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Oklahoma Law Controls Florida Tort Claim from Accident in South Africa

Estate of Madison Miller v. Thrifty Rent-A-Car System, Inc., 609 F.Supp.2d 1235 (M.D. Fla., Apr. 10, 2009)

While vacationing in South Africa, the Miller family was involved in a wreck in a car they rented from a South African Thrifty-Rent-A-Car franchisee. The Miller’s daughter died as a result of the accident and the Miller’s filed a tort claim in U.S. District Court in Florida, where they resided at the time of suit, alleging that the car’s brake system seized causing the accident. Thrifty asserted a defense under Fabre v. Marin, 623 S.2d 1182 (Fla.1993), which allowed named defendants to apportion liability to non-parties, abrogating the traditional common law rule of joint and several liability.

Thrifty contended that South African tort law controlled the issue of liability apportionment. The Millers argued for the law of Oklahoma, where Thrifty had its principal place of business, or, in the alternative, the law of Ohio, the domicile of the Millers at the time of the accident. Neither party suggested that Florida law controlled.

After an analysis of apportionment of liability under the laws of South Africa, Oklahoma, Florida and Ohio, the District Court first determined that a conflict of law actually existed. The Court held that because Thrifty resided in Oklahoma, Florida lacked an interest in applying the Fabre rule and Florida’s interest would not be frustrated by the application of another jurisdiction’s law. The Court then held that, for the same reasons, Ohio lacked in interest in having its rule applied. South Africa’s recognition of joint and several liability implicated a modest interest in deterring tortious conduct within its borders. Other Florida district courts had previously held that the law of the accident site governed. Because Oklahoma allowed a tortfeasor who was less than 51% at fault to escape joint and several liability, the Court held that there was a true conflict between the law of South Africa and the law of Oklahoma.

The Court then applied the Florida conflict-of-laws “most significant relationship” test outlined in the Restatement (Second) of Conflict of Laws. Applying the general tort principles in section 145 and general choice-of-law principles of section 6, the Court held that Oklahoma had the most significant interest, thus Thrifty could maintain a Fabre-style defense to the extent it was available under Oklahoma law. The Court based its decision on the fact that, while South Africa and Oklahoma had competing interests, because there were no foreseen international ramifications and the harshness of South African law was not a concern, Oklahoma law was easiest to determine and apply. The Court rejected Thrifty’s request that the Court apply South African law to every issue and held that the determination of particular issues would require a different balancing of interests under the Restatement so that an issue-by-issue analysis would need to be conducted.

The Court also struck Thrifty’s amended answer because it was not filed with leave of Court or consent from the Millers and Thrifty had failed to show excusable neglect for an extension of the passed deadline, as required by F.R.Civ.P. 15(a)(1)(B).


Judge(s): Patricia C. Fawsett, District Judge
Related Categories: Civil Procedure , International , Torts , Transportation
Plaintiff Lawyer(s) Plaintiff Law Firm(s)
Douglas Desjardins Clapp Desjardins & Ely PLLC
Michael B. Ely Clapp Desjardins & Ely PLLC
F. Bradley Hassell Hassell-Legal PA
Ashleigh J. Smith Hassell-Legal PA
Alfred Washington, Jr. Hassell-Legal PA

Defendant Lawyer(s) Defendant Law Firm(s)
Emmett Hodges Cameron Hodges Coleman Lapointe & Wright PA



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therestatement(second)ofconflictsoflaw will be referred to as the "restatement defendant with the option of apportioning fault for the tortious conduct to a fabre-style under ohio law, tort liability was previously governed by the doctrine of contributory 6. response of thrifty to motion of plaintiffs to strike the notice of designation of fabre construed statutes. id. at 610. today, the south african legal system is considered a "mixed" incorporate twelve specific non-party defendants. (doc. no. 109; doc. no. 166; doc. no. 166-2.) africa law, and a true conflict exists between the law of oklahoma and the law of south africa. the ann. tit. 23, 15. however, the statute provides that a defendant will be held jointly and severally oklahoma has adopted the doctrine of modified comparative negligence. unlike south courts to reduce a plaintiff's recovery by the degree to which the plaintiff was responsible for his id. at 1572-73. the court noted that a sovereign such as mexico might have an interest in 15. motion of thrifty for leave to file reply to plaintiffs' response (doc. no. 160, filed feb. 16. response of plaintiffs in opposition to motion of thrifty for leave to file reply to applying its joint-and-several-liability rule. by-issue basis. as a related note, the parties should make every effort to agree on what law governs jurisdiction's interests are greater. essentially, section 145 can serve as a tiebreaker when choosing -22- contributory negligence system, but in 1973 the florida supreme court adopted a comparative (a), "the needs of the interstate and international systems." in judge, the court interpreted this and connell provide little substantive guidance on florida's choice of law rules, the outcome in thrifty, while relying on fabre as an affirmative defense, also contends that south african of his or her damages. fabre, 623 so. 2d at 1184-85; black's law dictionary 933 (8th ed. 2004). supplemental brief (doc. no. 129, filed jan. 26, 2009); in a footnote, the judge court distinguished abrahantes as a case where the negligent 2. motion of plaintiffs to strike the notice of designation of fabre defendants (doc. no. 108, 3. south african law or unnamed nonparty on the verdict form for purposes of apportioning with the greatest numerical total."). further, both cases reflect florida's presumption that the laws filed dec. 24, 2008); toincludefabre defendants identified through recent discovery (doc. no. 166, filed mar. concern voluntary transactions. see id.; restatement (second) of conflicts of law 145 cmt. b concluded that "cayman law was applicable to the cause of action which was being tried [in feb. 27, 2009) is denied as moot. defendant succeeds in shifting liability to a non-party tortfeasor, the plaintiff will receive less court's decision in fabre v. marin, 623 so. 2d 1182 (fla. 1993), to designate twelve parties which the defendant's residence in florida, were associated with georgia. id. at 1180. similar to 2. the remaining section 6 factors limitation on damages. judge, 908 f.3d at 1572 & n.9. the court explained that a sovereign's own injury. id. also similar to oklahoma law, when two or more defendants are responsible for subsection (f) favors south africa to some degree. nevertheless, this factor cannot be afforded too legal wrongs. (doc. no. 130 at 12-18); black's law dictionary 927 (8th ed. 2004). as a general 12. notice of thrifty of filing report of winston p. nagan, frs, in support of thrifty's request to strike thrifty's designation of fabre defendants the trip, the car's brake system allegedly seized, causing the car to veer off the road and flip over. plaintiff's injury. ohio rev. code ann. 2307.22(a)(1). defendants who are found between one laws truly exists. fioretti v. mass. gen. life ins. co., 53 f.3d 1228, 1234 & n.21 (11th cir. 1995); plaintiffs' response (doc. no. 162, filed feb. 27, 2009); and uses that analysis to "inform" the court as it applies the general choice of law principles under 10 a. 95-2986, 1996 wl 21128, at *3 (e.d. pa. jan. 19, 1996) (false conflict existed between new -3- section 768.81(3). in its current form, section 768.81(3) reads as follows: (continued...) are most deeply affected should have its local law applied. legal consequences of their transactions." some aspects of this case involve "advance thought," that new jersey's interest in protecting defendants from full joint and several liability was not plaintiff's injury. ohio rev. code ann. 2315.35 (west 2008). like oklahoma and south african cannot be made jointly and severally liable for being more than fifty percent at fault. this system issue. restatement (second) of conflicts of law 145 ("these contacts are to be evaluated judge, 908 f.2d at 1569-70 (internal quotation marks, citations omitted). in addition, the judge that "the law of south africa is significantly different than the law of the state of florida, total." judge, 908 f.2d at 1569. rather, the court must keep these contacts in mind when -19- ii. thrifty's general request to apply south african law within its borders by making tort liability relatively expensive. in contrast, by allowing tortfeasors d. florida law a system of traditional joint and several liability with some modifications. (doc. no. 129 at 4-7; distribution" rules that prescribe how liability is to be apportioned in a legal action, such as a sys., inc. v. abrahantes, 517 so. 2d 25, 27 (fla. 3d dca 1987), four floridians were injured in a decided on an issue-by-issue basis. restatement (second) of conflict of laws 145(1). it would foresee international ramifications arising from the application of either rule. in judge, 908 f.2d at 1567-73, the eleventh circuit provided some general guidance on in a tort case arising out of a car accident that occurred in georgia)).) 69-70. plaintiffs may raise this objection in a motion in limine or through objection at trial. -8- oil co. v. maint. servs., inc., 313 f.3d 936, 943 (6th cir. 2002) (citing crawford v. halkovics, 438 10. amended answer and affirmative defenses of thrifty (doc. no. 126, filed jan. 23, 2009);1 plaintiffs, -vs- case no. 6:07-cv-1358-orl-19dab "joint torts" is usually "the local law of the state where the injury occurred." it is unlikely that a a. true or false conflict section 6. id. section 145(2) lists four contacts which a court should consider when applying the cori miller, rita miller, liability, reflects a desire "to regulate and deter dangerous conduct that occurs in the state"). -9- appropriate, to apportion liability between named defendants who are found liable to the plaintiff. -10- determining the interests of various sovereigns in applying their laws. in that case, two florida florida's interest in compensating tort victims, the policy behind the fabre rule not implicated. procedure 44.1. that rule allows the court to consult any "relevant material or source" regardless accident site to govern various issues with respect to car accidents that have occurred in other filed dec. 5, 2008); defendants (doc. no. 106, filed dec. 1, 2008); 6 of the restatement (second). before reaching that point, the court explained that mexico had at post-accident. riech, 432 p.2d at 731. however, the judge court came to this conclusion while much weight. in grupo televisa, s.a., 485 f.3d at 1245, the eleventh circuit explained that (fla. 1973). in this sense, florida's system is similar to oklahoma's and ohio's systems, except that behavior, such as a rule of the road, it does make tortious behavior much more costly. walt disney stated it was undertaking a "reasonable investigation and discovery with this affirmative defense as thrifty's request to add fabre defendants and plaintiffs' request to strike thrifty's conflicts analysis nor gave much elaboration of the analysis adopted in the case. in avis rent-a-car excusable neglect for the untimely motion. fed. r. civ. p. 6(b)(1)(b), 16(b)(4); sosa, 133 f.3d at in response to this order, thrifty now contends that south africa law controls the issue of i. procedural history prescribe substantive standards for people to observe, such as a "rule of the road," and "loss- restatement's "most significant relationship" test. see id. 145 cmt. c. ("[t]he interest of a state paint co., 389 so.2d 999, 1001 (fla. 1980)). two related provisions of the restatement (second) -23- f. supp. 2d 423, 435 (s.d. miss. 2006) ("of particular importance where the issue is allocation of states in the determination of the particular issue, encouraging investment from non-resident corporations, like a car rental company, but it concluded i. choice of law concerning the apportionment of liability to non-parties colonies and the state of louisiana. see id.; see also juriglobe, world legal systems, 23, 2009) is denied as moot. sued an american rental car company that was associated with the cayman rental agency. id. at 26. system of citation 310 tbl. t.2 (columbia law review ass'n et al. eds., 18th ed. 2005). proof of so.2d 350, 352 (fla. 2d dca 2000)). a "false conflict" between laws can exist: (1) where the laws 4. oklahoma law thereof and as an element without which the injury would not have occurred." bp exploration & has no significant relationship to this lawsuit." (id. at 2.) thrifty asserts that it has been advised a ruling on a question of law. id. designation of these defendants were based on the assumption that florida law controlled the issue to fifty percent at fault are liable according to their percentage of fault. id. 2307.22(a)(3). 13. motion of thrifty to apply the law of south africa (doc. no. 130, filed jan. 26, 2009); 4 (a) in order to allocate any or all fault to a nonparty, a defendant must distribution" interests of limiting thrifty's liability should the corporation be deemed between one centered." the eleventh circuit has explained that a court "cannot simply add up the factors occurred. however, plaintiffs appear to concede that this method of fault apportionment is south africa, the balance struck by the ohio rule favors the policy of protecting defendants from (doc. no. 154 at 1.) they also identify ohio as an additional state with a potential interest in this litigation. (id. at 13.) neither party appears to contend that florida's law is controlling on this -2- in place a common law legal system based on a framework of judicial precedents and narrowly system of common and civil law, somewhat similar in operation to several other former british interest in providing full recovery to a plaintiff when a tortfeasor is more than fifty percent at fault -15- http://www.juriglobe.ca/eng/index.php (last visited apr. 2, 2009). the specific area of tort law in defendants (doc. no. 114, filed dec. 19, 2008); (explaining that the expectations of the parties and ease of determining the applicable law are more (3) apportionment of damages.-- in cases to which this section applies, the court in the final step of the section 6(2)(b)-6(2)(c) analysis, the court must assess in addition, at least two florida district courts of appeal have selected the law of the differ or would produce a different result. id. for purposes of this analysis, the general policies john doe manufacturer, -16- explicitly rejected by the eleventh circuit. judge, 908 f.2d at 1569 ("to discharge this task, we (e) the basic policies underlying the particular field of law, 10 70. the court has not found any oklahoma precedent requiring the defendant to plead the whether the fabre defense applies in this case is a particularly contentious issue for reasons and fifty percent liable for plaintiffs' injuries. thus, because a "loss-distribution" rule is at issue, done and ordered in chambers in orlando florida, on april 10, 2009. by applying florida law to the issues of negligence and damages in this case."). though abrahantes with the competing policies of encouraging investment and protecting defendants from excessive tort law controls certain aspects of this case. (doc. no. 112 at 1-3.) according to thrifty, "florida questionable whether the two cases can be reconciled on that basis. the distinction was irrelevant liability apportionment.4 the case proceeds." (id.) thrifty has since moved the court to allow it to amend the answer and comparative negligence scheme that bars a plaintiff's right of recovery when the plaintiff's conclusion 3 (...continued) 23, 2009). traditional joint and several liability, oklahoma's rule allowing a tortfeasorwhoisless than fifty-one in having its tort rule applied in the determination of a particular issue will depend upon the purpose court explained that subsections (a) and (f) were of some importance in tort cases. id. at 1573-75. rental car accident while vacationing in the cayman islands. like the plaintiffs in this case, they causing the injury occurred; (c) the domicil, residence, nationality, place of incorporation and place (id.) the request to apply south africa law to the remainder of issues in this case is addressed later in this of june 13, 2008 for amended pleadings, (doc. no. 51 at 1), and thrifty filed its amended answer ohio's interests in protecting defendants from excessive liability would not be furthered by the ii. laws of the various jurisdictions5 all tort rules serve this purpose to some extent. restatement (second) conflicts of law 145 cmt. (conn. 1986) (to resolve a "standoff" between interested states, a court refers to relevant factors set extent such a defense is available under oklahoma law. the pending motions specifically related iv. thrifty's amended answer tortfeasor shall be liable only for the amount of damages allocated to that tortfeasor." okla. stat. arose through a combination of judicial rulings and statutes. florida originally recognized a 2 local law of the state in which the injury occurred will apply, unless "some other state has a more order the act does not recognize a method for apportioning liability to non-parties. section 6 analysis. when relevance is considered, however, section 145 points toward oklahoma. though of the accident site will typically control. abrahantes, 517 so. 2d at 27; connell, 944 so. 2d at 3. motion of thrifty to amend/correct the answer to the complaint (doc. no. 109, filed dec. 7 plaintiffs imply that oklahoma retains traditional joint and several liability, and they court interpreted section 768.81(3) as dispensing with the concept of joint and several liability in "manufacturing" and "sale" of the car involved in this accident, the helicopter operator, the 1216-21; farrell, 1996 wl 21128, at *3. accordingly, ohio has no interest in having its law dutch settlers of south africa instituted a civil law system based on roman-dutch law, which itself to the fabre defense will be addressed below. is an important difference between this case and judge. unlike mexico's non-recognition of a fabre, 623 so. 2d at 1185-87 ("[s]ection 768.81 [of the florida statutes] was enacted to replace the eleventh circuit has explained that the "foremost" of the remaining factors is subsection by and through rita miller and jerame miller world co v. wood, 515 so.2d 198, 201 (fla. 1987) (declining, pre-fabre, to abrogate joint and 1. the motion of plaintiffs to strike the notice of designation of fabre defendants (doc. no. thesouthafricangovernmenthaslegislatedonthespecificissueofliabilityapportionment. before beginning a choice of law analysis, a court should determine whether a conflict of application of its law. judge, 908 f.2d at 1572-73. so long as florida's law is not applied, ohio's "john doe" manufacturer was named as a defendant in the amended complaint, but also argue that negligent manufacturing of the rental vehicle could have occurred in japan. (see like florida law, ohio law permits defendants, in some instances, to shift liability to non- jurisdiction's interest in deterring tortious conduct. judge, 907 f.2d at 1571 n.7. however, it is liability. south africa's policy would be frustrated by the application of oklahoma law and vice 5 liability). because thrifty resides in oklahoma, florida lacks an interest in applying the fabre rule, however, thrifty did not specify the actual fabre defendants in its answer. (id.) instead, thrifty thrifty, a corporation whose principal place of businessandsiteofincorporationisoklahoma,(doc. on january 23, 2009. therefore, the applicable standard is found in federal rules of civil negligent than the plaintiff, applied in lieu of florida's pure comparative negligence scheme. the the final factor, "ease in the determination and application of the law to be applied," likewise, although the application of oklahoma's law could lessen the deterrence of tortious (second)" in textual sentences. interest in applying its "loss-distribution" rule. judge, 908 f.2s at 1571-72. further, it is unclear these proposed fabre defendants include the "toyota corporate entity" responsible for the obtain either leave of the court or consent from the opposing party before amending. id. thrifty did africaisamixedjurisdiction with limited commercial database coverage. the bluebook: a uniform to okla. jury instructions, -- p.3d -- , no. scad-2008-77, 2008 wl 4570620, at *15 (okla. oct. and uniformity of result," appears to favor south africa. in judge, the eleventh circuit explained (f) certainty, predictability and uniformity of result, and the state where thrifty has its principal place of business, controls the apportionment of liability. died. (see doc. no. 8, filed oct. 1, 2007.) while vacationing in south africa, the miller family chose the law of the jurisdiction with the most numerous contacts to the litigation, an approach and florida's interests would not be frustrated by the application of another jurisdiction's law. erny, 27, 2009); joint and several liability with a system that requires each party to pay for non-economic damages south africa prevails in terms of numerosity, its contacts are not directly related to the legal rule at thrifty has also filed a motion asking the court to "apply the law of south africa," resident of oklahoma, and oklahoma therefore hasan interest in governing the allocation of liability even though section 145 is the court's starting point, the analysis does not begin in earnest until the rule's application. as a general proposition, it is fitting that the state whose interests thrifty rent-a-car system, inc., each state's rule of law. rented a car from a south african thifty franchisee called safy-trust. (doc. no. 41 at 2-3.) during plaintiff is properly compensated or that the defendant is protected from excessive tort judgments. that party's expectations and the state's interest in deterrence."). relative to south africa's liability rule to which it might be subject in numerous american jurisdictions, for instance the availableathttps://www.cia.gov/library/publications/the-world-factbook/geos/sf.html. theoriginal carefully considered the myriad factors and underlying policies in the restatement (second) of 6. the motion of thrifty for leave to file reply to plaintiffs' response (doc. no. 160, filed no. civ. a. 92-6095, 1995 wl 553010, at *2 (e.d. pa. sept. 19, 1995). the relevant state court court apply south african law to every issue before it. (doc. no. 130 at 1-20.) choice of law is at fault); see also grupo televisa, s.a., 485 f.3d at 1246 (concluding that a jurisdiction's allowance accident in connell occurred in georgia between a florida defendant and a georgia plaintiff. id. distribution" rule because it prescribes how fault, and thus responsibility for damages, is allocated of the different sovereigns are the same; (2) where the laws of the different sovereigns are different 3. the consent motion of plaintiffs for leave to file reply to defendant's opposition to background plaintiffs have not served this party or determined its identity. (see doc. no. 8, filed oct. 1, 2007.) africa's precedents are available in english and its judicial system is relatively similar to the anglo- probs. 593, 610 (2003); central intelligence agency, the world factbook, south africa (2009), -24- the court would have identified mexico as an interested jurisdiction for false conflicts purposes. jurisdictions; however, reference to these cases must be with the caveat that neither applied a false (id.) madison miller survived the initial accident but died when the helicopter that evacuated her -18- thrifty's answer asserts an affirmative defense premised on fabre. (doc. no. 48 11.) of fault and not on the basis of the doctrine of joint and several liability. klaxon co. v. stentor elec. mfg. co., 313 u.s. 487, 496 (1941); grupa televisa, s.a. v. telemundo 172 of the restatement (second) explains that the applicable law for issues related to liability for -14- connell, 944 so. 2d at 1174; grupa televisa, s.a., 485 f.3d at 1233. thus, the eleventh circuit was the contacts delineated by section 145 provide some guidance on determining which for the tortious conduct "shall be jointly and severally liable in tort for all compensatory damages federal rule of civil procedure 6 requires a showing of "excusable neglect" for an extension although the judge court did not engage in a false conflicts analysis, this reasoning indicates that jurisdiction has at least a minimal interest in applying its law. see restatement (second) of apply in tort cases. id. a court first examines the "general [tort] principle" in section 145 and then commc'ns, 485 f.3d 1233, 1240 (11th cir. 2007); piamba cortes v. am. airlines, inc., 177 f.3d motion to strike (doc. no. 117, filed dec. 23, 2008) is denied as moot. under the judge court's own reasoning because the mexican rule of law at issue in judge did not of punitive damages regulated conduct "on some level" by punishing wrongdoers). further, section further,whenapartyaskstoamendapleading after the applicable scheduling order deadline industries, inc., 624 p.2d 68, 69 (okla. 1980), the oklahoma supreme court interpreted the state's why mexico would lack a deterrent interest where the negligence occurs abroad but causes an injury 2. themotionofdefendantthrifty rent-a-car system, inc. ("thrifty") to amend/correct the the various issues in the case moving forward. this includes, if possible, a stipulation as to the of appeal decided abrahantes in 1987, and the eleventh circuit decided judge in 1990.10 percent at fault. however, compared to the more traditional joint and several liability system of sought to be achieved by that rule and by the relation of the state to the occurrence and the parties."). his own injury. id. 14; smith v. jenkins, 873 p.2d 1044, 1044 (okla. 1994). in paul v. n. l. abrahantes, the court then concluded in one sentence that florida law should apply. id. ("having related to both the unusual facts of this case and the scope of this court's jurisdiction. plaintiffs the court noted that fabre is a matter of florida law, and if south africa law controls the issue of by the trial court. paul, 624 p.2d at 69-70; see also myers v. mo. pac. r. co., 52 p.3d 1014, 1030 particularly with regard to a [w]rongful [d]eath claim." (id.) in particular, thrifty wishes to avail proportional share of liability. id. 2307.22(a)(2). thus, a defendant can, in theory, reduce its judicial systems. central intelligence agency, the world fact book, united states (2009), to apportion liability to non-parties termed fabre defendants, thus abrogating the common law rule. damages, a defendant must prove at trial, by a preponderance of the evidence, negligence of all defendants. okla. stat. ann. tit. 23, 13 (west 2008). however, like south africa decisions do not cast doubt on the eleventh circuit's reasoning in judge. the third district court rule is limited to the same damages provided by the joint-and-several-liability rule. when the 14. response of plaintiffs in opposition to motion of thrifty to apply the law of south africa defendant.").) further, the "loss-distribution" label is not dispositive of a jurisdiction's interest, and there wrongful death action, south africa's recognition of joint and several liability implicates the 14, 2008). oklahoma's system apparently allows a defendant to shift tort liability to non-party thrifty filed an amended answer without leave of the court. (doc. no. 126.) generally, middle district of florida shall enter judgment against each party liable on the basis of such party's percentage accordingly, the court will deny thrifty's request without prejudice to its reassertion on an issue- (b) the relevant policies of the forum, f.3d 1417, 1419 (11th cir. 1998). here, the case management and scheduling order set a deadline modified comparative negligence scheme, which bars recovery against a defendant who is less 1. notice of defendant thrifty rent-a-car system, inc. ("thrifty") of designation of fabre of fault apportionment to non-parties. because oklahoma law governs this issue, these motions are africa law, oklahoma law bars a claimant's action if his negligence exceeds the combined interests that are implicated when the defendant is a resident of the jurisdiction. judge, 908 f.3d at where a "personal injury" is involved, section 146 of the restatement (second) presumes that the francois du in fabre, the florida supreme court created an affirmative defense that allows named defendants from excessive tort liability. accordingly, its policy would be frustrated by the application of south occurs in the jurisdiction. the manner in which fault is allocated between defendants is a "loss- permitted by ohio law. (doc. no. 154 at 10 ("the ohio revised code does, however, provide any who are less than fifty-one percent at fault to shift liability to a non-party, oklahoma has expressed least some interest in the litigation by "virtue of its being the place where the injury occurred and issue before the court was whether to apply mexico's prohibition on claims for wrongful death. see implicated by tort law are deterring tortious behavior and ensuring compensation for tort victims. or extends to all issues in this litigation. (see doc. no. 130.) the court will consider the in judge occurred in mexico, the judge court's reasoning would still dictate that mexico lacked an bois & daniel visser, the influence of foreign law in south africa, 13 transnat'l l. & contemp. 5. the motion of thrifty to apply the law of south africa (doc. no. 130, filed jan. 26, 2009) a party may amend an answer within twenty days of its filing without obtaining leave of the court that this factor "plausibly" favored mexico because the crash occurred there. judge, 908 f.2d at 4. response of plaintiffs to the motion of thrifty to amend/correct the answer to the will not be frustrated by the application of south africa's or oklahoma's law. erny, 792 a.2d at at the plaintiff's election, provided that the plaintiff could never recover more than the full amount florida]." id. at 27. the court apparently reached its conclusion under the "most significant protect defendants and potentially reduce insurance premiums by limiting excessive tort judgments: on first blush, the eleventh circuit's reasoning in judge appears to dictate that south africa interested state. the court must then identify the purposes or policies which underlie wrongdoers and potentially apportion liability to them. id. ch. 2, 2(b). the act also instructs in federal practice, proof of foreign law is governed by federal rule of civil are easily accessible on traditional commercial databases such as westlaw and lexis-nexis. south -20- of the proposed fabre defendants fall under the category of concurrent tortfeasors, and thus the providing that "liability for damages caused by two or more persons shall be several only and a joint appellate court's construction of state law unless "later state court decisions indicate that the court 8 (...continued) percent at fault to escape joint and several liability evinces a policy of protecting resident tortfeasors a non-defendant." (doc. no. 154 at 7-8.) both of these assertions are a misstatement of the law. (d) the protection of justified expectations, jurisdiction's interest in generally deterring tortious conduct within its borders. see judge, 908 f.2d the injury, the place of the alleged conduct, and the place of the relationship are all relevant to a that such an assumption is "too strained" to merit weight unless supported by actual evidence in the negligence of third parties as an affirmative defense as required under florida law. thus, to the 1572-73 & n.9; see also erny v. estate of merola, 792 a.2d 1208, 1216-21 (n.j. 2002) (concluding answer to the complaint (doc. no. 109, filed dec. 15, 2008) is denied as moot. it believes are wholly or partially responsible for the negligence alleged. (doc. no. 106; doc. no. subsection (f), instructing courts to apply the law which will foster "certainty, predictability law, the claimant's recovery is also reduced by the degree to which the claimant is responsible for 9. order requiring submission of briefs concerning the issue of choice of law (doc. no. involved in the incident. id. at 1572 n.9. when neither the plaintiff nor the defendant are residents state would be furthered by the application of its laws while the policy of the other state would not c. by contrast, thrifty's residency in oklahoma directly implicates the jurisdiction's "loss- implicates, at the very least, a modest interest in deterring tortious conduct within its borders. intermediate appellate courts absent direct guidance by the florida supreme court, galindo v. ari excessive tort judgments. further, ohio has the same rules governing apportionment of liability to south africa is labeled the law of delict and is derived from the lex aqulia, a roman text governing 166.) the traditional common law rule in the united states is joint and several liability, whereby involves allegations of negligence rather than the breakdown of a voluntary transaction. issue and determine whether it sounds in torts, contracts, property law, etc. once it has characterized further, while federal courts interpreting florida law must look to the decisions of florida's defendant thrifty, a car rental service, to raise an affirmative defense to the claim of liability for governing law for the various issues that will arise at trial. in contrast, subsections (d) and (g) are relatively unimportant in tort cases because they primarily conflicts of law 172 cmt. b, illus. 1. thus, south africa's recognition of joint and several liability b. oklahoma law on mexico's roads. south africa law will have to be presented, in part, by the reports of experts. although south several liability; upholding the joint and several liability of a defendant that was only one percent conflict of laws 704 (1963), the court distinguished between "conduct-regulation" rules that contacts for this particular legal issue are the strongest under section 145. judge, 908 f.2d at 1571- under the principles articulated in judge and the restatement (second), florida has no car, the place where the negligent conduct occurred is most likely south africa; however, plaintiffs mexico's complete prohibition [was] at least as important as the institutional interest in promoting "conduct-regulation" rule. judge, 908 f.2d at 1571-72 & n.9. the recognition of full joint and implicated when the defendant was from new york); farrell v. david davis enters., inc., no. civ. according to their relative importance with respect to the particular issue."). notably, the place of filed dec. 19, 2008); over tmc, leaving only the claims against thrifty.2 jurisdictions may balance these concerns applied under the facts of this case. interests contemplated by sections 6(2)(b) and 6(2)(c). to perform this analysis, the the series of motions, responses, and notices before the court concerns the intent of -5- 1. subsections (b) and (c) the best guide. states have a legitimate interest in a particular set of facts in the litigation and the laws of those states -26- conflict of laws (1971), sections 6, 145, and 146, we conclude that the trial court reversibly erred of course, this conclusion is contradicted to some extent by the florida district court of versa. matter, "negligence" under the modern interpretation of the lex aquila is relatively similar to the apportionment of fault to non-parties in a motion in limine or at trial. -21- orlando division occurred is south africa. given that the plaintiffs allege a mechanical malfunction with the rental cannot simply add up the factors delineated in section 145(2) and then apply the law of the sovereign law, the plaintiff's damages are also reduced by the degree to which the plaintiff is at fault for his seek derivative damages related to the death of madison miller, a resident of ohio at the time she jurisdiction's law could be chosen under the "most significant relationship" analysis unless that american system, oklahoma law is easiest to determine and apply. particular issue to plaintiffs than oklahoma law, suggesting that harshness is not a concern. thus, the eleventh circuit explained in judge that: has passed, the party is in effect seeking to modify this deadline. sosa v. airprint sys., inc., 133 an interest in encouraging socially useful enterprise by protecting defendants from excessive principles of section 6: "(a) the place where the injury occurred; (b) the place where the conduct inapplicable to this case even under florida law. (doc. no. 108.) they argue that florida courts 3 codified by statute in section 768.81(3) of the florida statutes. later, in fabre, the florida supreme cause, identify the nonparty, if known, or describe the nonparty as (b) in order to allocate any or all fault to a nonparty and include the named -17- based on the foregoing: affirmatively plead the fault of a nonparty and, absent a showing of good determining which sovereign has the greatest connection to the factors listed in section 6. id. thus, defendant acted with "willful and wanton conduct," id. 15(c). further, a defendant will be jointly mc, 2008 wl 4056295, at *3 (s.d. fla. aug. 29, 2008) (citing tune v. phillip morris, inc., 766 which this court is located. however, even assuming plaintiffs' post-accident move implicates (a) the needs of the interstate and international systems, modestly favors oklahoma law. oklahoma is a common law jurisdiction whose legal precedents since a plaintiff will recover his or her full damages whenever a defendant is found to more than fifty test outlined in the restatement (second) of conflict of laws. id. (citing bishop v. fla. specialty or her own injury, id. ch. 1, 1, a system termed "comparative negligence" in american parlance. accordingly, the amended answer will be stricken from the record. order. n.e.2d 890, 893 (ohio 1982)). the state legislature eventually enacted a statutorily modified defendant, but also to prove non-negligence on the part of the third parties." paul, 624 p.2d at 69- (okla. 2002). the plaintiff bears the burden "to prove not only negligence on the part of the between the parties, if any, is most fairly characterized as south africa, because this is the location accordingly, oklahoma has the most significant interest in this issue according to the govern the standard by which an actor is deemed negligent. thus, even assuming the negligence the degree to which the purposes underlying each rule would be furthered by the liability by shifting blame onto non-party tortfeasors. see id. that said, similar to oklahoma, the between the competing policies of two jurisdictions. see o'connor v. o'connor, 519 a.2d 13, 23 is a combination of germanic, dutch, and ancient roman legal principles. du bois & visser, supra, -27- defendants. -11- the legal issue, it determines the choice of law rule that the forum state applies to that particular type but would produce the same outcome under the facts of the case; or (3) when the policies of one fault is the domicile of the party whose liability is at issue, because that state's laws both bear on such as the degree to which thrifty manages its south african franchisee, but the dispute itself (c) the relevant policies of other interested states and the relative interests of those helicopter manufacturer, and south africa's civil aviation agency.3 the last to speak on this issue, and this court will follow its interpretation of florida choice of law (continued...) underoklahomalaw,evidenceofthenegligence of non-party tortfeasors should be admitted court must first identify the particular rule of law sought to be applied by each section 6 lists six "factors relevant to the choice of the applicable rule of law": negligence scheme in which a plaintiff's damages are reduced by the degree to which they were itself of limitations that south africa law purportedly places on the damages recoverable by parents this case comes before the court on the following: doc. no. 154 at 15.) plaintiffs' domicile at the time of the accident was ohio, and their current or consent from the opposing party. fed. r. civ. p. 15(a)(1)(b). after that point, the party must practice series 7:8 (2008). forth in section 145(2)), quoted in judge, 908 f.2d at 1569. in this case, the place where the injury 2. ohio law identifying the body of law that governs the apportionment of liability in this case. (doc. no. 121.) caused by the plaintiff's own negligence. hoffman, 280 so. 2d at 438. that ruling was thereafter analysis a federal court sitting in diversity will apply the conflict-of-laws rules of the forum state. further, the court has not located any cases where this apportionment actually b. the most significant relationship 8. notice of thrifty of filing the statement of bedver john henry irving in support of liable where the defendant's share of fault is greater than fifty percent, id. 15(b), or where the 73. -25- fed. r. civ. p. 16(b)(4). thus, when a party files a motion for leave to amend a pleading after the parties. and like florida, ohio lacks an interest in having this rule applied. the ohio system makes federacion nacional autonoma de futbol de honduras v. traffic sports usa, inc., no. 08-21505- evidentiary matter rather than an objection to thrifty's affirmative defenses. see paul, 624 p.2d at heavily implicated by the facts of the case, and the court comes to the same conclusion here. 121, filed jan. 12, 2009); non-parties as oklahoma. because thrifty is a resident of oklahoma, and not a resident of ohio, for the loss of a child. (id.) analysis. through its adoption of joint and several liability with no opportunity to shift blame to conduct within south africa's borders, thrifty can still be held liable for damages, and south africa jury should apportion fault between the plaintiffs, defendant, and any non-party tortfeasors. not obtain leave of this court or consent from plaintiffs. every issue in this case before the issues even arise. every legal principle reflects a different balance tort rules to which it was applying the test. see id. anglo-american formulation. (see doc. no. 130 at 12-18.) interest in applying a "loss-distribution" rule turns not on the site of the incident but on the people court must now determine which jurisdiction has the most significant relationship to this issue. maintenance of the rental vehicle occurred in the foreign jurisdiction, thus implicating that -4- tortfeasors. oklahoma's legislature later codified this joint-and-several-liability rule in 2004 by have drawn a distinction between concurrent tortfeasors, to which the fabre defense applies, and somewhatopaquelanguageasmeaningthe preservationofinternational commerce. judge,908f.2d 1 a defendant who is found to be more than fifty percent at fault jointly and severally liable for the of appeals' earlier prediction of state law was in error." stepanuk v. state farm mut. auto. ins. co., 15, 2008); only in proportion to the percentage of fault by which that defendant contributed to the accident."). arguments made in this motion to the extent they concern the issue of apportionment of liability. of state policies, and no two laws would be subject to the exact same analysis under the 7. consent motion of plaintiffs for leave to file reply to defendant's opposition to motion issue. relationship" test, but it gave no further explanation of its reasoning, nor did it identify the particular 108, filed dec. 5, 2008) is denied as moot. plaintiffs may raise issues relating to the before trial in accordance with the florida rules of civil procedure. where plaintiffs agreed to rent the car. judge, 908 f.2d at 1569. statute does not delineate as a matter of procedure how a defendant would accomplish this task.8 should the court apply south africa's law, thrifty would be subject to the same joint-and-several- tortfeasors; however, the statute does not delineate a procedure for doing so.7 these cases strengthens the court's conclusion that south africa has at least some interest in eleventh circuit reaffirmed the reasoning of judge in grupa televisa, s.a., decided in 2007. negligence is greater than the combined negligence of the parties and non-parties that caused the has no interest in having its law applied. there, the eleventh circuit explained that a jurisdiction's negligence. the rule held that a plaintiff was barred from recovery if the plaintiff's own negligence -7- and south africa's contacts would be most relevant to a "conduct-regulation" rule, oklahoma's a car accident that occurred in south africa. specifically, thrifty relies on the florida supreme williams v. davis, 974 so. 2d 1052, 1061 n.10 (fla. 2007); hoffman v. jones, 280 so. 2d 431, 438 specifically as practicable, either by motion or in the initial responsive thrifty's notice of intent to raise applicability of the law of south africa (doc. no. 118, favor of a system where defendants are liable only according to their percentage of fault for the under the apportionment of damages act ("ada") 34 of 1956 (bsrsa), south africa adopted of issue." grupa televisa, s.a., 485 f.3d at 1240 (citing acme circus operating co., inc. v. apportionment of liability also apply. (doc. no. 121 at 2 (citing connell v. riggins, 944 so.2d 1174, as co-personal representatives of the estate, be inappropriate for the court to prospectively declare that south african law applies to each and by contrast, the united states is a federated republic with separate state and federal thrifty filed this document without leave of the court or consent by plaintiffs. 11. supplemental brief of thrifty regarding choice of law (doc. no. 127, filed jan. 26, 2009); appeal cases of abrahantes and connell. as previously explained, the courts' analysis in these 1574. the court ultimately disregarded this factor because the "equitable interest in avoiding to strike (doc. no. 117, filed dec. 23, 2008); of business of the parties, and (d) the place where the relationship, if any, between the parties is (g) ease in the determination and application of the law to be applied. record. id. at 1573; see also grupo televisa, s.a., 485 f.3d at 1246. provides: "a [scheduling order] may be modified only for good cause and with the judge's consent." 1. florida law the place where the relationship between the parties is centered." judge, 908 f.2d at 1569. has other administrative and criminal institutions to encourage road safety. thus, the court cannot abrahantes, 517 so. 2d at 25; judge, 908 f.2d at 1565. although connell was decided in 2006, the each defendant found liable could be required to pay for one-hundred percent of the plaintiff's injury important in the fields of contracts, property, and wills). 17. supplemental motion of thrifty for leave to amend answer and affirmative defenses to at 1180. the court determined that all of the case's contacts, with the exception of the forum and at 611. during the nineteenth century, the colony came under the control of the british, who put domicile appears to be florida. thrifty's residency is in oklahoma. the place of the relationship 9 5. notice of thrifty of intent to raise the applicability of south africa law (doc. no. 112, predictability and uniformity." id. in this case, south africa's law is actually more generous on this from the scene crashed. (id.) following the accident, plaintiffs moved to florida and sued both is denied without prejudice to its reassertion, as stated in this order. on january 12, 2009, the court issued an order requiring the parties to submit briefs ada, ch. 2, 8(a). as a related matter, the act creates a system for defendants to implead other answer, it must meet this standard. it has failed to do so. commonwealth of virginia. see va. code ann. 8.01-443 (2009) (retaining the common law rule). principles. the fault of the nonparty in causing the plaintiff's injuries. comparative negligence statute asgroundstopermitdefendantstoassign blame to non-party "ghost" non-parties, south africa has expressed a modest interest in generally deterring tortious conduct jerame miller, determining the applicable source of law, the court will assume without deciding that at least some a plaintiff cannot be barred from recovery for being more than fifty percent at fault, and a defendant restatement (second) of conflicts of law 145 cmt. b.9 plaintiff's injury. fabre, 623 so. 2d at 1185. in turn, the legislature codified this interpretation of a. south africa law 1177. however, the court's ultimate task is to determine how the florida supreme court would rule be advanced by the application of its laws. tune, 766 so.2d at 352 (citing greaves v. state farm compared to florida law, this system is slightly more skewed in favor of compensating plaintiffs, -13- complaint (doc. no. 110, filed dec. 15, 2008); litigation. though neither case featured a detailed application of the section 6 factors, both cases florida law currently recognizes a "pure comparative negligence" system, meaning that a 792 a.2d at1216-21; farrell, 1996 wl 21128, at *3. 1180 (fla. 1st dca 2006) (determining that georgia law governed the issue of fault apportionment available at https://www.cia.gov/library/publications/the-world-factbook/geos/us.html. 6 on this particular issue. in this sense, the eleventh circuit's very detailed analysis in judge provides assert that "oklahoma law does not provide a defendant with the option of apportioning liability to ins. co., 984 f. supp. 12, 14 (d.d.c. 1997)). in contrast, a true conflict exists when two or more the section 6(2) analysis turns in large part on the balance of competing cases suggest that south africa has an interest in applying its joint and several liability rule to this "loss-distribution" rules are generally not implicated when an accident between two nonresidents extent plaintiffs object to thrifty's shifting of blame to non-parties, this objection is now an "concurred with the defendant's negligence and contributed to the injury as a proximate cause is that several of the plaintiffs moved to florida following the accident, and florida is the state in observing that nearly every fact relevant to the case arose in the cayman islands, the court 1418-19 & n. 2. an untimely motion to amend a pleading is distinctly disfavored under the local 1272, 1296-97 (11th cir. 1999). "as a preliminary matter, the court must characterize the legal though it is unclear whether the scope of this request relates to the issue of liability apportionment pleading when defenses are first presented, subject to amendment any time interest in having the fabre defense applied. the only relationship florida has with this litigation delineated in section 145(2) and then apply the law of the sovereign with the greatest numerical no. 48 1, filed dec. 27, 2007), and the car's alleged manufacturer, toyota motor corporation evaluating the strength of mexico's interests under the "most significant relationship" test of section relevant scheduling order deadline has passed, the party must demonstrate both good cause and oklahoma joins south africa in possessing an interest in applying its law. thrifty is a the tortious conduct that injured the plaintiff, any one defendant who is more than fifty percent liable kuperstock, 711 f.2d 1538, 1540 (11th cir. 1983)). florida resolves conflict-of-laws questions according to the "most significant relationship" of passed deadline. fed. r. civ. p. 6(b)(1)(b). rule 16 concerns scheduling orders specifically and -12- to a resident corporation. judge, 908 f.2d at 1570-71; see also dale v. ala acquisitions i, inc., 434 ("tmc"). after jurisdictional discovery, the court determined that it lacked personal jurisdiction c. ohio law see 9 oklahoma jan. 23, 2009) is stricken. the court has already identified the relevant policies at stake during the false conflicts successive tortfeasors, to which the fabre defense does not apply. (id. at 3-8.) for purposes of tort judgments. see judge v. am. motors corp., 908 f.2d 1565, 1570 (11th cir. 1990). at 1574. in that case, the eleventh circuit concluded that "international considerations" were not jersey's law limiting joint and several liability and pennsylvania's law permitting full joint and compensation than under the joint-and-several-liability rule. thus, the policy behind this rule is to (doc. no. 154, filed feb. 25, 2009); at 1570 (noting that a jurisdiction's allowance of wrongful death damages, and hence greater tort (doc. no. 130.) plaintiffs, by contrast, contend that the law of oklahoma, include fabre defendants identified through recent discovery (doc. no. 166, filed mar. 7. the supplemental motion of thrifty for leave to amend answer and affirmative defenses significant relationship under the principles stated in [section] 6 to the occurrence and the parties." restatement (second). judge, 908 f.2d at 1575. thrifty may maintain a fabre-style defense to the tourists were killed due to an alleged defect in their rental car while vacationing in mexico, and the doc. no. 154 at 10-11.) the most pertinent modification is that courts are permitted, when thrifty asks the court "to apply the law of south africa," apparently requesting that the several liability can function to deter tortious conduct, but the restatement (second) explains that of the jurisdiction in which the accident occurred, the jurisdiction lacks an interest in seeing that the -6- when the defendant fails to shift liability to a non-party tortfeasor, a plaintiff subject to the fabre now moot. of admissibility under the federal rules of evidence. id. the court's selection of law is treated as rules of this district. see local rule 3.05(c)(2)(e). if thrifty seeks leave to file an amended ______________________________________ united states district court (doc. no. 103, filed oct. 6, 2008.) . . . ." id. 2307.22(a)(1). the remaining named defendants are responsible for only their the republic of south africa possesses a single, centralized judiciary system.6 although the joint-and-several-liability rule does not prescribe substantive standards for governing damages in this case, as thrifty contends, it would be unlikely that florida rules governing the counsel of record subsection (f) is most important "in areas where the parties are likely to give advance thought to the in connell, 944 so. 2d at 1177, the first district court of appeal found that georgia's v. thrifty's requests to amend its answer to add fabre defendants and plaintiffs' mut. ins. co., 203 f.3d 771, 774-75 (11th cir. 2000), district courts are bound by their governing procedure 6 and 16 for the modification of deadlines. id. and severally liable when the plaintiff's percentage of fault is zero. in re adoption of 2008 revisions 4. the amended answer and affirmative defenses of defendant thrifty (doc. no. 126, filed plaintiffs object to the application of the fabre defense on grounds that is several liability because new jersey had no interest in limiting a pennsylvania defendant's tort fabre defense could potentially apply to this case. estate of madison miller, id. citing reich v. purcell, 432 p.2d 727, 727 (1967), and bernard currie, selected essays on the copies furnished to:

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