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Conflicts of Law - Place of Exposure Ultimately Causing Death vs. Place Where Injury First Manifests Itself

Pounders v. Enserch E&C, Inc., 632 Ariz. Adv. Rep. 26 (App. Div. I, April 17, 2012) (J. Timmer)  CONFLICTS OF LAW PRESUMES SUBSTANTIVE LAW IN JURISDICTION WHERE INJURY OCCURS CONTROLS AND INJURY OCCURS WHERE THE FORCE SET IN MOTION FIRST TAKES EFFECT ON PLAINTIFF

Plaintiff's decedent, while a resident of New Mexico, was exposed to asbestos while working at defendant Arizona Public Service's Four Corners Plant in New Mexico. The plant was designed and built in New Mexico. Plaintiff and plaintiff's decedent became Arizona residents after exposure but before manifestation of asbestosis which ultimately killed plaintiff's decedent in Arizona. The trial court granted defendants summary judgment based upon New Mexico's 10 year statute of repose governing torts arising from improvements to real property. The Arizona Court of Appeals affirmed.

All parties agreed that New Mexico's statute of repose was substantive (Arizona Conflicts of Law rules apply procedural law of jurisdiction where action is brought--here in Arizona). Acknowledging this is a case of first impression, the court noted that Arizona has long followed the Second Restatement of Conflicts of Law. The Restatement states that there is a presumption the substantive law of the "place of injury" controls and the presumption is only overcome when another state has a more significant relationship. The Restatement defines "place of injury" as the place "where the force set in motion first takes effect on plaintiff (Rest. section 175 Comment b).

Here the parties agreed that the force that set plaintiff's decedent's death in motion occured in New Mexico, but plaintiff argued the plaintiff's decedent's injury first took effect in Arizona where the disease was found to have begun. While other jurisdictions are split on this question the Arizona Court of Appeals found the better rule was to recognize the place where the force was set in motion as the place of injury. Cases determining compensability (workers comp cases) and cases determining accrual (statute of limitations cases) were found inapplicable here as neither compensability nor accrual are relevant to choice of law. The court reasoned that finding the location where the force was set in motion to be the place of injury is preferable because such a rule creates predictability and certainty in choice of law analysis. Here the place of exposure is a fixed and predictable location whereas plaintiff's residence at the time of manifestation was essentially fortuitous.

The court then addressed the question of whether Arizona or New Mexico had the most significant relationship to the tort so as to determine if this presumption could be overcome. Factors militating in favor of New Mexico included the fact that plaintiff was a resident of New Mexico at the time of the exposure, the instrumentalities that caused the injury were principally designed, constructed and maintained in New Mexico and New Mexico had a substantial interest in governing business and the creation and maintenance of improvements to real property within its boundaries.

On the other hand, one of the defendants, Arizona Public Service, was an Arizona corporation, plaintiffs injury manifest itself in Arizona and plaintiff's decedent died in Arizona where plaintiff would continue to suffer from the harm caused by the death. However, Arizona has its own statute of repose governing contract and warranty actions (ARS sec. 12-552)and therefore there is no public policy reason in Arizona in conflict with the New Mexico statute of repose.

Therefore, New Mexico was the site of the injury and has the most significant relationship to the tort so its statute of repose works as a bar to plaintiff's wrongful death action brought in Arizona.

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