuit Judge, and BOWMAN, Circuit Judge.

        10
        FLOYD R. GIBSON, Senior Circuit Judge.
        11

        Ray and Marilyn Perkins appeal from an order of the district court[1] granting Clark Equipment Company's motion for summary judgment in this product liability case. The district court held that Iowa's two-year statute of limitations applies and that the Perkinses' suit was time barred. For the reasons stated below we affirm.

        12
        I. BACKGROUND
        13

        At all relevant times Ray and Marilyn Perkins were residents of Iowa. On January 5, 1982, while working for the City of Des Moines, Iowa, Ray Perkins fractured his right leg while attempting to mount a model 631 Bob Cat Skid-Steer Loader. Perkins' hospital bills and workers compensation disability benefits were paid by the City of Des Moines.

        14

        The loader involved in the accident was designed, manufactured, and assembled by Clark Equipment Company at its Fargo, North Dakota facility. The loader was sold and delivered to a third party in Des Moines who in turn resold it to the City of Des Moines. While in the hands of the third party, modifications were made on the loader which, Clark argues, ultimately resulted in the accident.

        15

        On December 13, 1984 the Perkinses filed this suit in the United States District Court for the District of North Dakota. Clark moved for summary judgment, arguing that the suit was barred by Iowa's two-year statute of limitations. The Perkinses resisted the motion, arguing that North Dakota's six-year statute of limitations applies. The district court granted summary judgment in favor of Clark, holding that under North Dakota's significant contacts approach to choice of laws questions, Iowa's statute of limitations applies. Subsequently, the Perkinses moved the district court to stay judgment and to certify the choice of laws question to the North Dakota Supreme Court. This motion was denied.

        16
        II. DISCUSSION
        17

        In diversity of citizenship cases the district court must apply the choice of laws rules of the state in which it sits. Klaxon Co. v. Stentor Electric Mfg. Co., 313 U.S. 487, 496, 61 S.Ct. 1020, 1021, 85 L.Ed. 1477 (1941). On appeal great deference is given to the district court's interpretation of state law. In re Wild, 795 F.2d 666, 668 (8th Cir.1986). When the state's highest court has not decided the issue we will reverse the district court's interpretation only if it is "fundamentally deficient in analysis or otherwise lacking in reasoned authority." Barber-Greene Co. v. National Bank of Minneapolis, 816 F.2d 1267, 1270 (8th Cir.1987) (quoted citations omitted).

        18

        In the present case the district court noted that the North Dakota Supreme Court has not specifically addressed how statutes of limitations should be characterized for choice of law purposes. In 1972 the North Dakota Supreme Court abandoned the lex loci delicti (law of place of injury controls) approach to choice of laws questions and adopted the most significant contacts approach. Issendorf v. Olson, 194 N.W.2d 750 (N.D.1972). The Perkinses argue that Issendorf only applies to substantive law and that the forum should always apply its own procedural laws, including the statute of limitations. The Perkinses argue that other states which have abandoned [209] the lex loci delicti approach have retained the substance/procedure distinction where statutes of limitations are involved.

        19

        The district court held that although Issendorf did not specifically address the issue, it did offer sufficient guidance. The court in Issendorf called the substance/procedure distinction "an unsatisfactory approach to the determination of the choice law in tort cases." 194 N.W.2d at 754. The court in Issendorf adopted the most significant contacts approach because the substance/procedure distinction was easily manipulated in hard cases and because it was more just, fair, and practical to apply the law of the state most interested in the outcome. Id. From this reasoning the district court determined that the North Dakota Supreme Court would apply the most significant contacts approach to statutes of limitations. We agree.

        20

        The Perkinses argue that the reasons for abandoning the substance/procedure distinction do not apply to statutes of limitations and that the lack of clear guidance from the North Dakota Supreme Court suggests that the old rule, including the distinction, should be retained. Although these arguments deserve consideration, they fall short of showing that the district court's interpretation of North Dakota law is "fundamentally deficient in analysis or otherwise lacking in reasoned authority." 816 F.2d at 1270.

        21

        Affirming the district court's application of the most significant contacts approach to the statute of limitations does not end our inquiry, however. The Perkinses argue that the district court erred in holding that Iowa had the most significant contacts under the facts in this case. The undisputed facts show the following contacts with North Dakota: 1) Clark is licensed to do and does business in North Dakota; 2) Clark designed and assembled the loader in North Dakota; and 3) the Perkinses filed this lawsuit in North Dakota.

        22

        The Iowa contacts are: 1) the accident occurred in Iowa, in the course of Ray Perkins' employment with the City of Des Moines, Iowa; 2) the Perkinses were, at all pertinent times, Iowa residents; 3) Clark is licensed to and does business in Iowa; 4) Ray Perkins' medical care was provided in Iowa; 5) the City of Des Moines paid his medical bills pursuant to Iowa worker compensation law and paid his worker compensation benefits; 6) the loader was sold and delivered by Clark to a third party in Iowa; and 7) modifications to the loader were made in Iowa.

        23

        We agree that Iowa has the more significant contacts. The Perkinses argue that the most significant contact is that since the loader was designed and manufactured in North Dakota, North Dakota's six-year statute of limitations is evidence of a strong policy to hold North Dakota manufacturers liable for an extended period of time. However, it is not our role to second guess the district court's interpretation of state law. Absent clear error or an abuse of discretion we will not reverse the district court's interpretation of state law. Brown & Root, Inc. v. Hempstead County Sand & Gravel, Inc., 767 F.2d 464, 469 (8th Cir.1985). After careful consideration we believe that the district court's interpretation was neither clearly erroneous nor an abuse of discretion, but, in fact, was correct.

        24

        Finally, the Perkinses argue that this court should certify the question of state law to the North Dakota Supreme Court. In Lehman Brothers v. Schein, 416 U.S. 386, 391, 94 S.Ct. 1741, 1744, 40 L.Ed.2d 215 (1974) the Supreme Court held that use of a state's certification procedure "rests in the sound discretion of the federal court." Also, "[a]bsent a `close' question and lack of state sources enabling a non-conjectural determination, a federal court should not avoid its responsibility to determine all issues before it." Shakopee Mdewakanton Sioux Community v. City of Prior Lake, 771 F.2d 1153, 1157 n. 2 (8th Cir.1985), cert. denied, ___ U.S. ___, 106 S.Ct. 1185, 89 L.Ed.2d 301 (1986). For several reasons we believe that certification is inappropriate in this case.

        25

        First, the Perkinses did not move the district court to certify the question [210] until after the motion for summary judgment had been decided against them. The practice of requesting certification after an adverse judgment has been entered should be discouraged. Otherwise, the initial federal court decision will be nothing but a gamble with certification sought only after an adverse decision. Once a question is submitted for decision in the district court, the parties should be bound by the outcome unless other grounds for reversal are present. Only in limited circumstances should certification be granted after a case has been decided. See, e.g., Complaint of McLinn, 744 F.2d 677, 681 (9th Cir.1984) (party should not be allowed a "second chance at victory" after district court has decided issue); Harris v. Karri-On Campers, Inc., 640 F.2d 65, 68 (7th Cir.1981) (certification after case is tried would only prolong litigation).

        26

        Second, the issue in this case is not an extremely close one. See Hatfield v. Bishop Clarkson Memorial Hosp., 701 F.2d 1266, 1268 (8th Cir.1983) (en banc). We believe that Issendorf provides enough guidance so that the decision in this case is not merely conjectural. Further, we believe that the district court correctly predicted how the North Dakota Supreme Court would have decided the issue. The court in Issendorf specifically rejected the substance/procedure distinction as unsatisfactory. 194 N.W.2d at 754. There is no reason to believe that the court would now welcome this "unsatisfactory approach" when statutes of limitations are involved.

        27

        Third, in 1985 the North Dakota Legislature enacted the Uniform Conflict of Laws — Limitations Act. N.D.Cent.Code §§ 28-01.2-01 through 05 (Supp.1985). Although the effective date of the Act makes it inapplicable to this case, it nevertheless is helpful in deciding whether to certify this issue to the state supreme court. Under the Act courts will apply the statute of limitations of the state which governs the substantive issues. This result is consistent with the result we reach today. The Act also is significant in another respect. One of the factors we look at when determining whether to certify an issue is whether it is likely to recur. Hatfield, 701 F.2d at 1268. Because North Dakota has unequivocally determined how statutes of limitations are to be treated in the choice of laws area, this issue is not likely to arise again. Consequently, the Perkinses' request for certification is denied.

        28
        III. Conclusion
        29

        The order of the district court granting summary judgment in favor of Clark Equipment Company is affirmed. The district court's application of the most significant contacts choice of laws approach to the statute of limitations issue is neither "fundamentally deficient in analysis" nor "otherwise lacking in reasoned authority." Further, the district court correctly held that Iowa had the most significant contacts under the facts in this case. Finally, this case is inappropriate for certification because the legal question is neither close nor likely to recur.

        30

        [1] The Honorable Patrick A. Conmy, United States Chief District Judge for the District of North Dakota.

    • 2.2 §3.4.3.2 (b) Applying the longer situs statute to hear the claim

      • 2.2.1 Kalmich v. Bruno

        1
        553 F.2d 549 (1977)
        2
        Hayim KALMICH, Plaintiff-Appellant,
        v.
        Karl BRUNO, Defendant-Appellee.
        3
        No. 76-1882.
        4

        United States Court of Appeals, Seventh Circuit.

        5
        Argued January 11, 1977.
        6
        Decided April 25, 1977.
        7
        Rehearing and Rehearing Denied June 28, 1977.
        8

        [550] Norman A. Handelsman, Robert Handelsman, Chicago, Ill., for plaintiff-appellant.

        9

        James G. Meyer, Lester E. Munson, Chicago, Ill., for defendant-appellee.

        10

        Before FAIRCHILD, Chief Judge, SWYGERT and PELL, Circuit Judges.

        11

        Rehearing and Rehearing En Banc Denied June 28, 1977.

        12
        PELL, Circuit Judge.
        13

        This is a diversity case between plaintiff-appellant Hayim Kalmich, a citizen of Quebec, Canada, and defendant-appellee Karl Bruno, a citizen of Illinois. The district court, sitting in Illinois, dismissed the complaint for failure to state a cause of action on the basis that the claim was barred by the pertinent Illinois statute of limitations.[1] Kalmich seeks reversal on the grounds that the district court should have applied the longer statute of limitations of Yugoslavia, where the cause of action arose, that Bruno should be estopped to plead the statute of limitations in any event, and that one count of the complaint states an equitable claim not subject to the statute of limitations, but only to a laches defense which, it is asserted, does not apply to this case.

        14
        I.
        15

        In reviewing the district court's dismissal of Kalmich's complaint, we assume the truth of these facts well-pleaded in that complaint. In 1941, Kalmich, a Jew, resided in Belgrade in his native Yugoslavia and operated and owned a textile importing business. In April of that year, the armies of Nazi Germany invaded and conquered Yugoslavia, forcing the incumbent government of Yugoslavia into exile.[2] The occupation forces shortly installed a General Plenipotentiary for the Economy in Serbia, whose responsibility was to "Aryanize" the economy by seizing and confiscating all businesses and property owned by Jews, solely because they were Jews.

        16

        Bruno is alleged to have voluntarily subordinated himself to the General Plenipotentiary,[3] [551] and when an order for the seizure of Kalmich's business was issued on June 24, 1941, Bruno was given the duties of managing and operating the business. He seized the business and proceeded to run it. In March of 1942, Bruno substantially understated the value of the business to his superiors to enable him to purchase it from them at a bargain price. That same month, he bought the business from the General Plenipotentiary for even less than the value he had previously stated. Thereafter, he resold the business to one Guc, presumably at a profit.

        17

        The complaint alleges that sometime prior to the defeat of the German occupation forces in Yugoslavia, Bruno "to avoid, prevent and frustrate any prosecution for his knowingly willful and malicious conduct, fled Yugoslavia for places unknown to the Plaintiff." After the end of the war, Kalmich spent substantial time, money, and effort unsuccessfully attempting to find Bruno for redress in a search that covered five countries. It was only in May of 1972 that Kalmich discovered, from sources not disclosed, that Bruno was living in Chicago, Illinois. This lawsuit followed.

        18

        Count I of the complaint seeks damage recovery under statutory provisions of Yugoslavian law which are summarized therein to provide the notice of foreign law issues required by Rule 44.1, Fed.R.Civ.P. One general provision referred to in the complaint is a broad repeal of all statutes, ordinances, decrees, and regulations enacted prior to the date of the Nazi invasion, and all those enacted by the Nazi occupation forces; presumably this repeal provision was an attempt to clean the slate for new laws enacted after the war. The remaining statutes, and their interrelationships, are important to the disposition of this case, and the pertinent paragraphs of the complaint summarizing these are therefore set out in full:

        19
        23. That at a time unknown to the Plaintiff but after the termination of World War II the nation of Yugoslavia enacted Article 125 of the Criminal Code [Article 125] which provides that anyone who confiscated belongings of another during World War II, for nonmilitary purposes, would be subject to criminal prosecution.
        20
        24. That in 1965, the nation of Yugoslavia enacted Article 134(a) of its Criminal Code [Article 134(a)] which provides that there shall be no statute of limitations upon the prosecution of those accused of violations of Article 125.
        21
        25. That on or about August 16, 1946, Sec. 1 of the Law Concerning the Treatment of Property . . . Taken Away From the Owner by the Enemy or its Helpers [Section 1] became effective in Yugoslavia, said Law providing a civil cause of action for those whose belongings were confiscated by the German occupation force.
        22
        26. That, in 1953, Section 20 of the Yugoslavian Statute of Limitations, as amended [Section 20], became effective, said Section providing that the statute of limitations upon criminal actions shall serve as the statute of limitations upon civil actions if the conduct complained of in the civil action could subject the Defendant to a criminal prosecution.
        23

        Actual damages, interest, and punitive damages totalling $1,826,208, plus costs and any post-judgment interest were sought.

        24

        Count II of the complaint, referring generally to the allegations of Count I, asserts that Bruno obtained Kalmich's property [552] (the business) in an unlawful and tortious manner, and seeks recovery under a constructive trust theory in the same amounts as mentioned above, plus all profits and proceeds received by Bruno from his possession and sale of the business.

        25
        II.
        26

        In considering the issues raised, we note at the outset the defendant's contention that in determining whether the district court misconceived or misapplied state law the appellate court is limited to determining whether or not the district court made permissible interpretations of the applicable state law, citing Harris v. Hercules, Incorporated, 455 F.2d 267, 269 (8th Cir. 1972). The defendant further contends that the reviewing court will not reverse a determination on the part of a federal district court judge of the local law of his state unless there is a firm conviction that it was clearly erroneous, citing Harris and Hogue v. Pellerin Laundry Machinery Sales Company, 353 F.2d 772, 776 (8th Cir. 1965).

        27

        We have no particular quarrel with these contentions nor with the assertion that under the circumstances described we should give deference to the district court judge's determination of local law. Here, however, in our opinion the ultimate resolution of the appeal turns upon the determination not only of Illinois law but also that of Yugoslavia, a "foreign country" under Rule 44.1, Fed.R.Civ.P. Irrespective of the deference to which a district court judge's determination of the local law is entitled, we regard the matter of foreign country law as purely a "question of law," as it is characterized in Rule 44.1, the resolution of which we are free to arrive at on the basis of our own independent research and analysis. For a general discussion of the scope of appellate review under Rule 44.1, see 9 Wright & Miller, Federal Practice and Procedure § 2446, at 414-15 (1971).

        28
        III.
        29

        In diversity cases, of course, a federal court applies the substantive law of the state in which it sits. Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). Where the laws of more than one jurisdiction are at least arguably in issue, the Erie reference to the law of the forum state includes that state's choice of law rules. Klaxon Company v. Stentor Electric Manufacturing Co., Inc., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941); Griffin v. McCoach, 313 U.S. 498, 61 S.Ct. 1023, 85 L.Ed. 1481 (1941).

        30

        We think it clear, and neither party disagrees, that the Illinois courts would choose to apply the substantive law of Yugoslavia to this case. Yugoslavia was the site of the tort and the injury, and we can think of no argument that would demonstrate that Illinois has a more significant relationship with this case than has Yugoslavia. See Ingersoll v. Klein, 46 Ill.2d 42, 262 N.E.2d 593, 595 (1970). Moreover, the district court's cogent analysis, 404 F.Supp. at 61-63, demonstrates beyond any real question that this is the type of foreign cause of action that the courts of Illinois will enforce. See generally Hartness v. Aldens, Inc., 301 F.2d 228 (7th Cir. 1962); Clubb v. Clubb, 402 Ill. 390, 84 N.E.2d 366 (1949). Although only Count I is expressly rooted in Yugoslavian law, these conclusions apply with full force to Count II as well. Even if Illinois courts would apply the principles of Illinois equity jurisprudence to Kalmich's constructive trust theory, the underlying premise of the theory, the asserted unlawfulness and tortiousness of Bruno's seizure of Kalmich's business, would have to be measured by Yugoslavian law. See Ingersoll v. Klein, supra.

        31

        The choice of the applicable statute of limitations poses a different, and, in this case, a more difficult problem. State law barring an action because of a statute of limitations is sufficiently "substantive," in the Erie sense, that a federal court in that state exercising diversity jurisdiction must respect it. Guaranty Trust Co. v. York, 326 U.S. 99, 65 S.Ct. 1464, 89 L.Ed. 2079 (1945). Illinois has a five year statute of limitations governing actions for damages for injury to real or personal property. Ill.Rev.Stat.1975, [553] ch. 83, § 16. As pleaded in the complaint, Yugoslavia's statute of limitations applicable here appears to be perpetual. The question then, if not the answer, may be simply put: which statute of limitations should be applied under Illinois' choice of law rules?

        32

        The basic choice of law rule pertaining to statutes of limitations, in Illinois as elsewhere, is that such statutes are "procedural in their nature," Hilberg v. Industrial Commission, 380 Ill. 102, 105, 43 N.E.2d 671 (1942), that they "generally affect only the remedy and not substantive rights," Jackson v. Shuttleworth, 42 Ill.App.2d 257, 260, 192 N.E.2d 217, 218 (1963); Wetzel v. Hart, 41 Ill.App.2d 371, 374, 190 N.E.2d 619 (1963), and, thus, that the limitations statutes of the forum will usually apply, even though the causes of action to which they are applied may have arisen in and been governed by the substantive law of another jurisdiction. Id.

        33

        An exception, however, is recognized in certain circumstances where the foreign cause of action is statutorily based. As the Illinois Supreme Court noted in Smith v. Toman, 368 Ill. 414, 420, 14 N.E.2d 478 (1938):

        34
        [T]his court has given consistent recognition to the principle that where [a] statute creates a right that did not exist at common law and restricts the time within which the right might may be availed of, or otherwise imposes conditions, such statute is not a statute of limitation [in the normal sense] but the time element is an integral part of the enactment. [Emphasis supplied.]
        35

        Accord, Shelton v. Woolsey, 20 Ill.App.2d 401, 404, 156 N.E.2d 241 (1959). Neither Smith nor Shelton were choice of law cases; in both the principle was articulated because helpful in resolving analogous questions of Illinois law. Jackson v. Shuttleworth, supra, 42 Ill.App.2d at 259, 192 N.E.2d at 218, states the rule in a choice of law context:

        36
        It is true that a number of decisions in the federal courts have held that the statute of the state wherein the cause of action arose is the applicable statute, but an examination of those cases discloses that the statutes involved were not strictly statutes of limitation, but were statutes creating the cause of action and limiting the time in which such newly created right might be asserted. Where the right of action depends upon statute and where no such right of action existed at common law, the time for bringing action is determined by the lex loci, because the lex loci establishes the substantive rights of the parties, and where a limitation is placed upon the assertion of that right, it has been correctly held to be a matter of substantive, as distinguished from procedural law. Haefer v. Herndon, 22 F.Supp. 523 [S.D.Ill.1938]. [Emphasis supplied.]
        37

        To the same effect, see Anderson v. Linton, 178 F.2d 304, 310 (7th Cir. 1949); O'Neal v. National Cylinder Gas Co., 103 F.Supp. 720, 725 (N.D.Ill.1952).

        38

        Stated in the forms just quoted, the exceptional rule allowing the application of the statute of limitations of the locus of the tort does not quite fit this case, for the Yugoslavian statute creating the right sued upon does not create its own limitation. Although disagreeing as to the correctness of its application, the parties do agree that the district court correctly utilized a somewhat broader rule, suggested by Mr. Justice Holmes' opinion for the Court in Davis v. Mills, 194 U.S. 451, 454, 24 S.Ct. 692, 694, 48 L.Ed. 1067 (1904), in which it was said:

        39
        [T]he fact that the limitation is contained in the same section or the same statute is material only as bearing on construction. It is merely a ground for saying that the limitation goes to the right created and accompanies the obligation everywhere. The same conclusion would be reached if the limitation was in a different statute, provided it was directed to the newly created liability so specifically as to warrant saying that it qualified the right.
        40

        This "specificity" test has previously been used in applying Illinois law, see O'Neal v. National Cylinder Gas Co., supra, and we also agree that the question of whether a foreign statute of limitations goes to the [554] substance of a foreign right cannot sensibly turn on matters of pure form. See also 25 I.L.P. Limitations § 4, at 180 (1956).

        41

        We note a problem not addressed by the parties or the district court. In O'Neal, supra, the court found the locus statute of limitations specifically directed to the locus statutory right, and applied it instead of the shorter Illinois limitation. In Anderson v. Linton and Jackson v. Shuttleworth, both supra, the courts applied the shorter Illinois limitation solely because the longer locus limitation was not part and parcel of a locus statutory right. It could be argued, nonetheless, that a specifically directed statute of limitations of the tort locus jurisdiction should be honored only when it is shorter than the forum's statute. See Comment, 1962 U.Ill.L.F. 452 (1962); Restatement (Second) of Conflict of Laws §§ 142, 143 (1971); Restatement of Conflict of Laws §§ 603, 604 (1934); Kenney v. Trinidad Corporation, 349 F.2d 832, 839 (5th Cir. 1965); Zellmer v. Acme Brewing Co., 184 F.2d 940, 943 (9th Cir. 1950).

        42

        The controlling premise of such an argument would be that statutes of limitations are considered "procedural" because they reflect basically procedural concerns of the forum: discouraging plaintiffs from sleeping on their rights, and limiting the use of the forum's courts to cases in which it is thought that the matters in question are fresh enough to allow a fair rendering of justice. The fact that a foreign jurisdiction has enacted a statutory right with a long specific limitation would, according to this argument, provide no basis for overriding the forum's important interests in the integrity of its judicial system. Where the specific limitation is shorter than that which the forum provides for, it may be said that there remains no right for the forum to enforce, even though the forum would otherwise be willing to enforce one.

        43

        The major premises of the contrary argument would be these: where the forum's choice of law rules point to another jurisdiction, that jurisdiction's law governs the substantive rights of the parties; a general statute of limitations of the locus jurisdiction reflects only the locus' procedural concerns for its courts, and need not concern the forum; a specific limitation, on the other hand, goes to the substance of the foreign right and should be applied in the forum.

        44

        The language emphasized in the quotations supra from Smith v. Toman and Jackson v. Shuttleworth tends to support this latter conceptual approach, but it would be less than candid to say that the analytic problem posed has been definitely resolved in Illinois. Because the approach implicitly adopted by the district court does find support in Smith, O'Neal, and Jackson, and because Bruno agrees that the district court utilized the proper test, we do not find it necessary to take the matter any further. The statute of limitations in Illinois is, after all a waivable personal privilege. Massman v. Duffy, 330 Ill.App. 76, 69 N.E.2d 707 (1946).

        45

        We turn to the question of whether the district court properly applied this "specificity" test. In support of its conclusions that the pertinent Yugoslavian statute of limitations is not specifically enough directed to the statutory cause of action to have become part of the substance of the action, the district court advanced three reasons. First, no specific time limitation is included in Section 1 (the provision establishing the civil cause of action). The district court properly placed no substantial reliance on this factor; if the limitation had been within Section 1, there would have been no reason to use the "specificity" test which the district court was applying, for the case would have fallen squarely within the rule of Jackson v. Shuttleworth, supra. Second, the district court emphasized that Section 20 (providing that civil actions grounded on criminal acts may rely on the limitation applicable to criminal prosecution of such acts) was enacted seven years after Section 1, without any specific reference thereto, and that Section 20 applies broadly to all civil actions based on criminal acts, subject only to the proviso that the conduct complained of in the civil action could subject the civil suit defendant to a criminal prosecution. [555] Third, the court noted that Article 134(a) (establishing a perpetual statute of limitations for five specified criminal provisions aimed at genocide and war crimes, one of which is Article 125, criminalizing the conduct complained of here) specifically applies only to criminal prosecutions, and does not in terms extend civil statutes of limitations.

        46

        These statements, while accurate, do not lead us to the conclusion reached in the district court. In our opinion Section 20 and Article 134(a), read together, demonstrate a connection between the Yugoslavian limitation provision that is adequately specific to warrant honoring the perpetual limitation in this case.

        47

        If adequate specificity exists, it cannot matter that various of the Yugoslavian statutes involved were enacted at different times. Davis v. Mills, supra, 194 U.S. at 456, 24 S.Ct. 692. Likewise, the fact that Section 20 must be applied through another statute, Article 134(a), does not weaken Kalmich's claim of specificity. Hypothetically, if Section 20 allowed the use of criminal limitations periods only in civil actions based on war crimes under Article 125, it is inconceivable that the reference to Article 134(a) that would be required to see what the criminal limitation was would flaw the otherwise obviously specific nature of Section 20.

        48

        Of course, as the district court recognized, Section 20, standing alone, is not nearly this specific. Even if it were assumed, however, that Section 20 viewed on its own would fail the specificity test, but see Maki v. George R. Cooke Co., 124 F.2d 663, 666 (6th Cir. 1942), cert. denied, 316 U.S. 686, 62 S.Ct. 1274, 86 L.Ed. 1758, once Article 134(a) was enacted, the situation changed. At that time, specified war crimes became different from ordinary crimes, and specifically so, because they were not subject to statutes of limitations in criminal prosecution. Also at that time, causes of action based on the specified crimes became different from other crime-based causes of action, for the same reason. Article 134(a)'s treatment of war crimes for criminal purposes carried into Section 20 by necessary implication.[4] That this effect was not made express in Article 134(a) and results only by reading that statute with Section 20 does not, as has been seen, make the effect any less specific. So far as appears, war crimes referred to in Article 134(a), and only those crimes, were made perpetually punishable, and causes of action based on these crimes, and only such causes of action, were made perpetually actionable. The limitations provisions of Yugoslavia were sufficiently and specifically part and parcel of the substance of the Yugoslavian statutory right, and the district court erred in refusing to apply them.

        49

        Nor, as a final matter, do we find any disturbing aspect contrary to Illinois public policy in the fact that litigation is being allowed some thirty years after the events on which the claim for recovery is based. This is true notwithstanding our earlier reference to a policy argument of limitation of the use of the forum's courts to cases in which it is thought that the matters in question are fresh enough to allow a fair rendering of justice. Policy also is involved because of the desirability of discouraging litigants from sleeping on their rights. There would appear to be no aspect of sleeping on rights here and as far as the freshness aspect is concerned, Illinois, as is the case probably in most states, statutorily [556] recognizes circumstances which would permit access to the courts of its state notwithstanding a lapse of time which could be very substantial and which could under some circumstances even exceed that involved in the case before us. Thus, the statute of limitations is tolled in certain circumstances by the absence of the defendant from the state. Ill.Rev.Stat.1975, ch. 83, § 19. Similarly the statute is tolled if the person entitled to bring an action is at the time of the accrual of the cause of action an infant under 18 years of age, is insane or mentally ill or is imprisoned on a criminal charge, the tolling continuing for two years beyond the removal of the disability. Ill.Rev.Stat.1975, ch. 83, § 22.

        50

        Our disposition of this case makes it unnecessary to consider Kalmich's argument that Bruno should have been estopped to assert the statute of limitations. Likewise, we see no reason to evaluate Kalmich's argument that Count II of the complaint states an equitable claim not subject to the statute of limitations defense. In the portion of his brief supporting his constructive trust theory, the plaintiff concedes that an action may be maintained in equity only if the remedy at law is inadequate. Our holding here, of course, permits plaintiff to proceed at law subject, as always, to the requirement of proof of all material matters.

        51

        For the reasons set forth in this opinion, the judgment of the district court dismissing Kalmich's complaint is reversed and remanded for further proceedings consistent herewith.

        52

        REVERSED and REMANDED.

        53
        SWYGERT, Circuit Judge, dissenting.
        54

        I respectfully dissent. In my opinion the district court correctly analyzed the issues in this case and its judgment should be affirmed.

        55

        The lynchpin of the majority's reasoning is that Article 134(a) constituted a specific limitation on the substantive rights created by Section 1. I cannot agree. The statute of limitations for Section 1 remained Section 20, and Section 20, as the district court held, "is a general statute of limitations, not specifically directed to the plaintiff's cause of action . . . ." The majority's analysis might be correct if Section 20 tracked Article 134(a) by stating that the statute of limitations for civil actions was the same as the statute of limitations for criminal actions where the conduct complained of constituted one of the war crimes enumerated in Article 134(a). But Section 20 does not do so. It is applicable to both war crimes and ordinary crimes.

        56

        In order to determine what the statute of limitations would be in this case if it were brought in Yugoslavia, it is necessary to look at both Section 20 and Article 134(a). But this fact does not turn Section 20 into a statute specifically directed toward qualifying the substantive rights conferred by Section 1. Section 20 is applicable in Yugoslavia in a broad range of cases that have nothing to do with Section 1 or war crimes. For example, if plaintiff sued defendant in Yugoslavia for damages based on conduct in 1971 which would constitute arson under Yugoslavian law, Section 20 would direct a Yugoslavian court to look to the statute of limitations for the crime of arson. Under the majority's reasoning, an Illinois court should also use the Yugoslavian statute of limitations for arson because the existence of a specified statute of limitations for that crime sets it apart from other crimes. The majority would consequently have the "specificity" exception swallow the general rule.

        57

        Therefore, I cannot say that Section 20 is a specific limitation on Section 1 simply because Article 134(a) focuses on war crimes. Since Section 20 is a general statute of limitations, it is inapplicable in this case.

        58

        [1] The district court's Memorandum Opinion and Order of October 14, 1975, is reported at 404 F.Supp. 57. An unreported Memorandum Opinion of June 25, 1976, denied Kalmich's motion to alter judgment, and an amendment to that opinion and order, dated July 13, 1976, granted leave to file a second amended complaint and dismissed same because it also was time barred. Thus it is the second amended complaint which is before us.

        59

        [2] The complaint also alleges that the government-in-exile was at all times while in exile recognized by the United States as the lawful and sovereign government of Yugoslavia.

        60

        [3] In the statement of the case in his brief, Bruno adverts to his vigorous objections in the district court to accusations that the defendant's conduct was motivated by religious bigotry. The defendant's motion to strike these allegations as scandalous was not reached by the district court in view of its disposition of the case. The complaint basically alleges that the conquering government in which the defendant of his own free will participated seized the plaintiff's business solely because of his religious beliefs. Despite some recent belated apologists for the Nazi regime, we entertain no doubt that substantial confiscation of businesses did occur as alleged, and that such allegations constitute a proper part of the case plaintiff is attempting to pursue. He, of course, if permitted to pursue his case will have to come forward with proof to support these allegations.

        61

        [4] This conclusion is supported by the opinion letter of Kalmich's Yugoslavian law expert. The parties are in controversy over the proper role of this letter in the case. Kalmich argues that the district court was bound by the conclusions of this unsworn, un-cross-examined letter, simply because it was the only expert opinion tendered in the case. Bruno argues that it should not have been offered or considered because it was first offered in support of Kalmich's motion to alter judgment and it would not be admissible in evidence. Both arguments are plainly wrong under Fed.R.Civ.P. 44.1. As material relevant to the question of law as to foreign law, it was properly offered even at the late date it was offered, and properly considered both in the district court and in this court. As is evident from the text, we take a different view of the relevance of the conclusion that Article 134(a) implicitly extended the Section 20 limitation provision than did the district court.

      • 2.2.2 Ledesma v. Jack Stewart Produce Inc.

        1
        816 F.2d 482 (1987)
        2
        Alfonso LEDESMA, Josephine Rodriguez, Rafaela Gaytan, and Jennifer Santiago, Plaintiffs-Appellants,
        v.
        JACK STEWART PRODUCE, INC., a corporation, John Wayne Mize, and Jack Stewart, Defendants-Appellees.
        3
        No. 85-2438.
        4

        United States Court of Appeals, Ninth Circuit.

        5
        Argued and Submitted August 14, 1986.
        6
        Decided May 5, 1987.
        7

        [483] Theodore L. Slinkard, Fresno, Cal., for plaintiffs-appellants.

        8

        David H. Bent, Fresno, Cal., for defendants-appellees.

        9

        Before NELSON, WIGGINS and NOONAN, Circuit Judges.

        10
        NELSON, Circuit Judge:
        11

        Alfonso Ledesma, Josephine Rodriguez, Rafaela Gaytan, and Jennifer Santiago seek review of the district court's dismissal of their personal injury claim on the ground that the statute of limitations had run. They argue that under the California choice-of-law rules the district court should not have applied the one-year California statute of limitations to their claim. They further argue that, even if the California statute of limitations was properly applied, the district court should have tolled it pursuant to Cal.Civ.Proc.Code § 351 (West 1982). We agree with the first contention. Accordingly, we reverse and remand to the district court for further proceedings.

        12
        I
        13
        FACTS
        14

        On May 13, 1981, Alfonso Ledesma, Josephine Rodriguez, Rafaela Gaytan, and Jennifer Santiago ("plaintiffs"), all California residents, were injured on an Arizona highway when their van was allegedly struck by a tractor driven by defendant John Wayne Mize, an Arkansas resident, and owned by defendants Jack Stewart Produce, Inc., an Oklahoma corporation with its principal place of business in Oklahoma, and Jack Stewart, an Oklahoma resident ("defendants"). On April 7, 1983, [484] plaintiffs filed a diversity action in the Eastern District of California, seeking damages arising out of the accident. The defendants filed a motion to dismiss under Fed.R.Civ.P. 12(b)(6), arguing that the one-year California statute of limitations applied and barred the action against them. See Cal.Civ.Proc.Code § 340(3) (West Supp.1987). The district court granted the defendants' motion to dismiss the action as time-barred.[1] Plaintiffs appeal from the order of dismissal.

        15
        II
        16
        DISCUSSION
        17
        A. Standard of Review
        18

        We review the district court's choice-of-law decision de novo. In re Yagman, 796 F.2d 1165, 1170 (9th Cir.1986); In re McLinn, 739 F.2d 1395, 1398 (9th Cir.1984). The same standard applies to review of a dismissal under Rule 12(b)(6). Plaine v. McCabe, 790 F.2d 742, 751 (9th Cir.1986).

        19
        B. California's Choice-of-Law Rules
        20

        It is well-settled that in diversity cases federal courts must apply the choice-of-law rules of the forum state. Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496, 61 S.Ct. 1020, 1021, 85 L.Ed. 1477 (1941); In re Yagman, 796 F.2d at 1170; Paulo v. Bepex Corp., 792 F.2d 894, 895 (9th Cir.1986). California has adopted a "governmental interest" approach to resolve choice-of-law problems. In re Yagman, 796 F.2d at 1170; Reich v. Purcell, 67 Cal.2d 551, 555, 432 P.2d 727, 730, 63 Cal.Rptr. 31, 34 (1967). Under that approach, the court must first determine if the laws of the two jurisdictions differ. If they do differ, the court should determine whether both states have an interest in applying their respective law. If only one state has an interest, there is no "true conflict" of laws and the court should apply the law of the interested jurisdiction. If both states have an interest in having their differing laws applied, a true conflict arises; in that case the court should apply the law of the state whose interest would be more impaired if its law were not applied. Liew v. Official Receiver & Liquidator, 685 F.2d 1192, 1195-96 (9th Cir.1982) (citing Offshore Rental Co. v. Continental Oil Co., 22 Cal.3d 157, 583 P.2d 721, 148 Cal.Rptr. 867 (1978)); see also Nelson v. International Paint Co., 716 F.2d 640, 644 (9th Cir.1983).[2]

        21

        California's one-year statute of limitations clearly differs from the two-year statutes of limitations in effect in Arizona and Oklahoma and the three-year statute in Arkansas. See Ariz.Rev.Stat.Ann. § 12-542 (West Supp.1986); Ark.Stat. § 27-907 (1979); Okla.Stat.Ann. tit. 12, § 95 (West Supp.1987). Therefore, we move to the second step of the analysis to determine whether each state has an interest in applying its law in this case. The district court, relying on Nelson, concluded that the governmental interest analysis invariably dictates that the statute of limitations of the forum state must apply. Nelson did not, however, set down a per se rule.

        22

        In Nelson, we were faced with a conflict between the one-year California statute of limitations and the two-year statutes of Texas and Alaska. A Texas plaintiff brought an action in California against a California defendant for injuries sustained in Alaska. Relying on the reasoning of [485] Ashland Chemical Co. v. Provence, 129 Cal.App.3d 790, 181 Cal.Rptr. 340 (1982), we found that, in the particular circumstance of the case, only California had an interest in applying its statute of limitations. We based this decision on the California court's explanation in Ashland that statutes of limitations "`are designed to protect the enacting state's residents and courts from the burdens associated with the prosecution of stale cases.... California courts and a California resident would be protected by applying California's statute of limitations because California is the forum and the defendant is a California resident.'" Nelson, 716 F.2d at 644 (quoting Ashland, 129 Cal.App.3d at 794, 181 Cal.Rptr. at 341). The Ashland court concluded that when both the forum and the defendant's residence were the same, no state other than California had an interest in having its statute applied. See id. at 644-45. We decided Nelson in accord with Ashland because Nelson "parallels Ashland, since the forum is in California and the only defendant is a California resident." Id. at 645.

        23

        The present case differs from Nelson, both on its facts and in its policy considerations. Unlike Nelson, this case involves California residents who are plaintiffs, not defendants, thereby weakening the forum state's interest in applying its own statute of limitations. Second, Arizona, the state in which the alleged injury occurred, has an interest in having its statute of limitations apply to cases involving accidents on its highways. Hence, this case presents a "true conflict" of law between California and Arizona.[3] We move accordingly to the third stage of the analysis as required by California law, to determine whether the interests of California or Arizona would be more impaired by application of the law of the other state.

        24

        The California statute of limitations serves two purposes: it protects state residents from the burden of defending cases "`in which memories have faded and evidence has been lost,'" and it protects the courts of the state from the need to process stale claims. Nelson, 716 F.2d at 644 (quoting Ashland, 129 Cal.App.3d at 794, 181 Cal.Rptr. at 341). The first interest does not apply here because there is no California defendant in this case. All of the defendants reside in states that do not consider twenty-three-month-old claims to be stale. Therefore, neither California, nor Oklahoma, nor Arkansas has an interest in applying its statute of limitations in order to protect the defendants. Furthermore, although California has an interest in protecting its courts from stale claims,[4] that interest is at least equally balanced by its interest in allowing its residents to recover for injuries sustained in a state that would recognize their claim as timely.

        25

        In addition, we note that the California statute of limitations is not inflexible when California plaintiffs are involved. Pursuant to Cal.Civ.Proc.Code § 351, California courts will toll the statute of limitations during the time that a defendant is out of the state. See Moore v. Greene, 431 F.2d 584, 590 (9th Cir.1970) (applying former version of § 351 to a nonresident of California). That California is willing to toll its statute of limitations in order to assist resident plaintiffs in bringing claims for injury further indicates that little harm would be done to California's interests by applying [486] the two-year statute of limitations for the benefit of the California plaintiffs. We find that, for the foregoing reasons, California's interests would not be greatly impaired by the application of Arizona's statute of limitations in this case.

        26

        We cannot say the same for Arizona. On the contrary, we find that Arizona's interest would be significantly impaired by a failure to apply its statute of limitations. The Arizona legislature has established a two-year statute of limitations for personal injury claims arising out of highway accidents. As the Supreme Court of California has recognized, "one of the primary purposes of a state in creating a cause of action ... is to deter the kind of conduct within its borders which wrongfully [causes injury]." Hurtado v. Superior Court, 11 Cal.3d 574, 583, 522 P.2d 666, 672, 114 Cal.Rptr. 106, 112 (1974). Insofar as drivers tend to be more careful when their chances of incurring liability are more substantial, Arizona does have an interest in ensuring that its statute of limitations is applied in any case that arises from accidents occurring within its state borders. Were we to apply the California statute of limitations in this case, we would impede the legitimate interest of the state of Arizona in promoting highway safety by allowing a cause of action for a two-year period.

        27

        Applying the "governmental interest" analysis of California's choice-of-law rules, we conclude that Arizona's interests would be impaired by the failure to apply its statute of limitations more than California's interests would be impaired by the failure to apply its statute. California has little interest in applying its statute of limitations when no California defendant is involved and when California plaintiffs seek to recover for injuries that occurred in a state in which the claim was not time-barred. Arizona's legitimate government policy would be impaired by a failure to allow the cause of action that it has established for personal injury claims. Accordingly, we hold that the Arizona statute of limitations should apply in the present case and that the district court erred in dismissing the complaint.

        28

        We need not reach the plaintiffs' argument that the district court should have tolled the California statute of limitations during the period the defendants were out of the state.

        29

        REVERSED and REMANDED.

        30

        NOONAN, Circuit Judge, dissenting:

        31

        The Restatement of the Law of Conflicts states as black letter law:

        32
        An action will not be maintained if it is barred by the Statute of Limitations of the forum ... Restatement (Second) of Conflicts of Law, § 142(i) (1971).
        33

        California has followed this rule. Hall v. Copco Pacific Ltd., 224 F.2d 884 (9th Cir.1955). If this normal rule is applied, Ledesma cannot proceed.

        34

        The landmark case in California adopting a "governmental interest" approach to the conflict of laws emphasized that the governmental interest should be weighed where "the substantive" laws of the states were in conflict. Reich v. Purcell, 67 Cal.2d 551, 555, 432 P.2d 727, 730, 63 Cal.Rptr. 31, 34 (1967) (per Traynor, C.J.). Chief Justice Traynor did not suggest that California departed from the normal rules on matters of procedure; nor did the Restatement, whose second edition came out four years later, acknowledge that Reich was a departure from established law.

        35

        California has characterized "an ordinary statute of limitations" as procedural, not substantive. Regents v. Hartford Accident & Indemnity Co., 21 Cal.3d 624, 147 Cal.Rptr. 486, 581 P.2d 197 (1978). There is absolutely nothing to indicate that the statute before us is not "an ordinary statute of limitations."

        36

        There are at least two cases, as the opinion notes, which consider statutes of limitations under the California practice in the same way as substantive law choices: Nelson v. International Paint Co., 716 F.2d 640, 644 (9th Cir.1983); Ashland Chemical Co. v. Provence, 129 Cal.App.3d 790, 794, 181 Cal.Rptr. 340, 341 (1982). In both these cases, however, the result of the court's deliberations was to apply the California statute of limitations. Strictly speaking, the indication that some other statute of limitations might have been applied is dictum and need not be regarded as [487] controlling here. That would seem to be the better course rather than to disregard the well established rules on the regular application of the statute of limitations of the forum.

        37

        The Ninth Circuit case is dependent on the decision of an appellate division of the California courts. It is well established that a decision of an intermediate appellate state court is merely "datum for ascertaining state law." Commissioner v. Estate of Bosch, 387 U.S. 465, 87 S.Ct. 1776, 1782, 18 L.Ed.2d 886 (1967). Such a decision is entitled to "some weight" but it is "not controlling where the highest court of the State has not spoken on the point...." Id. A fortiori, the decision of an intermediate court is not controlling when it is contrary to the highest court of the State. Ashland is such a decision.

        38

        Even if we should make the assumption that California would depart from the normal rule, it is difficult to see the California "interest" here. The California interest in not burdening its judicial system with stale claims is equally great whether the California resident is a defendant or a plaintiff. Consequently, even in terms of the interest of California, the California statute should apply.

        39

        [1] Although the statute-of-limitations defense is usually raised in a responsive pleading, see Fed.R.Civ.P. 8(c), the defense may be raised in a motion to dismiss if the running of the statute is apparent from the face of the complaint. Conerly v. Westinghouse Elec. Corp., 623 F.2d 117, 119 (9th Cir.1980).

        40

        [2] The dissent contends that California follows the Restatement rule and does not apply the "governmental interest" analysis to statutes of limitation. In Ashland Chemical Co. v. Provence, 129 Cal.App.3d 790, 794, 181 Cal.Rptr. 340, 341 (1982), however, a California court did apply the governmental interest test to conflicting statutes of limitation. Furthermore, in Nelson this court relied on Ashland and unequivocally applied the governmental interest test to the conflicting statutes of California and another state. Nelson, 716 F.2d at 644. The Restatement and the dissent notwithstanding, we must follow the law of California and this circuit and apply the governmental interest approach to this case.

        41

        [3] There is no conflict between Arizona, Arkansas, and Oklahoma law in this case, because application of any of these states' statutes of limitations would not bar the plaintiff's suit. The case does not present a "true conflict" of law between California and either Arkansas or Oklahoma because neither of the latter two states has an interest in having its statute applied. The alleged wrong occurred in Arizona, the courts of Arkansas and Oklahoma are not involved, and any interest that those states might have in barring the plaintiffs' suit is satisfied in this case by the Arizona statute. Hence, we treat this case as primarily involving a choice between California and Arizona law.

        42

        [4] While the processing of the claim in this case would affect a federal and not a California court, a federal court sitting in diversity applies the "governmental interest" analysis as would a California court. This approach ensures that "the accident of diversity of citizenship would [not] constantly disturb equal administration of justice in coordinate state and federal courts sitting side by side." See Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496, 61 S.Ct. 1020, 1021, 85 L.Ed. 1477 (1941).

    • 2.3 §3.4.3.2 (c) Substantive unless unfair to either party

  • 3 §3.4.3.3 Borrowing statutes (choosing the shorter/longer statute)

    • 3.1 Illinois Borrowing Statute

      1
      Illinois Borrowing Statute
      2

      Ill. Comp. Stat. Ann. ch. 735 § 5/13-210

      3
      §5/13-210. Foreign limitations
      4

      When a cause of action has arisen in a state or territory out of this State, or in a foreign country, and, by the laws thereof, an action thereon cannot be maintained by reason of the lapse of time, an action thereon shall not be maintained in this State.

    • 3.2 Massachusetts Borrowing Statute

      1
      Massachusetts Borrowing Statute
      2

      Mass. Gen. Laws Ann. ch.260 §9

      3
      §9. Nonresident defendant;  suspension of limitation      
      4

      If, when a cause of action hereinbefore mentioned accrues against a person, he resides out of the commonwealth, the action may be commenced within the time herein limited after he comes into the commonwealth; and if, after a cause of  action has accrued, the person against whom it has accrued resides out of the  commonwealth, the time of such residence shall be excluded in determining the   time limited for the commencement of the action;  but no action shall be brought by any person upon a cause of action which was barred by the laws of  any state or country while he resided therein.

    • 3.3 §3.4.3.4 Choosing the longer statute

      • 3.3.1 3.4.3.3 Choosing the longer statute

        1
        3.4.3.4 Choosing the longer statute
        2

        This approach has not been formally adopted by any state but the argument for doing it would go like this. If the forum allows the claim while the situs of the wrong bars the claim, it may be that the situs bars the claim simply to unclog its court system. If so, that state might be happy that the forum has a longer statute of limitations and is altruistically opening its courts to the foreign claim. Applying the longer forum statute of limitations would vindicate the situs's substantive policies without burdening its court system. However, if the forum statute of limitations is shorter than that of the situs, it may make sense to apply the longer statute of limitations of the situs because the forum is not entitled to refuse to hear a claim simply because it is based on the law of another state. If the situs recognizes a claim and the forum does not, the forum must apply the law of the situs if the forum has no legitimate interest in applying its law. Even if the forum has an interest in applying its shorter statute of limitations to protect one of the parties from a stale claim, that interest cannot outweigh the interests of the situs in vindicating the claim; nor can there be any unfair surprise since the lawsuit could have been brought at the site of the wrong in any event.

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