Petition for Writ of Certiorari — Ford Motor Co. v. Mahne
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ie,
Supreme Court, U.S,
90-4 48 FILED
| SEP 14 3m
oad
No. CLARK
WOSEPH F. SPAMIOL, JR,
IN THE
Supreme Court of the United States
OcTOBER TERM, 1990
FORD MOTOR COMPANY, ET AL.,
PETITIONERS
v.
CHRISTINE MAHNE,
RESPONDENT
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
ARTHUR R. MILLER STEPHEN M. SHAPIRO
Langdell Halil Counsel of Record
1545 Massachusetts Avenue KENNETH S. GELLER
Cambridge, Massachusetts 02188 MARK I. LEVY
(617) 495-4111 JAMES C. SCHROEDER
Mayer, Brown & Platt
190 South LaSalle Street
JOHN M. THOMAS Chicago, Illinois 60603
Ford Motor Company (312) 782-0600
One Parklane Boulevard
Suite 300, Parklane Towers West
Dearborn, Michigan 48126
(313) 322-6743 Counsel for Petitioners
Midwest Law Printing Co., Chicago 60611, (312) 321-0220
oy
i
QUESTION PRESENTED
Whether the court of appeals in this diversity case de-
parted from settled principles governing federal-court de-
terminations of state law by (1) not following decisions
of the state supreme and intermediate appellate courts,
thereby encouraging forum shopping by federal diversity
plaintiffs, (2) not deferring to the district court’s inter-
pretation of the law of the state in which it sits, and (3)
not certifying the controlling state-law issues to the state
supreme court.
‘3
PARTIES TO THE PROCEEDING
AND RULE 29.1 STATEMENT
In addition to the parties named in the caption, Donald
Peterson and Harold MacDonald, who are present or re-
tired officers of Ford Motor Company, were defendants-
appellees in the courts below and are petitioners in this
Court.
The subsidiaries of Ford Motor Company required to
be disclosed under Sup. Ct. R. 29.1 are listed in Appen-
dix F, infra, 24a-32a.
ill
TABLE OF CONTENTS
Gee Ce cyevdct reeds hbase ssccss
A. Background And Prior Proceedings ...
B. District Court Proceedings And Decision . .
C. The Court Of Appeals’ Decision ......
REASONS FOR GRANTING THE PETITION .
THE COURT OF APPEALS PLAINLY
VIOLATED THE FUNDAMENTAL PRIN-
CIPLES ESTABLISHED BY THIS COURT
FOR DETERMINING STATE LAW UN-
ee ere
I.
II.
A.
B.
The Court Of Appeals Ignored Con-
trolling State-Court Decisions ....
The Court Of Appeals Failed To Ac-
cord Due Deference To The Dis-
trict Court’s Determination Of State
oe owe i kaya wees ses
The Court Of Appeals Failed To Fol-
low Available State Certification Pro-
ew
THE COURT OF APPEALS’ EGREGIOUS
DISREGARD OF THIS COURT’S DIREC-
TIVES FOR DETERMINING STATE LAW
UNDER ERIE WARRANTS REVIEW ..
I OS a ee
PAGE
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TABLE OF AUTHORITIES
CASES: | PAGE
Abramson v. Brownstein, 897 F.2d 389 (9th Cir.
EE 44.046: ben nh he ens <a ks 17
Ageloff v. Delta Airlines Inc., 860 F.2d 379 (11th
SO PRP Re rete Pere 22
Aldrich v. Aldrich, 375 U.S. 249 (1968) ....... 21
Bellotti v. Baird, 428 U.S. gt ee eee 21
Bendix Autolite Corp. v. Midwesco Enterprises, 486
Sih, EEE 65363 cinv eueudedneeneearens 17
Bernhardt v. Polygraphic Co., 350 U.S. 198 (1956) .. 12, 19
Boardman v. United Services Auto. Ass’n, 742 F.2d
847 (5th Cir. 1984), cert. denied, 474 U.S. 980
EE ws « Rademn nhs ks 00% 63 oe eae Rea ee 22
Bonelli v. Volkswagen of America, Inc., 421 N.W.2d
213 (Mich. App.), lv. denied, 430 Mich. 896
CRE GF i ove te dhs suber scene cesdaaebeedee? 13
Brackenridge v. Ametek, Inc., 517 So. 2d 667 (Fla.
1987), app. dismissed & cert. denied, 109 S. Ct.
a ee ea ea oa 15
California v. Taylor, 353 U.S. 553 (1957) ...... 11
Cassidy v. Firestone Tire & Rubber Co., 495 So.
2d 801 (Fla. App. 1986), review denied, 506 So.
2d 1040 (Fla.), app. dismissed & cert. denied,
GE We Se Do he cde react ancdersabeas 15
Clay v. Sun Ins. Office, Ltd., 363 U.S. 207 (1960) .. 21
Commissioner v. Estate of Bosch, 387 U.S. 456
SORE PisUk tebe dade beh dda Reis Kao 10
Day & Zimmermann, Inc. v. Challoner, 423 U.S.
5 ree ee I ads ok aiwvadewcndacses 9
Diaz v. Curtiss-Wright Corp., 519 So. 2d 610 (Fla.
SOE vbw ks Sede Ws Sh cetera ee Aeeeemee es 15
vi
Eddings v. Volkswagenwerk, A.G., 835 F.2d 1369
(11th Cir.), cert. denied, 109 S. Ct. 68 (1988) .. 3,4
Elkins v. Moreno, 485 U.S. 647 (1978) ........ 21
Erickson v. American Motors Corp., 683 F. Supp.
644 (E.D. Mich. 1988) ................000. 13
Erie R. Co. v. Tompkins, 304 U.S. 64 (1938) ... passim
Exxon Co., U.S.A. v. Banque de Paris et des
Pays-Bas, cert. granted, 485 U.S. 1020, vacated
and remanded, 109 S. Ct. 299 (1988) ....... a)
Ferens v. John Deere Co., 110 S. Ct. 1274 (1990) .. 10
Fidelity Trust Co. v. Field, 311 U.S. 169 (1940) .. 11
Firestone v. News-Press Pub. Co., 538 So. 2d 457
Pens SRG . cataseddeéetcnxkwcsbeessancis 17
Gardner v. New Jersey, 329 U.S. 565 (1947) .... 20
Gibson v. Phillips Petroleum Co., 352 U.S. 874
CUE cc acces whkacures ¥as4taaue eee A)
Griffin v. Ford Motor Co., No. TA 85-7244-WS
(N.D. Fla. 1986), aff'd sub nom. Eddings v.
Volkswagenwerk, A.G., 835 F.2d 1369 (11th
Cir.), cert. denied, 109 S. Ct. 68 (1988) ..... 15
Guaranty Trust Co. v. York, 326 U.S. 99 (1945) ... 10, 17
Hampshire v. Ford Motor Co., 399 N.W.2d 36
(Mich. App. 1986), lv. denied, 428 Mich. 852
SE wc dn Saabs aeake caren 4, 5, 6, 12, 13, 14, 24
Hanna v. Plumer, 380 U.S. 460 (1965) ........ 10
Hawks v. Hamill, 288 U.S. 52 (1933) ......... 12
Hicks v. Feiock, 485 U.S. 624 (1988) .......... 11
Jones v. Heckler, 754 F.2d 519 (4th Cir. 1985) .. 22
Juzwin v. Asbestos Corp., Ltd., 900 F.2d 686 (3d Cir.
1990), petition for cert. pending, 59 U.S.L.W.
3074 (filed July 10, 1990) (No. 90-76) ....... 17
Keyes v. Fulton Mfg. Corp., 515 So. 2d 979 (Fila.
Vii
Kidney v. Kolmar Laboratories, Inc., 808 F.2d 955
Gee DE ode cdi WicdobwedsesUbescceee 22
King v. United Commercial Travelers, 333 U.S.
BME: 2 Sevutebesbecnccs Rhyaee viens os 11
Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487
GE ho Daa o ce eiis eed tOUNG a ceCES ees 4
Lamb v. Volkswagenwerk Aktiengesellschaft, 631
F. Supp. 1144 (S.D. Fla. 1986), aff'd sub nom.
Eddings v. Volkswagenwerk, A.G., 835 F.2d
1369 (llth Cir.), cert. denied, 109 S. Ct. 68
Ts titinks wa tbare See eee eee 16
Lehman Brothers v. Schein, 416 U.S. 386
TFET DAU iP gp titer Pr Gent ap meray 9, 21, 22, 23, 24
Massachusetts v. Feeney, 429 U.S. 66 (1976) ... 21
Melendez v. Dreis & Krump Mfg. Co., 515 So. 2d
IES 6 cards Oocs cas cbc acnwuewa's on 4
Meredith v. Winter Haven, 320 U.S. 228 (1943) .. 10
Metropolitan Life Ins. Co. v. Ward, 470 U.S. 869
Sich ne bugadabheeee 04466 60ae es 17
Mills v. Rogers, 457 U.S. 291 (1982) .......... 21
Nolan v. Transocean Air Lines, 365 U.S. 293
ASRS hea pr at Reni aba ene 12
Olmstead v. Anderson, 400 N.W.2d 292 (Mich.
EE SG Goes ko onscacede us wwaseieans 4, 5, 138, 14
Pait v. Ford Motor Co., 515 So. 2d 1278 (Fla.
RR Ss BS a io Sp ee ny ee eae | 15
Penwest Development Corp. v. Dow Chemical Co.,
667 F. Supp. 436 (E.D. Mich. 1987) ........ 13
Perez v. Ford Motor Co., 508 So. 2d 1339 (Fla.
App. 1987), review denied, 520 So. 2d 585 (Fla.
sadly oa ehadcensls hbkekd scddkaetaKts 15
Purty v. McDonnell Douglas Corp., 515 So. 2d 983
PU MEE sc kseisusedeacccewarseasaeusees 15
Salve Regina College v. Russell, cert. granted,
58 U.S.L.W. 3834 (June 28, 1990) (No.
dns cA natinkindannale amen aaa 9, 18, 20, 28
Sandlin v. Criminal Justice Standards & Traiz-
ing Comm’n, 531 So. 2d 1344 (Fla. 1988) ... 17
Shaw v. General Motors Corp., 518 So. 2d 900 (Fla.
Si sete teatabecdheins shaeeaddebebsedtsse 15
Six Companies v. Highway Dist., 311 U.S. 180
GR ia. dF Oich nck ate «Cab Waa e deda a odedides 12
Stoner v. New York Life Ins. Co., 311 U.S. 464 -
DUCT ue cles suhenci ease bel swabaes eee ¢ 11
United States v. Hohri, 482 U.S. 64 (1987) ..... 19
Virginia v. American Booksellers Ass’n, 484 U.S.
EY Fc acs Sigua ethane {Fehr pe 21
Wallis v. Grumman Corp., 515 So. 2d 1276 (Fla.
SE cb CCL dakascsbhb sds ocdevededteonteracce 15
West v. A. T. & T. Co., 311 U.S. 223 (1940) ..... 11, 14
Zant v. Stephens, 456 U.S. 410 (1982) ........ 21
STATUTES AND RULES:
Fla. Stat. Ann. § 95.031(2) (West 1982) ........ 3
Fla. Stat. Ann. §§ 768.73 et seq. (West Supp.
SET SuWiis «pated n sha Leese bas Uke sae ewks seme 26
Fla. R. App. P. 9.030(aX2XC) & 9.150(a) (West
SEN ca sueebeadhvasesksiUrs sudden snssescse 7, 20
ix
MISCELLANEOUS:
1 AI.MANAC OF THE FEDERAL JUDICIARY (Prentice
Hall Law & Business 1990) ...............
American Law Institute, STUDY OF THE DIVISION
OF JURISDICTION BETWEEN STATE AND FEDERAL
ss ge rine cbbaeas
ANNUAL REPORT OF THE DIRECTOR OF THE ADMIN-
ISTRATIVE OFFICE OF THE UNITED STATES COURTS
NSIT A Ar os ete eee, Sie a
P. Bator, et al., HART AND WECHSLER’S THE FED.-
ERAL COURTS ANDTHE FEDERAL SYSTEM (3d ed.
I ie ar Ro EE ee
McGovern, The Variety, Policy and Constitution-
ality of Product Liability Statutes of Repose;
30 Am. U. L. REv. 579 (1981) .............
Moopy’s INDUSTRIAL MANUAL ...............---
ress kebdawdeues sua ndoeasesaue-es
CALs in hcdanki hasan doeeune sone es
TE ee re
Note, Erie R.R. and State Power to Control State
Law: Switching Tracks to New Certification of
Questions of Law Procedures, 18 HoFrstrRA L.
I vides vaceVeldekacssiaecee?
Note, Products Liability Statute of Repose—A Flor-
ida Perspective, 11 Nova L. REv. 849 (1987) ..
Palm Beach Review, Apr. 16, 1990 ...........
REPORT OF THE FEDERAL CouRTS STUDY COMMIT-
5 ARE ne te re ee a ee
C. Seron, CERTIFYING QUESTIONS OF STATE LAW:
EXPERIENCE OF FEDERAL JUDGES (Federal Judi-
I oa oo a wow deus wa eens
18
19
6, 16
X
. Stern, APPELLATE PRACTICE IN THE UNITED
reer ro 22, 24
. Wright, A. Miller, & E. Cooper, FEDERAL
PRACTICE AND PROCEDURE: JURISDICTION:
Vol. 17A (1988):
DEG she Lie ch acaulederksal Veveskese 21
arr rrr ry rrr t 21, 24
Vol. 19 (1982):
SPererreye LL ikGn ies toned ches woke 10, 12
BE Wa wecaccccevedcesenssévasusaceuce 10
. Wright, THE Law oF FEDERAL Courts (4th ed.
SE A cic ucdscanctneueskactiabatinhe pamees 22
IN THE
Supreme Court of the United States
OCTOBER TERM, 1990
No.
FORD MOTOR COMPANY. ET AL.,
PETITIONERS
vz.
CHRISTINE MAHNE,
RESPONDENT
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
Ford Motor Company (“Ford”) and two of its present
or former officers respectfully petition for a writ of cer-
tiorari to review the judgment of the United States Court
of Appeals for the Sixth Circuit in this case.
OPINIONS BELOW
The opinion of the court of appeals (App. A, infra, la-
lla) is reported at 900 F.2d 83. The opinion of the district
court (App. B, infra, 12a-18a) is unreported.
JURISDICTION
The judgment of the court of appeals was entered on
April 9, 1990. A timely petition for rehearing was denied
on June 18, 1990 (App. D, infra, 20a-21a). The jurisdic-
tion of this Court is invoked under 28 U.S.C. § 1254(1).
olin
STATUTES AND RULES INVOLVED
The Florida statute of repose relevant to this product
liability suit, and the Michigan and Florida provisions for
certification of state-law issues to the state supreme court,
are set forth in Appendix E, infra, 22a-23a.
STATEMENT
In this diversity case, the court of appeals departed
from several fundamental principles laid down by this
Court to guide federal courts in their determination of
state law. By so doing, the court erred in interpreting
the law of both Michigan and Florida. Not only is the er-
roneous ruling below a clear deviation from this Court’s
decisions and a serious affront to the law of two sovereign
states, but—as this case graphically illustrates—it also will
lead to widespread forum shopping by plaintiffs who can
satisfy the requirements for diversity jurisdiction. Given
the gravity of the court of appeals’ error and the adverse
systemic consequences it portends, review by this Court
is warranted.
A. Background And Prior Proceedings
This is a product liability action arising out of an auto-
mobile accident that occurred in August 1985. Respon-
dent’s daughter was a back-seat passenger in a 1967 Ford
Mustang driven by Todd Grossman that was hit in the
rear by a 1982 Pontiac driven by Janet Hansen. As a
result of the accident, respondent’s daughter was severely
injured. App., infra, 2a, 12a-13a.
The events leading up to this lawsuit arose in the State
of Florida. Florida was the place where the accident oc-
curred and respondent’s daughter suffered injury. Respon-
dent and her daughter were Florida residents (at the time
a
of both the accident and the initiation of litigation), as
were the driver and the owners of the Mustang and the
driver of the Pontiac. Both vehicles were registered in
Florida. Finally, Ford was licensed to do, and did, busi-
ness in Florida. In short, this was a Florida accident in-
volving Florida residents driving Florida registered cars.
The only non-Florida factors present were that Ford had
its headquarters and principal place of business in Michi-
gan and that the 1967 Ford Mustang had been designed,
tested, and manufactured there 18 years before the acci-
dent. App., infra, 2a, 15a.
Despite the overwhelming nexus between the case and
Florida, respondent initially filed suit against Ford in
Michigan state court in January 1986. The court granted
Ford’s motion to dismiss without prejudice on the ground
of forum non conveniens. Mahne v. Ford Motor Co., No.
86 601535 NP (Mich. Cir. Ct., Wayne County, Mar. 27,
1986).
Following that dismissal in Michigan, respondent brought
suit in Florida state court in November 1986 and named
as defendants (in addition to Ford) the owners and oper-
ator of the Mustang and the operator of the Pontiac, all
of whom resided in Florida. Ford moved for summary
judgment on the ground that, because the Mustang had
been manufactured in 1967, Florida’s 12-year statute of
repose barred respondent’s product liability claims aris-
ing out of a 1985 accident.1 Faced with the certain dis-
' The Florida statute of repose relevant to this lawsuit provides
that “{ajetions for products liability * * * must be begun within
the period prescribed in this chapter * * * but in any event within
12 pol et the son of delivery of the completed product to its
” Fla. Stat. Ann. § 95. 031(2) (West 1982) (em-
phasis io aden) (Aor (App., infra, 22a). A statute of re _— is distinct
m a statute of limitations. See Eddings v.
(Footnote continued on following page)
lkswagenwerk,
se
missal of her claim by the Florida court, respondent did
not respond to Ford’s motion but instead voluntarily dis-
missed her action against Ford without prejudice. App.,
infra, 2a.
B. District Court Proceedings And Decision
Having thus failed twice to bring a proper lawsuit against
Ford, respondent returned to Michigan and filed this di-
versity action in the United States District Court for the
Eastern District of Michigan. This time respondent sued
Ford and two of its present or former officers who al-
legedly had participated in the design of the 1967 Mus-
tang. Respondent’s complaint asserted causes of action for
negligence and breach of implied warranty.
Petitioners moved for summary judgment, arguing once
again that Florida’s 12-year statute of repose was appli-
cable and precluded respondent’s claims. The district court
agreed and dismissed the complaint. App., infra, 12a-18a.
The court recognized (id. at 13a) that a federal court in
a diversity case is bound to follow the choice-of-law rules
of the forum state. See Klaxon Co. v. Stentor Elec. Mfg.
Co., 313 U.S. 487 (1941). After a careful analysis of Michi-
gan conflicts principles, the court concluded that Florida’s
statute of repose governed this case. In particular, rely-
ing on Olmstead v. Anderson, 400 N.W.2d 292 (Mich.
1987), and Hampshire v. Ford Motor Co., 399 N.W.2d 36
1 continued
A.G., 835 F.2d 1369, 1371-1372 n.2 (11th Cir.), cert. denied, 109
S. Ct. 68 (1988).
Subsequent to the events in this case, Florida amended its law
to eliminate the statute of repose for product liability suits. That
change has no — to causes of action (like the present one)
that accrued before the July 1, 1986 effective date, and therefore
it has no bearing here. See Eddings, 835 F.2d at 1373 n.6; Melen-
dez v. Dreis & Krump Mfg. Co., 515 So. 2d 735 (Fla. 1987).
——e
=
(Mich. App. 1986), lv. denied, 428 Mich. 852 (1987), the
court applied the Florida statute of repose because ‘“Plain-
tiff resides in Florida, the accident occurred in Florida,
the vehicles involved were registered and insured in Flor-
ida and the connections to Michigan are limited to the
situs of Defendant’s headquarters and the Plaintiff's choice
of forum.” App., infra, 15a. See also id. at 17a (“the cause
of action accrued in Florida, * * * [and] Plaintiff is not
a resident of the State of Michigan’’). The court specifival-
ly found that Hampshire “presented virtually an identical
set of facts” and ‘“‘is controlling.” Jd. at 14a, 15a.
C. The Court Of Appeals’ Decision
On respondent’s appeal, the Sixth Circuit reversed the
district court’s ruling and held that Michigan law (which
has no statute of repose) rather than Florida law applies.
App., infra, la-1la. Based on its interpretation of Olm-
stead, the court of appeals believed that “in a suit brought
in a Michigan court by a party who is not a citizen of
Michigan against a Michigan resident, arising out of an
accident that occurred outside of Michigan and in the state
of the plaintiff's residence, * * * Michigan law as the
forum law presumptively controls the litigation.’ Jd. at
7a. Under the court of appeals’ analysis, “there must be
a rational reason to displace Michigan law,” which re-
quires that the foreign state have an “interest * * * in
having its law applied”; absent such an interest by the
foreign state, Michigan law governs regardless of whether
Michigan has an interest of its own, “and the presump-
tion that Michigan [law] applies is controlling.” Ibid.
Turning to Florida law, the court of appeals concluded
that the Florida statute of repose ‘“‘was presumably de-
signed to protect Florida manufacturers from liability for
injuries caused by products which had been on the market
fn
for over twelve years.” App., infra, 10a (emphasis added).
In reaching that conclusion, the court ignored a long line
of Florida cases that consistently applied the statute of
repose to out-of-state manufacturers (and specifically to
Ford). See pages 14-15, infra. Rather than relying on this
well-established Florida precedent, the court of appeals
rested its interpretation of Florida law entirely on a stu-
dent law review note (App., infra, 10a, citing Note, Prod-
ucts Liability Statute of Repose—A Florida Perspective,
11 Nova L. REv. 849 (1987)), which, contrary to the court’s
reading, states only that “manufacturers’ expanded liabil-
ity” —not Florida manufacturers’ expanded liability—‘“‘ap-
pears to be the primary influence in [the statute’s] enact-
ment” (11 Nova L. REv. at 852).
Based on this misconstruction of Florida law, the court
of appeals determined that even though Ford “does busi-
ness in Florida,” application in this case of “‘the Florida
statute of repose would not benefit the interest it was
designed to protect. Instead of protecting a Florida
manufacturer as intended, the statute of repose would pro-
tect an out-of-state manufacturer at the expense of a Flor-
ida resident.” App., infra, 10a-1la. Since the court found
“no reason to extend the benefits of the Florida statute
of repose to the Michigan defendants,” it applied Michigan
law “without regard to the nature or quality of Michigan’s
interests.” Jd. at lla.
Because of its conclusion that “Florida has no interest in
having its statute of repose applied” to out-of-state man-
ufacturers (App., infra, 1la), the court of appeals found
it unnecessary to “make a comparative analysis of the in-
terests of Michigan and the foreign state as was done in
Hampshire”’ (id. at 9a). In so ruling, the court of appeals
did not disagree with the district court’s assessment that
Hampshire and the present case involved “virtually an
identical set of facts’ (id. at 14a); indeed, the court of ap-
=
peals’ discussion makes clear that the operative facts in
the two cases are indistinguishable. Jd. at 9a. Nor did the
court of appeals accord any deference to the district court’s
interpretation of Michigan law. Finally, notwithstanding
its disagreement with the district court over the correct
application of Michigan choice-of-law rules and the absence
of any case law supporting its construction of Michigan
or Florida law, the court of appeals did not certify the
Michigan choice-of-law question to the Michigan Supreme
Court pursuant to Mich. Ct. R. 7.305(B) (West Supp. 1989)
(App., infra, 22a), nor did it certify the question of the
construction of the Florida statute of repose to the Florida
Supreme Court under Fla. R. App. P. 9.0380(aX2KC) &
9.150(a) (West 1983) (App., infra, 22a-23a); on the con-
trary, the court denied both respondent’s motion to cer-
tify the choice-of-law issue to the Michigan Supreme Court
and Ford’s petition for rehearing and for certification of
the state-law issues to the Michigan and Florida Supreme
Courts. Jd. at 19a, 20a-21a.
REASONS FOR GRANTING THE PETITION
The determination of state law by a federal court is one
of the most delicate and recurring problems in our system
of federalism. In essence, the federal judiciary is required
to put itself in the shoes of the state courts and predict
how those courts would resolve often difficult and unset-
tled issues of state law. See 1A Moore’s FEDERAL PRAC-
TICE $ 0.307[3] at 3101 (2d ed. 1990). Because, however,
the federal decision is in no way binding on the state
courts, substantial disruption, uncertainty, and unfairness
can occur if the federal ruling is ultimately rejected by
the state courts. These problems are especially acute for
federal courts of appeals, which, in comparison to the dis-
trict courts, generally are less familiar with and experi-
enced in state law.
~~
In light of these concerns, this Court has made clear
that federal courts are to engage in a searching inquiry
using all available means to discern state law, and it has
established several basic principles to guide that task.
Among these are the requirements (1) that the court care-
fully scrutinize all relevant sources of state law, including
intermediate state appellate court decisions and dicta as
well as holdings; (2) that the court of appeals defer to the
district court’s interpretation of the law of the state where
the district court sits, since the district court generally
is better versed than the appellate court in that law; and
(3) that, in the event uncertainty over state law never-
theless remains, the court certify the issue to the state
supreme court if a certification procedure is available. As
discussed in more detail below, the court of appeals vio-
lated all three of these fundamental federal principles in
this case, thereby misinterpreting both the Michigan choice-
of-law rules and the Florida statute of repose.
The vice of the court of appeals’ erroneous decision is
not just that it violated these settled rules or misapplied
the law of two states. In addition, the decision below will
encourage plaintiffs who satisfy the requirements of fed-
eral diversity jurisdiction to engage in unrestrained forum
shopping in order to obtain a favorable ruling on state
law in federal court that they could not have obtained
in state court. That result is flatly incompatible with the
core policies of Erie R. Co. v. Tompkins, 304 U.S. 64
(1938), and will further strain the resources of an already
overburdened federal court system.
The present case is a paradigmatic example of this prob-
lem. Respondent initially filed suit against Ford in Michi-
gan state court, but the action was dismissed on forum
non conveniens grounds. Respondent then sued in state
court in Florida, but she immediately withdrew her case
when Ford pointed out. that it was barred by Florida’s
ailiinn
statute of repose. Thus, by allowing respondent to pro-
ceed in Michigan federal court without the bar of the
Florida statute of repose, the court of appeals has enabled
her (1) to sue in federal court in a state in which she could
not litigate in the state court and, (2) more importanily,
to bring a cause of action that would be precluded in the
courts of Florida—the State that by far has the predomi-
nant contacts with the case—and that the Florida state
court plainly would have dismissed if respondent had not
voluntarily withdrawn her claim against Ford. That out-
come flouts the central purpose of the Erie doctrine.
In previous cases, the Court has granted plenary review
to ensure obedience to the controlling principles of Erie,
including the proper use of state certification procedures.
See, e.g., Exxon Co., U.S.A. v. Banque de Paris et des
Pays-Bas, cert. granted, 485 U.S. 1020, vacated and re-
manded, 109 S. Ct. 299 (1988); Lehman Brothers v. Schein,
416 U.S. 386 (1974). In other instances, the error has been
sufficiently clear that the Court acted summarily to pre-
serve the integrity of Erie. See, e.g., Day & Zimmer-
mann, Inc. v. Challoner, 423 U.S. 3 (1975) (per curiam);
Gibson v. Phillips Petroleum Co., 352 U.S. 874 (1956).
And the Court currently has pending before it the question
whether a court of appeals should give deference to the
district court’s interpretation of forum state law. See Salve
Regina College v. Russell, cert. granted, 58 U.S.L.W.
3834 (June 28, 1990) (No. 89-1629).?
In the present case, the court of appeals’ decision is so
plainly and egregiously wrong that it should not be al-
lowed to stand, and summary reversal is justified. Alter-
natively, the Court may wish to hold the petition pend-
ing decision in Salve Regina College.
2 Because of the relation between Salve Regina College and the
present case, Ford has filed a brief as amicus curiae in Salve
Regina College.
=~ =
I. THE COURT OF APPEALS PLAINLY VIOLATED
THE FUNDAMENTAL PRINCIPLES ESTABLISHED
BY THIS COURT FOR DETERMINING STATE LAW
UNDER ERIE
A. The Court Of Appeals Ignored Controlling State-
Court Decisions
This Court’s decision in Erie settled that federal courts
must follow state substantive law in cases in which state
law is the source of the cause of action.* The Erie prin-
ciple ‘“‘expresse[s] a policy that touches vitally the proner
distribution of judicial power between State and federal
courts” that is “so important to our federalism.” Guaran-
ty Trust Co. v. York, 326 U.S. 99, 109-110 (1945). Its pur-
_ pose is to ensure that the state and federal courts in a
state apply the same substantive law irrespective of the
happenstance of federal jurisdiction, thereby discouraging
forum shopping and avoiding unfair discrimination be-
tween state and federal litigants. See Hanna v. Plumer,
380 U.S. 460, 468 (1965) (“the twin aims of the Erie rule
* * * [are] discouragement of forum-shopping and avoid-
ance of inequitable administration of the laws”). “The Erie
rule remains a vital expression of the federal system and
the concomitant integrity of the separate States.” Ferens
v. John Deere Co., 110 S. Ct. 1274, 1280 (1990).
Erie “placed on [the federal courts] a greater responsi-
bility for determining and applying state laws in all cases
within their jurisdiction in which federal law des not
govern.” Meredith v. Winter Haven, 320 U.S. 228, 237
’ Although that principle has its most frequent application in
diversity cases, it is equally applicable in any case in which state
law provides the rule of decision re ess of the basis of federal
jurisdiction. See Commissioner v. Estate of Bosch, 387 U.S. 456,
465 (1967); 19 C. Wright, A. Miller, & E. per, FEDERAL PRAC-
TICE AND PROCEDURE: JURISDICTION § 4507 at 80-81, § 4515 at
275-277 (1982).
=
(1943). The decision below woefully fails to meet this
“great{ ] responsibility.” In fact, the court of appeals
seriously misconstrued the law of two states: Michigan law
on choice-of-law rules, and Florida law on the statute of
repose. These errors result from the court’s disregard of
the fundamental principles established by this Court to
guide a federal court’s determination of state law.
First, the decision of an intermediate state appellate
court “ ‘is not to be disregarded by a federal court unless
it is convinced by other persuasive data that the highest
court of the state would decide otherwise.’” Hicks v.
Feiock, 485 U.S. 624, 630 n.3 (1988), quoting West v.
A. T. & T. Co., 311 U.S. 223, 237-238 (1940). Thus, it is
the duty of the federal courts, where the state law
supplies the rule of decision, to ascertain and apply
that law even though it has not been expounded by
the highest court of the State. An intermediate state
court in declaring and applying the state law is act-
ing as an organ of the State and its determination,
in the absence of more convincing evidence of what
the state law is, ici te Alloa tay & tated court
in deciding a state question.
Fidelity Trust Co. v. Field, 311 U.S. 169, 177-178 (1940)
(citation omitted; emphasis added).4 Second, a federal
court, in discharging its “duty * * * to ascertain from
all the available data what the state law is’ (West, 311
U.S. at 237), is obligated to give effect to the considered
4 See also, e.g., California v. Taylor, 353 U.S. 558, 556 n.1 (1957);
King v. United Commercial Travelers, 333 U.S. 153, 158 (1948)
(“federal courts are bound by decisions of a state’s intermediate
appellate courts unless there is persuasive evidence that the
highest state court would rule otherwise’’); Stoner v. New York
em Ins. Co., 311 U.S. 464, 467 (1940) (“federal courts * * * must
follow the decisions of intermediate state courts in the absence
of convincing evidence that the highest court of the state would
decide differently’’).
- =
statements of the state courts regardless of whether those
statements are technically holdings or dicta. See, e.g.,
Nolan v. Transocean Air Lines, 365 U.S. 293, 295-296
(1961); Bernhardt v. Polygraphic Co., 350 U.S. 198, 204,
205 (1956); Six Companies v. Highway Dist., 311 U.S. 180,
187-188 (1940); Hawks v. Hamill, 288 U.S. 52, 58-60 (1933);
19 Wright, Miller, & Cooper, supra, § 4507 at 97-98; 1A
MOoRE’S FEDERAL PRACTICE $0.307[2] at 3094 (2d ed.
1990).
The court of appeals breached both of these basic rules.
To begin with, it declined to follow the Michigan Court
of Appeals’ decision in Hampshire v. Ford Motor Co., 399
N.W.2d 36 (Mich. App. 1986), lv. denied, 428 Mich. 852
(1987), which the district court had found “presented vir-
tually an identical set of facts” and was “controlling.”
App., infra, 14a, 15a. Hampshire, like this case, was a
product liability suit arising out of an automobile accident.
The accident occurred in California, both plaintiff and the
driver of the other vehicle resided in California, and the
allegedly defective vehicle was registered in California
(399 N.W.2d at 37, 38); the only connections to Michigan
were that ‘‘Ford’s headquarters are located in Michigan
and the action was filed in this state.”’ Jd. at 38. More-
over, California law was more favorable to the Michigan
defendant (and less favorable to the California plaintiff)
than Michigan law. On these facts, the state trial court
held that California rather than Michigan law applied, and
the Michigan Court of Appeals affirmed, holding that ‘“‘a
superior foreign state [California] interest exists which
calls for the application of foreign law in order to reach
a just resolution of the controversy.” Ibid.
Hampshire is on all fours with the present case and
compels the conclusion that, under Michigan choice-of-law
rules, Florida’s statute of repose applies here. The Sixth
Circuit did not disagree with the district court’s assess-
-_
ment of Hampshire or even attempt to distinguish the
decision on its facts. It simply refused to follow that in-
termediate state appellate court decision.
The Sixth Circuit had no basis for concluding that Hamp-
shire no longer represented the law of Michigan. To the
contrary, the Michigan Supreme Court in Olmstead v.
Anderson, 400 N.W.2d 292 (Mich. 1987), expressly endorsed
Hampshire, referring to it and similar decisions as repre-
sentative of “the majority of cases, as well as the trend.”
400 N.W.2d at 301; see also id. at 302 (‘(tjhe interest-
weighing cases [citing Hampshire and other decisions] are
greater in number, as well as more recent’’). What is
more, Hampshire itself relied (899 N.W.2d at 38) on the
Michigan Court of Appeals’ decision in Olmstead, which
the Michigan Supreme Court later affirmed. And the Mich-
igan Supreme Court considered whether to grant leave
to appeal in Hampshire while Olmstead was pending
before it, and denied leave less than two weeks before
the decision in Olmstead was rendered. It is hardly sur-
prising, therefore, that decisions subsequent to Olmstead
have treated Hampshire as good law on Michigan choice-
of-law rules.5 Indeed, no Michigan case has even ques-
tioned the continued vitality of Hampshire after Olmstead.
5 See Erickson v. American Motors Corp., 683 F. Supp. 644, 649
(E.D. Mich. 1988) (under Olmstead and Hampshire, Florida rather
than Michigan law governed when the plaintiff and his decedent
were Florida residents and the accident occurred in Florida); Pen-
west Deve t Corp. v. Dow Chemical Co., 667 F. Supp. 436,
442-443 (E.D. Mich. 1987) (under Olmstead and Hampshire, Cana-
dian rather than Michigan law applied when the plaintiff resided
and the accident occurred in Canada; “the plaintiffs residence is
a paramount consideration in determining which state’s law to ap-
ply in a tort case” and, “{wJhen the defendant is a Michi resi-
dent and the plaintiff is not, Michigan law generally will not be
applied, > em if Michigan is not the place of the wrong”); com-
pare Bonelli v. Volkswagen of America, Inc., 421 N.W.2d 218, 225
n.6 (Mich. App.) (“Michigan tort law controlled * * * since Michigan
was the site of the alleged injury and of plaintiff's residence’’),
lv. denied, 430 Mich. 896 (1988).
-_)
In these circumstances, the Sixth Circuit doubly erred
under Erie by (1) deviating from the Michigan Court of
Appeals’ decision in Hampshire without any basis in Mich-
igan law for doing so, and (2) disregarding the Michigan
Supreme Court’s approval of Hampshire in Olmstead (as
well as the other decisions that have followed Hampshire
after Olmstead). “If the present suit had been brought
in [Michigan state] court no reason is advanced for sup-
posing that the [Michigan Court of Appeals] would depart
from its previous ruling or that the Supreme Court of
the state would grant the review which it withheld be-
fore.”” West, 311 U.S. at 238.
The sole rationale offered by the Sixth Circuit for de-
parting from Hampshire was that Florida had “no inter-
est” in applying its statute of repose to out-of-state man-
ufacturers (App., infra, lla), and therefore that it was
unnecessary to “make a comparative analysis of the in-
terests of Michigan and the foreign state as was done in
Hampshire.” Id. at 9a. Here again, however, the Sixth
Circuit disregarded this Court’s Erie rulings that require
obedience to state-court decisions on the meaning of state
law. Numerous decisions of the Florida courts, including
those of the Florida Supreme Court, have applied the stat-
ute of repose to out-of-state manufacturers in general and
Ford in particular. Under Erie, the Sixth Circuit was not
at liberty simply to ignore, as it did, this consistent line
of Florida decisions settling the state-law issue.
The Florida courts repeatedly have applied the Florida
statute of repose to out-of-state manufacturers doing busi-
ness in the State. In 1987 and 1988 alone (the two years
preceding briefing and argument in the Sixth Circuit), the
Florida Supreme Court applied the Florida statute of re-
pose in at least seven cases to bar actions against corpo-
rations that (according to Moopy’s INDUSTRIAL MANUAL)
=~ =
were neither incorporated nor headquartered in Florida.®
In addition, a number of courts in Florida, both state and
federal, have applied the Florida statute of repose specifi-
cally to actions against Ford.” Thus, until this case, there
never has been the slightest doubt under Florida law that
the Florida statute of repose extends to in-state and out-
of-state manufacturers alike. The Sixth Circuit’s contrary
interpretation cannot be squared with this unbroken string
of decisions.
In refusing to follow these Florida decisions on Florida
law, the court of appeals did not suggest that the lan-
guage of the Florida statute of repose (App., infra, 22a)
applied only to Florida manufacturers and excluded out-
of-state manufacturers doing business in Florida. Nor did
the court of appeals refer to any legislative history sup-
porting its unprecedented and unnatural interpretation of
the statute. On the contrary, it expressly disavowed any
such support, correctly noting that the legislative history
was “scarce.” Jd. at 10a.
Instead of relying on the usual authoritative sources
of Florida law—state precedent, the text of the statute
of repose, and relevant. legislative history—the court of
® Diaz v. Curtiss-Wright cog 519 So. 2d 610 (Fla. 1988); Shaw
v. General Motors Corp., 518 So. 2d 900 (Fla. 1987); Brockenridge
v. Ametek, Inc., 517 So. 2d 667 (Fla. 1987), app. dismissed & cert.
denied, 109 S. Ct. 30 (1988); Pait v. Ford Motor Co., 515 So. 2d
1278 (Fla. 1987); Wallis v. Grumman Corp., 515 So. 2d 1276 (Fla.
1987); Purty v. McDonnell Douglas Corp., 515 So. 2d 983 (Fla.
1987); Keyes v. Fulton Mfg. Corp., 515 So. 2d 979 (Fla. 1987).
7 Pait v. Ford Motor Co., 515 So. 2d 1278 (Fla. 1987); Perez v.
Ford Motor Co., 508 So. 2d 1339 (Fla. App. 1987), review denied,
520 So. 2d 585 (Fla. 1988); ig v. Firestone Tire & Rubber
Co., 495 So. 2d 801 (Fla. App. 1986), review denied, 506 So. 2d
1040 (Fla.), app. dismissed & cert. denied, 484 U.S. 802 (1987); ,
fin v. Ford Motor Co., No. TA 85-7244-WS (N.D. Fla. 1986), aff'd
sub nom. Eddings v. Volkswagenwerk, A.G., 835 F.2d 1369 (11th
Cir.), cert. denied, 109 S. Ct. 68 (1988).
tiie
appeals relied entirely on a more dubious authority: a stu-
dent law review note that in fact does not even arguably
support the court’s conclusion. App., infra, 10a, citing
Note, Products Liability Statute of Repose—A Florida
Perspective, 11 Nova L. Rev. 849 (1987). At the page
cited by the court, the note simply observes that:
Although legislative history is scarce concerning
Florida’s enactment of the products liability statute
of repose, manufacturers’ expanded liability appears
to be the primary influence in its enactment. Flor-
ida, as wa as the rest of the country, experienced
a liability revolution” in the past two
es.
Id. at 852 (emphasis added). Not a word of that explana-
tion confines the statute to Florida manufacturers; the stu-
dent author refers without limitation to “manufacturers.”
Indeed, on the very next page, the note explains the pol-
icies of the statute in terms that are equally applicable
to out-of-state manufacturers doing business in Florida:
A perceived liability “crisis” in the 1970’s appears
to have also given credence to the idea of a statute
of repose. Because courts permitted a greater number
of claims to be brought against manufacturers, as well
as frequent and large recoveries, products liability
litigation increased nationwide. Authorities claimed
that the increased litigation led to unaffordable insur-
ance rates and, in some instances, unobtainable cov-
erage at any price. In response, legislative proposals
advocated the enactment of statutes of repose to rein-
edy the insurance market.
Id. at 853. What is more, the principal focus of the note
is a case that applied the Florida statute of repose to an
out-of-state automobile manufacturer. See Lamb v. Volks-
wagenwerk Aktiengeselischaft, 631 F. Supp. 1144 (S.D.
Fla. 1986), aff'd sub nom. Eddings v. Volkswagenwerk,
= =
A.G., 835 F.2d 1369 (11th Cir.), cert. denied, 109 S. Ct.
68 (1988).®
In sum, the Sixth Circuit flatly disregarded this Court’s
precedents under Erie, leading to an interpretation of both
Michigan and Florida law that is irreconcilable with con-
trolling authority in those states. As a consequence, “a
suit by a non-resident litigant in [Michigan] federal court
instead of in a State court a block away [will] lead to a
substantially different result.” Guaranty Trust, 326 U.S.
at 109. This palpable departure from “(t]he nub of the
policy that underlies Erie” (ibid.) calls for correction by
this Court.
B. The Court Of Appeals Failed To Accord Due Def-
erence To The District Court’s Determination Of
State Law
As demonstrated above, the district court correctly ap-
plied Michigan choice-of-law rules. To the extent, however,
that there may have been room for reasonable doubt, the
* Of course, if the Florida statute were construed, as the Sixth
Circuit may Sot nny pmo its face against out-of-state manufac-
turers b iting its protection to in-state companies, it- would
violate the Commerce Clause and the Equal Protection Clause.
See, e.g., Bendix Autolite . v. Midwesco Enterprises, 486 U.S.
888 (1908); Metropolitan “go ms. Co. V. Ward, 470 U.S. 869 (1985);
Juzwin v. Asbestos C: Ltd., 900 F.2d 686 (3d Cir. 1990), peti-
tion for cert. pending, 0 USLW. 3074 (filed July 10, 1990) (No.
90-76); Abramson v 897 F.2d 389 (9th Cir. 1990). Since
Florida courts, like the federal courts, construe a statute ‘“[wJhen-
ever possible * * * not to conflict with the constitution” (Firestone
v. News-Press Pub. Co., 588 So. 2d 457, 459 (Fla. 1989)) and “avoid
declaring a statute unconstitutional if such statute can be fairly
construed in a constitutional manner” (Sandlin v. Criminal Justice
Standards & Training Comm'n, 531 So. 2d 1344, 1346 (Fla. 1988)),
the Sixth Circuit plainly departed from established principles by
construing the Florida statute of repose to raise rather than to
avoid constitutional issues.
= Ss
appellate court should have deferred to the district court’s
interpretation of Michigan law. By failing to do so, the
court of appeals committed a second fundamental error
of federal law.
As Ford demonstrates in greater detail in its brief
as amicus curiae in Salve Regina College v. Russell,
there are two principal reasons why courts of appeals
should defer to the district court’s construction of the law
of the state in which it sits. First, as a practical matter,
district judges are more likely to be familiar with state
law and thus better able to discern and apply that law.
Frequently a district judge has been a leading practitioner
in his or her state or a state-court judge before appoint-
ment to the federal bench;® court of appeals judges, by
contrast, are chosen from the many states within the cir-
cuit and therefore are less likely to be experienced in the
law of the state at issue in any particular case. Likewise,
given the nature and volume of their dockets, district
judges normally are confronted with a larger number and
-a wider range of issues under state law than is true for
appellate judges. Accordingly, deference to the district
court’s determination of state law will serve to promote
informed application of forum state law as mandated by
Erie.
Such deference also will promote federal judicial econ-
omy. A federal-court determination of unsettled state law,
while of considerable practical importance for an interim
period, is not binding on the state courts and can be re-
jected as incorrect by even the lowest court in the state.
® In this case, District Judge La Plata previously had served as
a Michigan state trial judge for six years and had spent more than
20 years as a trial lawyer in private practice in Michigan. In ad-
dition, he attended both college and law school in Michigan and
was a professor at the Detroit College of Law. See 1 ALMANAC
OF THE FEDERAL JUDICIARY (Prentice Hall Law & Business 1990).
<alliitins
For that reason, it is highly inefficient for increasingly
burdened appellate courts to devote the substantial re-
sources necessary to render de novo interpretations of
often unfamiliar state law. What the American Law In-
stitute pointed out with respect to diversity jurisdiction
in general is equally applicable to de novo appellate review
of state law:
From the point of view of the federal courts, the task
of deciding such cases under state law imposes espe-
cially laborious burdens, often greater in fact than
involved in resolving issues of federal law on which
those courts may speak with their own authority.
And although they may occasionally contribute to the
development of state law, those heavy labors are es-
sentially wasteful. Lacking the status of authorized
precedent and avowedly aiming to project state court
decisions, they go for the most part only to the ad-
judication of the particular dispute between the ac-
tual parties.
American Law Institute, STUDY OF THE DIVISION OF
JURISDICTION BETWEEN STATE AND FEDERAL COURTS
99-100 (1968). Unless the district court demonstrably has
erred in interpreting state law, therefore, its decision
should not be overturned by the court of appeals.
This Court has recognized that deference is due a dis-
trict court’s determination of its own state law. In United
States v. Hohri, 482 U.S. 64, 74 n.6 (1987), the Court re-
cently noted that federal cases involving state-law issues
“are tried before local federal district judges, who are like-
ly to be familiar with the applicable state law. Indeed,
a district judge’s determination of a state-law question
usually is reviewed with great deference’ (emphasis add-
ed). See also, e.g., Bernhardt v. Polygraphic Co., 350 U.S.
at 204 (“[s]ince the federal judge making those findings
[of Vermont law] is from the Vermont bar, we give special
weight to his statement of what the Vermont law is’’);
— *
—20—
Gardner v. New Jersey, 329 U.S. 565, 575 (1947) (“(tJhat
construction of New Jersey law made by a federal judge
of the New Jersey District Court is entitled to special
weight”). In the present case, however, the Sixth Circuit
inexplicably gave no deference whatsoever to the district
court’s application of Michigan choice-of-law rules and
simply substituted its judgment for that of the district
court.
In Salve Regina College v. Russell, this Court granted
review of the question “(wJhether a party is entitled to
de novo review of a federal district judge’s determina-
tion of state law in a case in which federal jurisdiction is
founded upon diversity of citizenship.”’ The same question
is presented in this case, and review should be granted
here as well. Alternatively, the Court may wish to hold
this petition pending its decision in Salve Regina College
and then dispose of the pues as appropriate in light
of that ruling.
C. The Court of Appeals Failed To Follow Available
State Certification Procedures
Insofar as the court of appeals entertained substantial
doubts about the correctness of the district court’s rul-
ing notwithstanding the state decisions supporting it and
the deference it was due, the appropriate course was not
to reverse the district court but rather to certify the
dispositive state-law questions to the Michigan and Florida
Supreme Courts. The Sixth Circuit’s refusal to do so con-
stitutes another important error that warrants this Court’s
review.
Both Michigan and Florida have provided procedures
for certification to their state supreme courts. See Mich.
Ct. R. 7.305(B) (West Supp. 1989), and Fla. R. App. P.
9.030(aX2XC), 9.150(a) (West 1983) (App., infra, 22a-23a).
-
A certification procedure offers an efficient means of ob-
taining a definitive resolution of state law—something that
only the highest court of the state, not a federal court
of appeals, can provide.
This Court has recognized the advantages of state-law
certification procedures and encouraged their use in a
variety of circumstances. In Lehman Brothers v. Schein,
416 U.S. 386, 391 (1974), the Court explained that certifi-
cation “in the long run save{s] time, energy, and resources
and helps build a cooperative judicial federalism,” and that
it is “particularly appropriate” for state-law questions that
are “novel{ ]” and “unsettle[d].’”’ The Court later elabo-
rated upon the important federalism and efficiency consid-
erations that underlie certification:
In a federal system, it is obviously desirable that
questions of law which * * * are both intensely local
and immensely important * * * be decided in the first
instance by state courts. This may not always be
possible nor is it always required, but where as here
there is an efficient method for obtaining a ruling
from the highest court of a State we do not hesitate
to avail ourselves of it.
Elkins v. Moreno, 435 U.S. 647, 663 n.16 (1978) (sua
sponte certification by this Court).!° See also 17A Wright,
Miller, & Cooper, supra, § 4246 at 113, § 4248 at 164-165.
Lower courts have agreed that certification is a salutary
procedure for resolving significant and undecided state-
10 See also, e.g., Virginia v. American Booksellers Ass’n, 484
U.S. 383 (1988) (Supreme Court ordered certification to state su-
preme court); Zant v. Stephens, 456 U.S. 410 (1982) (same); Mills
v. Rogers, 457 U.S. 291, 305-306 (1982) (vacating court of appeals’
decision and remanding for consideration of certification); Massa-
chusetts v. Feeney, 429 U.S. 66 (1976) (swa sponte certification);
Bellotti v. Baird, 428 U.S. 132 (1976) (renianding with instructions
to certify); Aldrich v. Aldrich, 375 U.S. 249 (1963) (swa sponte cer-
tification); Clay v. Sun Ins. Office, Ltd., 363 U.S. 207 (1960) (va-
cating and remanding for certification).
- =
law questions. As Judge John R. Brown, one of the lead-
ing proponents of certification, wrote for the Eleventh Cir-
cuit: “(Rjather than risk pronouncing a result which [the
state supreme] court might ultimately elect not to follow,
we follow the course—often pursued by this * * * court,
with enthusiastic support of the U.S. Supreme Court—of
certifying the significant issues to the Supreme Court of
Florida for an authoritative answer.” Ageloff v. Delta
Airlines Inc., 860 F.2d 379, 388-389 (11th Cir. 1988). Cer-
tification is a “potentially enormously helpful procedure
under which * * * unresolved and important questions of
state law may be referred to the court best equipped to
provide answers to them.” Jones v. Heckler, 754 F.2d 519,
520 (4th Cir. 1985). Thus, ‘“‘the certification procedure is
a valuable device for securing prompt and authoritative
resolution of unsettled questions of state law.” Kidney v.
Kolmar Laboratories, Inc., 808 F.2d 955, 957 (2d Cir.
1987). By invoking certification, “ ‘both federal and state
judicial systems are the beneficiaries of a procedure rooted
in cooperative federalism.’ * * * [Certification is supported
by] our Erie duty * * * [and] principles of federalism.”
Boardman v. United Services Auto. Ass’n, 742 F.2d 847,
848 n.1, 851 (5th Cir. 1984) (citation omitted), cert. denied,
474 U.S. 980 (1985).
For these reasons, the “use [of certification] should be en-
couraged.” R. Stern, APPELLATE PRACTICE IN THE UNITED
STATES 172 (2d ed. 1989). “Lehman is a clear direction
to the courts of appeals to look favorably on the use of
certification procedures in diversity cases which present
difficult issues of state law.” 1A MOooRE’s FEDERAL PRAC-
TICE ¢ 0.203[5] at 2159 (2d ed. 1990). See also C. Wright,
THE LAW OF FEDERAL Courts 313 (4th ed. 1983) (“t]he
certification procedure has been regarded with quite an
extraordinary enthusiasm by the commentators”); P. Bator,
et al., HART AND WECHSLER’S THE FEDERAL COURTS AND
—~23—
THE FEDERAL SYSTEM 1382 (8d ed. 1988) (“{tJhe majority
of commentators have been enthusiastic about certifica-
tion’’); Note, Erie R.R. and State Power to Control State
Law: Switching Tracks to New Certification of Questions
of Law Procedures, 18 HorstrRa L. REv. 421, 484 (1989)
(“{w]hen a court fails to avail itself of the process of cer-
tification, the resulting burden may include unsettled areas
of law, inconsistent holdings [by state and federal courts]
and a return to the pre-Erie days of forum-shopping’’).
The decision below is conspicuously out-of-step with the
prevailing trend favoring a liberal utilization of state cer-
tification procedures.1!
In this case, the court of appeals failed to certify the
state-law issues to either the Michigan or the Florida Su-
preme Court. Before reversing the district court’s con-
sidered decision, the court of appeals on its own motion
should have certified any unresolved issues of state law
to the appropriate state supreme court. See Lehman
Brothers, 416 U.S. at 390-391. In fact, respondent moved
for certification, which the court of appeals denied. App.,
11 The practical advantages of certification have been confirmed
by a study prepared by the Federal Judicial Center. See C. Seron,
CERTIFYING QUESTIONS OF STATE LAW: EXPERIENCE OF FEDERAL
JUDGES (Federal Judicial Center 1983). As the report summarizes
(at v), “most judges suggested that the disadvantage of possible
delay is outweighed by the procedure’s advantages, specifically
that an accurate answer from the appropriate tribunal avoids fur-
ther litigation and that relations between state and federal courts
are improved.” The study also concludes that certification is rea-
sonably expeditious, with a median time to obtain the state-court
answer of six months (id. at 15)—a period that “must be set off
against the time that would be required for the federal court to
research and reach its own answer to the question certified to the
state court.” Jd. at 16. And certification actually may result “in
some economies of time. * * * [TJhe delay attending certification
is more than compensated by subsequent expedition of other cases
involving the same or related questions of state law.” Jd. at 17.
witless
infra, 19a.12 Furthermore, once the court of appeals dis-
agreed with the district court’s decision, thus indicating
that state law was not as clear as Ford (and the district
court) had believed, Ford filed a petition for rehearing
and for certification of state-law issues; although the court
denied the petition for rehearing, it simply ignored the
request for certification. Jd. at 20a-21la.
In these circumstances; review by this Court is war-
ranted. The Court has never established guidelines to
govern federal courts’ use of state-law certification pro-
cedures and, as this case compellingly demonstrates, the
Court’s guidance is urgently needed. The availability of
certification has grown enormously in recent years; at
least 38 states have now adopted certification procedures,
and a uniform state law has been promulgated (which has
been enacted in 26 states). See Stern, supra, at 171-172
& nn.80-82; see also 17A Wright, Miller, & Cooper, supra,
§ 4248 at 164, 167 & n.30. Certification represents an ef-
fective and efficient means for implementing the policies
of Erie and ensuring that the decisions of the lower fed-
eral courts accord with applicable state law. This Court’s
review is thus essential to enable state certification pro-
cedures to achieve their full benefits for cooperative fed-
eralism, informed decisionmaking, and judicial efficiency.
As an alternative to plenary review, the Court may wish
to vacate and remand the case to the court of appeals
to have it certify the state-law issues to the state supreme
court. See cases cited at page 21 & note 10, supra.
12 At the time, Ford —_— respondent’s motion for certifica-
tion on the ground that the district court’s ruling clearly was cor-
rect in light of Hampshire and should be However, given
the subsequent disagreement between the Sixth Circuit and the
district court over state law, certification became Bs sn in the
court of appeals and, as explained in the text, Ford promptly so
moved. See Lehman Brothers, 416 U.S. at 392-393 (Rehnquist, J.,
concurring) (losing party in court of appeals first sought certifica-
tion at rehearing stage).
—25—
II. THE COURT OF APPEALS’ EGREGIOUS DISREGARD
OF THIS COURT’S DIRECTIVES FOR DETERMINING
STATE LAW UNDER ERIE WARRANTS REVIEW
For the reasons discussed above, the court of appeals’
approach to the state-law issues in this important tort case
is not even arguably correct under Erie. The Sixth Cir-
cuit flouted all three principles established by this Court
for determining state law in diversity actions: it refused
to follow state-law decisions directly on point; it refused
to give any deference to the district court’s interpreta-
tion of state law; and it refused to certify the controlling
issues of state law to the state supreme court. Not sur-
prisingly, the court of appeals thereby fell into manifest
error in interpreting the law of two states.
The court of appeals’ decision unquestionably is of con-
siderable practical importance. To begin with, diversity
actions are a staple of federal litigation and require the
federal courts regularly to ascertain state law that is com-
plex and uncertain. The most recently published statistics
show that diversity cases have accounted for more than
25% of the docket of the federal district courts and ap-
proximately 15% of that of the courts of appeals; indeed,
the number of diversity cases filed in the district courts
nearly doubled between 1979 and 1988. See ANNUAL RE-
PORT OF THE DIRECTOR OF THE ADMINISTRATIVE OFFICE OF
THE UNITED STATES Courts 8-9 & Table 4, 145-146 Table
8-1A (1988). Thus, the way in which federal courts deter-
mine issues of state law under Erie has an enormous im-
pact on the federal judicial system.'* It is imperative that
13 Moreover, diversity cases put a disproportionate strain on the
resources of the federal judicial system. As the Federal Courts
Study Committee recently reported:
The problem is not merely that diversity cases misuse federal
judicial resources. It is that they misuse a lot of federal judicial
(Footnote continued on following page)
EE
—26—
the Erie rules not only be clear in theory but scrupulously
observed in practice.
The application of Erie principles to state statutes of
repose is itself a significant and recurring problem. Stat-
utes of repose are a common and critically important fea-
ture of state legal systems. The most recent survey of
the area found that 48 states had enacted a total of 98
product liability statutes of repose. See McGovern, The
Variety, Policy and Constitutionality of Product Liability
Statutes of Repose, 30 Am. U. L. REv. 579, 580 (1981). Our
research indicates that the situation is little different today.
Moreover, the court of appeals’ erroneous decision is not
confined to statutes of repose. On the contrary, the court’s
analysis would “‘presumfe]’’ (App., infra, 10a) that any
foreign state statute that does not expressly apply to out-
of-state companies is limited to in-state businesses. For
example, Florida recently adopted tort reform legislation
that limits defendants’ liability in various respects. See
Fla. Stat. Ann. §§ 768.73 et seq. (West Supp. 1990). This
legislation, like the Florida statute of repose at issue here,
is silent on the scope of its application and does not ex-
pressly include or exclude non-Florida companies. Under
13 continued
resources. * * * And the volume of filings understates diver-
sity jurisdiction’s impact. Diversity cases account for about half
the civil trials in federal court, and they frequently generate
complex procedural and jurisdictional problems, making them
more time-consuming and expensive to process than similar
claims in the state courts.
x * *&* * *
Diversity is. a source of friction between state and federal
courts * *
REPORT OF THE FEDERAL Courts Stupy CoMMITTEE 39-41 (1990).
The burdens of diversity cases are icularly significant for the
courts of appeals, which, as the Federal Courts Study Committee
found (at 10, 110), have “(tThe most accute problems of overload’’
and are facing a “crisis of volume” that “is beyond dispute.”
= =
the court of appeals’ reasoning, Ford and all other cor-
porations incorporated or headquartered outside Florida
would be denied the protections of this tort reform legisla-
tion if they are sued in Michigan federal district court
under diversity—even though, as in this case, the accident
occurred in Florida and the plaintiff is a Florida resident.
The Sixth Circuit’s interpretation of Michigan choice-of-
law rules for tort cases is a matter of particular practical
concern. Ford, General Motors, and Chrysler, as well as
other large corporations with headquarters in Michigan,
are involved in thousands of cases growing out of accidents
that occur across the country. Because these companies
are amenable to suit in Michigan, the court of appeals’
decision means that non-Michigan plaintiffs can routinely
bring their claims in Michigan federal court, thereby
avoiding whatever limitations have been imposed on such
claims by the state where they reside and where the ac-
cident happened.!* Indeed, within a week of the court of
appeals’ decision in this case, a plaintiffs’ lawyer in Miami
commented that the ruling “alerts the victims of car ac-
cidents in the other 49 states, where liability claims may
be limited by law, that they can now sue the manufac-
turer” in federal court in Michigan. Palm Beach Review,
Apr. 16, 1990, at 1, col. 1.
14 As respondent acknowledged in her motion for certification in
the court of appeals (at 6-7):
The conflict of laws issue presented in the present case is
a very important one, and one that may be e d to arise
with some frequency as out-of-state Plaintiffs bring products -
liability suits against Michigan manufacturers in federal courts
in Michigan. * * * Such suits may always be brought in a fed-
eral court in ee on the basis of diversity of citizenship.
* * * (Tyhe federal courts in Michigan would be weil-served
by a definitive decision by the Supreme Court of Michigan,
resolving the question of whether in such a case, Michigan’s
product liability law will be displaced in favor of the manufac-
turer-protecting law of the state where the accident occurred.
~28—
Accordingly, the court of appeals’ decision has severe ad-
verse consequences for both the federal district courts and
manufacturers within the Sixth Circuit. The decision be-
low iS a license for plaintiffs around the country to circum-
vent the statute of repose or other tort reform legislation
that is applicable in the state with the predominant inter-
est in the case. The result will be a substantial and unwar-
ranted burden on the federal courts and opens the door to
widespread nullification of state law and policy. This dis-
turbing development is squarely inconsistent with fun-
damental principles of federalism and plainly merits this
Court’s review.
CONCLUSION
The petition for a writ of certiorari should be granted,
and (1) the judgment below should be summarily reversed,
(2) the judgment below should be vacated and the case
remanded to the court of appeals for certification of the
state-law issues, or (3) the case should be set for brief-
ing and oral argument. In the alternative, the Court may
wish to hold the petition pending decision in Salve Regina
College v. Russell, No. 89-1629.
Respectfully submitted.
ARTHUR R. MILLER STEPHEN M. SHAPIRO
Langdell Hall Counsel of Record
1545 Massachusetts Avenue KENNETH S. GELLER
Cambridge, Massachusetts 02138 MARK I. LEVY
(617) 495-4111 JAMES C. SCHROEDER
Mayer, Brown & Platt
190 South LaSalle Street
JOHN M. THOMAS Chicago, Illinois 60603
Ford Motor Company (312) 782-0600
One Parklane Boulevard
Suite 300, Parklane Towers West
Dearborn, Michigan 48126
(313) 322-6743 Counsel for Petitioners
SEPTEMBER 1990
APPENDICES
—j1la—
APPENDIX A
No. 88-2137
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
CHRISTINE MAHNE, )
)
Plaintiff-Appellant, ) ON APPEAL from the
) United States District
v. ) Court for the Eastern
) District of Michigan.
FORD MOTOR COMPANY; _)
DONALD PETERSEN; and _ )
)
)
)
HAROLD MacDONALD,
Defendants-Appellees.
Decided and Filed April 9, i990
Before: NELSON and RYAN, Circuit Judges; and
MEREDITH, District Judge.*
RYAN, Circuit Judge. This case presents a choice of law
problem well-suited for a law school civil procedure ex-
amination. It requires us to decide whether Michigan or
Florida law governs the plaintiff's product liability action.
We conclude that Michigan law controls and, therefore,
reverse the judgment of the district court.
* The Honorable Ronald E. Meredith, United States District Judge
for the Western District of Kentucky, sitting by designation.
—2a—
I.
On April 16, 1985, Marlo Mahne, a Florida resident, was
a passenger in a 1967 Ford Mustang that was rear-ended
by another vehicle and burst into flames. The accident
occurred in Florida. As a result of the accident, Miss
Mahne, then 15 years old, was severely burned. Her
mother and next friend, Christine Mahne, brought a prod-
ucts liability action against defendant Ford Motor Com-
pany in a Michigan state court. Defendant’s headquarters
and principal place of business are located in Michigan and
the design, testing, and manufacture of the 1967 Ford
Mustang occurred there. The Michigan lawsuit was dis-
missed on forum non conveniens grounds, following which
plaintiff brought suit in a Florida state court. She volun-
tarily dismissed that action when defendants argued that
the suit was foreclosed by the Florida statute of repose
which bars product liability actions brought twelve years
after the date of delivery of the completed product to its
original purchaser. Fla. Stat. § 95.031(2) (1985) (amended
1986).
Plaintiff then brought the prese1.t action against Ford
and two of its officers in the District Court for the East-
ern District of Michigan, pursuant to the court’s diversity
jurisdiction. 28 U.S.C. § 1332. Plaintiff alleged that defen-
dants breached an implied warranty of fitness and negli-
gently designed, manufactured, and tested the vehicle’s
fuel system and rear-end structure. Defendants filed a mo-
tion to dismiss, maintaining that the law of Florida, the
place of the accident, controlled, and that Florida’s statute
1 Florida’s statute of repose was amended effective October 1,
1986. The amendment abolished the period of repose in product
liability actions. The amendment was not made retroactive. Melen-
dez v. Dreis & Krump Mfg. Co., 515 So.2d 735 (1987).
ilies
of repose barred plaintiff's suit. Plaintiff responded that
Michigan, not Florida, law governed the question of the
timeliness of the lawsuit in the federal court. The district
court, relying upon Hampshire v. Ford Motor Co., 155
Mich. App. 143, 399 N.W.2d 36 (1986), lv. denied, 428
Mich. 852 (1987), determined that Florida law was con-
trolling and that its statute of repose, as substantive law,
barred plaintiff's products liability action.2 This appeal
followed.
The sole issue before us is whether Michigan’s choice-
of-law rules would require that Florida’s statute of repose
be applied in favor of a Michigan manufacturer, thus bar-
ring plaintiffs products liability claim.
II.
It is elemental that when jurisdiction is based on diver-
sity of citizenship, a federal court must apply the choice-
of-law rules of the state in which it sits. Klaxon Co. v.
Stentor Electric Mfg. Co., 313 U.S. 487 (1941). Since plain-
tiff’s action was brought in the United States District Court
for the Eastern District of Michigan, Michigan choice-of-
law rules apply.
Prior t 1992, Michigan courts, in deciding choice-of-law
issues, applied the substantive law of the jurisdiction
2 The district court also held that even if Florida’s statute of
repose was considered procedural law, Michigan’s borrowing stat-
ute, M.C.L. § 600.5861, would require that Florida’s statute of
repose be applied. Since both ies on appeal agree that the stat-
ute of repose is substantive law and the Olmstead analysis con-
trols, we do not address the troublesome questions whether the
Florida statute of repose is a statute of limitations for purposes
of Michigan’s borrowing statute or whether under Michigan’s bor-
rowing statute a cause of action can accrue in a state, such as
Florida, where the suit would be barred.
—4g-—
where the wrong occurred, the so-called lex loci delicti
rule. Abendschein v. Farrell, 382 Mich. 510, 170 N.W.2d
137 (1969). However, in Sexton v. Ryder Truck Rental,
Inc., 413 Mich. 406, 320 N.W.2d 843 (1982), a majority
of the court, speaking through multiple opinions, was criti-
cal of the rigidities of lex loci and abandoned it as an ab-
solute rule.* Sexton, supra, at 433. Unfortunately, the
Michigan court, having jettisoned lex loci, declined to
adopt any other specific choice-of-law methodology and,
instead, left choice-of-law issues to be evaluated on a case-
by-case basis. Id. at 433. The lead opinion in Sexton,
signed by three of the seven justices, concluded that lex
fori, the law of the forum, rather than lex loci, the law
of the place of the wrong, applied when Michigan resi-
dents, or corporations doing business in Michigan, were
involved in an accident in another state and appeared as
plaintiffs or defendants in a tort action in Michigan courts.
413 Mich. at 439.
A concurring opinion, also signed by three justices, in-
cluding a justice who had signed the lead opinion, found it
insignificant in Sexton that the accident had not occurred
in Michigan and reasoned that Michigan law should apply
since ‘(t]he status of ownership giving rise to the legal
consequence of liability has been regulated in Michigan
by [the owners’ liability statutes].”” 413 Mich. at 440-41.4
3° The author was a member of the Michigan Supreme Court when
Sexton was decided and dissented in the case, finding no reason
to abandon the rule of lex loci delicti as set forth in Abendschein
v. Farrell, 382 Mich. 510, 170 N.W.2d 137 (1969). The chief justice
concurred in the dissent. Sexton, supra, at 443.
4 The issue in the two consolidated cases in Sexton was whether
Michigan’s motor vehicle and aircraft owners’ liability statutes ap-
plied and, therefore, imposed liability on the defendant-owners of
the vehicles for the negligent acts of the operators.
—5a—
The justice who concurred in both the lead opinion and
the concurring opinion wrote still a third opinion, to which
no other justice subscribed, undertaking to explain the
lead and concurring opinions, and expressing the view that
Michigan courts should apply Michigan law in all personal
injury or property damage actions brought in Michigan ~
unless there is a compelling reason to apply the law of
a foreign jurisdiction. 413 Mich. at 442. None of the opin-
ions in Sexton garnered the _—— of a majority of
the seven justices.
Five years later, in Olmstead v. Anderson, 428 Mich.
1, 400 N.W.2d 292 (1987), the Michigan Supreme Court,
which by then included six justices who were not seated
when Sexton was decided, attempted to clarify the deci-
sion in Sexton. Olmstead involved a Minnesota plaintiff
suing a Michigan defendant for injuries suffered in a Wis-
consin automobile accident.
The court noted that Sexton’s plurality lead opinion had
proven difficult for Michigan and federal courts to apply
in that some courts construed Sexton to hold that lex fori
only applied to personal injury actions where the parties
were residents of Michigan, while other courts understood
Sexton to require a weighing of the interests of the in-
volved states to determine which state had the greater
interest in having its law applied. Olmstead, supra, at 22.
The Olmstead court noted that the interest-weighing ap-
proach to determining what law to apply in choice-of-law
cases appeared to be the tack taken by a majority of
courts that had attempted to apply Seaton, and also ap-
peared to reflect “the trend.” Jd.
After formulating a few generalizations from Sexton, the
Olmstead court declared that, consistent with the policy
of Sexton, lex fori rather than lex loci is the presump-
<a
tive rule of thumb for choice of law issues in tort cases,
but that the issue must be decided on a case-by-case basis.
The question to be answered in each case is:
[WJhether [the] case [at hand] presents a situation in
which reason requires that foreign law supersede the
law of this state.
Id. at 24.
The Olmstead court’s answer to that question was as
follows:
[Since] Wisconsin has no interest in seeing its law
applied, we see no rational reason to displace Mich-
igan law in this case. Since there is no reason to
apply Wisconsin law, it is, therefore unnecessary to
undertake an analysis of the interests of Michigan.
However, in another case in which the state of in-
jury does have an interest in having its law applied,
such an analysis might. be necessary and proper.
Id. at 29-30
Unlike the situation in this case, since Olmstead involved
a non-Michigan plaintiff suing a Michigan defendant for
damages suffered in a Wisconsin accident, the lex loci
jurisdiction was not the place of residence of either party.
In this case, to repeat, a Florida resident is suing a Mich-
igan defendant for damages suffered in a Florida accident.
However, we are satisfied that those differences do not
affect the analysis that must govern our decision whether
Florida or Michigan law applies in this case.
Ill.
It is perhaps worth noting, if indeed elemental, that a
federal court in a diversity action is obligated to apply
the law it believes the highest court of the state would
—Ta—
apply if it were faced with the issue. Tennessee River
Pulp & Paper Co. v. Eichleay Corp., 708 F.2d 1055, 1057
(6th Cir. 1983). We think it is very clear from the lengthy
discussion in Olmstead that the Michigan Supreme Ccurt
would hold, in a suit brought in a Michigan court by a
party who is not a citizen of Michigan against a Michigan
resident, arising out of an accident that occurred outside
of Michigan and in the state of the plaintiff's residence,
that Michigan law as the forum law presumptively con-
trols the litigation; and further, that there must be a
rational reason to displace Michigan law. To determine
whether there is such a rational reason, a court’s first
duty is to examine the foreign state’s interest, if any, in
having its law applied. If there is no reason to apply the
foreign state’s laws, there is no need to undertake an
analysis of Michigan’s interests. Olmstead, 428 Mich. at
30. Only where the foreign state is found to have an in-
terest in having its law applied does an analysis of Mich-
igan’s interests become necessary. Jd. at 30. Absent a
finding of some interest on the part of the foreign state,
there is no occasion to examine Michigan’s interest and
the presumption that Michigan applies is controlling.
The Olmstead court noted that regardless of whether
tne foreign law sought to be applied is the law of the
state where the wrong occurred or the law of the state
of plaintiff's residence, the analysis will be the same. /d.
at 29 n.12. However, the court failed to mention whether
the analysis would be the same if the state of plaintiff’s
residence is also the state where the wrong occurred, the
circumstances of the present case. The point is problem-
atic because the Olmstead court distinguished the facts
of that case from a number of post-Sexton cases brought
in Michigan by nonresident plaintiffs whose injuries oc-
curred in states other than where the plaintiffs resided
a heieeeeenll
—8a—
or had substantial contacts and whose contacts with Mich-
igan “could be described as neither fleeting nor fortui-
tous.”’ 428 Mich. at 23. In such cases, the court noted,
lower courts had usually applied lex loci delicti, the place
of the wrong, rule. Jd.
Despite this problem, we believe the court in Olmstead
intended to set forth a general rule for conflicts-of-law
issues. Thus, we presume the Michigan court, if presented
with the facts before us, would hold that even where
plaintiff's injury occurred in the state where plaintiff
resides, the same interest-analysis approach would apply.
Therefore, we assume that Michigan law applies unless
it appears that Florida has an interest in its law being
applied and, if it has, such interest is sufficient that ‘“rea-
son” requires that the Florida statute of repose “displace”
the law of the forum. Olmstead, 413 Mich. at. 24.
As the Olmstead court noted, where the defendant is
a citizen of Michigan he cannot argue that the application
of Michigan law would defeat his expectations. Jd. at 27.
Similarly, where neither party is a citizen of the state
where the wrong occurred, that state has no interest in
the litigation unless the issue is one involving conduct as
opposed to compensation. Jd. at 29. Moreover, where the
statute is designed to protect local interests, there is no
reason to extend its benefits to a nonresident whose state
has no similar statute. Jd. at 29.
IV.
The district court, in granting defendants’ motion to dis-
miss, found the pre-Olmstead case of Hampshire v. Ford
Motor Co., 155 Mich. App. 143, 399 N.W.2d 36 (1986), lv.
denied, 428 Mich. 852 (1987), controlling, largely because
it found the facts presented in Hampshire were “virtually
identical” to the facts in the instant case.
Oa.
In Hampshire, the plaintiff, a California resident, was
seriously injured in California when the car he was driv-
ing was struck head-on by a stolen vehicle. The plaintiff
brought an action in Michigan against the stolen vehicle’s
manufacturer, defendant Ford Motor Company, alleging
that Ford negligently designed the ignition-locking system
because it failed to operate as an anti-theft device. 155
Mich. App. at 145. The Hampshire court held that pur-
suant to Sexton, supra, a comparison of each jurisdiction’s
interests in having its law govern was required. 155 Mich.
App. at 146. The court concluded that California’s interest
was comparatively greater since the plaintiff resided in
California, the accident occurred there, the vehicle was
registered and licensed in that state, and the sole con-
nections to Michigan were that the defendant’s head-
quarters was there and the action was filed in that state.
As a result, the court applied the California substantive
law. 155 Mich. App. at 147. The court also noted that the
plaintiff did not object to the application of California law
at the hearing on the defendant’s motion for summary
judgment. Jd.
The plaintiff insists that the Michigan Supreme Court,
in Olmstead, overruled Hampshire. We do not necessarily
agree, but we need not address that matter because we
are satisfied that, on the facts before us, we need not
make a comparative analysis of the interests of Michigan
and the foreign state as was done in Hampshire.
Under the Olmstead formula, the first step is to deter-
mine what interest, if any, the foreign state has in hav-
ing its law applied, and only if Florida has an interest
of some kind will Michigan’s interest in having its law
applied be examined. Moreover, should we reach the com-
parative interest-analysis step, Olmstead requires con-
sideration of more factors than merely the plaintiff's resi-
1 |
—10a—
dence, the place of the wrong, and the connections with
the forum state, as suggested by defendants in reliance
on Hampshire. It also requires consideration whether the
foreign law sought to be applied will benefit the interests
it was designed to protect. Olmstead, 428 Mich. at 28-29.
¥:
The Florida statute of repose in effect at the time of
plaintiff's accident provides:
Actions for products liability ... must be begun
within the period prescribed by this chapter ... but
in any event within twelve years after the date of de-
livery of the completed product to its original pur-
chaser ..., regardless of the date the defect in the
product ... was or should have been discovered.
(Emphasis added.) Although legislative history concern-
ing the statute is scarce, it was presumably designed to
protect Florida manufacturers from liability for injuries
caused by products which had been on the market for
over twelve years. 11 Nova L.J. 849, 852 (1987).5
Defendant argues that Florida’s statute of repose applies
because Florida is where plaintiff resides, the vehicle was
licensed, the accident occurred, and the injuries sustained.
Moreover, defendant points out that it does business in
Florida. However, if applied, the Florida statute of repose
would not benefit the interest it was designed to protect.
. = tably, it was not until the Florida Supreme Court answered
uestion in Pullum v. Cincinnati Inc., 476 So.2d 657,
659 (1985), the Florida statute of repose was upheld as consti-
tutional even if it barred access to the courts. The statute of re-
pose was amended by the legislature the following year and refer-
onan to product liability claims was deleted. 11 Nova L.J. 849, 859
etna I Ot ee
—lla—
Instead of protecting a Florida manufacturer as intended,
the statute of repose would protect an out-of-state manu-
facturer at the expense of a Florida resident.
Plainly, the Florida statute does not benefit plaintiff,
a Florida resident, under the circumstances of this case
since the statute would bar her action against a nonresi-
dent defendant whose own state law, the law of Michigan,
affords no similar protection for a manufacturer. Olmstead,
supra, at 29. Further, defendants cannot argue that apply-
ing Michigan law would defeat their expectations since
the individual defendants reside there and defendant Ford
Motor Company has its headquarters in that state. Olm-
stead, supra, at 27. Thus, there is simply no reason to
extend the benefits of the Florida statute of repose to
the Michigan defendants. Since Florida has no interest in
having its statute of repose applied, Michigan law applies
without regard to the nature or quality of Michigan’s in-
terests. Olmstead, supra, at 30.
We hold, therefore, that since there is no rational reason
to displace Michigan law, the presumptive lex fori rule
directs that Michigan law governs the case.
The judgment of the district court is REVERSED and
the case is REMANDED for further proceedings.
—12a—
APPENDIX B
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
CHRISTINE MAHNE,
Individually and as Parent,
Guardian and Best or Next
Friend of MARLO MAHNE,
a minor,
Plaintiffs,
C.A. No. 87-CV-60110-AA
vs.
FORD MOTOR COMPANY, HON. GEORGE La PLATA
et al.,
Defendants.
J
ORDER GRANTING DEFENDANTS’
MOTION TO DISMISS
I. INTRODUCTION
On August 16, 1985, Plaintiff, Marlo Mahne, then fifteen
years of age, was a rear seat passenger in a 1967 Mustang
manufactured and designed by Defendant, Ford Motor
Company.' The vehicle, which was stopped at a light just
south of Fort Pierce, Florida, burst into flames after it
. eee Rents Save © Se et Teen Pee
ig and as next of friend for Marlo Mahne, for simplicity
sake, Marlo shall be referred to as Plaintiff.
—13a—
was struck in the rear by another vehicle. As a result,
Marlo Mahne suffered severe third and fourth degree
burns over 70% of her body.
Plaintiff, on April 2, 1987, commenced this product lia-
bility action against three named Defendants including
Ford Motor Company, Donald Petersen and Harold Mac-
Donald. In Count I, Negligence, of her two count Com-
plaint, Plaintiff avers that “(Defendants had a duty to de-
sign, manufacture, test and sell the Ford Mustang vehicle
in conformance to Michigan Common Law and Statutes.”
Specifically, Plaintiff contends that the Defendants negli-
gently and carelessly designed, manufactured and tested
the fuel system and rear-end structure in question so that
it could not withstand reasonably foreseeable impact. Al-
leging that the Mustang was defective, unreasonably dan-
gerous, unsafe and unfit for its reasonably foreseeable
uses, Plaintiff maintains in Count II that Defendants
breached an implied warranty.
Il. CHOICE OF LAWS
As a preliminary question, the Court must determine
whether Florida or Michigan substantive law controls this
action. In suits governed by state law a federal court ap-
plies the choice of law rules of the forum state.? Because
of the exhaustive history contained in a multitude of Mich-
igan court decisions regarding the demise of the tradi-
tional lex loci delicti rule, the law of the state where the
wrong occurred governs, the pervasive existing rule will
be discussed.*
® Klazon Co. v. Stentor Electric Manufacturing Co., 313 U.S.
487 (1941).
* See Olmstead v. Anderson, 377 N.W.2d 853 (1987); Sexton v.
Ryder Truck Rental, Inc., 320 N.W.2d 843 (1982).
—l4a—
After the release of numerous decisions by the Court
of Appeals which entertained the choice of laws issue, the
Michigan Supreme Court, realizing the need for uniform-
ity, adopted the interests-balancing approach. Specifical-
ly, the Court stated:
“In sum, Michigan courts have not been entirely con-
sistent in interpreting Sexton as being applicable only
in cases where the parties are all Michigan residents
bringing an action for personal injury. Other courts
have read Sexton to automatically require a balanc-
ing of interests in the event that the case before
them is not on all fours with Sexton. The latter view
appears to be the position in the majority of cases,
as well as the trend.’
The cases in which the plaintiff was not a resident but
brought suit in Michigan have generally applied lex loci
delicti, either through a strict reading of Sexton or by
weighing the interests of the states involved.5
In the instant case, because Plaintiff resides in [Florida]
and Defendant is headquartered in Michigan, the question
to be resolved is whether this case presents a situation
in which reason requires that foreign law supersede the
law of this state. Recently, the Michigan Court of Ap-
peals, in Hampshire v. Ford Motor Company® was pre-
sented virtually an identical set of facts facing this Court.
In Hampshire, Plaintiff, a California resident, was injured
in a motor vehicle accident which occurred in California.
As a result of his injuries, Plaintiff instituted an action
in Michigan against the manufacturer, Ford Motor Com-
4 Olmstead at 298.
. Vogh v. American International Rent-A-Car, Inc., 350 N.W.2d
882 (1984).
6 399 N.W.2d 36 (1986).
ko tw
a ee ee ee ee —_
aii.
pany, alleging negligent design of the ignition locking sys-
tem. Recognizing the need to employ the balance of inter-
est test, the Court, determining that California substan-
tive law applied, considered that:
(1) Plaintiff resided in California;
(2) the accident occurred in California;
(3) the Ford vehicle was registered in California;
(4) at the hearing on Defendant’s Motion for Sum-
mary Judgment, Plaintiff's counsel did not ob-
ject to the application of California law; and
(5) the connections to Michigan are limited to the
fact that Ford’s headquarters are located in
Michigan and the action was filed in this state.
In the instant case, Plaintiff resides in Florida, the acci-
dent occurred in Florida, the vehicles involved were regis-
tered and insured in Florida and the connections to Mich-
igan are limited to the situs of Defendant’s headquarters
and the Plaintiffs choice of forum. While it is true that
no specific methodology for employment of the interest
balancing test has been adopted, leaving each case to be
evaluated on the circumstances presented, the facts in this
action parallel the facts presented in Hampshire. In light
of the Sixth Circuit Court of Appeals decisions in Bennett
v. Enstrom Helicopter Corp.,7 and noting that there is
no general public policy in Michigan to protect all who
buy products manufactured in Michigan,® this Court is
persuaded that the holding in Hampshire is controlling.
Accordingly, Florida substantive law governs this action.
7 686 F.2d 406 (6th Cir. 1982).
8 Buettgen v. Volkswagen A.G., 505 F.Supp. 84 (E.D. Mich. 1980).
_
III. MOTION TO DISMISS
Having determined that Florida substantive law governs
this action, the Court turns to Defendants’ Motion to Dis-
miss or in the Alternative for Summary Judgment.® In
their motions Defendants maintain that the Florida Stat-
ute of Repose bars Plaintiff's suit. Conversely, Plaintiff
contends that the Statute of Repose is a procedural stat-
ute of limitation and thus should not be applied to an ac-
tion filed in Michigan. Specifically, §95.031(2), Florida
Statute (1985), provides in pertinent part:
(2) Actions for products liability and fraud under
§95.11(3) must be begun within the period pre-
scribed by this chapter, with the period running
from the time the facts giving rise to the cause
of action were discovered or should have been
discovered with the exercise of due diligence ...
but in any event within 12 years after the date
of delivery of the completed product to its orig-
inal purchaser ... regardless of the date the de-
fect in the product ... was or should have been
discovered.” (emphasis added)
Whether the Statute of Respose is substantive or pro-
cedural, its effect on this action is consistent. Because the
Court has previously concluded that Florida substantive
law governs this action, if the statute is deemed substan-
tive law its application to a product liability action involv-
ing a vehicle which has been in the stream of commerce
well in excess of twelve years would bar this action. If
the statute is deemed procedural in nature the Michigan
® Each Defendant, Petersen, Ford Motor Company and MacDonald,
filed a separate Motion to Dismiss or in Alternative for Summary
Judgment ad ing basically the same issues. For simplicity sake
all three motions shall be entertained in this opinion.
stoi
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pious branes 30
—17a—
borrowing statute would apply. Specifically, M.C.L.A.
§600.5861 provides:
“An action based upon a cause of action accruing
without this state shall not be commenced after the
expiration of the statute of limitations of either this
state or the place without this state where the cause
of action accrued, except that where the cause of ac-
tion accrued in favor of a resident of this state the
statute of limitations of this state shall apply.”
Because the cause of action accrued in Florida, the time
when all elements of the cause of action were present,
and because Plaintiff is not a resident of the State of
Michigan, the Florida statute of limitations must be bor-
rowed and applied to this action.!% !!
In 1986 the Florida legislature amended section 95.031(2)
repealing the Statute of Repose in product liability ac-
tions. The Plaintiff contends that the repeal of this statute
should be applied retroactively. The Supreme Court of
Florida in Melendez v. Dreis and Krum Manufacturing
Company’? recently put this issue to rest. Specifically,
the Court stated that because there was no clear mani-
festation of retroactive effect, the amended statute can-
not operate retrospectively.
In an attempt to circumvent the application of the bor-
rowing statute to this action, Plaintiff maintains that
10 Buettgen, supra at 853.
11 Under this section, the period of limitation applicable to an ac-
tion filed in Michi by a nonresident and based on a cause of
action that accrued outside of Michigan is either that which is pro-
vided by the statute in Michigan or that which is provided by the
state where the cause of action accrued, whichever bars the action.
See, Markarow v. Volkswagen of America, Inc., 403 N.W.2d 563
(1987).
12
—18a—
because Defendants Petersen and MacDonald could not
be sued in Florida the cause of action could not have ac-
crued there and thus the Florida Statute of Repose can
not offer them protection. In light of the primary pur-
pose of the borrowing statute, to prevent forum shopping,
Plaintiff's position at first blush contains merit.1* How-
ever, in Michigan, a cause of action accrues where the
accident occurred.!4 A review of the Michigan cases does
not offer an alternative determination of when or where
an action accrues. Accordingly, the Court is bound by the
interpretation which the Michigan courts have ascribed.
IV. CONCLUSION
While this Court is genuinely sympathetic to the Plaintiff,
the Statute of Repose bars this action. In GRANTING
Defendant’s Motion, Plaintiff's Complaint is DISMISSED.
/s/George La Plata
GEORGE La PLATA
U.S. District Judge
September 28, 1988
Ann Arbor, MI
13 In support of her position, Plaintiff relies on a Second Circuit
Court of Appeals action in which the Court, when interpreting a
similar borrowing statute, opined:
“When it (the borrowing statute, CPLR 202) speaks of ‘“‘ac-
crual” of a cause of action, it must logically refer to a cause
of action upon which a lawsuit may be brought...”
Although the immediate occasion of the reference was to the
time when a cause of action began, the statement reflects the
New York Court’s perceptive awareness that application of
New York’s borrowing statute depends upon the presence of
its key ingredient, “‘a cause of action upon which a lawsuit
may be brought.”
Stafford v. International Harvester Co., 668 F.2d 142, 151 (1981).
14 See Turner v. Ford Motor Co., 265 N.W.2d 400, 402 (1978);
Parish v. B.F. Goodrich Co., 235 N.W.2d 570 (1975).
0 ES SARE BRE PT BBA cd OL Da ET GOLLY BNE aC OL ae catches ae
—19a—
APPENDIX C
No. 88-2137
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
CHRISTINE MAHNE, )
Plaintiff-Appellant
vs. ) ORDER
FORD MOTOR COMPANY, ET AL.,
Defendants-Appellees
[Filed August 24, 1989]
Upon consideration of the motion of the appellant for
certification to the Supreme Court of the State of Mich-
igan of a controlling question of law, and the response
of the appellees in opposition thereto,
IT IS ORDERED that the motion be, and it hereby is,
denied.
ENTERED BY ORDER OF THE COURT
Leonard Green, Clerk
/s/Leonard Green/dr
—20a—
APPENDIX D
No. 88-2137
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
CHRISTINE MAHNE, PARENT, )
GUARDIAN AND BEST OR NEXT )
FRIEND OF MARLO MAHNE, )
A MINOR, )
Plaintiff-Appellant, )
v. ) ORDER
)
FORD MOTOR COMPANY; DONALD _)
PETERSEN; HAROLD MacDONALD, _)
)
)
Defendants-Appellees
[Filed June 18, 1990]
BEFORE: NELSON and RYAN, Circuit Judges; and
MEREDITH*, United States District Judge.
The Court having received a petition for rehearing en
banc, and the petition having been circulated not only to
the original panel members but also to all other active
judges of this Court, and no judge of this Court having
requested a vote on the suggestion for rehearing en banc,
the petition for rehearing has been referred to the original
hearing panel.
* Hon. Ronald E. Meredith sitting by designation from the West-
ern Discrict of Kentucky.
whe Nate Oe i A RR rely
|
.
.
ee ebraiapd:
—2la—
The panel has further reviewed the petition for rehear-
ing and concludes that the issues raised in the petition
were fully considered upon the original submission and
decision of the case. Accordingly, the petition is denied.
ENTERED BY ORDER OF THE COURT
/s/Leonard Green
Leonard Green, Clerk
—229—
APPENDIX E
STATUTES AND RULES INVOLVED
The Florida statute of repose relevant to this products
liability suit provides:
Actions for products liability and fraud under
s.95.11(3) must be begun within the period prescribed
in this chapter, with the period running from the time
the facts giving rise to the cause of action were dis-
covered or should have been discovered with the ex-
ercise of due diligence, instead of running from any
date prescribed elsewhere in s.95.11(8), but in any
event within 12 years after the date of delivery of the
completed product to its original purchaser or within
12 years after the date of the commission of the al-
leged fraud, regardless of the date the defect in the
— or the fraud was or should have been dis-
covered.
Fla. Stat. Ann. § 95.031(2) (West 1982) (emphasis added).
The Michigan Rules of Court provide the following pro-
cedure for the certification of state-law issues to the Mich-
igan Supreme Court:
When a federal court or state appellate court con-
siders a question that Michigan law may resolve and
that is not controlled by Michigan Supreme Court
precedent, the court may on its own initiative or that
of an interested party certify the question to the
Michigan Supreme Court.
_ Mich. Ct. R. 7.305(B) (West Supp. 1989).
The Florida Rules of Appellate Procedure provide the
following procedure for the certification of state-law issues
to the Florida Supreme Court:
=.
The discretionary jurisdiction of the Supreme Court
may be sought to review * * * questions of law cer-
tified by the Supreme Court of the United States or
a United States Court of Appeals that are determi-
native of the cause of action and for which there
is no controlling precedent of the Supreme Court of
Florida.
* * * * *
Upon either its own motion or that of a party, the
Supreme Court of the United States or the United
States Court of Appeals may certify a question of
law to the Supreme Court of Florida whenever the
answer is determinative of the cause and there is
no controlling precedent of the Supreme Court of
Florida.
Fla. R. App. P. 9.030(aX2XC), 9.150(a) (West 1983).
—24a—
APPENDIX F
RULE 29.1 LIST OF SUBSIDIARY COMPANIES
Ford Motor Company has no parent corporation. The
following is a list of domestic and foreign companies in
which Ford Motor Company owns a significant (not neces-
sarily controlling) interest, but which are not wholly-owned
by Ford:
United States of America
Airlease Ltd.
Aries Technology
AT&T Automotive Services, Inc.
AT&T Fleet Services
Autolatina America, Inc., (Del)
Beech Holdings
Capricorn Investors Ltd.
Carlex Glass Company
Carnegie Group Inc., (Del)
Ceradyne, Inc.
Cimflex Teknowledge Corporation, (Penn)
Dunlop Automotive Composites Inc., (Delaware)
Edelson Technol Partners II
Eveleth Taconite Company, (Minn)
Excel Industries, Inc.
Fairtel Associates
Gecars, Inc.
Humbolt Mining Company
Inference Corporation
Lincoln-Rowe Management, (Mich)
ny my Realty ee
New River Castings Com
Park Ridge Corporation, if
Penstone, Inc.
Renaissance Center Venture
Rouge Steel Com
Seating Systems ; Wadiectede, Inc.
—25a—
Software Productivity Consortium
T.G. Ford Assoc.
U.S. Equipment Income Fund I
U.S. Equipment Income Fund II
U.S. Equipment Income Fund III
The American Road Insurance Company, (Mich)
View Engineering, Inc.
Argentina
Autolatina Argentina S.A.
Autolatina Argentina S.A. de Ahorro Para Fines
Determinacos
Invercred Compania Financiere S.A.
Transax Sociedad Anonima, Comercial, Industrial,
y Financiera
Velhowiaen Inversiones S.A.
Volkswagen Sociedad Anonima de Ahorro Para Fines
Determinados
Australia
Australian Road Credit Limited
Ford Aerospace of Australia Pty., Ltd.
Ford Credit Australia Limited
Ford Credit Australia Wholesale Limited
Ford Motor Company of Australia Limited
Ford New Holland Australia Limited
Ford Sales Company of Australia Limited
New Holland Holdings Pty., Limited
Austria
Ford Bank Aktiengesellschaft (Austria)
Ford Motor Company (Austria) K.G.
Belgium
Ford Credit N.V.
Ford Motor Company (Belgium) N.V.
Ford Tractor (Belgium) Limited
—26a—
Brazil
Apolo—Administradora de Bens S/C Ltda.
Autolatina Distribuidora de Titulos e Valores
Mobiliaros Ltda.
Autolatina Financiadora S.A.—Credito,
Financiamento e Invest.
Autolatina Leasing S/A—Arrandamento Mercantil
Autolatina Previdencia Privada
Autolatina S.A.
Autolatina—Comercio, Negocios e Participacoes Ltda.
Consorcio Nacional Ford Ltda.
Consorcio Nacional Volkswagen Ltda.
Ford Brasil S.A.
Ford Distribuidora de Productos de Petroleo Ltda.
Inter-Locadora S/A
Sociedade Paulista de Aparelhos Domesticos
“SPAD” Ltda.
Transglobal Corretagem de Seguros Ltda.
Volkswagen de Brasil S/A
Volkswagen Factoring—Fomento Comercial S/A
Canada
Conix Corporation, (Del.)
Ford Motor Company of Canada, Limited
Nascote Industries, Inc., (Del.)
Trans Canada Glass Ltd.
Denmark
Ford Motor Company A/S
England
AC Cars Limited
Aston Martin (RDP) Limited
Aston Martin Finance Limited
Aston Martin Lagonda Design Limited
Aston Martin Lagonda Group Limited
Aston Martin Lagonda Limited
—27a—
Aston Martin gear U.S.A., Ine.
Dunlop Automotive Composites (UK) Limited
Iveco Ford Truck Limited
Lagonda Properties Limited
Ford Investitions-GmbH
Ford Versorgungs-Und Unterstutzungseinrichtung
GmbH
Holland
Ford Nederland B.V.
India
Escorts Tractors Limited
Japan
Autorama, Inc.
ee Ford Tractor “~¥, Ltd.
apan Climate Systems Corporation
Mazda Motor Corporation
Korea
Kia Motors Corporation
Korean Automotive Products Corporation
—28a—
Mexico
Fabrica de Tractores Agricolas S.A. de C.V.
Implementos Agricolas Mexicanos, S.A.
ACONA B.V. |
Nemak S.A. |
Vitroflex S.A.
New Zealand
Vehicle Assemblers New Zealand Ltd.
Norway
Ford Motor Norge A.S.
Ford New Holland A/S
Sweden
Ford Credit AB
Ford Motor Company Aktiebolag
Switzerland
Ford Credit S.A.
Taiwan
Ford Enterprise Company Taiwan, Ltd.
Ford Lio Ho Motor Co. Ltd.
Turkey
Otosan Otomobile Sanayii A.S.
Venezuela
FANATRACTO—Fabrica Nacional de Tractores
y Montores S.A.
—29a—
AMIM Holdings Sdn. Bhd.
Associated Motor Industries Malaysia SDN.BHD.
Ford Taiwan Services, Limited
Halla Climate Control Corporation
Oy Ford Credit Rahoitus
Transcom Insurance Limited
AUTOMOBILE DEALERSHIPS
Al Bennett Ford Sales of Flint, Inc.
Al Neyer Ford, Inc.
Alberts-Johnson Ford, Inc.
Albion Ford-Mercury, Inc.
Alpena Ford Lincoln-Mercury, Inc.
Altoona Ford, Inc.
Baranco Lincoln-Mercury, Inc.
Bear Country Ford Lincoln-Mercury, Inc.
Berea Ford, Inc.
Big Valley Ford Lincoln-Mercury, Inc.
Will Russell Ford, Inc.
Buffalo Ford-Mercury, Inc.
C&L Lincoln-Mercury, Inc.
Campus Ford, Inc.
Canal Ford Lincoln-Mercury, Inc.
Castle Rock Ford-Mercury, Inc.
Champion Ford of Scranton, Inc.
Champion Motors, Inc.
Clinton Ford Lincoln-Mercury, Inc.
Coastal Ford, Inc.
Columbus Ford-Mercury, Inc.
Community Ford-Mercury, Inc.
Cornelia Ford Lincoln-Mercury, Inc.
Courtesy Ford Lincoln-Mercury Sales, Inc.
Courtesy Ford Lincoln-Mercury, Inc.
Cranberry Lincoln-Mercury, Inc.
Crossroads Ford-Mercury, Inc.
Crossroads Ford, Inc.
Crown Lincoln-Mercury, Inc.
Delta Ford Sales, Inc.
—30a—
Duryea Ford, Inc.
Dyersburg Ford Lincoln-Mercury, Inc.
Economy Ford, Inc.
Edgar Ford, Inc.
Elkins Fordland, Inc.
Empire Ford, Inc.
Fairway Ford of Augusta, Inc.
Farmington Ford-Mercury, Inc.
Fort Valley Ford, Inc.
Freedom Ford Sales, Inc.
Friendship Ford, Inc.
Ft. Walton Beach Lincoln-Mercury, Inc.
Gold Star Ford Lincoln-Mercury, Inc.
Greater Cleveland Ford Mercury, Inc.
Green River Ford-Mercury, Inc.
Greenville Ford-Mercury, Inc.
Harbor Lincoln-Mercury, Inc.
Heritage Ford-Mercury, Inc.
Highland LM DBA Tyson LM
Hillsboro Ford-Mercury Sales, Inc.
Hood River Ford-Mercury, Inc.
Hub City Ford-Mercury, Inc.
Hunt County FLM, Inc., DBA Greenville FLM
Illini Lincoln-Mercury Sales, Inc.
Independence Ford, Inc.
Lake County Ford-Mercury, Inc.
Lakeland Ford Lincoln-Mercury, Inc.
Leader Motors Inc., DBA Leader L-M
Los Ramos Ford Lincoln-Mercury, Inc.
M&M Ford Lincoln-Mercury, Inc.
Marino Ford, Inc.
Marksville Ford Lincoln-Mercury, Inc.
McGehee Auto Plaza, Inc.
Metro Ford Automobile Sales, Inc.
Mon Valley Lincoln-Mercury, Inc.
Mountain Home Ford-Lincoln-Mercury, Inc.
lNatchitoches Ford L-M Sales, Inc.
Noble Ford Lincoln-Mercury West, Inc.
Northhampton Ford, Inc.
—3la—
Northwoods Ford-Lincoln-Mercury, Inc.
Osseo Ford, Inc.
Ottawa Ford Lincoln-Mercury, Inc.
Park Ford Sales, Inc.
Pavilion Lincoln-Mercury, Inc.
Pochelon Lincoln-Mercury, Inc.
Red Bluff Ford-Mercury, Inc.
Ripon Ford-Mercury, Inc.
River View Ford-Mercury, Inc.
Royal Lincoln-Mercury Sales, Inc.
Saginaw Ford DBA All American Ford
Shoals Ford, Inc.
Sonoma Ford, Inc., DBA Sonoma Ford-L-M
Spalding Ford Lincoln Mercury Sales, Inc.
Springfield Ford Lincoln-Mercury, Inc.
Suburban Ford Lincoln-Mercury, Inc.
Sun Valley Ford Lincoln-Mercury, Inc.
Sunbelt Ford-Mercury, Inc.
Team Ford, Inc.
Tower Ford Mercury, Inc.
Town & Country Lincoln-Mercury, Inc.
Tropical Ford, Inc.
Ukiah Ford-Lincoln Mercury, Inc.
Union City Ford Lincoln-Mercury, Inc.
Universal Ford Sales, Inc.
University Ford of Peoria, Inc.
Vandalia Ford Lincoln-Mercury, Inc.
Varsity Ford Lincoln-Mercury, Inc.
Verde Valley Ford Lincoln-Mercury, Inc.
Victory Ford, Inc.
Wellington Circle Motors, Inc.
West Covina Lincoln-Mercury, Inc.
Western Ford-Mercury, Inc.
Westwood Ford Lincoln-Mercury, Inc.
Yakima Valley LM DBA Sun City LM
32 Ford-Mercury, Inc.
—32a—
TRUCK DEALERSHIPS
Atlantic Ford Truck Sales, Inc.
Bayou City Ford Truck Sales, Inc.
Beltway Ford Truck Sales, Inc.
Bi-State Ford Truck Sales, Inc.
Bridge-Haven Ford Truck Sales, Inc.
Central Ford Truck Sales, Inc.
Crossroads Ford Truck Sales, Inc.
Delta Trucklease, Inc.
Golden State Ford Truck Sales, Inc.
Keystone Ford Truck Sales, Inc.
Lakeland Ford Truck Sales, Inc.
Mid-Cal Ford Truck Sales, Inc.
Mid-States Ford Truck Sales, Inc.
Miramar Ford Truck Sales, Inc.
Motor City Ford Truck, Inc.
Northside Ford Truck Sales, Inc.
River City Ford Truck Sales, Inc.
Sacramento Valley Ford Truck Sales, Inc.
Shamrock Ford Truck Sales, Inc.
Sooner State Ford Truck Sales, Inc.
Southside Ford Truck Sales, Inc.
Tri-State Ford Truck Sales, Inc.
Truck City Ford Sales, Inc.
West Gate Ford Truck Sales, Inc.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.