Choice of law

• Pages: 4-5

4Volume 18, January–March 2012 international law update

© 2012 Transnational Law Associates, LLC. All rights reserved. ISSN 1089-5450, ISSN 1943-1287 (on-line) | www.internationallawupdate.com

CHOICE OF LAW

A    F C 

    ’

     

   ,   L’

      

  I’  

    

   

  C     

  P  

      

   

Sergeant Christopher Everett was a Texas

Army National Guardsman deployed to Iraq. On

September 7, 2005, while washing a Humvee, a

power washer electrocuted Everett. e cause was

an improperly connected neutral grounding wire

on the generator, which supplied electricity to the

power washer. e Plaintis are Everett’s parents

and heirs, all of whom live in Texas.

e government told the Plaintis about the

accident and gave a packet of information about

the incident on December 15, 2005. ough the

packet of information mentioned the involvement

of Arkel International, LLC (Defendant), the

Everetts claimed that they were not aware of that

until April 2008. Defendant is domiciled in Baton

Rouge, Louisiana.

At the time of the accident, Defendant had

a contract with the United States to repair and

maintain generator equipment at Sergeant Everett’s

base. Defendant claims that the generator was not

the primary cause of Everett’s death.

e Plainti rst sued Defendant in Texas

state court for damages, for wrongful death under

the Iraqi Civil Code. e Plaintis alleged that

several defendants including Defendant had acted

negligently in maintaining the generator and

that such negligence proximately caused Everett’s

death. In September 2008, while the Texas case

was pending, the Everetts led an identical action

in Louisiana state court. Again, the Defendants

removed the action to federal court and the Texas

action was stayed.

In April 2009, the Texas federal court granted

the Plaintis’ motion to dismiss. e Louisiana

federal court next granted the Plaintis’ motion to

dismiss all defendants except Arkel. In September

2009, the Louisiana federal court lifted a stay

and reopened the action. Defendant moved for

summary judgment, contending that Louisiana’s

statute of limitations barred the Plaintis’ claims.

e Plaintis, however, argued that the Iraqi statute

of limitations applied. e district court gave

Defendant summary judgment and dismissed the

action with prejudice. e Plaintis noted their

appeal.

e U.S. Court of Appeals for the Fifth Circuit

reverses and remands. Since this is a diversity case,

the federal Court must apply the choice-of-law

rules of Louisiana, the forum state, to identify the

substantive law that applies. e Court states that

the law of the state in which the allegedly wrongful

conduct and the resulting injury occurred will

apply regardless of the parties’ domiciles or other

linking factors. In this case, the alleged negligence in

maintaining the generator and Everett’s death both

happened in Iraq. erefore, Iraq’s substantive law

applies to the merits.

Next, the Court looks to the Louisiana Civil

Code to determine what the Code provides for

prescriptive periods. When the substantive law of

another forum applies, there are two exceptions

regarding which statute of limitations is applicable.

e potential bar of another state becomes relevant

only when the prescription and preemption law of

Louisiana would bar the suit.

“It would be fair to say that [the] Iraqi courts

at the time of Sergeant Everett’s death would

not entertain a suit brought against a Louisiana

company who had contracted with the Coalition

Provisional Authority and whose alleged negligence

while performing under that contract caused the

death of a service member in Iraq. us, perhaps

there is no limitations period applicable to such a

suit that can be applied. Whether that is the right

view, or whether we only need to know what the

Iraqi limitations period would be for personal

injuries claims generally, is a matter to be decided

under Louisiana law inasmuch as it is that state’s

choice-of-law rules we are interpreting.” [Slip op.

10-11]

Next, the Court turns to whether the Iraqi

statute of limitations would bar the suit. e Court

notes that the Plaintis have the burden of proving