# Melville v. American Home Assurance Co.

> District Court, E.D. Pennsylvania · November 25, 1977 · 443 F. Supp. 1064

URL: https://www.frixlaw.com/law-library/cases/1953262

## Case

- **Full name:** Virginia J. Barry MELVILLE v. AMERICAN HOME ASSURANCE COMPANY
- **Court:** District Court, E.D. Pennsylvania
- **Decided:** November 25, 1977
- **Citations:** 443 F. Supp. 1064; 3 Fed. R. Serv. 746; 1977 U.S. Dist. LEXIS 12743
- **Precedential status:** Published
- **Opinion:** Opinion by Becker
- **Judges:** Edward R. Becker
- **Cited by:** 24 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Reversed on other grounds by Virginia J. Barry Melville v. American Home Assurance Company, 584 F.2d 1306 (1978).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/1953262

## Opinion text

INDEX
I. Preliminary Statement 1068
II. The Procedural History 1070
III. The Facts Adduced at Trial 1070
IV. Choice of Law 1076
A. Introduction 1076
B. Is the Presumption Against Suicide Procedural or Substantive? 1077
C. Must We Choose? — The Relevant Similarities and Differences Among the Laws of Pennsylvania, New York, and Delaware 1080
D. The Three Competing Choice of Law Systems 1082
E. Pennsylvania Choice of Law Doctrine; the Legacy of
Griffith
and its Impact on Contract Cases 1084
1. The Pennsylvania Supreme Court and Superior Court Decisions 1085
2. The Court of Appeals (Third Circuit) Decisions 1090
3. A Disquieting Verdict 1094
F. The Parties’ Contentions; The Impact of
Van Dusen
v.
Barrack
1094
G. Our Pretrial Bench Opinion 1097
H. Application of Pennsylvania Choice of Law Principles to this Case 1097
1. Analysis Under Restatement
I
and
Lex Loci
(Contractus) Rules 1097
2. Post-Griffith
Interest/Restatement II
Hybrid Analysis 1100
(a) Interest Analysis:
Lex Loci
v.
Lex Fori
in the “Unprovided-for Case.” 1100
(b) Territorial Contacts Analysis 1104
3. Conclusion 1107
V. The Charge to the Jury 1107
VI. Sufficiency of Evidence to Support the Verdict 1110
VII. Admissibility of the FAA Airworthiness Directives 1110
OPINION AND ORDER
EDWARD R. BECKER, District Judge.
I.
Preliminary Statement
This is a suit on a policy of insurance covering accidental death. The jury, instructed as to the New York presumption against suicide which we held applicable to the facts, found for the plaintiff, Virginia Barry Melville, who was the sole beneficiary under the $500,000 policy. This opinion addresses defendant’s post-trial motions.
1
At the core of those motions and of the case lies a complex question of choice of law: whether the presumption to be applied with respect to suicide is that of Pennsylvania, New York or Delaware where: (1) Pennsylvania is the forum state, the situs of the principal office of the insurance broker which placed the policy, and the sometime residence of the plaintiff; (2) New York is the place where the insurance contract was made, as well as the state where the defendant insurer was incorporated and had its main office; and (3) Delaware was the residénce of the insured, the situs of his death, the locale where most of the facts relevant to the question of accident or sui
*1069
cide occurred and the place where the order for insurance was initiated. In answering that question we will be obliged to determine the applicability of the landmark case of
Griffith v. United Air Lines,
416 Pa. 1 , 203 A.2d 796 (1964) in a contractual context. In the course of that determination we will be obliged to engage in a comprehensive survey and analysis of Pennsylvania choice of law principles and their underlying policy bases.
The foregoing is a synopsis of the facts underlying our choice of law decision. The facts which formed the basis for the decision on the merits are not so mundane; indeed, they are extraordinary. They relate to the life and times of the insured, Josiah Marvel (“Jay”) Scott, member of a respected and wealthy Wilmington family, who bilked the family fortune of many millions, most of which he squandered on disastrous venture capital undertakings, and some of which he lavished upon the plaintiff, who was his secretary and his mistress. The saga ended — and this case began— when Scott, on the brink of exposure for his misdeeds, died in an exceedingly strange airplane crash which was presaged, in full view of spectators at the Wilmington airport, by bizarre aerobatic maneuvers. The trial testimony thus ranged from the moods and escapades of Jay Scott to the aerodynamics of aerobatic flight. The aerodynamic testimony was adduced to aid the jury in determining whether the “loops,” “split-S,” “tight turns” and “hammerhead stalls” performed by the chartered Atlantic Aviation Piper Cherokee Arrow in which Scott was a passenger at the time of the fatal crash occurred, as the plaintiff contends, either because the pilot was responding brilliantly to a mechanical malfunction, or because the pilot was showing off or had gone mad; or, as defendant argued to the jury, because Scott had interfered with the pilot’s use of the plane’s dual controls in order to cause the plane to crash, and the pilot had valiantly, but futilely, attempted to compensate for Scott’s actions so as to keep the plane aloft.
The choice of law question, which is the principal issue considered in this opinion, is best understood in context of the procedural history of the case and of the facts adduced at trial; hence, we address these matters first. However, we shall also take up the following issues raised by defendant’s motion:
(1) whether the evidence was insufficient to support the verdict, so that defendant was entitled to a directed verdict and, thus, is now entitled to a judgment n. o. v.;
(2) whether the verdict was so contrary to the weight of the evidence that defendant should be granted a new trial;
(3) whether we correctly instructed the jury as to the New York presumption against suicide; and
(4) whether we erred when we admitted into evidence certain P.A.A. documents (Airworthiness Directives) which opined that particular parts of the Piper Cherokee Arrow model involved posed dangers serious enough to require prompt and/or regular inspections, repairs, or replacements.
The choice of law question is both unsettled and abstruse. However, for the reasons which follow, we reaffirm the choice of law decision previously made, although on different grounds from those on which it was previously made. In the course of our discussion we will note and document our conclusions that:
(1) the presumption against suicide is substantive not procedural, hence not to be determined by mere reference to the law of the forum;
(2) in general terms, the post
-Griffith
Pennsylvania choice of law cases have moved from (Griffith) interest analysis to a hybrid scheme containing elements of both interest analysis and the “significant contacts” approach of
Restatement (Second) of Conflict of Laws (Restatement II),
but with strong territorial overtones reminiscent of the traditional rules of
Restatement of Conflict of Laws (Restatement I);
*1070
(3) in contract choice of law cases specifically, the
post-Griffith
Pennsylvania case law contains a strong
Restatement I
strain,
i. e.
numerous cases have retained the traditional territorial (place of contracting) rules, though the traditional approach vies with the
post-Griffith
interest analy
sis/Restatement II
hybrid for superiority;
(4) in any event, the post
-Griffith
case law on choice of law in contract cases is in utter disarray and confusion, leaving unclear how Pennsylvania would resolve the case at bar, particularly in view of the fact that, in interest analysis terms, this is an “unprovided-for case,”
i. e.
one in which no state has an interest;
(5) it is therefore necessary to examine the issue before us on alternative assumptions: that the traditional choice of law rules for contracts are applicable, and that the
Griffith
interest
analysis/Restatement II
hybrid approach is applicable; and
(6) both assumptions lead to choosing New York’s law on the presumption of suicide.
2
We also are satisfied that we correctly stated New York law when we charged the jury that if they believed there to be a “fair question” whether Scott died from accident or suicide, they should “find accident.” Additionally, we find no error in our evidentiary ruling(s) and hold the evidence to be sufficient to sustain the verdict.
3
Accordingly, defendant’s post-trial motions will be denied.
II.
The Procedural History
The litigation between the parties did not begin in this Court. Instead, plaintiff first sued the defendant in the state courts of New York. That suit was dismissed on the ground of
forum non conveniens,
at least in part because the insurer claimed that most of the witnesses who could testify as to whether the crash was an accident or the product of a suicide resided in Delaware or Pennsylvania. The dismissal was conditioned upon the insurer’s consenting to jurisdiction either in Pennsylvania or in Delaware and on its waiving the statute of limitations.
Barry v. American Home Assurance Co.,
38 A.D.2d 928 , 329 N.Y.S.2d 911 ;
aff’d
31 N.Y.2d 684 , 337 N.Y.S.2d 259 , 289 N.E.2d 180 (1972). Thence, Ms. Melville, who was then a citizen of Pennsylvania, brought this diversity action.
III.
The Facts Adduced at Trial
The facts adduced at trial concerned three subjects: (1) the placement of the insurance policy; (2) the events in Jay Scott’s life preceding the fatal flight; and (3) the flight itself, (including both eyewitnesses and expert testimony).
The evidence with respect to the insurance policy was undisputed and was essentially as follows. In 1966, Scott, a citizen of Delaware, ordered the insurance policy through the Delaware office of Johnson & Higgins, an insurance broker whose main office is in Philadelphia. As Scott had requested, the broker placed the order by phone call with the defendant, a New York corporation, which effected an oral binder at defendant’s principal place of business in New York. Defendant subsequently issued the written policy and posted it in New York, mailing the policy to the broker’s Philadelphia office, through which it eventually reached Scott in Delaware. That policy was in effect at the time of Scott’s death and is the subject of this case.
4
*1071
Turning to the remaining facts, we shall attempt to present a balanced picture of what the jury heard. This will enable us to evaluate defendant’s arguments that the evidence was insufficient as a matter of law and that the jury’s verdict was against the weight of the evidence. In so doing, it is best to begin with the events of October 16, 1970, the fateful day on which an airplane crash took the life of Jay Scott and of Rudolph Halamka, the pilot of the chartered plane.
Halamka was an experienced, former navy pilot. Although his occupation was selling insurance, his true love was flying. He took charter assignments for Delaware Aviation Service whenever they offered him a flight. On October 16, 1970, Delaware Aviation called on Halamka to fly a charter from Wilmington, Delaware, to Teterboro, New Jersey (which is near New York City), and back again. He agreed. The only passenger in the single-engine plane was the charterer, Jay Scott.
The flight to Teterboro was uneventful. Scott disembarked, went to New York where he lunched with a business associate, Quing Yng-Wong, and returned to Teterboro. Prior to boarding the plane, he placed a telephone call to the plaintiff Virginia Barry (Melville) to request that she meet him for dinner upon his return to Wilmington.
5
Ms. Barry had been Scott’s secretary for a number of years. She was, as we have noted, also his mistress, and he had kept her in style for quite some time.
6
On the return flight to Wilmington, after it had been cleared for landing, and while it was flying at an altitude of less than 1000 feet over a congested area near the airport, the plane engaged in a series of what appeared to be aerobatic maneuvers: one or two loops, some steep turning climbs and dives, a split-S, and one or two hammerhead stalls.
7
The plane failed to recover from a hammerhead stall and crashed nose first into the ground, killing both Halamka and Scott.
The eyewitnesses disagreed to some extent in their characterization of the maneuvers. Plaintiff called Mr. Kirk, the Wilmington Airport air traffic controller, who testified that the flight appeared to be “coordinated;”
i. e.,
it appeared that the three basic control surfaces of the airplane were being operated as a unit.
8
However, defendant presented an eyewitness, Mr. Meihofer, an experienced pilot, who insisted that the flight was erratic and uncoordinated and that he had also seen the plane “porpoising.”
9
There was no dispute that the maneuvers, whether “coordinated” or not, were extraordinarily dangerous. The plane, a Piper Cherokee Arrow, was not stressed for aerobatics, and its altitude was too low to provide the needed safety margin for aerobatic flying. Moreover, F.A.A. regulations forbid performance of aerobatics in a plane which is either within the control area of an airport or in a congested area. The Arrow was flying in a locale which rendered it in violation of both proscriptions. Plaintiff
*1072
made no attempt to dispute defendant’s claim that if a pilot were caught flying in this manner, he would lose his license, unless he had an extraordinary excuse for same.
So then, there was no dispute that the observed flight was bizarre and hazardous. Indeed, the Wilmington air traffic controller testified that he had not seen such flight in a congested control zone, at such low altitude, in his 12 years on the job.
10
Another expert insisted that he had seen such maneuvers done as “show-boating” on several occasions; but he did not suggest that he had seen such a performance by a pilot who had been cleared for a landing, and who was therefore identifiable and sanctionable.
11
Additionally, defendant presented substantial evidence that Halamka was a competent pilot, stable and happy, with no known reason to risk his license, his reputation, or his life. In this regard, defendants called Mrs. Halamka, the pilot’s widow. Her testimony, and that of others acquainted with Halamka’s character and skill, revealed no flaw that would suggest his responsibility for the crash.
12
Both plaintiff and defendant offered expert aeronautical testimony to explain the crash. We shall summarize that testimony in due course. The defendant did not, however, rely solely, or even principally, upon that testimony, except to forge a link in its theory that Jay Scott, then beyond desperation, took his own life (and that of the pilot) to avoid the shame of his gross misdeeds against his family and social peers, the imminent total exposure of which would cause his world, already in shambles, to crumble. The aeronautical testimony merely closed the ring by showing how, according to defendant’s theory, Scott was able to commit suicide, while making it look like an accident. In view of the predominance of the social history in defendant’s version of the case, we begin by summarizing the extensive testimony which the defendant offered to establish it.
After a stint in the Marines, Jay Scott received his B.A. from Yale and made a start towards a career in law by entering the University of Virginia Law School. However, by Christmas his law career had ended. Jay so disliked law school that he left and began training as an investment counsellor, under the tutelage of a close friend of his parents who managed the family finances. Over the years, Jay’s parents had placed most of their multi-million dollar estate into a variety of trusts for themselves, and for their three children, Jay, his brother and sister.
By 1960, Jay was given full responsibility for financial management of the family trusts. By 1970, he had misappropriated several million dollars from the trusts and apparently dissipated every penny he had taken. He obtained the trust corpus by forging the signatures of his parents to stock assignments and by causing his secretary, the plaintiff, to do likewise. Cleverly, he concealed his misappropriations by regular and timely payments of “dividends” to the family calculated to match the dividends of the stocks that were supposedly the corpus of the trust. Jay invested the proceeds of his sales of the family fortune in high risk “venture” stocks, as well as in high living. By 1970, almost all the investments were in companies that were going bankrupt. Meanwhile, Jay had also fraudulently obtained substantial loans from several Wilmington banks and had engaged in an extensive pattern of kiting, writing checks on insufficient funds. He had even used his position of trust as Treasurer of the University of Delaware Library Association to misappropriate some $34,000. The defendant adduced evidence at trial that at the time of his death Jay Scott defendant owed a total of three million five hundred thousand dollars ($3,500,000) to 27 creditors. Among the largest creditors were: (1) Capi
*1073
tal Bank and Trust Company $521,147.17; (2) Chandler Leasing Division, Pepsico Leasing Corporation $440,040.82; and (3) Delaware Trust Company . . . $327,271.44.
Only 8 days before the fatal crash, Jay’s underground life began to surface. The Scott family attorney, learning through his firm’s representation of a Wilmington bank that largé judgments had been entered against Jay, informed Jay’s uncle. Together they told Jay’s parents, who in turn told Jay’s brother. The parents and brother were, of course, concerned and sought an explanation. Jay’s mother, dissatisfied with his explanation, decided to reassure herself by checking the safe deposit box in which the family trust securities were kept. It was empty.
When Mrs. Scott confronted him with this news, Jay lied, telling her that all the securities were in her personal safe deposit box. Mrs. Scott, not having used the box in years, could not locate her key, and Jay conveniently claimed to have lost his. When the bank drilled Mrs. Scott’s box open, only three days before the crash, it was also empty. When he was confronted with this news, Jay lied again. Knowing that his father was away on a trip, he told his mother that all the securities were safely in his father’s box. By this time, in defendant’s view, Jay was trapped, having burned all his bridges behind him. Defendant theorized further that Jay thereupon laid plans for a suicide-murder that would prevent his having to face the disgrace which would ineluctably follow from the discovery that he had stolen millions from his mother, father, sister, and brother, and that he had defrauded a charitable endeav- or in which he was associated with other prominent Delawareans. Moreover, he, and perhaps Virginia, the plaintiff, faced criminal prosecution. And, while much of the over $2 million in life and/or accidental death insurance which Jay possessed had been purchased some years before and not in the face of this crisis, defendant theorizes further that, because of the insurance, Jay could plan that his wife and his mistress and his children by both of them would be provided for.
Defendant’s theory that Jay planned an airplane suicide was buttressed by the following evidence about his final days. First, one week before the crash, on October 9, 1970, Jay took out a $50,000 insurance policy covering only the risk that he die accidentally while travelling and naming a new mistress as beneficiary. Moreover, Jay acted suspiciously on a charter flight which he took on Monday, October 12, 1970, one day .before his mother was scheduled to have her (empty) safe deposit box opened and only four days before the crash. As on the final day, Jay had chartered a flight to Teterboro, but due to weather conditions, he was carried in a twin-engine two pilot plane, in which the passenger sat in the rear seat. Jay proceeded to ask questions about the controls of the plane and about how they compared to the controls of a single-engine plane. After Jay disembarked from the plane, the two pilots saw him examining the control panel of a single-engine plane.
13
The next day Jay ordered the fateful charter, insisting that a single pilot single-engine plane be provided.
14
Admittedly, Jay left no suicide note. In fact, all the witnesses except one, both plaintiff’s and defendant’s agreed that he showed no signs of despondency or of impending doom in the weeks, days and hours preceding his death. Even at the luncheon which immediately preceded the final flight, Quing Yng-Wong reported that he and Scott had kidded around.
15
Defendant, however, says that this is not evidence contra suicide, but rather evidence of how coldly Jay Scott planned. Indeed, defendant submits, Scott’s activities and
*1074
personal contacts in his last day were so preposterous, given the imminence of his exposure, that they can only be understood as a charade, a deliberate, if overdrawn, attempt to leave evidence that he had not committed suicide so that his beneficiaries could collect on his insurance policies. Thus does defendant account for Jay’s call to the plaintiff before he left Teterboro airport to return to Wilmington, and the substance of his luncheon earlier that day with Quing Yng-Wong at which Jay evinced a serious continuing interest in his doomed business ventures and attempted to get Quing YngWong to aid therein. More representative of Jay’s true state of mind, defendant contends, is his encounter a few weeks prior to the fatal crash with a personal friend who was then the Mayor of Wilmington. During that encounter Jay, looking defeated, confided that he was in “deep trouble,” and importuned the friend for a $75,000 loan, which was promptly made.
16
As we suggested above, the significance of the defendant’s interpretation of the “motive” evidence depends on its presenting a plausible theory of how Scott could have caused the plane to crash that matches the eyewitness accounts of how the plane did in fact crash. Defendant’s theory is simple. It is that Scott, having been told only a few days before how the various controls of an airplane work, waited until the plane was near to landing and then used the controls to crash it.
According to defendant’s theory, the reason that Jay had insisted on a single engine plane was that in such a plane the pilot and the passenger sit behind the dual set of controls. Thus the passenger could push or pull on the control yoke causing the plane to climb or dive; he could turn the yoke right or left causing the plane to bank; and/or he could step on the left or right rudder causing the plane to move left or right. Halamka, a competent pilot, would have been applying just the right pressure on any or all of these controls to direct the plane in for a landing. A sudden strong pressure, exerted by Jay Scott, in either direction on any of these controls, would have led to a sudden change in flight. Halamka could have compensated by struggling to use the same or a different control, attempting to overcome Scott’s action. Defendant concludes that the result of such a struggle would have been precisely what the eyewitnesses saw: aerobatic maneuvers with some degree of coordination, but done sharply and erratically. Thus theory as to how Jay actually accomplished his suicide-murder was supported by the testimony of Mr. Meihofer, an eyewitness to the crash who is himself a pilot, and of Mr. Robinson, called by defendant as an expert in aeronautical engineering.
Counsel for the plaintiff, Ms. Melville, presented a different version of the events at issue. He conceded the defendant’s chronicle of Jay’s bad deeds, raising only a faint defense to the near certainty that Jay had been guilty of forgery,
17
and none at all to his possible prosecution for embezzlement. Neither did he deny or seek to explain away Jay’s desperate financial situation. Plaintiff’s theory, to counter defendant’s strong evidence, was severalfold.
First, plaintiff advanced the view that Jay Scott, the intrepid one, possessed a personality which would have enabled him to weather these storms. Second, with the exception of his conversation with the friend who had made the $75,000 loan, plaintiff argued, with little contradiction, that Jay’s frame of mind appeared sanguine, and that he was looking to the future. Third, plaintiff relied on the law’s presumption against suicide, which, deeply rooted in human experience, rests on the notion that man, instinctively or conscious
*1075
ly, clings to life.
18
The presumption applies with magnified force in this case, plaintiff says, because if Jay Scott committed suicide, he also committed murder (of the pilot, Halamka). In moral, if not in legal terms, plaintiff argued most forcefully that there must be some kind of presumption against murder, too. And fourth, plaintiff relied upon expert testimony about the aerodynamics of aerobatic flight which may be summarized as follows.
During plaintiffs case-in-chief, George H. Rhodes, a pilot, flight instructor, and producer of radio and T.V. shows about flying, testified in some detail about the principles of flight and the effects of the use of various aircraft controls. Principally, he described the complex combination of pilot actions necessary to produce aerobatics — even those that appear to be simple. On the basis of this complexity and of his experience teaching new pilots, Mr. Rhodes expressed the firm opinion that a person who had never piloted a plane could not have performed the reported maneuvers.
Later, during rebuttal, plaintiff called a second expert, Wilbert N. Hubin, professor of physics, pilot, and teacher of aerobatics. Dr. Hubin testified in detail about the complexity of the aerobatic performance that preceded the crash. He agreed with Mr. Rhodes that a non-pilot could not have performed the reported maneuvers. Additionally, he rejected as impossible defendant’s theory, developed through the testimony of Mr. Meihofer, that the aerobatics were the result of Halamka struggling to keep control of the airplane while Scott attempted to crash it. In fact, Dr. Hubin testified that if Scott had determined to commit suicide by use of the airplane’s controls and had set about learning even the most rudimentary aspects of flight control, he would have realized that all he needed to do was to push the yoke forward causing a steep dive and a crash within 15 to 25 seconds, too little time for a pilot to react and save the plane.
19
Finally, Professor Hubin presented an alternative theory of the crash, namely, that most, but not all, of the maneuvers testified to could be explained by a mechanical malfunction in the “stabilitator” and by the pilot’s attempt to compensate therefor. He suggested that the stabilitator, which aids in the control of pitch on the Arrow, could have become stuck in one position with the result that the plane’s nose would keep coming up. If a skilled pilot were to find himself suddenly facing such a problem, there would be several alternative maneuvers he could perform to try to maintain flight while solving the problem. Dr. Hubin testified that the observed maneuvers would have been precisely the proper ones to execute. Dr. Hubin conceded that he could not prove to a certainty that such a mechanical malfunction had occurred; however, he insisted that his theory was not mere speculation. In support of his theory he cited two F.A.A. Airworthiness Directives, which reported that there had been mechanical failures related to the stabilitator system of the Arrow.
20
Additionally, Dr. Hubin claimed that Exhibit D-38, a photograph of the wreckage, revealed that a bolt was missing; that the crash would not have caused that bolt to fall out; and that that defect could have led to the hypothesized mechanical failure.
21
Defendant countered Hubin’s theories on rejoinder. At that time it called Arnold Robinson, an experienced aeronautical engineer, who disputed Professor Hubin’s contentions by testifying that (a) the observed maneuvers were not consistent with and could not possibly have resulted from the
*1076
suggested mechanical malfunctions, and (b) that the maneuvers were consistent with the hypothesis that the pilot was seeking to prevent a crash which the passenger was seeking to cause.
The record is voluminous; the trial lasted 9 days. While the foregoing survey of the evidence is incomplete, we believe it sufficient for present purposes, given the strictures of a judicial opinion. We will in due course (p. 1110
infra)
address the question whether this evidence is sufficient to support the plaintiff’s verdict. However, that task is best performed after discussion of the propriety of the jury charge (against which sufficiency must perforce be measured). And, since the correctness of the charge is in turn very much a function of which state’s law governs, we must turn now to the choice of law questions.
IV.
Choice of Law
A.
Introduction
The choice of law issue has dominated this litigation since its inception. Indeed, it seems likely that both plaintiff’s initial choice of a New York forum and defendant’s
forum non conveniens
motion which subverted that choice were motivated, at least in part, by opposing counsels’ jointly held belief that New York law places insurers at a great disadvantage in suits on accidental death policies.
22
The question before us is whether, as a federal diversity court applying the forum state’s substantive law,
Erie R. Co. v. Tompkins,
304 U.S. 64 , 58 S.Ct. 817 , 82 L.Ed. 1188 (1938), including its choice of law principles,
Klaxon Co. v. Stentor Electric Manufacturing Co., Inc.,
313 U.S. 487 , 61 S.Ct. 1020 , 85 L.Ed. 1477 (1941), we should apply the law of New York, or of Delaware, or of Pennsylvania in dealing with the presumption against suicide in this case. The presumption against suicide is, as we have noted, the judicial expression of the venerable and deeply rooted human judgment that man instinctively as well as consciously clings to life and that, notwithstanding the discoveries of modern psychiatry, suicide is contrary to the primordial reflexive natural will to live.
23
Plaintiff has championed New York law, construing it to place the risk of non-persuasion on the suicide issue in suits on accidental death policies on the insurer. Defendant, while not conceding that New York law goes that far, suggests that either Pennsylvania or Delaware law is applicable and that the law of these jurisdictions is much clearer in putting the burden of proving “accident” on the claimant. Knowing the importance of the choice of law issue to the conduct of the trial, we informed counsel that we would determine the law to be applied in advance of trial. After the parties had fully briefed their contentions, we ruled in a pre-trial bench opinion that we would apply New York law to the accident/suicide congeries of issues. Our rulings at trial and our jury charge reflected that decision. In responding to defendant’s post-trial motions, we re-affirm that choice. We do so, however, on a different legal ground than we did previously.
The choice of law issues are extremely difficult. They require us to traverse much obscure terrain. They thrust us into heavy seas which are sometimes unmapped and at others charted with conflicting signals or directions. The problem begins with the Pennsylvania caselaw. The opinions of the Pennsylvania courts — both state and federal — have left Pennsylvania’s choice of law rules and methodology with respect to contract cases in utter disarray; indeed, the courts have used facially inconsistent legal standards without acknowledging apparently conflicting precedent. The parties in their briefs have attempted to impose their own order on these cases; but their efforts
*1077
have wrought neither synthesis nor consensus.
We now commence our analysis of the choice of law problem. The road to the ultimate conclusion is a long one, which will require us to touch many bases and to engage in a detailed analysis of the policy roots of potentially applicable choice of law rules. It will also involve us in extensive discussion of the “vested rights” methodology of
Restatement Conflict of Laws (Restatement I),
the “most significant relationship” approach of
Restatement (Second), Conflict of Laws (Restatement II),
and the “interest analysis” of
Griffith v. United Air Lines, Inc.,
416 Pa. 1 , 203 A.2d 796 (1964). Our choice of law discussion will proceed as follows.
First,
we will address the question whether the presumption against suicide as it is involved here is substantive or procedural. We consider this question first because, if the presumption is purely procedural, we may be obliged to apply Pennsylvania law as the law of the forum. See
Sloniger
v.
Enterline,
400 Pa. 457 , 162 A.2d 397 (1963);
Carroll v. Godding,
155 Pa.Super. 490 , 38 A.2d 720 (1944). But see discussion
infra.
Because, however, we find the presumption to be substantive we must face the difficult question to which the bulk of this opinion is devoted,
i. e.
which state’s substantive law should be applied (as to the presumption of suicide).
Second,
and in pursuit of the answer to that question, we shall consider whether there are in fact such conflicts among Pennsylvania, New York and Delaware law on the issues of burden of proof and/or presumption against suicide in a suit to collect on an accidental death insurance policy to make choice of law a determinative issue. We shall find that there are.
Third,
we will briefly outline the salient points of the three competing choice of law systems which have influenced Pennsylvania choice of law jurisprudence:
Restatement I, Restatement II
and “interest analysis.” This outline is a necessary background to our subsequent discussion.
Fourth,
we shall review the conflicting lines of cases on Pennsylvania choice of law both in the Pennsylvania appellate courts and in the United States Court of Appeals for the Third Circuit which bear upon the application of
Griffith’s
interest analysis to contract cases. (The discussion shall perforce not be limited to contract cases). In the course of this discussion we shall explain the disarray and confusion in the law to which we have referred, as well as draw our own inferences as to what choice of law methodologies a Pennsylvania court in 1977 would apply to the problem before us.
Fifth,
we shall rescribe the parties’ choice of law contentions;
Sixth,
we shall explicate the basis for (and the defects in) our prior bench opinion; and
Seventh,
we shall apply our inferences as to Pennsylvania choice of law methodology to the instant case, reaching the same choice of law result as we did at trial, namely, that New York law applies.
B.
Is the Presumption Against Suicide Procedural or Substantive?
We commence our discussion with reference to the traditional choice of law rules. Under these rules questions of burden of proof and of the existence and the significance of presumptions are generally classified as matters of procedure,
Restatement I,
§ 595, and matters of procedure are governed by the law of the forum,
id.,
§ 585. The presumption against suicide, including the New York “fair question” formulation, is susceptible to being characterized either as a matter of interpretation and construction or as a matter of procedure, burden of proof, and presumption. Although the Pennsylvania choice of law cases have necessarily engaged in classification,
24
they have rarely conceded aloud the importance and difficulty of that function. For a rare example,
see Griffith
(tort or contract).
There have been myriad decisions in which the Pennsylvania courts have classi
*1078
fied presumptions or burden of proof as procedural rules, and have applied
lex fori. See Sloniger v. Enterline,
400 Pa. 457 , 162 A.2d 397 (1960).
See also, Rodney v. Staman,
371 Pa. 1 , 89 A.2d. 313, 315-316 (1952);
Carroll v. Godding,
155 Pa.Super. 490 , 38 A.2d 720 (1944). Yet we do not believe these cases compel us to apply
lex fori
here because they do not hold that where a facially procedural rule has substantive as well as procedural aims
lex fori
must govern. Indeed, in
Sanders v. Glenshaw Glass Co.,
204 F.2d 436 (3d Cir.)
cert. denied
346 U.S. 916 , 74 S.Ct. 278 , 98 L.Ed. 411 (1953), the Third Circuit found that Pennsylvania choice of law referred to Massachusetts tort law and thereby adopted the Massachusetts burden of proof. It may have been that the Court did so because it was so closely tied to the emerging substantive liability of a products manufacturer. At any rate, neither
Sloniger
nor
Sanders
offers us any clear guidance to the classification problem.
As we will explain in detail below
(see
note 66 infra) the fact alone that a state is the forum is an inadequate ground for asserting legislative jurisdiction
25
over events outside the forum. Yet not even the most stringent
(Restatement I)
territorialist would recommend either that a forum must adopt all the procedural rules of the place where the disputed events occurred or that all causes of action be strictly local, suable on only in one jurisdiction. It is simpler to allow that the forum’s basic structure of decision-making be left generally untouched, while the substantive law of another jurisdiction is adopted. However, as the progeny of
Erie
have proved,
see, e. g., Hanna v. Plumer,
380 U.S. 460 , 85 S.Ct. 1136 , 14 L.Ed.2d 8 (1965),
Ragan v. Merchants Transfer & Warehouse Co.,
337 U.S. 530 , 69 S.Ct. 1233 , 93 L.Ed. 1520 (1949),
Guaranty Trust v. York,
326 U.S. 99 , 65 S.Ct. 1464 , 89 L.Ed. 2079 (1945), there is no simple litmus test of procedure and substance. We turn, then, for our solution to the classification problem, as we believe Pennsylvania would do, to the collective wisdom of those courts and commentators which have considered the substance-procedure classification problem in choice of law in contexts akin to the case at bar.
In
Pilot Life Insurance Co.
v.
Boone,
236 F.2d 457, 462 (5th Cir. 1956), Judge Rives spoke for the panel in reversing a district judge’s ruling that the forum (Alabama) would apply its own presumption against suicide in a suit on life insurance policy, although it would defer to
lex loci contractus
(South Carolina) on “interpretation.”
26
Acknowledging that presumptions are ordinarily classified as procedural and decided under
lex fori,
Judge Rives classified this “presumption” as a matter of substantive contract law. He found that “the effect of this presumption against suicide is inseparably connected with the substantive right to defend . . . 236 F.2d at 462-463 . Judge Rives reasoned that
[Wjhile many cases can be found to the effect that ordinary presumptions are procedural and governed by the lex fori, we think that it would be a misnomer to bring this presumption against suicide within that class.
In
Buhler v. Maddison,
109 Utah 267 , 176 P.2d 118 , 168 A.L.R. 177 (1947), the Utah Supreme Court conceded that courts were divided on the issue whether rebuttable presumptions and burden of proof were substantive or procedural but concluded that the trend was to classify as substantive any matter on which “there may exist a differ
*1079
ence of opinion,” quoting from Annotation, 78 A.L.R. 883 . We believe this to be a salutary approach.
But see Weber v. Continental Casualty Co.,
379 F.2d 729 (10th Cir. 1967) holding that Oklahoma would not apply the (arguably substantive) presumption of a locus state.
In addition to the evidence of cases such as
Pilot Life
and
Buhler ,
we note that both
Restatement II
and the Federal Rules of Evidence have reached similar results. Thus
Restatement II
authorizes use of forum law as to the burden of proof and the effect of presumptions “unless the primary purpose of the relevant rule of the state of the otherwise applicable law is to affect the decision of the issue. . . . ” §§ 133 and 134.
27
The presumption against suicide appears to us to be generally designed to “affect the decision of the issue.” The ease at bar illustrates that point dramatically. Moreover, the presumption against suicide appears to us to “single out a relatively narrow issue from the general norm.”
See
Comment to
Restatement II
recited in note 26
supra. Fed.R.Evid.
302 is to the same effect in requiring that
the effect of a presumption respecting a fact which is an element of a claim or defense as to which state law supplies the rule of decision is determined in accordance with state law.
(This means that state substantive law, under
Erie,
rather than federal procedural law supplies the rule). The presumption against suicide seems to us to respect a fact which supplies an element of a claim or defense.
28
Moreover, we find additional support in McCormick’s view that burdens of proof and presumptions “are almost always allocated for the primary purpose of affecting the decision in the case . where the jury is in doubt. To say that these rules merely govern the conduct of the trial . . . gives far too much emphasis to form over substance.” McCormick,
Evidence
835 (2d Ed.1972).
We agree with
Pilot Life,
finding it difficult to conceive of a “presumption” more substantive in nature in terms of affecting the substantive claim or defense than the presumption against suicide. And what Judge Rives found to be true of the presumption against suicide generally we believe to be especially true in this case. For instance, after analyzing New York’s law, we will find that the New York Court of Appeals now regards the presumption against suicide as a “rule of jurisprudence which describes a basic value judgment of our system,”
People v. Levya,
38 N.Y.2d 160, 169 , 379 N.Y.S.2d 30, 37 , 341 N.E.2d 546 , 551 note 3 (1975), which may mean it is a conclusion of substantive law employed when the facts of suicide or accident are in doubt, and not a “presumption” at all.
See
pp. 1082, 1107-1110
infra.
Therefore, New York’s “presumption” may be as “substantive” as any other common law in New York. If this interpretation of the New York presumption is correct, the mere fact that Pennsylvania, whose choice
*1080
of law principles we are following, does not have such a counterpart substantive rule, p. 1081 infra, does not preclude Pennsylvania from classifying the New York presumption as “substantive” for choice of law purposes. Quite the contrary, the situation would be identical to what occurs in choice of law every time a forum state has no substantive law on the issue and a sister state does have one: a “conflict” is presented and the forum must decide, under its choice of law principles, whether to apply that sister state’s substantive law or not.
As the Pennsylvania Supreme Court in
Griffith
refused to be blinded by “[m]ere technicalities of pleading,” 416 Pa. at 11 , 203 A.2d at 800 , so we believe that Court would refuse to be bound by the label “presumption” and would recognize that its legal difference with New York is a matter of substance not of procedure.
29
We are supported in this view by
Pilot Life, Buhler,
and
Weber, Restatement II, Fed.R.Evid.
§ 302 and
McCormick.
We need not go so far as to predict that Pennsylvania would actually adapt
Fed.R.Evid.
302 to interstate choice of law in order to conclude, as we do, that Pennsylvania would apply New York’s “fair question” doctrine to a claim under a New York insurance contract in which Pennsylvania was disinterested
(see
discussion p. 1101
infra),
because Pennsylvania would recognize that the New York rule is one meant to create or to affect substantive rights of insurers and their insureds.
In view of our conclusion that Pennsylvania would treat the presumption as substantive we must consider which state’s presumption it would apply.
C.
Must We Choose?
— The
Relevant Similarities and Differences Among the Laws of Pennsylvania, New York, and Delaware
The first question posed when choice of law appears to be at issue is whether a choice must really be made,
i. e.,
whether different sovereigns whose laws may arguably be applied to the case have laws which conflict in relevant ways.
See Cipolla v. Shaposka,
439 Pa. 563 , 267 A.2d 854 (1970). If we find no conflict, then we need not choose,
i. e.,
decide which state’s law applies. This would be true by definition and regardless of what choice of law methodology is preferred.
We will first describe the issues as to which there is no conflict among New York, Pennsylvania, and Delaware law. All three jurisdictions recognize the distinction between “life insurance” and “accident/double indemnity” insurance contracts, the former covering the risk of death generally, the latter covering only the risk of accidental death. Similarly, all three jurisdictions recognize the effect of this distinction on the burdens of pleading, of going forward with the evidence, and ultimately of persuading the triers of fact. In a life insurance policy, if suicide is in issue it must be excepted by the policy and pled by the insurer. Hence the burden of proving suicide as an affirmative defense to a suit on a life insurance policy is always on the insurer.
See, e. g., Watkins v. Prudential Insurance Company,
315 Pa. 497, 508 , 173 A. 644, 649 (1934). In contrast, accident (or double indemnity) coverage requires the putative beneficiary to plead and prove accident as a condition precedent to the insurer’s duty to pay.
See, e. g., Adams v. Metropolitan Life Insurance Company,
136 Pa.Super. 454 , 7 A.2d 544 (1939).
The insurance contract at issue in this suit described itself as an “accident” policy. It covered loss “resulting from injury,” and defined injury as follows: “bodily injury caused by an accident occurring while this policy is in force as to the person whose
*1081
injury is the basis of claim and resulting directly and independently of all other causes in loss covered by this policy.” Part III(A) of the policy consisted of an “Accidental Death Benefit” applicable “where injury results in loss of life of the insured.” Part VI contained an exception: “This policy does not cover any loss caused by or resulting from: (1) suicide . . . ”
30
It seems clear that the policy was an accident policy, giving rise to a duty by plaintiff beneficiary to plead and prove accident.
31
Plaintiff accepted and met her initial pleading burden: “Fifth, Josiah Marvel Scott died as a result of injuries caused directly by an accident and independently of all other causes.”
32
At the same time she may be said to have accepted the initial allocation of the burdens of producing evidence of accident and of persuading the jury of accident by a preponderance of the evidence.
All the above was reasonably clear, uncontested, and therefore not at issue in the trial. What was sharply at issue was the effect of the “presumption against suicide” on plaintiff’s burdens. It is precisely at this point that Pennsylvania and New York law diverge dramatically, raising the choice of law problem to which the bulk of this opinion is devoted.
McCormick distinguishes among four types of presumptions based on their respective effects on the burdens of proof. First, and weakest, is the “standardized inference” which aids a party in satisfying its own burden of producing evidence but does not shift that burden to the adversary.
33
Second is the type of presumption that shifts the burden of producing evidence (the so-called “Thayer” theory of presumptions).
34
Third is the type that shifts both the burden of producing evidence and the persuasion burden to the adversary (the so-called “Morgan” theory of presumptions).
35
Finally, the “conclusive” or “irrebutable” presumption precludes the adversary from rebuttal.
36
For McCormick, neither the first nor the fourth are truly presumptions, the first because it has no greater effect than any other rational inference used in fact finding, and the fourth because it is in reality a conclusion of law.
37
Only the second and third are “presumptions” in a meaningful sense.
Pennsylvania’s common law presumption against suicide was analyzed in
Watkins v. Prudential Insurance Company,
315 Pa. 497 , 173 A. 644 (1934). The court described a valid “reasonable inference against death being self-inflicted,” but found there was no “sufficiently broad factual base” to “warrant its projection to the height of a presumption of law.” 173 A. at 648 . “It is merely a permissible consideration of the nonprobability of death by suicide.”
Id.
The court held its effect was too slight to shift the burden of producing evidence.
Id.
173 A. at 649 . Of course, if it could not effect the burden of producing evidence it could not alter the persuasion burden, which remained throughout on plaintiff, and the court so held.
Id.
In terms of McCormick’s four categories,
Watkins’
presumption against suicide clearly belongs to the first — it is simply a permissible inference, with none of the evidentiary consequences of a true presumption. McCormick himself so evaluated
Watkins .
McCormick,
supra,
at 811 note 74.
38
*1082
In contrast, New York’s presumption against suicide is based on “the truth drawn from general human experience, that death by suicide is an improbability, that most men cling to life.”
Wellisch v. John Hancock Mutual Life Insurance Co.,
293 N.Y. 178 , 56 N.E.2d 540 (1944).
Wellisch
described this particular presumption as a “rule or guide for the jury”:
The ‘presumption against suicide’ means that when death by violence is shown and an inference must be drawn by the jury as to suicide or not, then the jury should in justice and good conscience draw the inference of accident, not suicide.
56 N.E.2d at 543 . In terms of its effect, the court said only “[N]or is it the sort of ‘presumption’ that serves only to shift the burden of proof and disappears from the case as soon as evidence to the contrary is offered.”
Wellisch
was subsequently interpreted in
Begley
v.
Prudential Insurance Company of America,
1 N.Y.2d 530 , 154 N.Y.S.2d 866 , 136 N.E.2d 839 (1956) in the following manner:
When death has resulted from violence, the presumption against suicide does more than shift the burden of proof and upon having done so disappears from' the case; it continues to the end of the case and if a fair question of fact is presented as to whether death was due to suicide or accident, then the jury should answer accident.
154 N.Y.S.2d at 868 , 136 N.E.2d at 841 . Neither
Begley
nor
Wellisch
is clear as to the precise effect of the presumption against suicide. At minimum, they must be read as requiring the shifting of the persuasion burden (McCormick’s third type above); it is also possible to read them as mandating a “conclusive” presumption as long as there are facts to support it. In Part V
infra
we shall explain the interpretation we gave to the cases in charging the jury. For now it is sufficient to realize that New York’s presumption is much stronger than Pennsylvania’s.
Delaware has never spoken on the issue of the effect of the presumption against suicide in an accidental death insurance policy. That leaves us with two alternatives. First we could make our determination of what Delaware law would be, reasoning from that state’s law in regard to analogous presumptions. Second, we could apply Pennsylvania’s conflict of law rule that when a sister state’s law is unknown or unclear it is presumed to be the same as Pennsylvania’s law.
In re Trust of Pennington,
421 Pa. 334 , 219 A.2d 353, 356 (1966). That would, of course, make Delaware’s and Pennsylvania’s presumptions against suicide identical. On balance, the second course appears more faithful to our
Erie/Klaxon
command. However, our ultimate conclusion that Delaware law is not applicable under Pennsylvania choice of law methodology moots the question of which of the two above alternatives is preferable.
This discussion has revealed a sharp difference between Pennsylvania law on the one hand, and New York law on the other, reinforcing the conclusion we reached in the last section, IV(B), that choosing one or the other presumption could have a dramatic effect on the outcome of the trial. The Pennsylvania presumption would only have aided plaintiff in meeting her initial burden of producing evidence. This was accomplished in our trial without the aid of a presumption, and once accomplished the presumption would have had no further effect. In contrast, New York’s presumption would have had far more effect, by treating the existence of ,a fair question of fact as mandating a legal conclusion of accident (shifting the persuasion burden in the process).
39
These differences between New York and Pennsylvania law require us “to choose.”
D.
The Three Competing Choice of Law Systems
During the past fifteen years, Pennsylvania conflicts of law jurisprudence as it ap
*1083
plies to contracts cases has been influenced by three competing theories. Because of the critical role they play in understanding this case and the case law, and because the cases have not generally articulated the points of similarity and difference among the three, it is necessary to begin with a brief explication of each theory.
40
The first is
Restatement of Conflict of Laws
(1934) (hereinafter
Restatement I),
the underlying assumption of which is contained in § I: “[n]o state can make a law which by its own force is operative in another state. . . . ” The implications of this assumption are that a forum
qua
forum cannot apply its law to events occurring beyond its borders and that a locus state cannot require another state to provide a forum for vindication of rights created under its law. However, if a forum is willing to determine a foreign-based cause of action, this rule would require it to apply the appropriate foreign law. The traditional view is known either as “territorialism” or the “vested rights doctrine,” and in practice leads to a plethora of “jurisdiction-selecting” rules. The traditional method requires that the one and only properly concerned jurisdiction be determined merely by locating the “place of the wrong” in a tort case, the “place of contracting” in a contracts case, the “place of decedent’s domicile” for issues of estate administration,
et alia.
Far removed from the assumptions behind
Restatement I
is the “interest analysis” theory expounded chiefly, but not exclusively, by the late Professor Brainerd Currie. In contrast to the mechanical jurisdiction-selecting rules, interest analysis begins with an exposition of the substantive law of the states which appear to have an important connection with the transaction at issue. That law is analyzed in terms of its purpose and of the interest of the sovereign which it is perceived to serve.
41
Only then can one truly answer the key question whether the interests of sovereign state X would be served by applying its law to the facts.
Professor Currie identified four basic case patterns. The first occurs where forum state X has an “interest” in applying its law and state Y has none, or vice versa. Currie labelled this a “false conflict,” and advocated choosing the law of the only concerned jurisdiction. The second pattern occurs where both states have interests; Currie described this as a “true conflict.” The reverse image of a true conflict is the “unprovided-for” case, where neither state has an interest. Finally, the “disinterested third state” pattern occurs where a state which itself has no interest is adjudicating a case in which two or more states do have interests. In the last case, Currie argued for dismissal on
forum non conveniens
grounds. However in both the “true conflict” and “unprovided-for” cases, Currie argued that forum law,
lex.fori,
should apply. This followed from his basic assumption that forum law was presumptively valid, and should only be “displaced” when another jurisdiction demonstrated
more
interest in applying its law than the forum itself could show. (Currie initially argued that another jurisdiction could only demonstrate “more” interest when the forum itself had no interest. Later he modified this position, advocating balancing comparative strengths of interests when both jurisdictions were interested.
See
note 44
infra).
His prescription of applying forum law was based largely on convenience and ease of administration.
[i]f, however, there were a general presumption in favor of applying the law of
*1084
the forum, and a disposition to apply foreign law only where some useful purpose would be served thereby, counsel and court could know in advance that there would be no point in ascertaining the foreign law. ... A real economy might therefore result.
Currie,
Selected Essays on the Conflict of Laws,
156 note 85 (1963).
42
The third theory is
Restatement (Second) of Conflict of Laws
(1971) (hereinafter Restatement
II).
Although the final version of
Restatement II
did not appear until six years ago, tentative drafts were circulated as early as 1953.
Restatement
IFs basic instruction is to choose the law of the “state of the most significant relationship.” Significant relationship is determined by identifying the “contacts” each respective jurisdiction has with the case at bar. Hence the theory is widely described as “counting contacts,” “grouping contacts,” or finding the “center of gravity,” though the three phrases are not strictly accurate since
Restatement II
counsels one to look at the quality, not merely the quantity of contacts.
Restatement II
is suffused with many of the territorial assumptions of
Restatement I,
evidenced throughout its complex, three-part structure. First, there are a series of specific jurisdiction-selecting rules, analogous to those of
Restatement
I; for example, § 192 on the law to be chosen for a life insurance contract, and § 148 for the law to be chosen in a suit for fraud and misrepresentation. Second, a series of territorial “contacts” are enumerated for each general type of action, such as property, torts and contracts. For example, § 188 identifies contract “contacts” which include,
inter alia,
place of contracting and place of performance. Finally, § 6 contains choice of law “principles” for use in evaluating such contacts. Principle 6(f) points to “certainty, predictability and uniformity of result” which were and are the underpinnings of vested-rights, territorial thinking.
43
Countering these strong territorial currents are §§ 6(b) and (c), which counsel evaluating contacts through the “relevant policies of the forum and other interested states,” in a manner virtually indistinguishable from Professor Currie’s interest analysis. Thus
Restatement II
may be said to have one foot in the camp of
Restatement I
and the other foot in the camp of interest analysis.
E.
Pennsylvania Choice of Law Doctrine; the Legacy of Griffith and its Impact on Contract Cases
Under
Klaxon,
the crucial conflicts issues must be decided under the Pennsylvania approach to or rules of choice of law; however, as we have already suggested, the Pennsylvania cases are neither clear, nor consistent. We shall now summarize the major currents in the Pennsylvania state and federal appellate court decisions, concentrating on the legacy of
Griffith
and its impact on contract cases.
*1085
1.
The Pennsylvania Supreme Court and Superior Court Decisions
Pennsylvania’s approach to choice of law questions prior to October 14, 1964 may be illustrated by the decision of the Superior Court in
Varas v. Crown Life Insurance Company,
204 Pa.Super. 176 , 203 A.2d 505 (1964).
Varas
was a suit for the surrender value of a life insurance contract. The court relied on
Restatement I
for its resolution of choice of law questions, specifically § 355 on the “place of performance” and § 356 on an optional promise to perform a contract provision.
Varas
was illustrative of what Pennsylvania’s approach to choice of law questions generally, and choice of law in contract cases specifically, had been for many decades.
The modern choice of law era in Pennsylvania began less than a month later, when the Pennsylvania Supreme Court decided
Griffith v. United Air Lines, Inc.,
416 Pa. 1 , 203 A.2d 796 (1964).
Griffith
provided a major re-examination and re-evaluation of the theoretical bases of Pennsylvania choice of law. Plaintiff sought to convince the Pennsylvania courts to apply their own law by characterizing the case as one of “contracts” to which the traditional “place of contracting” rule would apply. However, the court, insisting that the case was really a “torts” matter, focused on the issue whether it should set aside the cognate “place of injury” rule for torts of
Restatement I.
Speaking through Justice Roberts, the court did so, boldly rejecting the ancient rule of
lex loci delicti
“in favor of a more flexible rule which permits analysis of the policies and interests underlying the particular issue before the court.” 416 Pa. at 21 , 203 A.2d at 805.
The plaintiff in
Griffith
was the estate of a decedent domiciled in Pennsylvania at time of death; defendant was a Delaware corporation with its principal place of business in Illinois. The aircrash that took decedent’s life occurred in Colorado, which limited damage recovery, while Pennsylvania did not. Under these facts, the Supreme Court found that Pennsylvania had an interest in applying its law of unlimited recovery (for benefit of decedent’s surviving dependents domiciled in Pennsylvania), whereas Colorado had no local interest to protect by limiting recovery, and that Pennsylvania law was the proper one to apply. It is noteworthy, however, that the court also found that Pennsylvania had an “interest” because “the relationship between decedent and United was entered into in Pennsylvania.” 416 Pa. at 24 , 203 A.2d at 807. Thus both the kinds of legislative interests considered under Professor Currie’s interest analysis and §§ 6(b) and (c) of
Restatement II
were juxtaposed with the territorial contacts of other parts of
Restatement II.
Significantly, both Professor Currie and
Restatement II
(among many others) were cited in the Supreme Court’s decision to discard the “wooden application of a few overly simple rules based on the outmoded ‘vested rights theory’ ”, 416 Pa. at 13 , 203 A.2d at 801, but the court did not rely on or explicitly adopt either Currie’s doctrine or
Restatement II.
Griffith ,
while addressing itself to choice of law in tort suits, announced that “[w]e are at the beginning of the development of a workable, fair and flexible approach to choice of law which will become more certain as it is tested and further refined when applied to specific cases before our courts.” 416 Pa. at 22 , 203 A.2d at 806. The question for us is the extent to which
Griffith
has been subsequently extended to contract cases, sweeping aside
Varas
and the tradition it represents.
Two years after
Griffith ,
Justice Roberts wrote for the Court in
McSwain v. McSwain,
420 Pa. 86 , 215 A.2d 677 (1966).
See
note 42,
supra.
Applying interest analysis to the question of interspousal tort immunity he found that Pennsylvania, where husband and wife were domiciled, had a valid interest in imposing its standard for immunity whereas Colorado, the place of the underlying tort being sued upon, did not. Thus, like
Griffith ,
only one state was found to be interested, and that state’s law was chosen to govern. Justice Roberts noted in passing that
Restatement II
would have reached the same result, but he did
*1086
not rely on that
Restatement.
Rather, in language that suggested that
Griffith
was applicable to all choice of law questions, he declared that “what should be sought is an analysis of the extent to which one state rather than another has demonstrated, by reason of its policies and their connection and relevance to the matter in dispute, a priority of interest in the application of its rule of law.” 420 Pa. at 94 , 215 A.2d at 682 .
Justice Roberts again wrote for the Court in
Elston v. Industrial Lift Truck Co.,
420 Pa. 97 , 216 A.2d 318 (1966). In
Elston
a Pennsylvania resident was injured by a fork-lift truck accident in New Jersey, and sued on a negligence theory the Pennsylvania corporation that had supplied his employer with the fork-lift. The supplier sought to implead and claim contribution from plaintiff’s employer, whose business residence is not stated but who had a plant in New Jersey, under New Jersey’s Workman’s. Compensation law. The issue was whether New Jersey or Pennsylvania law should govern on a question of third-party contribution in the context of workman’s compensation. Contribution was permissible in Pennsylvania but prohibited in New Jersey. Justice Roberts found that both Pennsylvania and New Jersey had legitimate interests at issue — Pennsylvania in providing contribution for the benefit of a local corporation, New Jersey in preventing contribution from an employer already liable under its compensation scheme. Unlike
Griffith
and
McSwain ,
then, which were “false conflicts,”
Elston
presented a “true conflict.”
While Justice Roberts finally applied New Jersey law because .he found that New Jersey’s interest in its workman’s compensation scheme was “paramount,” the conceptual basis for this application is not entirely clear. For, as we read his opinion, it rests partly on
Restatement II,
216 A.2d at 323 , and partly on territorial concerns that the tortfeasor who delivered the truck in New Jersey “had elected to transact business in New Jersey and having exposed itself to a policy and program which fails to give recognition to contribution [he] must be governed by that determination.”
Id.
44
Thus
Elston ,
like
Griffith ,
exemplifies a “hybrid” system of interest analysis and territorial contacts which we perceive as evolving in Pennsylvania tort choice of law cases in
Griffith’s
wake.
Shortly after
Elston ,
the Pennsylvania Superior Court had an opportunity to apply
Griffith
in a contract context but declined to do so. In
Eastcoast Equipment Company
v.
Maryland Casualty Company,
207 Pa.Super. 383 , 218 A.2d 91 (1966), a New Jersey corporation sued an insurance company whose state of incorporation and principal place of business are not stated. The policy was issued and delivered in Pennsylvania, and the events that would give rise to liability took place in New Jersey. The court concluded that
Restatement I
and specifically
Varas
controlled in the situation, and applied the law of Pennsylvania where the contract was formed, opining that
Griffith
was limited to torts, and finding “no indication” that it had affected the ancient “place of contracting” rule.
McSwain
and
Elston ,
which had preceded
Eastcoast
and were sufficient to give at least some “indication,” were ignored. The court admitted that, were it to apply a
Restatement II
test, Pennsylvania’s contacts would be found “minimal,” and implied that New Jersey would probably have been the state with the “most significant relationship.” 207 Pa. Super. 383 , 218 A.2d at 91 note 5.
Eastcoast Equipment
was followed by Justice Robert’s third post
-Griffith
decision,
*1087
In Re Hunter,
421 Pa. 287 , 218 A.2d 764 (1966), a review of a final decree of a Pennsylvania Orphan’s Court. A child had been born in West Virginia, and his natural mother had signed relinquishment forms in that state. The child, his adoptive parents, and the natural mother had all subsequently returned to Pennsylvania where they were domiciled at time of suit. The Orphans Court decided that West Virginia law governed the validity of the relinquishment forms because they had been executed there. The Supreme Court reversed because Pennsylvania “by reason of the subject matter of the dispute and the status of the parties as domiciliaries of this Commonwealth, has an overriding and continuing interest in the resolution of the issues in contention.” 421 Pa. at 290, 218 A.2d at 767. Apparently relying on
Restatement II
principles, Justice Roberts found “there is no choice of law problem.”
Id.
The case is also consistent with an implicit interest analysis, based on a determination that there is a false conflict hence no “problem” in choosing, when one state has an overriding interest by virtue of its domiciliaries and the other state has no interest.
45
West Virginia’s non-interest in the construction of its relinquishment forms is assumed rather than examined. At least tangentially,
Hunter
undercut
Restatement I’s lex loci contractus
by rejecting as irrelevant the trial court’s conclusion that the “agreement” was binding under the law of West Virginia, the place of contracting. Thus
Hunter
strongly, if obliquely, supported the view that
Griffith
was applicable to Pennsylvania choice of law generally.
46
Two months after
Hunter ,
the Superior Court again, as it had done in
Varas
and
Eastcoast Equipment,
upheld the validity of
Restatement I
for contract actions.
Crawford
v.
Manhattan Life Insurance Co. of N.Y.,
208 Pa.Super. 150 , 221 A.2d 877 (1966).
Crawford
was a suit between the beneficiary, a West Virginia resident, and a New York-based insurance company. The policy had been mailed from Pennsylvania, where the insurance company had an office, but the insured (beneficiary’s husband) had signed an amendment in West Virginia. The court concluded that the “last act necessary” to make the contract effective was the signing of the amendment, which occurred in West Virginia. Using the formalistic reasoning of
Restatement I,
the court held that since “delivery,” that last act, occurred there, West Virginia law was applicable.
Having decided the question by means of
Restatement I, Crawford
offered an alternative analysis under
Restatement II
and interest analysis (which it treated as synonymous). The court reasoned that Pennsylvania had no “interest” in applying its own standard of misrepresentation (the underlying substantive contract issue) in a suit between a West-Virginia beneficiary and a New York company because Pennsylvania’s only “contact” was the residence of the insurance agent.
Crawford
is significant for recognizing that
Restatement II
and interest analysis might conceivably apply to life insurance contracts, but it does not faithfully apply these methodologies. While using interest analysis to determine
*1088
that Pennsylvania itself was not a concerned jurisdiction,
Crawford
ignores the fact that two other jurisdictions — West Virginia and New
York
— were concerned, and that therefore a “true conflict” was presented between those two interested states. Under Currie’s interest theory, a
forum non conveniens
dismissal would have been indicated. Or if
Elston ,
decided five months earlier had been followed, interest analysis should have been employed first, and if that method discerned a true conflict then territorial factors should have been consulted for a solution.
Elston
further instructed not looking at any one narrow territorial act — such as the place of signing an amendment — but the overall balance of territorial concerns.
Crawford
does not pursue any of these approaches.
Crawford
was followed by Justice Robert’s fourth post
-Griffith
choice of law decision,
Kuchinic v. McCrory,
422 Pa. 620 , 222 A.2d 897 (1966). Four friends, all Pennsylvania residents, had flown to Miami, Florida, for a football game. En route home, their private plane crashed in Georgia, and the three passengers’ estates sued the pilot’s estate for wrongful death. Georgia law required a standard of “gross negligence” for recovery, while Pennsylvania required simple negligence. The Court, finding it wholly fortuitous that the plane crashed in Georgia, held that Pennsylvania was the only jurisdiction properly concerned with imposing its standard of care.
Kuchinic
is significant in that it was the first case to use Professor Currie’s term “false conflict” to describe the respective state interests. However, in the same paragraph it spoke of state “contacts,” finding that Pennsylvania had numerous territorial connections including the “place where the host-guest relationship was established, where it was intended to terminate, and as the domicile of all four of the aircraft’s occupants.” These contacts were thereupon said to make Pennsylvania the “state with the most significant interest in defining the legal consequences attaching to the relationship . . 422 Pa. at 624 , 222 A.2d at 900 . That phrase’s formulation, and the methodology employed, make
Kuchinic
the clearest example of the post-
Griffith
“hybrid” system, whereby pure interest analysis has joined with
Restatement IPs
grouping of contacts. For under Currie’s interest analysis, a false conflict would be sufficiently shown by the fact that all parties lived in Pennsylvania. The incremental weight Justice Roberts gave to the “places” where the relationship began and was to terminate is implicitly a function of
Restatement IPs
territoriality.
After this flurry of decision-making — six Supreme Court opinions in two years — four years elapsed until
Cipolla
v.
Shaposka,
439 Pa. 563 , 267 A.2d 854 (1970). There a Pennsylvania plaintiff, a motor vehicle passenger, sued a Delaware defendant, his host driver, because of an accident in Delaware. Under the stipulated facts, Pennsylvania law would have permitted recovery, whereas Delaware law because of its “guest” rule, would have precluded it. The court quickly realized that both jurisdictions had “interests” at stake, and using Professor Currie’s terminology once again, described the case as a “true conflict.” In resolving this conflict, the court, while disclaiming the mere “counting” of contacts as not the correct
Restatement II
methodology, proceeded to do just that. Pennsylvania and Delaware each had a relevant “contact” because of their respective plaintiff-protecting and defendant-protecting policies. But Delaware had another “contact” because defendant’s car was housed there. This was relevant because, according to the court, this factor would have affected insurance premiums of Delaware residents. Thus Delaware’s contacts outweighed Pennsylvania’s. Moreover, “[inhabitants of a state should not be put in jeopardy of liability exceeding that created by their state’s law just because a visitor from a state offering higher protection decides to visit there.” 439 Pa. at 567 , 267 A.2d at 856 . The court described this as a “highly territorial approach,” and than quoted a federal district court’s view in 1949 that “departures from the territorial view of torts ought not to be lightly undertaken.”
Id.
Delaware law was thus applied. Justice Roberts filed a strong dis
*1089
sent, arguing that since the interests and contacts of Pennsylvania and Delaware were evenly balanced (he found the majority’s counting process specious), the “better law,”
(see
note 40 supra), should be chosen, which he deemed Pennsylvania’s. Justice Roberts argued that the heavy territorial emphasis went counter to recent Pennsylvania choice of law decisions.
A year later
In Re Danz
was decided. 444 Pa. 411 , 288 A.2d 282 (1971).
Danz
involved the validity of a gift contract executed in Germany with respect to funds held in Pennsylvania banks. The court, in one sentence, decided that German rather than Pennsylvania law applied in this situation “because that is the place where the contract was made and was to be performed.” However, unlike
Varas, East-coast Equipment
and
Crawford ,
no
Restatement I
provisions were mentioned. Nor was
Restatement II
relied upon.
Griffith
was not even cited. The only authority was a 1914 case,
State Bank of Chicago v. King,
244 Pa. 29 , 90 A. 453 (1914). No attempt was made to describe the respective interests of Germany and Pennsylvania, or to examine and weigh the “contacts” each jurisdiction had.
47
Danz
is singularly lacking in facts which would permit an application of either interest analysis or
Restatement II.
No mention is made of where the donor-decedent died, though it appears to have been Germany, nor where he was domiciled at time of death, though this was probably Pennsylvania. Both facts would be crucial under interest analysis and also would have been important “contacts” under
Restatement II.
Similarly, no mention is made of whether donees were domiciliaries of Germany, Pennsylvania, or some other jurisdiction at the time of gift, nor of whether decedent had any beneficiaries or heirs at law domiciled in Pennsylvania who would benefit from an increased estate if the claimed gift to the donees were declared invalid. Without these facts, it is impossible to know whether either Pennsylvania or Germany had “interests” in this matter. Thus it is abundantly clear
Danz
is not an interest analysis case. By the same token the above omissions preclude a thorough-going
Restatement II
analysis. To be sure, “place of performance” and “place of contracting” are two contacts made relevant by § 188 of
Restatement II,
but these contacts may or may not have been sufficient to establish Germany as the “place with the most significant relationship.” Unquestionably, the result in
Danz
is consistent with
Restatement I,
although under that theory “place of contracting” would have sufficed, and the mention of another factor (i. e. place of performance) was superfluous.
Danz
plainly rests on territorial assumptions, but exactly which theory it utilized is unclear.
Finally, in
Gillan v. Gillan,
236 Pa.Super. 147 , 345 A.2d 742 (1975), the Superior Court purported to expand considerably the reach of
Griffith. Gillan
announced that
Griffith
“overruled a substantial body of Pennsylvania case law and adopted the new Restatement’s approach to
conflicts
problems.” (emphasis supplied). 345 A.2d at 744 . As this passage implies,
Gillan
considered
Griffith’s
methodology applicable to all conflict of law subjects, not just torts; but it interpreted
Griffith
as being based solely on
Restatement II.
In
Gillan ,
both parties, formerly husband and wife, resided in Pennsylvania at time of suit. The former husband had breached a separation agreement which by its terms survived but was not incorporated in a divorce decreed by a New York court. The issue was whether he could collaterally attack the agreement on the grounds of collusion. The
Gillan
court set out two sections of
Restatement II
as applicable to its choice of law determination: the general principles of § 6 and the contract provisions of § 188. Thus the court clearly felt that
Griffith
had made
Restatement II
applicable to contracts. In applying these sections, the court found New York to have the “greater interest” because “the state where the divorce is to be procured has a pre-eminent interest in the preservation or dissolution of a marriage,” 345 A.2d at 745 , which the rules
*1090
against collusion were designed to protect. The court did not examine any other “contacts” made relevant by § 188, such as the current domicile of the parties. Thus the
Gillan
court in theory relied on
Restatement II,
but in application performed its own version of “interest analysis.” Its interest analysis, of course, was at variance with Currie’s interest analysis; under the latter theory, the fact of residence of both parties in Pennsylvania would have made that state the only concerned jurisdiction, and a “false conflict” would have been present.
48
The
Gillan
court did consult Pennsylvania law for the limited purpose of determining whether public policy allowed enforcement of the separation agreement by Pennsylvania’s courts, but this determination was made, not on the basis of
Restatement II,
interest analysis, or even
Restatement I,
but rather the “jurisdictional” holding of
Silvestri v. Slatowski,
423 Pa. 498 , 224 A.2d 212 (1966), which we have analyzed at note 56
infra.
We began our review of the case law to determine whether Pennsylvania as a result of
Griffith ,
has abandoned its ancient rule of
lex loci contractus,
as represented by
Varas .
We conclude that there is no clear answer to that question. Justice Roberts’ six opinions demonstrate a trend of expanding the range of interest analysis (and
Restatement II)
methodology beyond its pure tort-liability application in
Griffith .
For example, while
McSwain
involved inter-spousal immunity, and
Elston
involved contribution among joint tortfeasors,
Hunter
involved adoption. Similarly, the recent Superior Court case of
Gillan
applied the “modern” methodology to a separation agreement. On the other hand, while both
Hunter
and
Gillan
are more analogous to contract actions than to tort actions, neither purported to overrule
lex loci contractus
as
Griffith
had squarely overruled
lex loci delicti.
Moreover, in the three clear contract actions,
Eastcoast Equipment, Crawford,
and
Danz,
the Superior Court twice explicitly, and the Supreme Court once implicitly, reaffirmed the vitality of
Restatement I.
In sum, incompatible inferences can be drawn from the case law,
i. e.
that
Restatement I
still applies to contract cases, and that the hybrid
interest/Restatement II
analysis applies.
It is also important to describe at this juncture our conclusion as to the meaning of the second inference above: that
Griffith ,
instead of spawning a pure “interest” line of cases, has bred a “hybrid” system blending interest analysis and territoriality. Interest analysis is initially employed by the courts, and if under that analysis a “false” conflict is demonstrated (only one jurisdiction interested) that jurisdiction’s law is applied. Territorial contacts of
Restatement II
are used to buttress the result. This is the method of
Griffith, McSwain, Hunter,
and
Kuchinic .
Similarly, if the initial application of interest analysis demonstrates a “true” conflict (both jurisdictions interested), territorial contacts are used to resolve the choice. In contrast to Professor Currie, who would have applied
lex fori
in a true conflict situation, Pennsylvania has twice encountered true conflicts
(Elston
and
Cipolla)
and each time has deferred to the law of the sister state. Each time deference was for territorial reasons: in
Elston
because the seller of the fork-lift had gone to New Jersey to transact business, and in
Cipolla
because the guest had been in Delaware on a motor trip.
2.
The Court of Appeals (Third Circuit) Decisions
Because of our uncertainty about the question whether
lex loci contractus
has been abandoned by the Pennsylvania courts, we sought the guidance of the United States Court of Appeals for the Third Circuit. In view of the confusion in the Pennsylvania cases and the fact that a federal court’s role in this area is predictive only, it is not surprising that we found the Court of Appeals opinions to reflect, hence
*1091
exacerbate rather than solve, the confusion. Speaking generally, we discovered that the following cases provided at least some support for the view that
Griffith
left untouched the
Restatement I
tradition for contract cases:
Jamison v. Miracle Mile Rambler, Inc.,
536 F.2d 560, 562 (3d Cir. 1976);
William B. Tanner Co., Inc. v. WIOO, Inc.,
528 F.2d 262 (3d Cir. 1975);
Craftmark Homes, Inc.
v.
Nanticoke Construction Co.,
526 F.2d 790 , 792 n. 2 (3d Cir. 1975);
Daburlos v. Commercial Insurance Co.,
521 F.2d 18 , 20 at n. 2 (3d Cir. 1975);
Pittsburgh Bridge and Iron Works v. Liberty Mutual Insurance Co.,
444 F.2d 1286 , 1288 n. 2 (3d Cir. 1971);
Boase v. Lee Rubber and Tire Corp.,
437 F.2d 527, 529-530 (3d Cir. 1971);
First Pennsylvania Banking and Trust Co. v. U. S. Life Insurance Co.,
421 F.2d 959, 962 (3d Cir. 1969).
On the other hand, an equally impressive string of cases lends support to the view that Pennsylvania has adopted either interest analysis or
Restatement II
for contracts cases:
Kademenos v. Equitable Life Assurance Society,
513 F.2d 1073 (3d Cir. 1975),
Siata International U. S. A., Inc. v. Insurance Company of North America,
498 F.2d 817 (3d Cir. 1974);
Travelers Insurance Co. v. Davis,
490 F.2d 536, 542-543 (3d Cir. 1974);
Neville Chemical Co. v. Union Carbide Corp.,
422 F.2d 1205, 1210-1211 (3d Cir.)
cert. denied
400 U.S. 826 , 91 S.Ct. 51 , 27 L.Ed.2d 55 (1970);
Slaughter v. Philadelphia National Bank,
417 F.2d 21 , 26 n. 8 (3d Cir. 1969);
Scott v. Eastern Air Lines, Inc.,
399 F.2d 14 (3d Cir.)
(en
banc)
cert. denied
393 U.S. 979 , 89 S.Ct. 446 , 21 L.Ed.2d 439 (1968);
Mannke
v.
Benjamin Moore & Co.,
375 F.2d 281, 283 (3d Cir. 1967)
49
See also Exchange National Bank v. Insurance Company of North America,
341 F.2d 673, 675 (2d Cir. 1965) (applying Pennsylvania conflict law in a case transferred under 28 U.S.C. § 1404 (a)).
When the Third Circuit cases are subjected to individual scrutiny, they may be brought into more unified focus than our rough classification suggests; for example, some of the dichotomy may result from the evolution in the Pennsylvania state court cases, discussed above, the result depending upon
when
the Court of Appeals wrote. Moreover, as we have already noted, faced with conflicting strains in Pennsylvania law, the task of predicting what the Pennsylvania Supreme Court would do was extremely difficult, and it is understandable that one group of judges might predict differently than another, given the “signs” from the most recent state case. Finally, in many of the Court of Appeals opinions, the choice of law issue was not critical; indeed, the discussion in most of the cited cases is quite brief. However, since the choice of law question is critical to this case, we cannot content ourselves with less than an exhaustive analysis. We note, of course, that our function is predictive too, albeit in a compounded sense since we must also take cognizance of the (predictive) views of our Court of Appeals. We shall commence the necessary analysis by first considering the circuit decisions (which, of course, bind us) in several groups, organized by the temporal order of the Pennsylvania precedents which must be regarded as the exclusive source of law on this issue under
Erie.
Seven of the Pennsylvania cases discussed above,
Griffith, McSwain, Elston, Eastcoast Equipment, Hunter, Crawford,
and
Kuchinic
preceded the first group of circuit cases which we shall consider. Earlier, we concluded that in
Eastcoast Equipment
and
Crawford
the Superior Court had denied the relevance of
Griffith
to contract cases and that in
Hunter
the Supreme Court had obliquely disagreed. We now consider seriatim the Circuit’s reaction to those cases.
Mannke, Scott,
and
Slaughter
relied on
Restatement II
or on
Griffith
as establishing the contemporary choice of law methodology. Thus in
Mannke
the court found Pennsylvania to be the “center of gravity.” 375 F.2d at 283 . And in
Slaughter
the court demonstrated an implicit awareness
*1092
of the “hybrid” system by announcing that “Pennsylvania’s approach . . . is to analyze the policies and interests underlying the particular issue before the court and then apply the law of the state having the greatest interest
and
most direct contacts with the problem.” 417 F.2d at 26 n. 8 (emphasis supplied). In
Scott ,
the Third Circuit
en banc
considered a wrongful death and survival action which was grounded in contract, not tort. The court declared: “[a]s the contractual claim against Eastern is rooted in Pennsylvania Law, it is governed directly by .
Griffith.”
399 F.2d at 22 . The court undertook an interest analysis, deciding the situation was a “false conflict,” and citing
McSwain
and
Kuchinic .
The “place of injury” in Massachusetts was held to “not necessarily” create an interest in Massachusetts.
Id.
Neither
Mannke, Slaughter,
or
Scott
mentioned, or distinguished,
Crawford
or
Eastcoast Equipment.
In
First Pennsylvania
a panel of the Third Circuit ignored
Griffith
in deciding that Pennsylvania would refer to the law of the place of contracting in insurance contract cases. However, it relied neither on
Eastcoast Equipment
nor on
Crawford ,
but instead reverted to
Franklin Life Insurance Co. v. Bieniek,
312 F.2d 365, 367-368 (3d Cir. 1962), which in turn emanated from
New York Life Insurance Co.
v.
Levine,
138 F.2d 286, 288 (3d Cir. 1943), which had used an explicit
Restatement I
methodology.
In
Neville,
the Circuit ascribed to Pennsylvania the “interest” approach in contract cases. Again it cited
Griffith ,
but none of the post
-Griffith
state cases; it cited
Slaughter ,
but not
First Pennsylvania.
Finally, in its actual application of
Griffith ,
the court did not in fact analyze any “interests,” but rather located “the place of negotiation . . . the principal place of business,” and similar territorial contacts to determine Pennsylvania to be the “center of gravity” of the contract in a manner consistent with
Restatement II.
422 F.2d at 1211 .
One year later, in
Boase ,
Judge Aldisert presented a more extensive consideration of the Pennsylvania cases, though he did not cite the year old circuit decision in
Neville.
He acknowledged that
Griffith
itself strongly suggested that interest analysis would be utilized in contract cases by its approval of a leading New York contract choice case,
Auten v. Auten,
308 N.Y. 155 , 124 N.E.2d 99 (1954). But he also noted the reassertion of traditional rules in
Crawford .
Finally, he argued that
Hunter’s
oblique suggestion that “interest analysis” applied to contracts could be explained away as “only tangentially present[ing] a conflicts of laws problem . . . 437 F.2d at 529, n. 6 (and
see
note 45
supra).
Judge Aldisert concluded that:
Pennsylvania’s highest court has not so clearly embraced the grouping-of-contacts theory as to set aside a choice of law provision explicitly set forth in the written agreement which is the subject matter of the dispute.
437 F.2d at 530 . Judge Aldisert, however, did not have to determine exactly what Pennsylvania’s methodology was nor apply that methodology since in
Boase
the parties had explicitly chosen a law to govern the transaction; his inquiry was limited to the question whether
Griffith
and its progeny would require not giving effect to the parties private choice. He concluded
Griffith
would permit giving it effect.
Boase
was followed shortly by
Pittsburgh Bridge,
where the court opined tangentially that Pennsylvania retained the traditional reference to the law of the state where an insurance contract is made (“issued and delivered”), citing only
Varas
and
Eastcoast Equipment.
The Pennsylvania Supreme Court decision in
Danz,
applying
lex loci contractus
to a contracts case, followed. As we mentioned,
Danz
cited neither
Griffith
nor its progeny. The questions naturally arose whether Pennsylvania was reviving the “vested rights” approach generally, whether it was doing so but only in the area of contracts, whether Pennsylvania intended to apply different choice of law methods for inter-state and international cases, or whether
Danz
was merely an aberration. Given the potential significance of
Danz
to
*1093
the evolution of Pennsylvania choice of law, it is surprising that it has received so little notice in the Circuit.
Travelers,
which followed
Danz
by several years, suggested that Pennsylvania would use interest analysis in contracts choice of law. It did not cite
Danz,
but rather relied solely on
Griffith
in holding that Pennsylvania would apply interest analysis to a case concerning arbitrability of the meaning of an insurance contract; Massachusetts was found to be “interested” because “the contract was made there,” but Pennsylvania’s interest was greater because “decedent and his executors are citizens of that state.” 490 F.2d at 543 . In
Siata International,
an action on a bond covering a contract, the court relied on
Neville
in finding that the district judge had employed the correct test of “most significant relationship,” but remanded for a determination,
inter alia,
of whether an express choice by the parties should be considered as an additional factor in the calculus, noting that in the process “additional state interests and contacts may become manifest.” 498 F.2d at 820 .
Kademenos ,
a case of tortious interference with contractual relations, hence straddling between tort and contract, was the next Circuit case in the wake of
Danz.
It cited
Griffith
and
Neville
and spoke of Pennsylvania’s “greater interest,” but in analyzing that interest utilized
Restatement II
territorial contacts exactly as
Neville
had, focusing on the place of the policy’s delivery, the place of the policy’s cancellation, etc. 513 F.2d at 1073 .
Daburlos ,
however, which also followed shortly thereafter returned to
Restatement I
language in saying that:
[ijnitially, there can be no question that under the doctrine of conflict of laws, the Pennsylvania substantive law applies for the insurance policies in this case were issued and delivered in Pennsylvania.
521 F.2d at 20 . The Court’s footnote somewhat cryptically cited
Griffith, Pittsburgh Bridge
and
Neville.
We now turn to the Circuit cases which followed the most recent development in the Pennsylvania state cases,
Giilan,
in which the Superior Court for the first time read
Griffith
expansively (while ignoring
Danz),
and in which that court seemed to prescribe
Restatement II
analysis for contract cases.
Giilan,
of course, left a question whether it was to be read as limited to contracts arising out of marital dissolutions. Three Third Circuit cases have followed
Giilan.
The first two cases,
Craftmark Homes
and
William B. Tanner,
came down only two months after
Giilan,
doubtless before it was generally reported, and did not discuss it.
Craftmark
cited only
Danz’s
“place where a contract is made and where it is to be performed” language as dispositive of the facts in the case. 526 F.2d at 792 note 2.
William B. Tanner,
an action for anticipatory breach of contract, found no threshold conflict between Pennsylvania and Tennessee law, hence no need to apply choice of law principles, but found that
[fjurthermore Pennsylvania is the place of performance under the contracts. Although the point is not free from doubt, we interpret Pennsylvania law as providing that ‘matters connected with the performance of a contract are governed by the law prevailing at the place of performance.’
Musser v. Stauffer,
192 Pa. 398 , 43 A. 1018 (1899).
528 F.2d at 266 . This passage is, of course, consistent with
Restatement I.
The final Circuit case,
Jamison ,
is similarly unhelpful in trying to reconcile or distinguish the state cases, for the
Jamison
panel cited only
Crawford
in holding that the interpretation of an insurance contract is governed by the law of the place where it was made. 536 F.2d at 562 n.1.
50
A district judge must be guided in the first instance by circuit law. As the foregoing discussion demonstrates, circuit law does not guide us here, although the responsibility for the “drift” in this area must, as we have already noted, be laid at the doorstep of the Pennsylvania Supreme Court
*1094
not the Third Circuit. We must therefore advance our discussion on the basis of our independent analysis of the Pennsylvania cases.
3.
A Disquieting Verdict
In
Griffith ,
its first modern choice of law opinion, the Pennsylvania Supreme Court avowed its intent to “re-examine its position” in the field of choice of law. Since the purpose of the proposed re-examination was to bring the state’s “rules” more into “harmony with the realities of this age,” 416 Pa. at 11 , 203 A.2d at 801, the Court did not limit the scope of its vow to any particular aspect of choice of law — e. g., torts as opposed to contract. Despite the difficulties attendant upon such a broad revision of an area of law, the Pennsylvania Supreme Court insisted- — doubtless too optimistically — that its new approach would
not be chaotic and anti-rational. ‘The alternative to a hard and fast system of doctrinal formulae is not anarchy. The difference is not between a system and no system, but between two systems
416 Pa. at 22 , 203 A.2d at 806, citing Harper,
Policy Bases of the Conflict of Laws: Reflections on Rereading Professor Loren-zen’s Essays,
56 Yale L.J. 1155 , 1157-1158 (1947).
As we have seen, that view proved less than prescient. For: (1) some recent state cases have applied the old rules to contract cases with barely a nod to
Griffith (East-coast Equipment, Crawford,
and
Danz);
(2) other state cases have extended
Griffith
beyond the tort context of its birth while neither over-ruling nor explaining the cases which continued to use the old rules
(Hunter,
Gillan); (3) the post
-Griffith
tort cases have moved from pure interest analysis into a hybrid interest
analysis/Restatement II
approach with strong territorial overtones, a system which turns to territoriality to resolve the choice when (and if) interest analysis is applied and fails; and (4) the Third Circuit has developed a line of traditional contract choice of law cases and one of modernist contract choice of law cases without acknowledging their inconsistency. Thus it seems fair to conclude that Pennsylvania has not “a” system of choice of law but two if not three competing systems, each claiming the same legal territory and leading to enormous confusion.
Put differently, our reading of the Pennsylvania case law and of the Third Circuit decisions have led to incompatible inferences: that
lex loci contractus
is still viable in Pennsylvania, and that it has been abandoned in favor of a
Griffith
-type inquiry.
Under these circumstances we deem it appropriate to apply
Restatement I
and the interest
analysis/Restatement II
hybrid as alternative methodologies in solving our choice of law problem. It is to an application of those methodologies that we now turn after a brief but necessary discussion of the parties’ contentions and of the reasons for our original bench opinion.
F.
The Parties’ Contentions; The Impact . of Van Dusen
v.
Barrack
We have not yet formally addressed the parties’ choice of law contentions. In view of the length of this opinion we will recite those contentions and our reasons for rejecting them briefly, dwelling extensively only upon one contention of the plaintiff. Plaintiff suggested three paths to reach her desired result of the choice of New York law on the presumption against suicide. First, she contended that
Griffith’s
interest analysis revolution applied only to torts and not to contracts, that the traditional
lex loci contractus
rule remained the rule under
Crawford ,
and that under
Crawford
the state law controlling construction of the contract is that of New York, because that is where the last act necessary to the making of the contract occurred. Plaintiff, of course, recognized that the issues of presumption and burden of proof often have been treated as matters of procedure rather than of substance; nonetheless, she also contended that Pennsylvania would, on those issues, follow
Restatement II,
§§ 133, 134 in referring to the law of “the state of the otherwise applicable law [if the purpose of that law] is to affect the decision of the
*1095
issue. . . . ” We were unwilling to accept this argument when it was offered because plaintiff offered us no reason to believe that Pennsylvania would choose that particular mixture of theories; i.
e., Restatement I
as to contract construction and
Restatement II
as to presumption and burden of proof in the manner plaintiff then had posed them. In fact, plaintiff did not explain, but simply took advantage of the confusion among the Pennsylvania cases, e.
g.
she did not explain or consider the impact of
Gillan
v.
Danz
on the contract issue. Nor did she justify rejecting, modifying, or limiting Pennsylvania’s
lex fori
rule for burden/presumption questions. In sum, plaintiff’s convenient selections among the authorities seemed to us arbitrary and unconvincing. And our own analysis had not then advanced to the point it now has.
Next, plaintiff insisted that if we were to hold that
Griffith
had changed Pennsylvania choice of law in (insurance) contract cases, we should still apply New York law because New York is the state with the dominating interest. She supported that contention mainly on the grounds that the insurance policy conforms to — indeed uses the very language of — the New York Insurance Code, and that defendant is a New York corporation with its principal place of business in New York. In fact, however, the coincidence in language between the policy and the New York Insurance Code is matched by their mutual coincidence with the Pennsylvania and Delaware statutes.
Compare New York Insurance Law
§ 164 (McKinney 1966)
with
Pa.Stat.Ann. tit. 40, § 753 (1971) and Del.Code Ann., tit. 18 §§ 3303
et seq.
(1975). Also, the “interests” which
Griffith
and its progeny found determinative were the interests which states
have in protecting their domiciliaries. Plaintiff offered no basis in
Griffith
for finding that a state (i. e. New York where the defendant is incorporated) is interested in imposing duties or burdens on its citizens in their multi-state contacts which are imposed neither by the locus of the activity nor by the state of domicile of the other party.
Finally, plaintiff offered us an intriguing and appealing way around the morass of Pennsylvania choice of law; she suggested that we treat the New York State Court’s
forum non conveniens
dismissal as equivalent to a federal interdistrict transfer under 28 U.S.C. § 1404 (a), which permits transfer of cases between federal judicial districts “[f]or the convenience of parties and witnesses, in the interest of justice.” In
Van Dusen v. Barrack,
376 U.S. 612 , 84 S.Ct. 805 , 11 L.Ed.2d 945 (1964), the Supreme Court held that § 1404(a) does not affect the applicable law and that, as an implication of
Erie,
the transferee court must apply the transferor court’s choice of law rules or methods. If plaintiff were to prevail on this point we would be obliged to apply New York instead of Pennsylvania choice of law, which plaintiff believed would be more likely to result in application of the New York presumption against suicide.
In contending for the application of the
Van Dusen
rule, plaintiff argued that since § 1404(a) was a codification of state
forum non conveniens
rules, the incidents of the offspring should be projected back onto the parent. She did not articulate whether she believed we could so project as a matter of Pennsylvania law adopted under
Erie
or as a matter of federal policy. However, neither state nor federal law compels such a decision.
51
No state has adopted a rule that
*1096
when a foreign court has dismissed a case on
forum non conveniens
grounds, it will adopt the choice of law rules of the foreign court for use in that ease. Nor has plaintiff proffered any reason to convince us that Pennsylvania or any other state would adopt such a rule.
52
But if the states have not adopted and will not adopt that rule, then the federal
Erie-Van Dusen
policy of
ensuring] that the 'accident' of federal diversity jurisdiction does not enable a party to utilize a transfer to achieve a result in federal court which could not have been achieved in the courts of the state where the action was filed,
Van Dusen,
376 U.S. at 638 , 84 S.Ct. at 820 , could not be served even by extending the
Van Dusen
“rule” to the present context. Indeed, such an extension would “ensure” a different decision as to whose choice of law rules applied as between the state and federal courts of the convenient forum;
i. e.,
if after a
forum non conveniens
dismissal in one state court, plaintiff sues in a “convenient” state court, the latter state will apply its own choice rules; but if plaintiff brought the second suit instead in the federal court of the same “convenient” forum and if
Van Dusen
were to be extended to that context, then the federal court would apply the original forum’s choice of law. This conflicts with the
Erie-Van Dusen
policy of avoiding different results in the state and federal courts of the same state.
53
Additionally, we note that the
Van Dusen
court stressed that it was engaged in statutory construction of § 1404(a). And finally, the criteria for § 1404(a) transfer are different from those for state
forum non conveniens. See Parsons v. Chesapeake & Ohio R. Co.,
375 U.S. 71 , 84 S.Ct. 185 , 11 L.Ed.2d 137 (1963). For all the foregoing reasons, we do not believe that
Van Dusen
is applicable as a matter either of state or of federal law.
We turn now to defendant’s contentions, which we found equally unconvincing. First, defendant argued that
Griffith
established the interest or “significant contacts”
54
approach as the sole guideline to Pennsylvania choice of law and that Delaware was the proper selection under that (those) approach(es). Defendant’s total reliance on
Griffith
was hardly helpful in light of its failure to explain the
post-Grif
*1097
fith
non-interest cases and
Danz.
Additionally, we note that defendant did not point to any interest of Pennsylvania or of Delaware in having a heavier burden of proof placed on the beneficiary of the accident policy than the burden placed thereon by New York.
55
Second, defendant proposed that it made no difference which methodology Pennsylvania applied because the traditional approach led to application of Pennsylvania law on presumption/burden as
lex fori.
We have dealt with (and rejected) this contention in part IV.(B),
supra.
G.
Our Pretrial Bench Opinion
We initially addressed the contentions of the parties in a pretrial bench opinion. It is therefore important that we briefly describe that opinion and our reasons for not following its rationale now (though we still subscribe to its result).
Before trial we concluded that
Crawford
was good law on the narrow issue of choice of law for insurance contract construction. Our further research has led us to qualify our reasoning. Then,, and now, as will be seen, we believe that New York law controls contract construction. But our bench opinion was mainly devoted to the question whether or not New York law also controlled on the presumption issue. We suggested, then, that that issue did not require us to predict Pennsylvania choice of law, but rather only to apply
Fed.R.Evid.
302 which says
the effect of a presumption respecting a fact which is an element of a claim or defense as to which state law supplies the rule of decision is determined in accordance with state law.
We had no doubt that the “presumption” against suicide fell under that rule as one affecting an element of a state law claim or defense; we questioned only which state’s law was to be applied in our conflicts situation. In resolving that issue we relied in large measure on
Pilot Life Insurance Co. v. Boone, see
discussion p. 1078
supra,
in which Judge Rives reversed a district court decision which had applied forum law
qua
forum law to the presumption against suicide and in which he had classified the presumption as a matter of substantive contract law because it is inseparably connected with the right to defend. Based on the
Pilot Life
analogy, we concluded -that Rule 302 referred us to the law of that state whose law supplied the rule of decision,
i. e.,
New York law under
Crawford .
Upon further reflection, we realize that such a reading of Rule 302 might be taken as having put the rabbit in the hat as it were by short circuiting or circumventing the
Klaxon
-mandated Pennsylvania choice of law analysis, and therefore as conflicting with
Erie/Klaxon,
which the rule cannot be deemed to override. And while the Advisory Committee note to Rule 302 cited,
inter alia, Palmer
v.
Hoffman,
318 U.S. 109 , 63 S.Ct. 477 , 87 L.Ed. 645 (1943), a diversity choice of law case in which a federal district court had applied a foreign state’s burden of proof rule, the Supreme Court upheld that decision not on the ground that there is a special federal rule on choice of burden of proof, but on the ground that the forum state would so refer to the foreign rules.
See also Weber v. Continental Casualty Co.,
379 F.2d 729 (10th Cir. 1967). We now conclude that Rule 302 cannot be read as solving our problem by creating a federal choice of law rule at odds with the state choice of law rules referred to under
Erie-Klaxon.
Having explained why we cannot follow the reasoning of our bench opinion now, we turn to an application of our conclusions about the present state of Pennsylvania choice of law to this case.
H.
Application of Pennsylvania Choice of Law Principles to this Case
I.
Analysis Under Restatement I and Lex Loci (Contractus) Rules
If we infer from
Danz, Eastcoast Equipment,
and
Crawford
that
Varas v. Crown Life Insurance Company
is still good law,
*1098
then we must apply the traditional territorial rules of
Restatement I. (See
p. 1094
supra).
The underpinnings of
Restatement I
are its purported certainty, predictability, and ease of application. Whatever may be said about certainty and predictability, ease of application does not shine through here. At the threshold,
Restatement I
was
not
designed to solve our problem. Inasmuch as all presumptions are considered “procedural” by virtue of § 595(2), and the forum automatically applies its law to all procedural matters, no conflict of law problem would arise for a court rigorously adhering to
Restatement I.
However, we have decided the Pennsylvania courts would not follow § 595(2), and would treat the presumption of non-suicide as “substantive,” necessitating application of choice of law principles. Thus we must attempt to use the substantive body of the
Restatement,
discerning the closest analogues to the presumption against suicide in a life insurance contract.
Our first decision is whether the presumption is a matter of “contracting” or a matter of “performance.” If the former, questions will be governed by § 311 on the “place of contracting;” if the latter, § 355 on the “place of performance” will govern.
56
Our presumption seems to be both and neither. On the one hand, the presumption relates to the “obligations” of a contract, § 346, which is determined by the law of the place of contracting. The comment to § 346 provides:
whether a duty of performance is to be conditional, and when, where and by whom the performance is to be made and exactly what act of performance a party is obliged by the contract to do are determined by the law of the place of contracting.
Similarly, § 347 on defenses seems applicable since it points to the place of contracting for the issue of “any legal or equitable defense.”
On the other hand, § 359 tells us that the “place of performance” governs the “performance or happening of a condition.” Since “accidental” death is a condition precedent to recovery under the policy, presumptions relating thereto would arguably be a function of the place of performance. Additionally, § 370 tells us “the law of the place of performance determines whether a
*1099
breach has occurred.” Suicide could be construed as breach, giving rise to non-liability by the insurer. Therefore two sections point to the law of the place of contracting and two to the place of performance. All four provisions are arguably applicable, but none fits precisely.
If one and the same state is
both
the place of contracting and the place of performance, then we need not make the above choice. Therefore, we turn to the appropriate
Restatement I
sections to determine exactly where the “place of contracting” and the “place of performance” are located. Three sections, 317, 319 and 326 are potentially applicable for place of contracting, and one section, 355, is applicable to place of performance.
In the case at bar, the sequence of events leading to the purchase of the insurance policy was as follows: Josiah Marvel Scott contacted the Delaware branch office of an independent insurance broker with principal offices in Philadelphia. The Philadelphia office called the insurance company in New York, and effected an oral binder. Subsequently, a written application was transmitted from Philadelphia to New York. The written policy was issued from New York by mail to the broker in Philadelphia, who transmitted it to the Delaware office, who in turn delivered it to the insured. See Pretrial Order, paragraphs 10-14.
57
Restatement I
§ 317 provides that when, as here, the policy is effective upon posting by the insurance company — /. e. no further acts are required by either the broker or the insured to effect coverage — the place of posting, here New York, is the place of contracting. Similarly, § 319 provides:
When an offer for an insurance company contract is received by the company through a broker who acts for a client, and the policy is effective on delivery, the place of contracting is where the policy is posted or otherwise delivered to the broker.
This section is also applicable to the case at bar, since the broker was clearly acting for the client (in distinction to § 318 where the broker is in reality merely an agent for the insurance company). Like § 317, § 319 points to the law of the place of posting the final written policy, which was New York. Finally, § 326(b) provides:
When an offer for a bilateral contract is made in one state and an acceptance is sent from another state to the first state in an authorized manner the place of contracting is as follows:
(b) if the acceptance is sent by any other means, the place of contracting is the state from which the acceptance is sent.
Section 326(b) is applicable to the creation of the oral binder. The “offer” was made in Philadelphia, and the “acceptance” occurred in New York. Pursuant to § 326(b) the “any other means,” which includes the telephone call, points to New York as the place of acceptance, and hence the place of contracting. Indeed, the comment to this section provides that “when an acceptance is to be given by telephone, the place of contracting is where the acceptor speaks his acceptance.” In sum, all three of the possibly applicable sections point to New York as the place of contracting.
Turning to the place of performance, § 355 is of little help, providing with circularity that “the place of performance is the state where . . . the promise is to be performed.” Since, in every imaginable sense, the insurance company would have “performed” its obligation fully under the contract by writing and posting a check to beneficiary, which action
*1100
would have occurred in New York, we find that New York is also the place of performance. Since New York satisfies both places, of contracting and of performance, we need not decide whether the presumption is a matter of contracting or performance. We therefore conclude that if
lex loci contractus
is still viable in Pennsylvania, a Pennsylvania court would determine New York’s law including its presumption against suicide to be applicable.
2.
Post-Griffith Interest/Restatement II Hybrid Analysis
In the alternative, we may infer from Justice Roberts opinions in
Griffith, McSwain, Elston, Hunter,
and
Kuchinic ,
and from
Cipolla
and
Gillan ,
that
lex loci contractus
has been eroded, if not abandoned, in Pennsylvania.
(See
p. 1094
supra).
In that event, we must apply the “interest analysis/Restafement
II
hybrid” method we discerned in these cases. In each case, the starting point has been interest analysis.
(a)
Interest Analysis; Lex Loci
v.
Lex Fori in the “Unprovided for Case.”
We previously described New York’s law in terms of the “fair question” doctrine, and Pennsylvania’s (and probably Delaware’s) law as the
“Watkins”
doctrine.
See
pp. 1081-1082
supra.
We begin by considering what interests either of these latter two states might have in applying
Watkins
in a multistate context. We note, first, that
Watkins
could serve the interest of a state in protecting domestic insurance companies from “fraudulent” claims.
See Babcock v. Jackson,
12 N.Y.2d 473 , 240 N.Y.S.2d 743 , 191 N.E.2d 279 (1963). But the defendant here is a New York corporation, and there is no basis in this record for us to infer that either Pennsylvania or Delaware would have any interest in protecting the defendant from obligations imposed by the rules of its home state.
58
Second, either state might prefer to have its domestic law applied to a multi-state transaction in order to keep down insurance rates for its citizens.
See Cipolla v. Shaposka, supra. But see
Morris,
Enterprise Liability and the Actuarial Process
— The
Insignificance of Foresight,
70 Yale L.J. 554 (1961) (asserting that local liability law variation has negligible effect upon automobile insurance rates). Yet it is clear that Pennsylvania’s interest in lowering insurance rates for its citizens could not be promoted by application of its law to an insurance policy covering the risk of accidental death of a non-citizen. The policy did, of course, insure a citizen of Delaware; but we note parenthetically that there is nothing in the record which demonstrated whether defendant’s premium rate varied with residence,
59
We note also that Delaware asserts its legislative control only over those who “transact” insurance in that state.
Del. Code
tit. 18, § 505 (1975).
60
But, the evidence before us indicates no more contact between the defendant and Delaware than the mere fact that the defendant accepted plaintiff’s offer to purchase a single insurance policy.
Cf. Aldens, Inc. v. Packel,
524
*1101
F.2d 38, 43 (3d Cir. 1975) (leaving open the question of whether attempt to “exercise the state’s sovereign decisional authority” on account of such meager contact violates due process.). Finding no other cognizable interests, we conclude that defendant has not demonstrated that the application of New York’s presumption against suicide needlessly frustrates any interest of Pennsylvania or Delaware in applying its own law to this case.
Turning the coin, we note that no New York interest would have been frustrated had we applied the contrary rules of Pennsylvania or Delaware. In interest analysis terms, the New York rule appears to be intended to protect the interest of a New York insured in providing for his survivors, and the interest of a New York beneficiary in being able to collect. Here neither the insured nor the beneficiary was a citizen of New York. And New York has no interest in imposing more burdensome obligations on its own citizens (including the defendant) in their dealings with foreign citizens than those which are imposed by foreign states on their own domestic transactions.
61
We have before us, then, a specimen of that rare species which Professor Currie has dubbed the “unprovided [for] case”; /. e., a case in which “[n]either state cares what happens.” Currie,
Selected Essays on the Conflict of Law
152 (1963).
See
p. 1078
supra.
So rarely have such cases been recognized that Currie had to turn to pre-interest cases to exemplify the fact pattern he meant.
62
In recent years a few such cases have been decided; they will be discussed below. Professor Currie himself expected “[traditionalists [to] stand aghast at this anomaly, and [to] take it as proof of the unsoundness of the analysis.” He insisted that it was not so, much a defect as a challenge to consider on what terms a judge should decide the “no interest” cases.
Judging that we should “concern . ourselves about the results,” Currie rejected out of hand any notion that in the absence of an interest a court should apply the traditional mechanistic rules. Currie,
supra,
at 153. Indeed it was at this point in his argument that Currie suggested that
lex fori
rather than
lex loci
should be applied to any issue in the absence of a sufficiently compelling foreign sovereign interest. His sole argument was that of “convenience” or efficiency:
*1102
this is the rational and convenient way to try a lawsuit when no good purpose is to be served by putting the parties to the expense and the court to the trouble of ascertaining the foreign law.
Id.
at 156.
Currie’s solution has received mixed reviews in those few judicial opinions dealing with the problem of choice of law in “unprovided-for cases.” Thus, in
Erwin
v.
Thomas,
264 Or. 454 , 506 P.2d 494 (1973), the wife of a Washington domiciliary who had been injured in Washington by a resident of Oregon brought suit in Oregon for loss of consortium. In domestic Oregon cases such loss was actionable; in domestic Washington cases it was not. In the multistate context neither state’s interest in protecting its domiciliary would have been served by applying its law. In that situation, the Oregon Supreme Court adopted Currie’s residual
lex fori
rule on the sole ground of ease or convenience:
neither state has a vital interest in the outcome of this litigation and there can be no conceivable material conflict of policies or interests if an Oregon court does what comes naturally and applies Oregon law.
Id.
at 459 , 506 P.2d at 497 .
63
New York took the opposite tack in
Neumeier v. Kuehner,
31 N.Y.2d 121 , 335 N.Y.S.2d 64 , 286 N.E.2d 454 (1972), an unprovided for case in the mold of
Erwin
and La
bree (see
note 63
s

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/1953262. Public record. Not legal advice.