Plaintiff’s Memorandum in Response to Defendants’ Motion for Partial Summary Judgment

Torres v. Annett Holdings

Description: This case was a negligence case brought against various defendants based on a catastrophic 18-wheeler crash that killed seven members of a Mexican family.  The Defendants filed a summary judgment motion seeking to apply Mexican law.  The motion was denied.  The case later settled for a substantial sum. This brief was filed by Heygood, Orr & Pearson on behalf of their client.

IN THE SUPERIOR COURT OF THE STATE OF ARIZONA
IN AND FOR THE COUNTY OF PIMA
ERIKA TORRES, IVAN ALEJANDRO TORRES, MARGARITA IBARRA GUTIERREZ, IGNACIO MANUEL CARRANZA, MARGARITA COTA HERNANDEZ, ALMA IRENE DANIEL, RAMON GARCIA MACIAS, AND MARIA TERESA GUTIERREZ DE GARCIA, OSCAR CARRANZA, MARIA DOLORES COTA, SERGIO CARRANZA DANIEL and IVAN CARRANZA DANIELPlaintiffs,vs.

ANNETT HOLDINGS, INC.,d/b/a TMC TRANSPORTATION, AND LARRY HOOPINGARNER, JANE DOE HOOPINGARNER, HUSBAND AND WIFE, PHELPS DODGE MINING CO. and PHELPS DODGE CORP.

Defendants.

No. C20062453PLAINTIFFS’ MEMORANDUM IN RESPONSE TO THE MOTION FOR PARTIAL SUMMARY JUDGMENT FILED BY DEFENDANTS ANNETT HOLDINGS, INC. and LARRY HOOPINGARNER(Tort Motor Vehicle –
Wrongful Death)

(Assigned to the Honorable Paul Tang)

 

 

Plaintiffs file this their Memorandum in Response to the Motion for Partial Summary Judgment filed by Defendants Annett Holdings, Inc. and Larry Hoopingarner (herein “Defendants”) and would respectfully show the Court the following:

SUMMARY JUDGMENT EVIDENCE

In support of this their Memorandum in Response to the Motion for Partial Summary Judgment, Plaintiffs submit the following summary judgment evidence:

  1. the Affidavit of Juan Francisco Torres-Landa attached hereto as Exhibit 1;
  2. confirmations from the Arizona Department of Insurance website attached hereto as Exhibit 2;
  3. excerpts from the deposition of the Annett Holdings corporate representative attached hereto as Exhibit 3;
  4. excerpts from the deposition of Dolores Cota attached hereto as Exhibit 4;
  5. excerpts from the interrogatory responses of Dolores Cota attached hereto as Exhibit 5;
  6. excerpts from the deposition of Oscar Carranza Carranza attached hereto as Exhibit 6;
  7. excerpts from the interrogatory responses of Oscar Carranza Carranza attached hereto as Exhibit 7;
  8. excerpts from the deposition of Margarita Ibarra Gutierrez attached hereto as Exhibit 8;
  9. excerpts from the interrogatory responses of Margarita Ibarra Gutierrez attached hereto as Exhibit 9;
  10. excerpts from the deposition of Manuel Ignacio Carranza Carranza attached hereto as Exhibit 10;
  11. excerpts from the deposition of Maria Teresa Gutierrez de Garcia attached hereto as Exhibit 11;
  12. excerpts from the interrogatory responses of Maria Teresa Gutierrez de Garcia attached hereto as Exhibit 12;
  13. excerpts from the interrogatory responses of Ramon Garcia Macias attached hereto as Exhibit 13;
  14. excerpts from the deposition of Ivan Torres attached as Exhibit 14;
  15. excerpts from the deposition of Larry Hoopingarner attached as Exhibit 15.

BACKGROUND

This case concerns a catastrophe which occurred on May 1, 2006.  On that date, Larry Hoopingarner while working for Annett Holdings and driving a tractor-trailer loaded by Defendant Phelps Dodge, virtually ran over a pickup truck containing seven people by striking it in the rear,1 causing the truck to burst into flames.  All seven occupants perished in the collision and fire.  The death of these human beings was undisputedly caused by the negligence and/or gross negligence of Movants.2 The Plaintiffs in this case are the surviving spouses, children and parents of those who died.

Defendants have filed a motion for partial summary judgment seeking to apply Mexican law to the damage claims of certain Plaintiffs.  The Plaintiffs at issue are Margarita Ibarra Gutierrez, Manuel Ignacio Carranza Carranza, Oscar Carranza Carranza, Dolores Cota de Carranza, Ramon Garcia Macias and Maria Teresa Gutierrez de Garcia.  All of these Plaintiffs are parents of individuals killed in the collision and fire (these Plaintiffs shall hereinafter be referred to as the “Parents”).  The reason Defendants desire for Mexican law to apply is because, according to Defendants, Mexican law does not allow the Parents to recover damages for the loss of their children.  Thus, by their motion, Defendants are attempting to eliminate the meritorious claims of numerous proper wrongful death beneficiaries who had very close relationships with their children and have suffered an enormous loss at the hands of Defendants.  For the reasons stated below, Mexican law clearly does not apply to this case and Defendants’ motion should therefore be denied.  Furthermore, even if Mexican law were applied, it does not require elimination of the Parents’ claims since Mexican law does allow for parents to recover in certain circumstances.

THE PARENTS

The wrongful death beneficiaries who Defendants are attempting to prevent from having their day in court are the following:

Dolores Cota de Carranza and Oscar Carranza Carranza – Dolores and Oscar were the parents of Sergio Carranza, who was killed in the collision/fire.  (Dolores Cota depo., Ex. 4 at 8:12-14; Dolores Cota Interrogatory Responses, Ex. 5 at p. 2; Oscar Carranza Interrogatory Responses, Ex. 7 at p. 2; Oscar Carranza depo., Ex. 6 at 7:17-19).  Prior to their son’s death, Dolores and Oscar lived in the same town as their son, and as a result, they saw each other frequently.  (Dolores Cota depo., Ex. 4 at 10:6-7;  Dolores Cota Interrogatory Responses, Ex. 5 at p. 2).  Dolores spent time with her son typically on Fridays, Saturdays, and Sundays.  (Dolores Cota depo., Ex. 4 at 21:20-24.)  Her son would come visit her at her house, buy groceries for her if she needed them, and spend the afternoon visiting with her and the family.  (Dolores Cota depo., Ex. 4 at 23:3-21).  In addition to the very close mother-son relationship that Dolores shared with her son Sergio, he would also provide financial support to her from the sale of cattle in the approximate amount of $5,000.00 pesos annually.  (Dolores Cota depo., Ex. 4 at 23:25 – 24:20; Dolores Cota Interrogatory Responses, Ex. 5 at p. 5).

Oscar shares ownership of the family ranch (the Chapala ranch) with his siblings.  (Oscar Carranza depo., Ex. 6 at 9:4-7).  Approximately ten years ago, Oscar had to stop working on the ranch due to health problems.  (Oscar Carranza depo., Ex. 6 at 10:3-5).  After Oscar was unable to perform ranch work, his son Sergio took over the responsibility of the ranch.  (Oscar Carranza depo., Ex. 6 at 11:24 – 12:7).  Part of the work that Sergio performed on the ranch was feeding and watering the animals, fixing the fences, taking care of the cattle, cutting firewood for sales, and making cheese.  (Dolores Cota depo., Ex. 4 at 20:7-13).  Sergio was the one who helped his father out on the ranch.  (Dolores Cota depo., Ex. 4 at 13:22 – 14:1).  Sergio was the one in charge at the ranch and he was the one who would make the deals for the sale of cattle.  (Oscar Carranza depo., Ex. 6 at 18:18-24, 20:16-21, 21:6-11).  Oscar relied on his son Sergio for all the work that was done at the ranch and it was from that work that income would be generated for Oscar, Sergio’s mother Dolores and Sergio’s family.  (Oscar Carranza depo. Ex. 6 at 10:3-10;  Oscar Carranza Interrogatory Responses, Ex. 7 at p. 5).  Oscar had a very close relationship with his son and would see him every week and spend a day or two a week at the ranch with him.  (Oscar Carranza depo., Ex. 6 at 26:8-12).  Sergio took great care of his father and would get upset with him when he tried to do too much work at the ranch.  (Dolores Cota depo., Ex. 4 at 17:19-25).  Sergio was his father’s “right arm.”  (Dolores Cota depo., Ex. 4 at 25:25 – 26:3).  Since the death of Sergio, Oscar Carranza does not have anyone else to help him out.  (Dolores Cota depo., Ex. 4 at 26:2-8; Oscar Carranza depo., Ex. 6 at 20:16-21, 21:6-11).

Margarita Ibarra Gutierrez and Manuel Ignacio Carranza Carranza – Margarita and Manuel were the parents of Hugo Carranza, who was killed in the collision/fire.  (Margarita Ibarra Interrogatory Responses, Ex. 9 at p. 2; Manuel Carranza depo., Ex. 10 at 6:18-21; Margarita Ibarra depo., Ex. 8 at 6:18-23, 9:21 – 10:1, 10:19-24).  Manuel shares ownership of the Chapala ranch with his siblings.  (Manuel Carranza depo., Ex. 10 at 7:20-22).  Hugo provided financial support to his father with the earnings he made from the sale of cattle, firewood, and cheese.  (Manuel Carranza depo., Ex. 10 at 16:18 – 17:6, 19:25 – 20:8, 20:25 – 21:2).  In addition, Hugo Carranza assisted his father with the negotiation and sale of cattle.  (Manuel Carranza depo., Ex. 10 at 18:10-21).  Manuel shared a very close relationship with his son Hugo prior to his death.  Hugo spent several days a week with his father on the Chapala ranch and performed the work that his father could no longer perform.  (Margarita Ibarra depo., Ex. 8 at 28:16-22, 34:20 – 35:1).  Hugo shared a very tight bond with his parents.  They lived in the same town of Hermosillo, Sonora, Mexico and shared the same house in Hermosillo until three or four years prior to the date of his death.  (Margarita Ibarra depo., Ex. 8 at 11:23-25, 13:1-19).  Hugo financially assisted his parents by sharing his earning from his work on the Chapala and Salado ranches.  (Margarita Ibarra depo., Ex. 8 at 36:12 – 37:5).  Hugo Carranza would take care of the expenses and give his mother and father money for whatever they needed, which included items such as medicine, gas, food, and material for the ranches.  (Margarita Ibarra depo., Ex. 8 at 36:12 – 37:5, 47:19 – 48:17; Margarita Ibarra Interrogatory Responses, Ex. 9 at p. 5).

Maria Teresa Gutierrez de Garcia and Ramon Garcia Macias – Maria and Ramon were the parents of Teresita de Jesus Garcia Gutierrez, killed in the subject incident.  (Maria Teresa Gutierrez depo., Ex. 11 at 6:3-6;  Maria Teresa Gutierrez de Garcia’s Interrogatory Responses, Ex. 12 at p. 2; Ramon Garcia Macias’ Interrogatory Responses, Ex. 13 at p. 2).   Maria and Ramon live in Navojoa, Sonora Mexico.  (Maria Teresa Gutierrez depo., Ex. 11 at 8:18-19).  Maria and her daughter had a very close relationship.  Although Teresita and her mother lived in different cities they would maintain daily phone contact and see each other about every two weeks or once a month when Teresita traveled to Navojoa, Sonora, Mexico to visit.  (Maria Teresa Gutierrez depo., Ex. 11 at 12:12-17, 24:1-25).  Teresita also provided financially for both her parents by sending them money approximately every fifteen days and providing them with private medical insurance.  (Maria Teresa Gutierrez depo., Ex. 11 at 30:23 – 32:13, 32:7-13, 34:17-19; Maria Teresa Gutierrez de Garcia’s Interrogatory Responses, Ex. 12 at p. 5; Ramon Garcia Macias’ Interrogatory Responses, Ex. 13 at p. 5).

ARGUMENT AND AUTHORITIES

I.          Mexican Law Should Not be Applied to the Parents’ Claims and Defendants’ Motion should be Denied.

A.        Arizona Choice of Law Rules.

Arizona has adopted the choice of law rules of the Restatement (Second) of Conflicts of Laws (1971) (referred to herein as the “Restatement”).  Schwartz v. Schwartz, 103 Ariz. 562, 447 P.2d 254 (1968); Bryant v. Silverman, 146 Ariz. 41, 42, 703 P.2d 1190, 1191 (Ariz. 1985).  Fortunately, the Restatement contains specific provisions (Sections 177-179) on the issue of what law to apply to determine wrongful death damages and who may sue for them.  Sections 177 through 179 of the Restatement simply provide that in making these determinations, the rule of Section 175 should be applied.  As a result, a court engaging in a choice of law analysis with respect to wrongful death damages should turn to the provisions of Section 175 of the Restatement.

Section 175 of the Restatement provides as follows:

“In an action for wrongful death, the local law of the state where the injury occurred determines the rights and liabilities of the parties unless, with respect to the particular issue, some other state has a more significant relationship under the principles stated in Section 6 to the occurrence and the parties, in which event the local law of the other state will be applied.”  Restatement, Section 175 (emphasis added); Bryant, 703 P.2d at 1192.

The Supreme Court of Arizona has held that the state with the “most significant relationship” is the state with the “greater interest” or the “dominant interest.”  Bryant, 703 P.2d at 1192; see also Comment b to Restatement, Section 178 (the local law of the state with the greater or dominant interest should be applied).

Thus, given the above, the law of the state where the injury occurred shall govern damages in a wrongful death case, unless another state has a greater or dominant interest.  Bryant, 703 P.2d at 1192.  In other words, the law of the state where the injury occurred is presumed to be the applicable law unless it is shown that another state has a greater interest.  Martineau v. Guertin, 170 Vt. 415, 751 A.2d 776, 781 (2000) (Restatement “provides a default mechanism that allows courts to apply law of place where injury occurred in situations when no state has overriding interest in litigation”); Schoenberg v. Exportadora de Sal, 930 F.2d 777, 783 (9th Cir. 1991); In re Air Crash Near Cali, 1997 U.S. Dist. LEXIS 14143 (S.D.Fl. 1997); Dorman v. Emerson Electric Co., 23 F.3d 1354 (8th Cir. 1994).3 In determining whether this presumption is overcome with proof that another state has a greater or dominant interest, Arizona courts evaluate the factors in both Section 145 and Section 6 of the Restatement.  See Bryant, 703 P.2d at 1192.

Under Section 145 of the Restatement, the following contacts are to be taken into account to

determine the law applicable to an issue:

“(a) the place where the injury occurred,

(b) the place where the conduct causing the injury occurred,

(c) the domicil, residence, nationality, place of incorporation and place of business of the parties, and

(d) the place where the relationship, if any, between the parties is centered.”  Restatement, Section 145.

These contacts are to be evaluated according to their relative importance with respect to the particular issue.  Bryant, 703 P.2d at 1193.  The determination of which state has the most significant contacts, however, is qualitative, not quantitative.  Bates v. Superior Court, 156 Ariz. 46, 749 P.2d 1367, 1370 (Ariz. 1988); Bryant, 703 P.2d at 1194; Wendelken v. Superior Court, 137 Ariz. 455, 671 P.2d 896, 899 (Ariz. 1983).

Under Section 6 of the Restatement, the following principles underlying all choice of law questions are to be considered:

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

(b) the relevant policies of the forum,

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

(d) the protection of justified expectations,

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

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

(g) ease in the determination and application of the law to be applied.”  Restatement, Section 6.

 

B.        Application of the Section 145 and Section 6 Factors Demonstrates Mexico has no Interest in Having its Laws Applied.

In evaluating the elements of Sections 145 and 6 of the Restatement, Mexico has zero interest in having its law applied in this case and Defendants’ motion should therefore be denied.

1)         Section 145 Contacts.

a. Place of injury.

In this case, the place of injury was Arizona and thus this contact supports application of Arizona law.  In fact, this contact is considered by the Restatement to be such a strong factor that the Restatement requires that the law of the place of injury applies, unless another state is proven to have a more dominant interest.  See Restatement, Sections 175 & 178.  Furthermore, the place of injury in this case was not merely fortuitous such as in a plane crash when the plane flew over many states and any one of them could have been the state where the plane crashed.  See Martineau v. Guertin, 170 Vt. 415, 751 A.2d 776, 780 (2000) (“the accident occurred on route directly between their families’ residence and the state in which they worked and lived, and thus did not occur under completely fortuitous circumstances”); Tonkon v. Denny’s, Inc., 650 F. Supp. 119, 121 (E.D.Penn. 1986) (“when a party voluntarily and intentionally travels to another state, the location of an injury incurred there is not fortuitous”); Calhoun v. Yamaha Motor Corp., 216 F.3d 338, 347 (3rd Cir. 2000) (“the concept of the ‘fortuitous injury’ cannot be invoked in an effort to avoid application of the law of the state in which the injury occurred when the … deceased intentionally traveled to the location of the accident”).

In this case, the accident occurring in Arizona was not fortuitous.  Two of the decedents lived in Arizona and the other decedents traveled to Arizona for the purpose of purchasing a pump, visiting relatives, or a combination of the two.4 Additionally, the load Defendants were transporting was in Arizona. (Larry Hoopingarner depo., Ex. 15 at 65:6 – 66:23, 68:2-5, 70:8-18, 74:20 – 75:2, 77:20 – 78:7).  Thus, the decedents and Defendants were purposefully carrying out business or other affairs in Arizona when the collision occurred, as opposed to being in Arizona by happenstance.

Also, the place of injury should be considered an important factor in this case because of Arizona’s long tradition of fully compensating plaintiffs injured within its borders.  This policy of fully compensating plaintiffs is even embodied in the Arizona Constitution, Article 2, Section 31 which states that “[n]o law shall be enacted in this state limiting the amount of damages to be recovered for causing death … of any person.”  Thus, if Mexican law were applied which, according to Defendants would eliminate the Parents’ claims, then Arizona’s policy of fully compensating plaintiffs injured in Arizona would be thwarted.

b. Place of conduct causing injury.

Because Mr. Hoopingarner ran over the vehicle containing the Decedents in Arizona and the tractor-trailer was loaded in Arizona, the conduct causing injury occurred in Arizona.  Thus, as with the first factor, this factor strongly supports application of Arizona law.  Arizona has a strong interest in ensuring that defendants negligent within the borders of Arizona are held accountable for all damages caused by their negligence.  See Bryant, 703 P.2d at 1195 (“[a]pplication of Arizona damage law allowing unlimited compensatory and punitive damages … would deter the wrongful conduct….”).

c. Domicil, residence, nationality, place of incorporation and place of business of the parties.

In this case, one of the Defendants, Phelps Dodge, is based in Arizona.  See Defendants’ Statement of Facts, paragraph 7.  Two of the Decedents were residents of Arizona.  See Defendants’ Statement of Facts, paragraphs 3-4.  Annett Holdings and Hoopingarner do business in Arizona, as evidenced by the fact that they were doing business in Arizona at the time of the collision.  All five of the insurers for Defendants Annett Holdings and Hoopingarner have applied for and received certification to do business in Arizona.  See Confirmations from the Arizona Department of Insurance attached as Exhibit 2.  In fact, it has been suggested that the real party in interest under the Restatement analysis is the Defendants’ insurers as opposed to the Defendants themselves since it is the insurers that will have to pay instead of the Defendants.  See Moore v. Montes, 22 Ariz. App. 562, 529 P.2d 716, 718 (1974) (“The real party in interest here is not so much the [defendant] as it is the insurance carrier which is liable to exonerate a claim against [defendant] as a result of its policy of insurance covering [the] driver of the car involved in the accident.”).  Given all of the above, this factor also supports application of Arizona law.

The only point that falls under this factor that Defendants argue supports application of Mexican law is the fact that the Parents themselves reside in Mexico.  However, to argue that this fact shows a Mexican interest in applying Mexican law is ludicrous.  Clearly, Mexico has no interest in ensuring that its residents receive no compensation from foreign defendants related to a foreign incident.  See Bryant, 703 P.2d at 1196 (“Colorado’s policy of limited liability is not fostered where defendant is not a resident of Colorado.”); Hurtado v. Superior Court of Sacramento County, 11 Cal.3d 574, 522 P.2d 666, 670 (Cal. 1974) (holding that Mexico had no interest in applying its limitation of damages since it has no defendant to protect and thus, no interest in denying full recovery to its residents injured by non-Mexican defendants); Gordon v. Kramer, 124 Ariz. 442, 604 P.2d 1153, 1156-58 (1979) (holding Utah has no interest in application of their guest statute to bar claim against Arizona defendant); Ambrose v. Illinois-California Express, Inc., 151 Ariz. 527, 729 P.2d 331, 334-35 (1986) (holding that a state has no interest in protecting foreign defendants); Foster v. United States, 768 F.2d 1278, 1283 (11th Cir. 1985) (“Limiting potential beneficiaries limits recovery.  The only purpose is to protect defendants.  When there is no domiciliary defendant, this interest should be discounted.  Thus a limit on recovery should not be applied when there is no domiciliary defendant because it advances no policy behind the limitation.”); In re Air Crash Disaster Near Chicago, 644 F.2d 594, 613 (7th Cir. 1981), cert. denied, 454 U.S. 878 (1981) (“the legitimate interests of [the states where the plaintiffs reside] are limited to assuring that the plaintiffs are adequately compensated for their injuries”); see also In re Air Crash Near Cali, 1997 U.S. Dist. LEXIS 14143, *42-43 (S.D.Fl. 1997) and Lange v. Penn Mutual Life Ins. Co., 843 F.2d 1175, 1181 (9th Cir. 1988).5

This common sense truth was discussed by the 5th Circuit Court of Appeals when applying the Restatement in In re Air Crash Disaster Near New Orleans, 789 F.2d 1092, 1097 (5th Cir. 1986).  In that case, the 5th Circuit was deciding whether to apply the law of Louisiana where the accident occurred or the law of Uruguay where the plaintiffs resided.  In holding that Louisiana law should apply, the Court stated that “[i]f the law of Louisiana provides more compensation for the losses than does the law of Uruguay, it is beyond the pale of reason to conclude that Uruguay would have an interest in prohibiting the award, provided no Uruguayan defendant is involved.”

Here, since no Mexican defendant is involved, it would likewise be “beyond the pale of reason” to conclude that Mexico has any interest in prohibiting the Parents from receiving an award for their loss.  As a result, this element of the Section 145 analysis does nothing other than support application of Arizona law since two of the Decedents were from Arizona, one of the Defendants is from Arizona, the other Defendants do business in Arizona and all of the involved insurers for Movants do business in Arizona.

d. Place where the relationship, if any, between the parties is centered.

In this case, the parties had no relationship prior to the collision.  Thus, their only relationship is the collision itself and this lawsuit.  Both involve Arizona.  Thus, this contact also supports application of Arizona law.

Given the above, all four of the Section 145 contact factors support application of Arizona law and Defendants cannot identify a single factor or contact that supports application of Mexican law.  As a result, Defendants’ motion should clearly be denied.

2)         Section 6 Factors.

a. Needs of the interstate and international systems.

Clearly, the needs of the interstate and international systems are not implicated by a vehicular accident in Arizona.  Thus, this factor is a non-factor in this case.

b.  Relevant policies of the forum.

As indicated above, Arizona has a policy of fully compensating plaintiffs that is embodied in the Arizona Constitution.  See Arizona Constitution, Article 2, Section 31.  Likewise, Arizona has a strong interest in ensuring that defendants negligent within the borders of Arizona are held accountable for all damages caused by their negligence.  See Bryant, 703 P.2d at 1195 (“[a]pplication of Arizona damage law allowing unlimited compensatory and punitive damages … would deter the wrongful conduct….”).  Clearly, this factor supports application of Arizona law.

c.  Relevant policies of other interested states and the relative interests of those states in the determination of the particular issue.

Here, there is no other interested state.  The only fact that Defendants have or could allege is the fact that the Parents reside in Mexico.  As established above, it would be standing reason on its head to argue that Mexico has an interest in seeing that its residents receive no recovery in this case.  This factor is therefore also a non-factor in this case.

d.  Protection of justified expectations.

This case involves parties that were purposefully traveling on a highway in Arizona.  Defendants were doing business in Arizona. Undoubtedly, the expectations were that Arizona law would apply.  See Martineau v. Guertin, 170 Vt. 415, 751 A.2d 776, 781 (2000) (for Connecticut accident involving car registered in Connecticut, “parties would have reasonably expected that Connecticut law … would govern”); Lebegern v. Forman, 471 F.3d 424, 433 (3rd Cir. 2006) (“when a person chooses to travel [in a state] he should expect the laws of the place where he is located to govern”).  Defendants have not nor could they present any indication that they have relied in any way on the Mexican limited liability scheme.  See Wendelken v. Superior Court, County of Pima, 137 Ariz. 455, 671 P.2d 896, 901 (Ariz. 1983) (citing the defendant’s lack of evidence of reliance on Mexican limited liability scheme in support of applying Arizona law).  This factor clearly supports application of Arizona law.

e. Basic policies underlying the particular field of law.

The field of law at issue is torts.  The policy underlying this field of law is compensating those that have suffered a loss due to the wrongful conduct of another.  See Bryant, 703 P.2d at 1195 (“The basic policies underlying tort law are to provide compensation for the injured victims, and to deter … tortious conduct….”); Gordon v. Kramer, 124 Ariz. 442, 604 P.2d 1153, 1156 (1979) (“The basis policy in the law of torts is to deter tortious conduct and provide compensation for the injured victim” and holding “[t]his purpose is not furthered by” applying the Utah law which would bar the plaintiff ); Lange v. Penn Mutual Life Ins. Co., 843 F.2d 1175, 1181 (9th Cir. 1988) (applying Arizona law to Iowa plaintiff’s claims in part because allowing recovery served Arizona’s tort law policies).  Clearly, applying Mexican law that allegedly eliminates the Parents as plaintiffs does not serve the policies underlying tort law.  This factor supports applying Arizona law, which according to Defendants, is more expansive in terms of who can recover wrongful death damages.

f. Certainty, predictability, and uniformity of result.

This factor overwhelmingly supports application of Arizona law.  First, this Court is obviously very familiar with the content and application of Arizona law and the lawyers for all Defendants are from Arizona.  Thus, certainty and predictability would best be served by applying the well settled and familiar law of Arizona.  Second, Defendants are seeking to apply Mexican law to only certain issues in this case (damages) and to certain Plaintiffs (the Parents).  In other words, Defendants desire different damage laws for different Plaintiffs.  Obviously, applying different law to different Plaintiffs does not promote uniformity of result, but instead promotes the opposite (some Plaintiffs recovering damages and other Plaintiffs not recovering damages or recovering a different measure of damages).  See In re Air Crash Near Cali, 1997 U.S. Dist. LEXIS 14143, *65-66 (S.D.Fl. 1997) (“Application of a single jurisdiction’s law also encourages certainty and predictability” and “[there] is the additional measure of predictability that comes from applying the law of the forum”).

In addition to the above, this factor weighs strongly against applying Mexican law because Mexico utilizes its criminal system to award wrongful death damages, Mexico has a civil law system as opposed to a common law system, there are no juries in Mexico, Mexican law in the area of wrongful death damages is not well settled, Mexican law is in Spanish, and the parties disagree as to what Mexican law provides.6 See Affidavit of Torres-Landa, paragraphs 10-14.  Mexican law would thus provide little in terms of certainty and predictability.

g.  Ease in the determination and application of the law to be applied.

Clearly, this factor weighs in favor of applying the law of the forum (Arizona) in this case.  As mentioned above, Mexico utilizes its criminal system to award wrongful death damages, Mexico has a civil law system as opposed to a common law system, there are no juries in Mexico, Mexican law in the area of wrongful death damages is not well settled, Mexican law is in Spanish, and the parties disagree as to what Mexican law provides.  As a result, Mexican law would be very difficult to determine and equally difficult to apply.  As Juan Francisco Torres Landa states in his affidavit, applying Mexican law in this case would be like attempting to put a square peg in a round hole.  Torres-Landa Affidavit, Ex. 1, paragraph 10.

A very similar situation was presented to the United States District Court for the Southern District of Florida in In re Air Crash Near Cali, 1997 U.S. Dist. LEXIS 14143, (S.D.Fl. 1997).  In that case, as here, defendants were making result-oriented arguments in favor of application of foreign laws that were less favorable to the plaintiffs than the law of the forum state, Florida.  There, as here, “the parties’ disagreement about the meaning of [the foreign] law of compensatory damages … [was] pervasive and profound.”  Id. at *25.  The court in that case found that it was “unable … to make any conclusive findings with respect to these disputes, a determination that weighs heavily in favor of applying Florida law to the lawsuits filed in this Florida forum.”  Id. at *26.  The court further commented as follows:

“The difficulty of evaluating the importance of case law in a non-English speaking, civil law jurisdiction like Columbia take on additional significance when several critical issues affecting the recovery of damages – issues that may profoundly affect the ability of the crash victims to make themselves whole – turn on the meaning and weight of judicial pronouncements.”  Id. at *39.

The same is true here.  It would be very difficult to evaluate the importance of case law in a non-English speaking, civil law jurisdiction such as Mexico.  Again, this factor clearly weighs in favor of application of Arizona law.

As demonstrated by the affidavits of Juan Francisco Torres-Landa and Jose Demetrio Guerra Sanchez, Mexican lawyers cannot even agree on what Mexican law provides.  Further, as set forth in the Affidavit of Juan Francisco Torres-Landa, wrongful death damages are almost exclusively awarded in Mexico by criminal courts, not civil courts.  Torres-Landa Affidavit, Ex. 1, paragraph 10.  The types of damages awarded under Mexican law are not similar to the types of damages typically awarded in the United States.  Torres-Landa Affidavit, Ex. 1, paragraph 11.  Damages under Mexican law were not intended for a jury to determine and are completely discretionary with the judge.  Torres-Landa Affidavit, Ex. 1, paragraph 11.  There are very few prior decisions under Mexican law that provide any guidance on the proper meaning and application of its law related to wrongful death damages.  Torres-Landa Affidavit, Ex. 1, paragraph 12.

Given the above, it simply cannot be argued with a straight face that it would be just as easy to determine and apply Mexican law, as Arizona law.  Further, the ease of determining and applying the laws under consideration plays an important role in the choice of law analysis.  See, e.g., Brinkley & West, Inc. v. Foremost Ins. Co., 499 F.2d 928, 932 (5th Cir. 1974) (coupling factor g with factors b and c as the most vital components of the Restatement’s choice-of-law analysis for tort actions); Baird v. Bell Helicopter Textron, 491 F.Supp. 1129 (N.D Tex. 1980) (deciding Texas law should apply instead of Canadian law because of the “ready availability of precedent, and in part because of [the court’s] familiarity” with Texas law); Resolution Trust Corp. v. Williams, 887 F.Supp. 1415, 1420 (D. Kan. 1993) (applying Kansas law instead of a nebulous federal law partially due to its “certainty and ease in … determination”); Kuibyshevnefteorgsynthez v. Model, 1995 U.S. Dist. LEXIS 1896 (D.N.J. 1995) (finding that New Jersey law – the law of the forum – should be applied instead of Russian law because of the “difficulty in ascertaining foreign law” and adding that it “acknowledge[d] the difficulties inherent in applying … an unfamiliar and perhaps unstable body of law, particularly in the absence of … an authoritative English language source”).

C.        Cases Cited by Defendants do not Support Application of Mexican Law.

Surprisingly, the first case cited by Defendants is Myers v. Langlots, 168 Vt. 432, 721 A.2d 129 (1998).  This is surprising because the Supreme Court of Vermont just two years after Myers in the case of Martineau v. Guertin, 170 Vt. 415, 751 A.2d 776 (2000) held that Vermont law should be applied where two Quebec residents were killed in an accident in Vermont.  Both decedents and all of the wrongful death plaintiffs in that case were Canadian citizens and resided in Quebec.  Thus, the position of the Vermont Supreme Court clearly supports application of Arizona law in this case, not the law of Mexico where only some of the Plaintiffs reside.

Furthermore, the Myers case involved a Quebec defendant, whereas this case involves no Mexican defendants.  As mentioned above, a foreign defendant must be involved before that jurisdiction has any interest in application of its pro-defendant law.  See Bryant, 703 P.2d at 1196 (“Colorado’s policy of limited liability is not fostered where defendant is not a resident of Colorado.”); Foster v. United States, 768 F.2d 1278, 1283 (11th Cir. 1985) (“Limiting potential beneficiaries limits recovery.  The only purpose is to protect defendants.  When there is no domiciliary defendant, this interest should be discounted.  Thus a limit on recovery should not be applied when there is no domiciliary defendant because it advances no policy behind the limitation.”); In re Air Crash Disaster Near Chicago, 644 F.2d 594, 613 (7th Cir. 1981), cert. denied, 454 U.S. 878 (1981) (“the legitimate interests of [the states where the plaintiffs reside] are limited to assuring that the plaintiffs are adequately compensated for their injuries”); see also In re Air Crash Near Cali, 1997 U.S. Dist. LEXIS 14143, *42-43 (S.D.Fl. 1997).

The next case cited by Defendants is Shenandoah v. City of Phiadelphia, 438 F. Supp. 981 (D.C. Pa. 1976).  This case was decided over 30 years ago and did not involve the Restatement.  Further, the Shenandoah case involved determining which heirs were entitled to receive the proceeds of the decedent’s New York estate.  It did not involve the issue of what law to apply to wrongful death damages or who could sue for wrongful death damages.  This case is clearly no authority for applying Mexican law in this case and only demonstrates the Defendants’ desperation to find something that might possibly in some indirect way support their position.

The next case cited by Defendants is Satchwill v. Wollrath Co., 293 F. Supp. 533 (E.D. Wis. 1968).  First, this case was decided almost 40 years ago (again demonstrating that Defendants are stretching).  Second, this case actually supports Plaintiffs’ position.  While the law of Ohio (the decedent’s domicile) was applied to damages in Satchwill, Ohio’s law was the pro-plaintiff law which foreclosed any limitation on damages.  Thus, Ohio had an interest in its “policy … to allow full recovery….”  Id. at 536.  In the instant case, all parties agree that the Mexican law is less pro-plaintiff than Arizona law.  Thus, Mexico has no interest. As stated in this brief and the many cases cited herein, if the law of the beneficiaries’ domicile is pro-defendant, then that state has no interest unless there is a defendant from that state.

The last case cited by Defendants is Vasquez v. Bridgestone/Firestone, Inc., 325 F.3d 665 (5th Cir. 2003).  The court in Vasquez (a tire defect case) determined that Mexican law should apply because not only were the plaintiffs and decedents Mexican, but the accident occurred in Mexico and the tires were manufactured and sold by the defendant in Mexico.  The court determined that it did not want to “undercut[] Mexico’s right to create a hospitable climate for investment.”  Id. at 675.  Again, the case before this Court does not involve any defendants that were conducting business in Mexico and thus the Vasquez case provides no basis for applying Mexican law here.

D.        Application of Arizona Law is the only Possible Conclusion and Defendants’ Motion should be Denied.

As indicated above, not a single factor under Section 145 or Section 6 supports application of Mexican law.  Further, no case law supports application of Mexican law. Defendants’ assertion that Mexican law should be applied is therefore completely devoid of merit.  Since Defendants’ motion for partial summary judgment is entirely dependent on their contention that Mexican law should be applied, Defendants’ motion should be denied.

II.        Even if Mexican Law is Applied, Defendants’ Motion Should Still be Denied.

Defendants’ motion is a 3 point argument: 1) Mexican law should be applied to the Parents’ claims; 2) Mexican law provides that the Parents are not entitled to sue for wrongful death damages; 3) because the Parents are not allowed to sue for damages, summary judgment should be granted on these claims.  As demonstrated above, Mexican law should never be applied in this case.  However, in the unlikely event that the Court does not agree with Plaintiffs and applies Mexican law, Defendants’ motion should still be denied because Mexican law does allow for parents to recover wrongful death type damages as long as they depended economically on the deceased.  See Torres-Landa Affidavit, Ex. 1, paragraphs 13-14.  Because all of the Parents depended economically on their children who were killed in this collision, the Parents are proper wrongful death beneficiaries.7 As a result, Defendants’ motion for partial summary judgment seeking elimination of the Parents’ claims should be denied.

Furthermore, if the Court finds that Mexican law does allow for the Parents to recover, then there is no conflict between the laws of Mexico and the laws of Arizona and the law of the forum state (Arizona) should be applied.  See Cruz v. Ford Motor Co., 435 F. Supp. 2d 701, 704 (E.D. Mich. 2006).  If Arizona law applies, the Parents are clearly entitled to wrongful death damages and Defendants’ motion should be denied.

CONCLUSION

For the foregoing reasons, Plaintiffs respectfully request that the Court apply Arizona law to all aspects of this case and deny Defendants’ Motion for Partial Summary Judgment.

 

DATED this ____ day of _____, 2007.

HEYGOOD, ORR, REYES & BARTOLOMEI

 

By

Michael E. Heygood

Texas State Bar No. 00784267

James Craig Orr, Jr.

Texas State Bar No. 15313550

2331 W. Northwest Highway, 2nd Floor

Dallas, Texas 75220

Attorneys for Torres Plaintiffs

 

 

 

SICO WHITE & BRAUGH, LLP

 

By ____________________

Brantley W. White

Texas State Bar No. 00784267

900 Frost Bank Plaza

802 North Carancahua

Corpus Christi, Texas  78470

361/653-3300

361/653-3333 (fax)

Attorneys for Plaintiffs/Intervenors

 

 

ORIGINAL of the foregoing filed

this _____ day of July, 2011.

 

Pima County Superior Court

110 West Congress

Tucson, Arizona 85701

 

COPIES of the foregoing mailed this _____ day of March 2007.

 

 

Honorable Paul Tang

PIMA COUNTY SUPERIOR COURT

110 W. Congress

Tucson, Arizona 85701

 

 

Negatu Molla

BOWMAN AND BROOKE LLP

2901 North Central Avenue, Suite 1600

Phoenix, Arizona 85012

Attorneys For Defendants Phelps Dodge

 

William J. Schrank

JONES, SKELTON & HOCHULI, PLC

2901 N. Central Avenue, Suite 800

Phoenix, Arizona 85012

Attorneys for Defendant Annett Holdings, Inc.,

dba TMC Transportation and Larry Hoopingarner

 

George H. Lyons

LAW OFFICES OF GEORGE H. LYONS

2398 E. Camelback Road, Suite 1010

Phoenix, Arizona 85016

Attorney for Statutory Beneficiaries

Jose Manuel Aleman Garcia,

Christian Armando Aleman Garcia,

and Sergio Paulo Aleman Garcia

 

Brantley W. White

SISCO, WHITE & BRAUGH, L.L.P.

900 Frost Bank Plaza, 802 N. Carancahua

Corpus, Christi, Texas 78470

Attorney for Statutory Beneficiaries

Jose Manuel Aleman Garcia,

Christian Armando Aleman Garcia,

and Sergio Paulo Aleman Garcia

 

By _______________________________


1 The intrusion of the 18 wheeler onto the pickup truck was all the way over/through the bed and into the passenger cab.

2 The corporate representative for Annett Holdings testified in his deposition that even after a thorough investigation he was not aware of any facts that suggest that the pickup truck Mr. Hoopingarner rear-ended was doing anything other than driving down the road in a reasonably prudent manner. (Glen McCravy depo., Ex. 3 at 90: 4-21).  Larry Hoopingarner testified in his deposition that he could not identify anything he had seen, contended, or believed that Hugo Carranza (the driver of the pickup) had done wrong in connection with the collision.  (Larry Hoopingarner depo., Ex. 15 at p. 121:13 – 122:1).

3 The United States District Court for the Southern District of Florida, in a well written and reasoned opinion in In re Air Crash Near Cali, stated that, “[t]o begin with, section 178 of the Restatement expressly extends the initial presumption in favor of the law of the place of injury to damages claims in wrongful death actions, suggesting the drafters’ discomfort with the notion that liability-oriented contacts cannot support a jurisdiction’s interest in monitoring the compensation awarded victims of the wrongful conduct.”  Id. at *18.  See also Dorman v. Emerson Electric Co., 23 F.3d 1354 (8th Cir. 1994) (rejecting the notion that the place of injury is merely fortuitous, noting that to hold otherwise would render the presumption in Section 146 meaningless).

4 The weekend of the collision, Teresita de Jesus Garcia Gutierrez and Pilar Reyes Garcia came to Arizona to see friends and visit the family of Erika and Ivan Torres. (Ivan Torres depo., Ex. 14 at 63:15-19).  The weekend of the collision, Sergio Carranza visited and stayed with his sister in Arizona.  (Ivan Torres depo., Ex. 14 at 65:2-8).  The Sunday prior to the collision, the family spent the day together at the home of Erika and Ivan Torres in Arizona where they bought a cake to celebrate the day with the Torres’ children.  (Ivan Torres depo., Ex. 14 at 65:9-24).

5 Defendants may attempt to cite some language from cases where courts have stated as a general proposition that states have a strong interest in having their residents compensated for injuries.  However, without exception, this language is used when dealing with a pro-plaintiff law.  None of the cases that Plaintiffs have reviewed found that a state has any interest in seeing that its residents receive less or no compensation from a foreign defendant in connection with a foreign accident, which is the situation in this case.

6 As indicated in the “Background” section of this memorandum, Defendants contend that Mexican law does not allow for the Parents to recover wrongful death damages.  For the reasons set forth in the Affidavit of Juan Francisco Torres-Landa attached hereto as Exhibit 1, Plaintiffs strongly disagree that Mexican law so provides.

7 Plaintiffs attach excerpts from the depositions of the Parents, as well as interrogatory responses from the Parents establishing that they depended economically on their sons or daughters. (Dolores Cota depo., Ex. 4 at 20:7-13, 23:3-21, 23:25 – 24:20, 26:2-8;  Dolores Cota Interrogatory Responses, Ex. 5 at p. 5;  Oscar Carranza depo., Ex. 6 at 10:3-10, 11:24-12:7, 18:18-24, 20:16-21, 21:6-11;  Oscar Carranza Interrogatory Responses, Ex. 7 at p. 5;  Manuel Carranza depo., Ex. 10 at 16:18 – 17:6, 19:25 – 20:8, 20:25 – 21:2, 18:10-21;  Margarita Ibarra depo., Ex. 8 at 28:16-22, 34:20 – 35:1, 36:12 – 37:5, 47:19 – 48:17; Margarita Ibarra Interrogatory Responses, Ex. 9 at p. 5;  Maria Teresa Gutierrez depo., Ex. 11 at 30:23 – 32:13, 32:7-13, 34:17-19;  Maria Teresa Gutierrez de Garcia’s Interrogatory Responses, Ex. 12 at p. 5;  Ramon Garcia Macias’ Interrogatory Responses, Ex. 13 at p. 5).