APPEAL FROM THE SHELBY CIRCUIT COURT, The Honorable Charles D. O'Connor, Judge, Cause No. CC-86-9.
Neal, J., Ratliff, C.j. Concurs; Sullivan, J. Dissents W/opinion.
Opinion ON PETITION FOR REHEARING
On October 29, 1987, we published our opinion in this cause, 514 N.E.2d 645. We determined that, although Karen, Gregory, and Verna are California domiciliaries, lex loci delicti required the application of Indiana substantive law because the allegedly tortious conduct occurred here. 514 N.E.2d at 648. However, we noted that a different result might have been obtained under the "most significant relationship approach" because California has an interest in governing its family relationships. In reaching our decision we relied in large part on Hubbard Mfg. Co. v. Greeson (1986), Ind. App., 487 N.E.2d 825. Recently, the supreme court granted transfer of Greeson, vacated the court of appeals decision, and abrogated the lex loci doctrine. Hubbard Mfg. Co. v. Greeson (filed Dec. 1, 1987), Ind. No. 68S01-8712-CV-1109. The supreme court adopted a two-step choice-of-law rule. The first step is to consider whether the place of the tort bears little connection to the legal action. If the contact is significant, lex loci delicti will be applied; if not, consideration of other factors is permitted, such as:
(1) the place where the conduct causing the injury occurred;
(2) the residence or place of business of the parties; and
(3) the place where the relationship is centered.
Slip op. at 4 (citing Restatement (Second) of Conflict of Laws § 145(2) (1971)).
In applying this rule to the instant case, we must first determine whether the site of Karen's injury is a significant contact warranting the application of Indiana substantive law.
In Emery v. Emery (1955), 45 Cal.2d 421, 289 P.2d 218, unemancipated minor children and their mother sued their father to recover for injuries suffered in an automobile accident. The parties were California domiciliaries, but the accident occurred in Idaho. Because the accident occurred in Idaho the California Supreme Court held that Idaho law should be applied regarding the negligence issue. 45 Cal.2d at 425, 289 P.2d at 221. However, concerning the issue of parental immunity the court looked to California law, because "[i]t is not . . . a question of tort but one of capacity to sue and be sued and as to that question the place of injury is both fortuitous and irrelevant." (Footnote omitted.) 45 Cal.2d at 427, 289 P.2d at 222. To hold otherwise, the court reasoned, would subject the rights and duties attendant to the family relationship to constant change as family members crossed state lines during temporary absences from home. Accord Armstrong v. Armstrong (1968), Alaska, 441 P.2d 600, 703 (Alaska law applies despite occurrence of accident in Canada during an automobile trip because contact was "fortuitous, transitory and insubstantial."); Wessling v. Paris (1967), Ky.App., 417 S.W.2d 259 (Kentucky guest statute applies when two residents are involved in an Indiana accident because place of accident was fortuitous and Indiana had no interest to be promoted); but cf. Foster v. Leggett (1972), Ky.App., 484 S.W.2d 827 (If Kentucky has significant contacts, not necessarily the most significant contacts, Kentucky law will be applied).
A result similar to that of Emery, supra, was reached in Wartell v. Formusa (1966), 34 Ill.2d 57, 213 N.E.2d 544. In Wartell, a husband and wife, both Illinois domiciliaries, were injured in an automobile accident during a Florida vacation. The husband died and the wife sued the executor of his estate. The court, treating the issue as one of family law, held that, although Florida law applied to determine whether or not a tort was committed, "Illinois has the predominant interest in the preservation of the husband-wife relationship of its citizens, and to apply the laws of Florida to the question of whether interspousal tort suits may be permitted between Illinois residents would be illogical and without a sound basis." Id. at 59, 213 N.E.2d at 545-46. The court cited Emery, supra, in support of its decision.
Wartell was relied upon in Aurora Nat'l Bank v. Anderson (1971), 132 Ill.App.2d 217, 268 N.E.2d 552. In Anderson a minor child was a passenger in a car driven by her mother, which was involved in an accident with another car. The accident occurred in Iowa, but all the parties were Illinois residents. The bank, as guardian of the child, sued both her mother and the other driver. The court, citing Wartell, supra, characterized the question of capacity to sue in a parent-child suit as a question of family law, and held that Illinois had the predominant interest in the parent-child relationship, so redress otherwise available should not be denied merely because the injury occurred outside Illinois. Id. at 220, 268 N.E.2d at 554. The court also noted that the same Conclusion would be reached if the issue was considered as a tort question, because Illinois had a more significant relationship with the occurrence and the parties. Id. at 221, 268 N.E.2d at 555; accord Williams v. Williams (1976), Del., 369 A.2d 669; Huff v. LaSieur (1978), Mo. App., 571 S.W.2d 654; Robertson v. McKnight (1980), Tex., 609 S.W.2d 534.
Under the two-step rule set forth in Greeson, supra, if the place of the tort bears little connection to the legal action, other factors may be considered. Regarding intra-family immunity, the applicable law will usually be the law of the state of the parties' domicile. Restatement (Second) of Conflict of Laws § 169(2) (1971). Because Gregory, Karen, and Verna are California residents, California has a ...