Course / Program Material 2007 TIPS 15th Annual Insurance Coverage Litigation Committee Program - Tucson AZ
Peter's and Thomas's paper provides a nuts and bolts, practical approach to addressing choice of law issues in insurance coverage litigation. First and foremost, the choice of law is not relevant if there is no true conflict of substantive law among the relevant states. If there is, the forum state then applies its choice-of-law rule to determine which state's substantive law applies. Federal courts, sitting in diversity follow state court choice of law analysis. Peter and Thomas aptly point out that although there are a variety of choices of law tests employed by the states, the purpose of these tests is to evaluate a state's interest in and contacts with the issue at hand. They stress that it is more important to read the decisions to discern what that state deems relevant to the choice of law analysis than to rely on the court's terminology.
Peter and Thomas discuss the three principle choice of law tests: (1) the Second Restatement of Conflicts or the "most significant relationship" test, followed by a majority of states; (2) the Lex Loci Contractus approach, a minority approach; and (3) the government interest analysis, that has been adopted by a few states, most notably California. They summarize the factors for each test and provide notes that the tests provide no clear answers, but rather an analytical framework to shape your client's arguments.
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