Salvatore J. Calabrese of counsel (Sweeney & Calabrese, attorneys), for appellants.

Roger K. Solymosy of counsel (Neil Brody, Jeremy Heisler and Kevin B. Pollak with him on the brief; Killarney Rein Brody & Fabiani, attorneys), for respondents.

KUPFERMAN, J. P., ROSS, CARRO and WALLACH, JJ., concur.

[157] ELLERIN, J.

In January 1985, while undergoing open heart surgery at Westchester County Medical Center, plaintiff Pasquale DiMarco received numerous blood transfusions. The defendants, two blood banks, supplied the blood which plaintiff received during this operation. Mr. DiMarco discovered that he had contracted the disease acquired immune deficiency syndrome (AIDS) when in July 1986 he was contacted by defendant New York Blood Center-Greater New York Blood Bank and alerted that he had received contaminated blood during the transfusion. From July 1986 through November 1987, plaintiff underwent testing and treatment by this defendant for AIDS.

In April 1988, he commenced this action against the two defendant blood banks, alleging in the complaint that he contracted the disease from contaminated blood supplied by the defendants during his surgery, and asserting two causes of action, one sounding in medical malpractice and the other in negligence, based on a theory that the defendants were negligent in their failure to test for AIDS the blood which was transfused into his body.

Instead of answering the complaint, the defendants moved pursuant to CPLR 3211 (a) (5) to dismiss the complaint on the ground that it is time barred by the expiration of the Statute of Limitations. The IAS court granted the motion and dismissed both causes of action.

The plaintiff does not appeal from the dismissal of the medical malpractice claim. Accordingly, our attention is focused solely on the negligence cause of action.

The Statute of Limitations for a negligence action brought to recover damages for personal injury is three years (CPLR 214). On the motion, it was defendants' position that the cause of action accrued when the plaintiff was injured — that is, when he was exposed to the allegedly contaminated blood in January 1985 — and, that, therefore, this action, commenced [158] on April 12, 1988, 3 years and 3 months after the exposure to the blood, was untimely.

In response, plaintiff contended that the negligence cause of action arose at the time Mr. DiMarco first discovered the injury, July 1986. Plaintiff relied on CPLR 214-c (2), which provides that "the three year period within which an action to recover damages for personal injury * * * caused by the latent effects of exposure to any substance * * * shall be computed from the date of discovery of the injury by the plaintiff". Plaintiff argued that since his injury was caused by the latent effects of his exposure to the contaminated blood, his action did not accrue until his discovery of the latent injury, in July 1986, and, therefore, this action, commenced less than three years from that date, is timely.

In reply, the defendants asserted that CPLR 214-c applies only to toxic tort victims who had been unknowingly exposed to toxic chemicals and not to natural substances such as contaminated blood.

The IAS court adopted the defendants' position and ruled that the statute does not apply to the negligence cause of action asserted by plaintiff. The court held that CPLR 214-c was meant to apply only to actions arising from the latent effects of exposure to certain toxic substances or materials. The court then described AIDS as a "virus/disease", which in its opinion "does not fall within the ambit of a `toxic' substance exception created by CPLR 214-c" (141 Misc 2d 59, 62).

On this appeal we must determine whether CPLR 214-c should encompass within its remedial scope situations, such as the one before us, where the plaintiff's injury is caused by the latent effects of exposure to contaminated blood.

Generally, in the construction of statutes, the intention of the Legislature is first to be sought from a literal reading of the act itself or of all the statutes relating to the same general subject matter. In this respect, the legislative intent is to be ascertained from the words and language used in the statute, and if the language thereof is unambiguous and the words plain and clear, there is no occasion to resort to other means of interpretation. (McKinney's Cons Laws of NY, Book 1, Statutes § 92 [b].)

The language of CPLR 214-c is as follows:

"§ 214-c. Certain actions to be commenced within three years of discovery

"1. In this section: `exposure' means direct or indirect [159] exposure by absorption, contact, ingestion, inhalation or injection.

"2. Notwithstanding the provisions of section 214, the three year period within which an action to recover damages for personal injury or injury to property caused by the latent effects of exposure to any substance or combination of substances, in any form, upon or within the body or upon or within property must be commenced shall be computed from the date of discovery of the injury by the plaintiff or from the date when through the exercise of reasonable diligence such injury should have been discovered by the plaintiff, whichever is earlier." (Emphasis added.)

The language of this statute is unambiguous and the words "plain and clear". The statute applies to injuries caused by the latent effects of exposure to any substance or combination of substances in any form. The Legislature did not enumerate the substances to which the statute would apply, or otherwise impose any limitation on the language. The statute applies to "any substance", and certainly the contaminated blood to which plaintiff was allegedly exposed is a "substance".

By its terms, the statute clearly applies to the circumstances of plaintiff's action, an action "to recover damages for personal injury * * * caused by the latent effects of exposure to any substance". Here, plaintiff seeks to recover for his injuries in contracting the deadly disease AIDS in 1986 caused by the latent effects of his exposure to the contaminated blood in January 1985.

Despite the plain meaning of the statute, the defendants argue that we should resort to an examination of the legislative history of CPLR 214-c for guidance to its interpretation. However, an examination of its legislative history provides even stronger support for applications of the statute to a case of this type.

The legislative history reveals that CPLR 214-c was enacted to remedy a widespread injustice of the common-law rules in determining the time of accrual of an action. The New York courts had steadfastly refused to alter the ancient doctrine that in tort cases the Statute of Limitations runs from the date the injury is inflicted, regardless of when the injury is actually discovered. The Court of Appeals on numerous occasions stated that if change were to be made it would have to come from the Legislature. (See, McLaughlin, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR 214-c, [160] 1989 Pocket Part, at 329; e.g., Matter of Steinhardt v Johns-Manville Corp., 54 N.Y.2d 1008; Schwartz v Heyden Newport Chem. Corp., 12 N.Y.2d 212, cert denied 374 US 808.) Accordingly, as part of a comprehensive bill (L 1986, ch 682), which addressed other inequities of tort law as well, the Legislature enacted CPLR 214-c to ameliorate the harsh effect of this ancient common-law rule, which often prevented recovery by a person exposed to a toxic or harmful substance who would not be aware of the injury at the time it was inflicted but only at a later date when the latent effects of the harm would first manifest itself.

The widespread therapeutic intent of CPLR 214-c is emphasized in the executive memorandum of the Governor, upon the signing of the act into law, which states:

"This measure, commonly referred to as the `Toxic Torts' bill, remedies a fundamental injustice in the laws of our State which has deprived persons suffering from exposure to toxic or harmful substances from having an opportunity to present their case in court. That injustice results from an archaic rule which commences the three year time period for suit on the date that an exposure occurs. The rule fails to recognize that the adverse effects of many of these toxic substances do not manifest themselves until many years after the exposure takes place. In such cases, a person is barred from court before he or she is aware of any injury.

"This bill, which is part of my 1986 legislative program, repeals that archaic rule and replaces it with a fair and simple rule which permits a person to discover his or her injury before the statutory time period for suit begins to run. In enacting this law, New York joins more than 40 other states which have legislatively or judicially created a statute of limitations discovery rule." (1986 McKinney's Session Laws of NY, at 3182-3183.)

Accordingly, the clear purpose of the statute is to remedy the fundamental injustice to victims suffering latent injuries, as described in the Governor's memorandum. The statute is broad and all-encompassing and should be interpreted to give effect to its stated purpose.

In the instant case, plaintiff was injected with blood contaminated with the AIDS virus. While the AIDS disease is still not completely understood by the medical profession, it is known to have a dormant quality which may not manifest itself in its victims for many years after a person is exposed to [161] the virus. A victim of AIDS may not be aware of the adverse effects of the disease until long after its infliction. Therefore, when a person suffers injury by virtue of the negligent infliction of the AIDS virus in conjunction with a blood transfusion, but discovery of the disease occurs more than three years after the transfusion, the party would be barred from bringing the action by virtue of the ancient rule that the Statute of Limitations accrues at the time of infliction of the injury. This is precisely the situation which CPLR 214-c seeks to remedy, and to which it should clearly apply.

Defendants also contend that the legislative history indicates an intent to apply CPLR 214-c only to instances where the injury is caused by exposure to toxic, man-made manufactured substances, such as dangerous drugs or chemicals. Defendants point to the various landmark Court of Appeals cases which highlighted the problem and stimulated this remedial legislation, such as Schmidt v Merchants Desp. Transp. Co. (270 N.Y. 287 [industrial dust]), Schwartz v Heyden Newport Chem. Corp. (12 N.Y.2d 212 [Umbrathor, a cancer causing chemical]), Thornton v Roosevelt Hosp. (47 N.Y.2d 780 [thorium dioxide]), Fleishman v Lilly & Co. (62 N.Y.2d 888 [DES]), and Matter of Steinhardt v Johns-Manville Corp. (54 N.Y.2d 1008, supra [asbestos]). Defendants also refer to various documents in the Bill Jacket, including messages from labor unions, government officials, and public interest groups, which recommend approval of the bill because of its salutary effect on persons injured in the workplace by toxic industrial substances or parties harmed by the latent effects of unsafe drugs.

It is true that part of the impetus for this remedial legislation was the harmful effect of existing law on victims of manufactured toxic substances such as those described. However, whatever the defendants' selective view of the legislative history, neither that history nor the statutory language itself indicate that relief was to be limited to those injured by manufactured substances. If the Legislature intended to make a distinction between natural substances and manufactured products, it would have so stated. Instead, the clear import of the statute, by its own plain language, is that it applies to latent injuries suffered from exposure to any substance or combination of substances, in any form. (See, Prego v City of New York, 141 Misc 2d 709.) Latent effects of exposure to contaminated blood clearly come within the ambit of CPLR 214-c.

[162] In this action where plaintiff alleges injuries as a result of the latent effects of defendants' negligence in exposing him to blood infected with the AIDS virus, the Statute of Limitations shall be computed as of the date of plaintiff's discovery of his illness, in July 1986, and the commencement of this action on April 12, 1988, within three years from that date, was timely.

Accordingly, the order of the Supreme Court, Bronx County (Jack Turret, J.), entered August 31, 1988, which granted defendants' motion to dismiss the complaint on the ground that the action is time barred, should be reversed to the extent appealed from, on the law, to reinstate plaintiffs' first cause of action, sounding in negligence, without costs. Defendants are directed to answer the complaint within 20 days of the entry of this court's order.

Order, Supreme Court, Bronx County, entered on August 31, 1988, unanimously reversed to the extent appealed from, on the law, without costs and without disbursements, to reinstate plaintiffs' first cause of action, sounding in negligence. Defendants are directed to answer the complaint within 20 days of the date of entry herein.

William D. Fireman of counsel (Alfred S. Julien with him on the brief; Julien & Schlesinger, P. C., attorneys), for appellant.

Robert M. Dato of counsel (Barry M. Epstein, Marc S. Klein, Lindsay H. Lew, David J. Fleming, Nancy Lucas Haniotis, Russel H. Beatie, Jr., and Sanford N. Berland with him on the brief; Sills Cummis Zuckerman Radin Tischman Epstein & Gross, P. A., and Dickson, Carlson & Campillo, attorneys), for E. R. Squibb & Sons, Inc., and Russel H. Beatie, Jr., for Eli Lilly & Company, respondents. (One brief filed.)

William A. Rome of counsel (Jay P. Mayesh and Robin J. Stout with him on the brief; Stroock & Stroock & Lavan, attorneys), for The Upjohn Company, respondent.

KUPFERMAN, P. J., and WALLACH, J., concur with SULLIVAN, J; ASCH, J., dissents in a separate opinion.

[109] SULLIVAN, J.

This appeal from the dismissal of a complaint on the ground [110] that the action, commenced pursuant to the "revival statute", was barred by the "borrowing statute" involves the interplay between the latter (CPLR 202)^[1] and the 1986 statute which revived causes of action arising out of exposure to diethylstilbestrol (DES) and other toxic substances, even if such causes had been previously dismissed as time barred.^[2] Since her action is time barred if the borrowing statute controls, plaintiff argues that, inasmuch as the revival statute begins with the words "[n]otwithstanding any other provision of law" (L 1986, ch 682, § 4) the borrowing statute is to be disregarded in revival statute actions. The motion court rejected this argument and granted defendants' motion for summary judgment.

Plaintiff's construction of the revival statute does not comport with the Legislature's intent to provide to New York residents only — not the entire world — a one-year window period in which to sue for claims otherwise barred by law. Plaintiff was a resident of Pennsylvania at the time her cause of action accrued, a resident of New Jersey at the time her injury manifested itself, and a resident of Virginia at the time she first commenced a lawsuit for in utero exposure to DES. Despite the absence of any nexus to New York, she contends that this action, and many others which similarly have no connection to the State, can be maintained in this jurisdiction. We believe that such a result is contrary to logic and foreclosed by the legislative history and policy underlying the revival statute. Accordingly, we affirm.

Plaintiff, who was born in Philadelphia, was allegedly exposed, in utero, to DES during her gestation. Thus, any such exposure occurred wholly in Pennsylvania. In September 1975, while she was a resident of New Jersey and attending college in Massachusetts, plaintiff became ill and was diagnosed as having clear cell adenocarcinoma of the cervix, a condition allegedly caused by the exposure to DES. She thereafter underwent treatment in New Jersey and Pennsylvania. After graduating from college in 1977, plaintiff returned to her [111] home in New Jersey. Since that time, she has resided in Illinois, Virginia and Massachusetts, but now apparently resides in New York.

On December 29, 1980, plaintiff commenced an earlier action in New York solely against E. R. Squibb & Sons, Inc. to recover for her alleged exposure to DES. At the time, she was a resident of Virginia, and had never lived in New York. That action was dismissed on July 27, 1982 because the court found that under the then applicable three-year Statute of Limitations, plaintiff's cause of action accrued at the time of her "last exposure" to DES, and that, even allowing for a toll of the limitation period until she reached majority, she had commenced her action more than three years after she attained her majority on September 1, 1974.

In 1986, as part of a tort reform package, the Legislature enacted the Toxic Tort Revival Statute (L 1986, ch 682, § 4), which provides: "Notwithstanding any other provision of law, including sections fifty-e and fifty-i of the general municipal law, section thirty-eight hundred thirteen of the education law and the provisions of any general, special or local law or charter requiring as a condition precedent to commencement of an action or special proceeding that a notice of claim be filed or presented, every action for personal injury, injury to property or death caused by the latent effects of exposure to diethylstilbestrol, tungsten-carbide, asbestos, chlordane or polyvinyl-chloride upon or within the body or upon or within property which is barred as of the effective date of this act or which was dismissed prior to the effective date of this act solely because the applicable period of limitations has or had expired is hereby revived and an action thereon may be commenced provided such action is commenced within one year from the effective date of this act".

Although the 1986 legislation made significant changes in the rules governing the conduct of personal injury suits, its focus was on the elimination of New York's "last exposure" rule and the adoption of a "discovery" Statute of Limitations. (L 1986, ch 682, § 2, adding CPLR 214-c.) The new Statute of Limitations provides that a personal injury claim arising out of the "latent effects of exposure to any substance or combination of substances" accrues on the earlier of "the date of discovery of the injury by the plaintiff or from the date when through the exercise of reasonable diligence the injury should have been discovered". (CPLR 214-c [2].) Henceforth, an injured party is permitted to assert a cause of action within [112] three years from the date of discovery of the injury, regardless of the time of exposure. In addition, in an effort to eliminate the unfairness of the State's last exposure rule, the revival statute provided a one-year window period to sue for persons who were or would have been barred by operation of the preexisting last exposure rule.

Commenced on August 6, 1986, this action was also brought initially only against Squibb. In addition to a general denial, Squibb's answer asserted as affirmative defenses the bar of the applicable Statute of Limitations and the unconstitutionality of the revival statute. When plaintiff moved to dismiss these affirmative defenses, Squibb cross-moved for summary judgment on the ground, inter alia, that the action was barred by the Statute of Limitations. While the motion was pending, plaintiff commenced similar actions against The Upjohn Company and Eli Lilly & Company.

Squibb argued, and plaintiff did not contest, that where a cause of action accrues outside New York in favor of a nonresident, the borrowing statute requires that the foreign Statute of Limitations apply if it is shorter than the applicable New York limitation period (see, e.g., McCarthy v Bristol Labs., 86 AD2d 279, 283, appeal dismissed 58 N.Y.2d 780); that plaintiff's injuries accrued in 1955 in Pennsylvania;^[3] and that, as a result, she must satisfy the Pennsylvania limitation rule, which, as long as the revival statute is upheld as constitutional, is shorter than the New York period. In response, plaintiff's sole contention was, as it is on appeal, that since the revival statute commences with the words "[n]otwithstanding any other provision of law", the borrowing statute was intended to be excluded from any application to revived claims.

Finding that exposure to the drug occurred in Pennsylvania, while discovery of the illness took place in New Jersey, the court held that either the Pennsylvania or New Jersey law would apply by virtue of the borrowing statute. Applying that statute, the court ruled that the claim was untimely under the Statute of Limitations of either State, and dismissed the [113] complaint. The court rejected the argument that the initial words to the revival statute excluded the application of the borrowing statute, citing In re "Agent Orange" Prod. Liab. Litig. (597 F Supp 740, affd 818 F.2d 145). At the court's direction, the parties stipulated that the separate actions be consolidated and that Squibb's cross motion be deemed to have been made by Upjohn and Lilly as well. This appeal followed.

Plaintiff contends that "the borrowing statute is simply * * * to be disregarded" because the revival statute bestows its benefits "[n]otwithstanding any other provision of law". Plaintiff further argues that because the revival statute's plain language conveys a definite meaning there is "no occasion for resorting to rules of statutory construction". Strict construction, however, should not be used to reach unintended results. "The rules of strict construction do not command such inflexibility; they do not constrain a court to defeat the evident intention of the lawmaker". (Abrams v Esposito, 75 AD2d 528, 529, affd 54 N.Y.2d 886.)

In determining a statute's meaning, the court's function is not to adhere slavishly to the statute's literal language, but, rather, to ascertain the Legislature's intent. As the court stated in Matter of River Brand Rice Mills v Latrobe Brewing Co. (305 N.Y. 36): "The intent of the Legislature in enacting legislation is the primary object to be found. Whenever such intention is apparent it must be followed in construing the statute. * * * `[A] thing which is within the letter of the statute is not within the statute unless it be within the intention of the lawmakers, but a case within the intention of a statute is within the statute, though an exact literal construction would exclude it. It is a familiar legal maxim that "he who considers merely the letter of an instrument goes but skin deep into its meaning," and all statutes are to be construed according to their meaning, not according to the letter.'" (Supra, at 43-44, quoting McKinney's Cons Laws of NY, Book 1, Statutes § 111; accord, Eaton v New York City Conciliation & Appeals Bd., 56 N.Y.2d 340, 345 ["It is a fundamental principle of statutory interpretation that a court should attempt to effectuate the intent of the Legislature"]; Rankin v Shanker, 23 N.Y.2d 111, 114 ["(A) primary command to the judiciary in the interpretation of statutes is to ascertain and effectuate the purpose of the Legislature"].)

This principle is so well established that even where, as here, the statute "may appear literally `unambiguous' on [its] face, the absence of ambiguity facially is never conclusive." [114] (New York State Bankers Assn. v Albright, 38 N.Y.2d 430, 434.) Indeed, "[s]ound principles of statutory interpretation generally require examination of a statute's legislative history and context to determine its meaning and scope." (Supra, at 434.) Thus, "[i]nquiry into the meaning of statutes is never foreclosed at the threshold". (Supra, at 436; see also, Matter of Cullen [Roberts], 93 AD2d 907.)

As noted previously, the 1986 tort reform legislation was principally intended to remedy the unfair consequences suffered by injured persons under the last exposure rule. The legislation furthered that purpose by providing a one-year window period for those New Yorkers whose claims were previously barred by the operation of that rule. As the memorandum prepared by its Senate sponsor noted, "This bill will provide relief to injured New Yorkers whose claims would otherwise be dismissed for untimeliness simply because they were unaware of the latent injuries until after the limitation period had expired." (1986 NY Legis Ann, at 287.) In contrast, the borrowing statute was primarily intended to prevent forum shopping by nonresident plaintiffs, as well as to afford resident defendants the benefit of the shortest limitation period. (Antone v General Motors Corp., 64 N.Y.2d 20, 27-28; National Sur. Co. v Ruffin, 242 N.Y. 413, 417; Stafford v International Harvester Co., 668 F.2d 142, 151.) These policy concerns are achieved through a choice of law mechanism. Where a cause of action accrues outside New York in favor of a nonresident, the foreign Statute of Limitations is "borrowed".

Thus, the revival statute is concerned solely with the harshness of a time-bar that focused on a victim's exposure to a toxic substance, witting or otherwise, as a cause of action's accrual date, not the policies served by the borrowing statute. In enacting the revival statute, therefore, the Legislature's remedial purpose was merely to remove the obstacle of the last exposure rule, not to repeal the salutary purposes underlying the borrowing statute. It is a long-standing rule of statutory construction that a law will not be interpreted so as to modify preexisting law by implication. "[I]n the absence of a manifestation of intent to change a long-established practice, ordinarily no design to do so will be attributed to legislative action". (McGowan v Mayor of City of N. Y., 53 N.Y.2d 86, 94.) Thus, in the absence of some manifestation of intention by the Legislature to limit the borrowing statute, the revival statute should not be interpreted to override its provisions.

[115] Rather, the two statutes should be construed, if possible, to accommodate the policies underlying each. "It is a familiar and salutary canon of construction that courts, in construing apparently conflicting statutory provisions, must try to harmonize them". (Matter of Burger King v State Tax Commn., 51 N.Y.2d 614, 620-621, citing McKinney's Cons Laws of NY, Book 1, Statutes §§ 98, 141.) In this connection, it should also be noted that statutes which revive causes of action previously time barred must be narrowly construed. (Hopkins v Lincoln Trust Co., 233 N.Y. 213.) "Revival is an extreme exercise of legislative power. * * * Uncertainties are resolved against consequences so drastic." (Supra, at 215.)

As already noted, the primary impetus behind enactment of the revival statute was to relieve the harsh results of New York's exposure-based Statute of Limitations, which, due to the latent effects of exposure to some toxic substances, might have expired before the injured party even knew of his injuries. Such a result is, of course, avoided in those States where the Statute of Limitations begins to run from the date of discovery. Thus, the New York Legislature would not have an interest in reviving the claims of nonresident plaintiffs who were adequately protected under their own States' Statutes of Limitations. Only New York residents whose causes of action accrued here were in need of relief from the consequences of the exposure-based Statute of Limitations. It should be noted that both Pennsylvania, the State where plaintiff was exposed to DES, and New Jersey, where her injuries were manifested and diagnosed, have Statutes of Limitations which begin to run upon discovery of the injury. Thus, plaintiff, unlike those New Yorkers for whom the revival statute was intended, had a viable cause of action in, at least, either Pennsylvania or New Jersey at the time of the diagnosis of her injury, had she chosen to pursue it.

The policy underlying the revival statute can be harmonized with the policies of the borrowing statute. The borrowing statute was primarily enacted to prohibit nonresident plaintiffs from forum shopping and to afford New York defendants the benefit of the shortest possible Statute of Limitations. By construing the revival statute so that revived claims are subject to the borrowing statute, the policies of each statute are afforded due regard. New York residents formerly subject to the harsh exposure-based Statute of Limitations will have access to the New York courts, while nonresident plaintiffs will be barred from forum shopping; moreover, New York [116] defendants will be afforded the benefit of the shortest possible Statute of Limitations for claims accruing outside the State.

Thus, when read consistently with the statute's underlying purpose, the introductory phrase of the revival statute can only mean that the CPLR's three-year limitations period on personal injury actions shall not apply to claims brought within the revival period. Accordingly, the phrase "[n]otwithstanding any other provision of law" is intended to obviate the proscriptions of CPLR 214, which, if applied, would result in the dismissal of any causes of action brought more than three years after the discovery of the injury. This was the interpretation reached in In re "Agent Orange" Prod. Liab. Litig. (597 F Supp 740, supra), where the court interpreted a nearly identical statute which provided that the claims of Vietnam War veterans arising out of exposure to Agent Orange would be governed by a discovery rule "[n]otwithstanding any provision of law to the contrary".^[4] Recognizing that many of those asserting claims would be residents of different States and, hence, that the borrowing statute would present an impediment, the court asserted: "While the introductory clause of the statute, CPLR 214-b, states: `Notwithstanding any provision of law to the contrary,' the reference appears to have been intended to avoid application of CPLR 214, the three-year statute for personal injury cases, to New York veterans. It does not suggest that CPLR 202 is inapplicable." (Supra, at 803-804.) Similarly, Judge McLaughlin in his 1981 Supplementary Practice Commentaries to the CPLR noted that "a nonresident plaintiff would be permitted to rely upon the [Agent Orange revival statute], although such a plaintiff would also have to deal with the additional hurdle of CPLR 202, the borrowing statute." (McKinney's Cons Laws of NY, Book 7B, CPLR 214-b, 1989 Pocket Part, at 327.)

[117] The Agent Orange and Practice Commentary interpretation clearly governs the identical issue presented here.^[5] Indeed, were CPLR 202 not to apply to actions commenced pursuant to the revival statute, claims caused by the effects of any of the enumerated five substances for injuries which accrued in any other State and which are time barred under that State's law could be imported to New York. Nothing in the revival statute or its legislative history suggests that the statute was intended to create a national safe harbor for second chance litigation by otherwise time-barred claimants. Furthermore, this is precisely the kind of forum-shopping evil which the borrowing statute was designed to avoid. (Antone v General Motors Corp., supra, 64 NY2d, at 27-28.)

Moreover, the failure to apply the borrowing statute herein would divest defendants of those vested rights created by the laws of sister States where the action would otherwise be barred. The Legislature could hardly have contemplated, much less intended, such a result. The bill specifically sought to "provide relief to injured New Yorkers".

Finally, we note that the dissent premises its entire argument on plaintiff's claim that she is now a New York resident, a circumstance which is irrelevant, since plaintiff can avoid the operation of CPLR 202 only if she was a New York resident at the time her cause of action accrued. (Cellura v Cellura, 24 AD2d 59; CPLR 202.) Moreover, such statutory distinction in treatment has been constitutionally upheld. (Klotz v Angle, 220 N.Y. 347; Nolan v Transocean Air Lines, 276 F.2d 280, set aside on other grounds 365 US 293, on remand 290 F.2d 904.)

Accordingly, the order of the Supreme Court, New York County (Ira Gammerman, J.), entered July 10, 1987, which, inter alia, granted defendant Squibb's cross motion for summary judgment, also deemed to have been made by defendants Upjohn and Lilly, should be affirmed, without costs or disbursements.

[118] ASCH, J. (dissenting).

This is a products liability action in which plaintiff-appellant Karen Sue Besser seeks damages for personal injuries against three defendant pharmaceutical companies. The claim results from the ingestion by plaintiff's mother, during pregnancy, of defendants' drug, diethylstilbestrol (DES). The appeal presents to this court, for the first time, a novel issue pertaining to the recent Toxic Tort Revival Statute (L 1986, ch 682, § 4) passed by the Legislature of New York to afford a remedy to victims of five separate toxic substances, when claims, in many instances, were time barred even before some of those injured were even aware of their existence.

We are asked to decide whether the plaintiff, a New York resident at the time her action was commenced, is barred under the New York "borrowing statute" (CPLR 202) from taking advantage of the benefits conferred by the revival statute.

Plaintiff appeals from an order of the Supreme Court, New York County, which granted defendant Squibb's cross motion for summary judgment, in which the other defendants had joined. The basis of this order was that the "borrowing statute" (CPLR 202) invoked a Statute of Limitations which barred the action. The same order also denied plaintiff's motion to dismiss two of defendant Squibb's affirmative defenses.

Plaintiff's mother, while she was pregnant with plaintiff some 33 years ago, ingested DES, produced and marketed by defendants. She had no way of knowing that the consequences of such use might be catastrophic to her daughter, as yet unborn. Plaintiff was born in Pennsylvania, where she had been conceived and exposed to DES, in 1955. She became ill with cervical cancer in 1975, some 20 years later, in New Jersey, where she underwent surgery. A prior action she commenced on December 29, 1980, in New York, was dismissed as untimely. Thereafter, plaintiff brought the present action on August 6, 1986, as a resident of New York. While the record does not indicate when this residency began, the defendants cannot persuasively establish that plaintiff was only a resident of convenience for purposes of this action.

CPLR 202, New York's borrowing statute, is a protective device for New York defendants to be raised so as to bar suits brought by foreign plaintiffs. In effect, CPLR 202 provides that with respect to a cause of action accruing outside of the State, [119] commenced by a nonresident, a New York defendant will be able to invoke whichever Statute of Limitations has already expired, the foreign jurisdiction's or New York's. However, CPLR 202 preserves for the resident plaintiff the benefit, or the detriment, of New York's Statute of Limitations.

In this case, it is undisputed that the action would be time barred in both New Jersey and Pennsylvania. And, ordinarily, under CPLR 202, plaintiff's action would be time barred for all purposes if plaintiff was a nonresident. Fortunately for her, she is protected by her procedural status as a resident of New York.

In 1986, the Legislature passed the so-called revival statute (L 1986, ch 682, § 4). It revived for one year certain causes of action which had been time barred under New York law. It is not disputed that this action would be deemed timely commenced, then, if plaintiff could take advantage of the revival statute. Laws of 1986 (ch 682) reads in pertinent part: "§ 4. Notwithstanding any other provision of law * * * every action for personal injury, injury to property or death caused by the latent effects of exposure to diethylstilbestrol, tungsten-carbide, asbestos, chlordane or polyvinylchloride upon or within the body or upon or within property which is barred as of the effective date of this act or which was dismissed prior to the effective date of this act solely because the applicable period of limitations has or had expired is hereby revived and an action thereon may be commenced provided such action is commenced within one year from the effective date of this act".

Both the defendants and the plaintiff engage in substantial argument whether the revival statute addresses only New York claims barred by the New York Statute of Limitations, or whether it can revive an action time barred not by New York's Statute of Limitations, but by that of foreign jurisdictions, pursuant to CPLR 202.

As noted, the revival statute commences with the qualifying language that it will apply "[n]otwithstanding any other provision of law", and it then enumerates certain such other limiting provisions of law. Plaintiff contends that this statutory language is to be taken at face value and serves to nullify the application of CPLR 202 and any other Statute of Limitations. Defendants urge that such a literal interpretation misreads the legislative intent of the statute, which was to be narrowly construed; it was never intended to apply to nonresident causes of action, into which category they include the instant case.

[120] The case law on this specific point is virtually a blank slate and, so, general principles of statutory construction will control.

Judge Breitel has stated with respect to statutory interpretation that "purpose cannot be a warrant to go beyond the language used. The language is a limitation on construction even as the purpose may be a liberalizing factor" (see, Matter of Smith [Great Am. Ins. Co.], 29 N.Y.2d 116, 120). McKinney's Consolidated Laws of NY, Book 1, Statutes § 111 states, in pertinent part, that "the intent of the Legislature is the primary object * * *. While such intention is first to be sought from a literal reading of the act itself * * * giving such language its natural and obvious meaning * * * the literal meanings of words are not to be adhered to * * * to defeat the general purpose and manifest policy intended to be promoted." (Emphasis added.) Further, "statutes are not to be read with literalness that destroys meaning, intention, purpose or beneficial end for which the statute has been designed." (Ibid.) This permissiveness of departure from literal language, however, appears to address the situation where, in light of the statute's explicit intent, the words, ill-chosen, make no sense in terms of application. (See, e.g., Matter of Caraballo v Community School Bd. Dist. 3, 49 N.Y.2d 488.)

The purpose to be examined would be that of the revival statute, not the purpose of section 202. The objective of the revival statute appears to be to afford relief in tort to hapless victims of a tragedy which they had no part in making. To construe the statute in the way urged by the defendants would be to subvert its beneficial purposes, giving recognition to the increasing mobility of Americans, the complexity of determining pernicious consequences of modern "wonder drugs", and the long-term consequences of the ingestion of medical drugs, the lethal consequences of which may not become apparent for a generation or more. Both the literal language "notwithstanding any other provision of law" as well as the "equity of the statute" (see, Heydon's Case, 3 Coke Rep 7a, 76 Eng Rep 637 [Ex 1584]) support plaintiff's position. To deny the plaintiff the right to seek legal redress in this case, because her mother lived in New Jersey at the time she took DES, would be the equivalent of the long-time rejected punishment of attainder and corruption of the blood by which the acts of the mother (which in this case were innocent) are used to penalize the daughter.

However, all the speculation as to whether plaintiff is to be [121] afforded the beneficial effect of the revival statute is predicated on an erroneous premise. What is significant is that plaintiff commenced an earlier action in 1980, in New York, and after the enactment of the revival statute. The extensive discussion as to where the cause of action arose, or whether the revival statute protects a nonresident, is irrelevant. Although plaintiff was not a resident when the DES was ingested (since she was not yet born) nor when injury manifested itself, she commenced a prior action in New York on December 29, 1980, which, significantly, was then dismissed by application of New York's Statute of Limitations. Consequently, when, on August 6, 1986, she brought a new action under the revival statute, she was then an "injured New Yorker" whose day in court in New York initially had been precluded for untimeliness and whose situation is expressly covered by the language of the statute: "[E]very action * * * which was dismissed * * * solely because the applicable period of limitations * * * had expired is hereby revived and an action thereon may be commenced * * * within one year". The statutory language simply revives such claims which had been brought in New York courts and which had been dismissed in New York by operation of the Statute of Limitations; it does not appear to exclude those causes of action for toxic torts which had accrued in other forums. Hence, plaintiff herein should be accommodated by the statute, and deemed a New York resident, notwithstanding the lack of language which is explicit on this point.

The 1985 Supplementary Practice Commentaries to CPLR 202 (McLaughlin, McKinney's Cons Laws of NY, Book 7B, 1989 Pocket Part, at 41-42) relied upon by defendants actually supports the above conclusion. Citing Antone v General Motors Corp. (64 N.Y.2d 20, 29), Judge McLaughlin notes that plaintiff's domicile may not be relevant, although plaintiff's residence in New York, even if it is not the domicile, would be the focus. The Antone case departs from the instant case in that it involved a car accident in Pennsylvania which necessarily was contemporaneous with the accrual of the cause of action. The whole nature of toxic torts, however, which the revival statute addressed, makes accrual of the cause of action a much more elastic concept. Defendant Upjohn even seems to concede that plaintiff "now apparently resides in New York". Accordingly, the conclusion is warranted that the legislative purpose of the revival statute was to include the instant plaintiff within the class of persons to be accommodated by that statute. Defendants' [122] conclusion that the legislative purpose was only to protect plaintiffs who were residents when the cause of action accrued or, in the alternative, that the Legislature intended that CPLR 202 act as a limiting device upon a party such as plaintiff, would not seem warranted. While not every literal nuance of a statute need be "slavishly" adhered to (McKinney's Cons Laws of NY, Book 1, Statutes § 111), the clear meaning of the introductory phrase "[n]otwithstanding any other provision of law" seems not only clear on its face, but is not inconsistent with the body of the statute nor with the above legislative memoranda.

Hence, if plaintiff has been a resident, and it appears that such is the case (see, Antone v General Motors Corp., supra, at 30, for definition; see also, at 30, n 4, distinguishing Banasik v Reed Prentice Div., 28 N.Y.2d 770, in which plaintiff did not have a residence at the time of her accident) insofar as she has "a significant connection * * * living there for some length of time during the course of a year" (Antone v General Motors Corp., at 30), the "hurdle" of CPLR 202 never arises and plaintiff is entitled to invoke the revival statute. If plaintiff's residency is questionable (and one wishes that the record was clearer), then the facial reading of the revival statute would appear to nullify the limitation otherwise imposed by CPLR 202. By limiting this introductory language only to CPLR 214, the Statute of Limitations, and not extending it so as to nullify CPLR 202, the borrowing statute, the court below appears to have read in a statutory purpose which is not supported either by expressed language or by legislative memoranda.

Finally, while forum shopping is not to be encouraged, the public policy impact of reading the subject statutory language literally will be limited. The plaintiff may well be the only person in her category who brought an earlier action in New York, dismissed because of the Statute of Limitations, and who now proceeds under the revival statute. The revival statute opened only a one-year window period which has since closed, thereby limiting the class of plaintiffs which may take advantage of such an interpretation. That defendant Upjohn refers to two other such cases by the same trial court ought not be viewed as undermining such a conclusion.

Defendants argue that the Legislature did not intend to revive the claims of those plaintiffs whose causes of action accrued in States other than New York. Nothing persuasive has been cited, however, in the legislative history of the bill in [123] support of this proposition. In fact, the best evidence to the contrary is the language of the statute itself that its provisions were to apply "[n]otwithstanding any other provision of law".

If the Legislature intended that the borrowing statute should be applicable, why did it not say "[n]otwithstanding any other provision of law except section 202 of the Civil Practice Law and Rules" instead of setting forth a blanket exclusion of any other provision of law? Certainly the Legislature was aware of the existence of the borrowing statute, and if it had so chosen, it could have made it clear that it was still to be applicable to revived claims. Defendants are, in effect, arguing that the Legislature should have barred claims accruing in other States, a judgment which is not for our courts to make, but for the Legislature.

It is unnecessary for this court to dwell on the meaning of the language of the revival statute ("[n]otwithstanding any other provision of law") which may or may not exclude the application of CPLR 202 with respect to nonresidents. Plaintiff in this case was a New York resident. It should be noted that at the time that plaintiff commenced her action against Squibb, she was a New York resident, having personally verified a complaint which set forth that "[p]laintiff is a resident of the City of New York, Borough of Manhattan". Thus, at the time that she commenced the action, she was indeed an "injured New Yorker". In fact, when her prior action was dismissed, it had been on the basis of the application of New York's Statute of Limitations. It was precisely for the purpose of affording relief to injured victims of toxic substances, like this plaintiff, that the Legislature enacted the revival statute. Thus, Senator Ronald B. Stafford, in a legislative memorandum dealing with the toxic torts/discovery Statute of Limitations, noted, inter alia: "This bill will provide relief to injured New Yorkers whose claims would otherwise be dismissed for untimeliness simply because they were unaware of the latent injuries until after the limitation period had expired" (1986 NY Legis Ann, at 287).

In this connection, defendants contend that our courts have narrowly construed the borrowing statute to apply only to those who were New York residents at the time the cause of action accrued (see, McLaughlin, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C202:2, at 82, citing Cellura v Cellura, 24 AD2d 59). Thus, according to defendants' interpretation, a New York resident living here [124] for the last 10 or 15 years could easily have been barred from bringing an action under the revival statute by application of the borrowing statute, assuming she was conceived and born in another State where her mother ingested the toxic material. Another resident for 10 or 15 years, whose mother lived in New York at the time of conception up to birth, would not be so barred. Such a narrow interpretation in this case would be a violation of the Equal Protection and Due Process Clauses of the US Constitution 14th Amendment, and the NY Constitution, article I, §§ 6 and 11. It would be a violation because it would create an arbitrary class of victims of toxic substances who were residents of New York when their actions were commenced, but because their mothers fortuitously were exposed to the substances many years earlier in another State, before these plaintiffs were ever born, were exempted from revival by such a happenstance. Such a result would turn a statute which is not unconstitutional on its face into a statute which is unconstitutional as applied to certain persons or under certain circumstances (see, e.g., United States v Grace, 461 US 171; Matter of Diocese of Rochester v Planning Bd., 1 N.Y.2d 508).

The trial court also denied plaintiff's motion to dismiss defendants' ninth and twelfth affirmative defenses. The ninth affirmative defense contends that the revival statute was unconstitutional. The twelfth affirmative defense asserts that the action is time barred by "the applicable statute of limitations". If this court reverses and reinstates the action, then this affirmative defense becomes moot.

Accordingly, I would reverse the order and judgment appealed from, deny defendant's cross motion for summary judgment and grant plaintiff's motion to dismiss the ninth and twelfth affirmative defenses.

Order, Supreme Court, New York County, entered on July 10, 1987, affirmed, without costs and without disbursements.

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[1] CPLR 202 provides: "An action based upon a cause of action accruing without the state cannot be commenced after the expiration of the time limited by the laws of either the state or the place without the state where the cause of action accrued, except that where the cause of action accrued in favor of a resident of the state the time limited by the laws of the state shall apply."

[2] In Hymowitz v Lilly & Co. (139 AD2d 437, affg 136 Misc 2d 482), this court upheld the revival statute in the face of a constitutional challenge. Leave to appeal to the Court of Appeals was granted (140 AD2d 1013) and the appeal heard on February 15, 1989 (73 N.Y.2d 487).

[3] For the purposes of the borrowing statute, a cause of action sounding in negligence or strict products liability accrues where the injury occurs. (Martin v Dierck Equip. Co., 43 N.Y.2d 583; Myers v Dunlop Tire & Rubber Corp., 40 AD2d 599.) In cases involving exposure to a chemical substance, the Court of Appeals has consistently held that "injury", if any, occurs at the time, and thus the place, of exposure. (See, e.g., Schmidt v Merchants Desp. Transp. Co., 270 N.Y. 287; Schwartz v Heyden Newport Chem. Corp., 12 N.Y.2d 212.)

[4]The statute involved, CPLR 214-b, provides: "Notwithstanding any provision of law to the contrary, an action to recover damages for personal injury caused by contact with or exposure to phenoxy herbicides while serving as a member of the armed forces of the United States in Indo-China from January first, nineteen hundred sixty-two through May seventh, nineteen hundred seventy-five, may be commenced within two years from the date of the discovery of such injury, or within two years from the date when through the exercise of reasonable diligence the cause of such injury should have been discovered, whichever is later." (Added by L 1981, ch 266, § 3, amended by L 1982, ch 153, § 1.)

In addition, a special "Preservation of Rights and Remedies" section expressly revived any action which was or would be barred prior to June 16, 1985 because the Statute of Limitations had run. (L 1981, ch 266, § 4, as amended by L 1982, ch 153, § 2; L 1983, ch 358, § 1; L 1985, ch 498, § 1.)

[5] Plaintiff's claim that the revival statute's reference to the General Municipal Law or the Education Law, but not to CPLR 214, evinces an intent that "any other provision of law" was to be disregarded is also unavailing. The cited provisions involve conditions precedent to the commencement of an action and are in the nature of Statutes of Limitations. Accordingly, their inclusion is consistent with the Legislature's intention to eliminate all vestiges of the last exposure rule judicially grafted onto CPLR 214, and should not be read as a purposeful omission of the borrowing statute, a statute of a wholly different nature.

[51] Pinney, Payne, Van Lenten, Burrell, Wolfe & Dillman, P. C. (Joseph Dimyan and Allen Gary Palmer, of the Connecticut Bar, admitted pro hac vice, of counsel), for appellant.

Lavin, Coleman, O'Neil, Ricci, Finarelli & Gray, New York City (Francis F. Quinn of counsel), for respondents.

Chief Judge KAYE and Judges SMITH, LEVINE, CIPARICK, WESLEY and ROSENBLATT concur.

OPINION OF THE COURT

BELLACOSA, J.

This Court is asked, within the boundaries of a certification from the United States Court of Appeals for the Second Circuit, to answer the question whether Connecticut General Statutes § 52-577a bars plaintiff's products liability lawsuit. The case was lodged in the Federal District Court for the Southern District of New York and its dismissal there took the case on appeal to the Second Circuit Court of Appeals.

New York State's choice of law principles point the way to the conclusion that the pertinent Connecticut statute (which [52] incorporates a repose provision into the State's codified products liability law) is a part of that neighboring State's substantive law.

I.

In November 1983, Danbury Printing and Litho, Inc. bought a printing press manufactured by defendants Heidelberg et al. and installed that press in its Danbury, Connecticut plant. Ten years and three months later, plaintiff Tanges, a New York resident employed by Danbury Printing, sustained serious injuries while operating the press. He was awarded workers' compensation benefits.

Tanges also started a products liability action, premised on diversity of jurisdiction, against defendants in Federal court. Danbury Printing intervened as an additional plaintiff, seeking to recover the payments it had made to, or on behalf of, Tanges under Connecticut's Workers' Compensation Act. Defendants answered and moved for summary judgment. They urged dismissal of Tanges's complaint as time-barred by Connecticut General Statutes § 52-577a.

The District Court held that, under New York State's choice of law rules, a New York court would apply section 52-577a to this case as a part of the substantive law of Connecticut. Because the claim was brought more than 10 years after the injury-inflicting press left the possession and control of defendants, the District Court ruled that the claim was barred by Connecticut General Statutes § 52-577a (Tanges v Heidelberg N. Am., US Dist Ct, SD NY, Brieant, J., 97 Civ 00731). The court granted summary judgment and dismissed the complaint.

When plaintiff appealed, the United States Court of Appeals for the Second Circuit certified the following question to this Court: "Does Connecticut General Statutes § 52-577a bar Tanges's claim brought in the Southern District of New York?" (NY Const, art VI, § 3 [b] [9]; 22 NYCRR 500.17; see also, Local Rules of 2d Cir § 0.27.) Our answer is in the affirmative.

II.

Connecticut General Statutes § 52-577a provides, in pertinent part:

"Limitation of action based on product liability claim

"(a) No product liability claim as defined in section [53] 52-572m shall be brought but within three years from the date when the injury, death or property damage is first sustained or discovered or in the exercise of reasonable care should have been discovered except that, subject to subsections (c), (d) and (e), no such action may be brought against any party nor may any party be impleaded pursuant to subsection (b) later than ten years from the date that the party last parted with possession or control of the product" (emphasis added).

For this Court to answer the certified question, we must first address whether Connecticut's section 52-577a is considered procedural or substantive for the purpose of New York choice of law analysis (see, e.g., Oltarsh v Aetna Ins. Co., 15 NY2d 111, 115; see also, Weintraub, Conflict of Laws § 3.2, at 47 [3d ed]). The classification of section 52-577a is the key analytic step because "under common-law rules matters of procedure are governed by the law of the forum" (Martin v Dierck Equip. Co., 43 NY2d 583, 588; see, Kilberg v Northeast Airlines, 9 NY2d 34, 41). On the other hand, matters of substantive law fall within the course charted by choice of law analysis (see, Oltarsh v Aetna Ins. Co., supra, 15 NY2d, at 115; Weintraub, Conflict of Laws § 3.2C, at 53 [3d ed]; 1943 Report of NY Law Rev Commn, at 143).

Before proceeding to classify section 52-577a, however, we should address plaintiff's threshold argument that New York's borrowing statute, CPLR 202, precludes the application of Connecticut's section 52-577a to his claim regardless of its classification. CPLR 202 provides in part that "where the cause of action accrued in favor of a resident of the state the time limited by the laws of the state shall apply" (emphasis added).

For plaintiff to receive the alleged benefit of the resident exception in CPLR 202, a cause of action must first have accrued in his favor. Accrual is a substantive concept and, therefore, the question whether a cause of action accrued in plaintiff's favor reverts tautologically back to the inquiry whether section 52-577a is a part of Connecticut's substantive law. If it is substantive, Connecticut law also applies as to whether a cause of action ever accrued in plaintiff's favor. Thus, if section 52-577a is determinative of the accrual issue, it has the effect of "preventing what might otherwise have been a cause of action from ever arising" (4 American Law of Products Liability 3d § 47:55, at 88 [emphasis added]), rendering CPLR 202 inapplicable to plaintiff's claim.

[54] At the next level of argument and analysis, plaintiff urges that New York should, in any event, categorize section 52-577a as procedural because the Supreme Court of Connecticut has indicated that it considers its State's enactment as procedural in nature (see, Baxter v Sturm, Ruger & Co., 230 Conn 335, 342-344, 345, n 6, 644 A2d 1297, 1300, 1301, n 6 [1994]; Champagne v Raybestos-Manhattan, Inc., 212 Conn 509, 525-527, 562 A2d 1100, 1110 [1989]). Though this designation is instructive and should not be ignored, plaintiff's proffer fails to come to grips with the basic precept that "`the law of the forum normally determines for itself whether a given question is one of substance or procedure" (Kilberg v Northeast Airlines, supra, 9 NY2d, at 41; see, Restatement [Second] of Conflict of Laws § 7; Leflar, American Conflicts Law §§ 121, 127 [4th ed]; Goodrich and Scoles, Conflict of Laws § 81, at 143). So, ironically in this respect, the forum State (New York) must start with its own law, not the preference of the State (Connecticut) to which the statute in issue belongs.

Because New York is the forum State, we must look to New York choice of law rules to determine whether the nature and effect of Connecticut General Statutes § 52-577a is procedural or substantive (see, Oltarsh v Aetna Ins. Co., supra, 15 NY2d, at 116; Kilberg v Northeast Airlines, supra, 9 NY2d, at 41; see also, McCarthy v Bristol Labs., 86 AD2d 279, 283). New York is not bound by, and principles of comity do not prompt this Court to adopt, the choice of law classification that the Supreme Court of Connecticut may have selected for section 52-577a (compare, Baxter v Sturm, Ruger & Co., 230 Conn 335, 644 A2d 1297, supra [tellingly, Connecticut rejected Oregon's classification of an Oregon statute of repose]; Champagne v Raybestos-Manhattan, Inc., supra). Simply deferring to Connecticut's approach would contradict standard choice of law principles that require independent forum State analysis, and would render the Second Circuit's certified question to this Court superfluous. As the Second Circuit observed in its order certifying the choice of law question to the Supreme Court of Connecticut in Baxter, "decisions by courts in other jurisdictions about the proper characterization of statutes of repose in the choice of law context are not controlling * * * because district courts in diversity cases must apply the choice of law rules of the forum state" (Baxter v Sturm, Ruger & Co., 13 F3d 40, 43 [2d Cir] [emphasis added]).

In New York, Statutes of Limitation are generally considered procedural because they are "[v]iewed as pertaining to the [55] remedy rather than the right" (Martin v Dierck Equip. Co., supra, 43 NY2d, at 588). The expiration of the time period prescribed in a Statute of Limitations does not extinguish the underlying right, but merely bars the remedy (see, Hulbert v Clark, 128 NY 295, 297). Nicely summarized elsewhere, "[t]he theory of the statute of limitations generally followed in New York is that the passing of the applicable period does not wipe out the substantive right; it merely suspends the remedy" (Siegel, NY Prac § 34, at 38 [2d ed]).

To the extent that section 52-577a (a) provides that no products liability claim "shall be brought but within three years from the date when the injury, death or property damage is first sustained or discovered," it resembles a typical Statute of Limitations (compare, e.g., CPLR 214). Section 52-577a (a), however, does much more. It also declares that no products liability action may be brought against any party "later than ten years from the date that the party last parted with possession or control of the product." This additional feature forges a hybrid; the statute integrates provisions of both limitation and repose (see generally, 4 Frumer and Friedman, Products Liability § 25.02 [3], at 25-30.1 to 25-35).

Statutes of repose are theoretically and functionally distinct from typical time limitations. The former are an increasingly common feature of comprehensive products liability codifications. States use the enhanced repose concept as a tool to alleviate the increasing cost burden borne by manufacturers and sellers seeking to obtain products liability insurance (see, 4 American Law of Products Liability 3d § 47:55, at 87). Unlike the usual limitation provision, which does not begin to run until a cause of action accrues (see, e.g., CPLR 203 [a]; CPLR 214), a statute of repose begins to run when the specified event or events takes place, regardless of whether a potential claim has accrued or, indeed, whether any injury has occurred. One commentator differentiates in this way:

"Unlike statutes of limitation, that are designed to prevent plaintiffs from sleeping on their legal rights to the detriment of a defendant, repose statutes applicable in products liability cases focus on the age of a product, rather than on the plaintiff's conduct. The repose period serves as an absolute barrier that prevents a plaintiff's right of action. In other words, the period of repose has the effect of preventing what might otherwise have been a cause of action [56] from ever arising" (4 American Law of Products Liability 3d § 47:55, at 88 [emphasis added]).

The extra theoretical consequence of statutes of repose practically blocks causes of action before they even accrue. Thus, they exhibit a substantive texture, nature and consequence that distinguishes them from ordinary limitation provisions. In the vernacular of conflict of laws analysis, statutes of repose envelop both the right and the remedy (see, Hulbert v Clark, supra, 128 NY, at 297; see also, 4 American Law of Products Liability 3d § 47:55, at 89). The weight of authority thus accords with the conclusion that this important theoretical and practical quality pushes statutes of repose over into the substantive law class (see, 4 American Law of Products Liability 3d § 47:55, at 89, for collected authorities).

III.

This Court has not previously considered whether statutes of repose are deemed substantive under New York choice of law principles. Moreover, the varieties of these statutes do not ordinarily come with neat, conclusive labels that distinguish between repose and limitation or some combination of both. Careful, particular and rigorous analysis is, thus, always necessary.

This Court draws support for the proposition that Connecticut's statute is one of repose and is substantive from analogous and pertinent decisions of this Court that focus on the nature of "built-in" periods of limitation. For example, we stated in Romano v Romano that:

"The general rule, which has rather wide acceptance, may be simply stated: If a statute creates a cause of action and attaches a time limit to its commencement, the time is an ingredient of the cause. If the cause was cognizable at common law or by other statute law, a statutory time limit is commonly taken as one of limitations and must be asserted by way of defense" (19 NY2d 444, 447 [emphasis added]; see, Morton v Maryland Cas. Co., 4 NY2d 488, 493-494).

A logical building block on this discrete analysis is that, even when a limitation is contained in a different statute, it may still be considered substantive if "it was directed to the newlycreated liability so specifically as to warrant saying that it qualified the right" (Goodrich and Scoles, Conflict of Laws § 86, [57] at 154-155 [4th ed]; see, Leflar, American Conflicts Law § 127, at 350 [4th ed]).

Various common-law causes of action, generally associated within the legal species of products liability causes, existed in Connecticut prior to the enactment of section 52-577a (see, Winslow v Lewis-Shepard, Inc., 212 Conn 462, 470-471, 562 A2d 517, 521). Thus, when that State's Legislature first enacted section 52-577a as a stand-alone statute in 1976, it simply erected a limitation around the existing common-law causes (see, 1976 Conn Pub Acts 76-293, § 1).

In 1979, however, the Connecticut Legislature undertook a comprehensive revision and codification of that State's products liability laws in response to the nationwide, so-called "products liability crisis" (see, Daily v New Britain Mach. Co., 200 Conn 562, 578-583, 512 A2d 893, 902-904). The nucleus of the resulting package of products liability reform legislation is section 52-572n (a). It provides that "[a] product liability claim as provided in sections 52-240a, 52-240b, 52-572m to 52-572q, inclusive, and 52-577a may be asserted and shall be in lieu of all other claims against product sellers, including actions of negligence, strict liability and warranty, for harm caused by a product" (emphasis added).

The Supreme Court of Connecticut has determined that both the plain language and legislative history of section 52-572n (a) demonstrate the Connecticut Legislature's unequivocal intention that the statute provides an exclusive remedy for harm caused by a product (see, Winslow v Lewis-Shepard, Inc., supra, 212 Conn, at 469-471, 562 A2d, at 520-521 [1989]; Daily v New Britain Mach. Co., supra, 200 Conn, at 571, 512 A2d, at 899 [1986]). The legislative history of section 52-572n (a) particularly reveals an intent to "abolish" all of the common-law causes of action and supplant them with a single statutory products liability cause of action (see, 22 Conn S Proc, Pt 14, 1979 Sess 4636-4639 [quoted in Winslow v Lewis-Shepard, Inc., supra, 212 Conn, at 470-471, 562 A2d, at 520-521]).

Correspondingly and integratively, the Connecticut Legislature amended and re-energized section 52-577a (see, 1979 Conn Pub Acts 79-483, § 3). This revision extended the eight-year outside bar to 10 years, as it bore on the new comprehensive statutory products liability cause of action (see, id.). The legislative history is again instructive. It shows that the amendment was intended to set forth "time limits for bringing a products liability claim while previously there were varying time limits [58] depending on the theory of liability. This simplifies those limits by establishing one primary time limit" (22 Conn S Proc, Pt 14, 1979 Sess 4636-4637 [quoted in Winslow v Lewis-Shepard, Inc., supra, 212 Conn, at 470, 562 A2d, at 520] [emphasis added]).

This Court is persuaded that the language and legislative history of Connecticut's products liability remedy indicate that section 52-577a is so inextricably linked and integrated into the exclusive statutory cause of action "as to warrant saying that it qualified" the right to bring that kind of action (Goodrich and Scoles, Conflict of Laws § 86, at 154-155 [4th ed]). The Connecticut Legislature's actions, thus, demonstrate an intention to make the 10-year limitation period in section 52-577a "a substantive eligibility requirement, rather than just a Statute of Limitations, a `mere' proceduralism" (Matter of Smith Barney Shearson v Sacharow, 91 NY2d 39, 45). To us, therefore, the pertinent section looks and acts like a substantive provision.

As part of this Court's role in assessing this matter, however, we must also ask ourselves whether our deeming the Connecticut statute as substantive treads on any policy considerations which may underlie the procedural-substantive law dichotomy (see, Restatement [Second] of Conflicts of Law § 6, comment d; id., § 7; Leflar, American Conflicts Law § 121, at 332 [4th ed]). We answer our own query in this way: the relevant policy concerns support our analysis and convince us to dub section 52-577a as substantive.

Definitively declaring the law of New York State so that New York courts, and Federal courts operating under the diversity regimen, must apply section 52-577a as part of the substantive law of Connecticut does not impose a burden on those courts; nor does it threaten to "delay the conduct of judicial business and impair judicial efficiency" (Leflar, American Conflicts Law § 121, at 331 [4th ed]). Rather, the approach we adopt should help to discourage forum shopping, and may improve judicial efficiency and provide fair, even-handed justice to all parties. By directing the application of section 52-577a in cases like this one, we do not transgress or threaten public policy facets of New York as the forum State (see, id., at 332).

IV.

It is worth noting that some criticism has been directed at the traditional analytic process that probes whether a particular statute erects procedural or substantive barriers for choice [59] of law purposes (see, Weintraub, Conflict of Laws § 3.2C2, at 62 [3d ed]). Indeed, the Restatement (Second) of the Conflict of Laws, as amended in 1988, recommends the abandonment of this distinction as an analytic method. It proposes subjecting all statutory time limitations provisions to a uniform substantive choice of law analysis (see, Restatement [Second] of Conflict of Laws § 142). That analysis would require examination not only of the limited subset of policy considerations which may underlie the procedural-substantive choice of law dichotomy, but also of the larger set of general choiceinfluencing considerations (see generally, Leflar, American Conflicts Law § 95, at 277 [4th ed]; Cheatham and Reese, Choice of the Applicable Law, 52 Colum L Rev 959).

Ultimately, we are not persuaded to discard the traditional analytic framework for resolving disputes of this kind, particularly in light of the parties' strategic litigation course which frames the arguments around that usual format. We note, in any event, that the result in this case might likely be the same under the rubric proposed by amended Restatement § 142. In this case, (a) the maintenance of plaintiff's claim would "serve no substantial interest" of New York, and (b) Connecticut is the State "having a more significant relationship to the parties and the occurrence" (Restatement [Second] of Conflict of Laws § 142 [2] [a]-[b]). Thus, section 52-577a would still apply and bar plaintiff's claim.

Accordingly, for the reasons expressed in this opinion, the certified question should be answered in the affirmative.

Following certification of a question by the United States Court of Appeals for the Second Circuit and acceptance of the question by this Court pursuant to section 500.17 of the Rules of the Court of Appeals (22 NYCRR 500.17), and after hearing argument by counsel for the parties and consideration of the briefs and the record submitted, certified question answered in the affirmative.

[526] Richardson Mahon Casey & Rooney, L. L. P., New York City (Christopher S. Rooney of counsel), for appellant.

Paul, Weiss, Rifkind, Wharton & Garrison, New York City (Jonathan H. Hurwitz, Max Gitter and Wendy J. Schechter of counsel), for respondent.

Judges BELLACOSA, SMITH, LEVINE, CIPARICK, WESLEY and ROSENBLATT concur.

OPINION OF THE COURT

Chief Judge KAYE.

This appeal places before us a long-simmering question: where does a nonresident's contract claim accrue for purposes of the Statute of Limitations? CPLR 202 requires our courts to "borrow" the Statute of Limitations of a foreign jurisdiction where a nonresident's cause of action accrued, if that limitations period is shorter than New York's. The primary issue presented by this appeal is whether, for purposes of CPLR 202, the nonresident plaintiff's contract and quantum meruit claims accrued in New York, where most of the relevant events occurred, or in plaintiff's State of residence, where it sustained the economic impact of the alleged breach.

[527] According to the complaint, by contract dated February 1, 1988, defendant retained plaintiff to perform certain consulting services. In March 1989 plaintiff located an investment company that agreed to purchase all of defendant's outstanding shares, and between February 1988 and August 1989, plaintiff additionally advised defendant regarding corporate planning. On November 6, 1989, plaintiff demanded payment of over nine million dollars for services rendered, which defendant refused the following week.

On November 9, 1995, plaintiff commenced an action in the United States District Court for the Southern District of New York to recover its commissions and fees. Because both parties were Delaware corporations, however, on April 10, 1996 the court dismissed the complaint for lack of subject matter jurisdiction. Three months later, plaintiff brought a substantially similar suit across the street, in Supreme Court, New York County. The parties do not dispute that this action is timely if the Federal action was timely when commenced on November 9, 1995 (CPLR 205).

Relying on CPLR 202, defendant sought dismissal of plaintiff's claims for failure to comply with the Statute of Limitations of Delaware (where plaintiff is incorporated) or Pennsylvania (where, according to the Federal complaint, plaintiff had its principal place of business). Plaintiff's claims would be time-barred in both States (see, Del Code Annot, tit 10, § 8106 [three-year limitations period for actions on a promise]; Del Code Annot, tit 10, § 8111 [one year for actions for services]; 42 Pa Cons Stat Annot § 5525 [four years for contract actions]).^[1] In opposing defendant's motion, plaintiff maintained that New York's six-year Statute of Limitations applied because most of the events relating to the contract took place in New York, and that the action was timely because the Federal action was commenced within six years after defendant refused plaintiff's demand for fees and commissions (see, CPLR 213 [2]).

Supreme Court agreed with defendant and dismissed the complaint, holding that under the borrowing statute plaintiff's causes of action accrued where it suffered injury: its place of residence. In a separate order, Supreme Court denied plaintiff's motion to renew the motion to dismiss. The Appellate Division [528] unanimously affirmed both Supreme Court orders (251 AD2d 17), and this Court granted plaintiff leave to appeal so much of the Appellate Division order as affirmed the dismissal of the complaint, in order to resolve the issue definitively and eliminate the need for courts to engage in "guesswork" when determining the place of accrual for contract actions under CPLR 202 (see, Siegel, NY Prac § 57, at 70 [2d ed]). Because we agree that plaintiff's cause of action accrued where it sustained its alleged injury, we now affirm.

When a nonresident sues on a cause of action accruing outside New York, CPLR 202 requires the cause of action to be timely under the limitation periods of both New York and the jurisdiction where the cause of action accrued.^[2] This prevents nonresidents from shopping in New York for a favorable Statute of Limitations (see, Antone v General Motors Corp., 64 NY2d 20, 27-28).

Plaintiff argues that the New York Statute of Limitations applies because its claims accrued in New York, where the contract was negotiated, executed, substantially performed and breached. In essence, plaintiff urges that we apply a "grouping of contacts" or "center of gravity" approach—used in substantive choice-of-law questions in contract cases—to determine where contract and quantum meruit causes of action accrue for purposes of CPLR 202 (see, Zurich Ins. Co. v Shearson Lehman Hutton, 84 NY2d 309, 317; Matter of Allstate Ins. Co. [Stolarz], 81 NY2d 219, 226).

At the threshold, however, there is a significant difference between a choice-of-law question, which is a matter of common law, and this Statute of Limitations issue, which is governed by particular terms of the CPLR. In using the word "accrued" in CPLR 202 there is no indication that the Legislature intended the term "to mean anything other than the generally accepted construction applied throughout CPLR Article 2—the time when, and the place where, the plaintiff first had the right to bring the cause of action" (1 Weinstein-Korn-Miller, NY Civ Prac ¶ 202.04, at 2-61).

CPLR 202 has remained substantially unchanged since 1902 (see, Antone v General Motors Corp., supra, 64 NY2d, at 27). [529] While its predecessor, section 13 of the Civil Practice Act, used the word "arise" instead of "accrue," the Legislature intended no change in meaning when it adopted the present provision, in 1962, as part of the CPLR. The legislative purpose was simply to ensure that the language of CPLR 202 conformed with other CPLR provisions (see, 1962 NY Legis Doc No. 8, at 69; Insurance Co. v ABB Power Generation, 91 NY2d 180, 186, n 2). Because earlier iterations of the borrowing statute predate the substantive choice-of-law "interest analysis" test used in tort cases (see, Babcock v Jackson, 12 NY2d 473 [1963]) and the "grouping of contacts" or "center of gravity" approach used in contract cases (see, Auten v Auten, 308 NY 155 [1954]), these choice-of-law analyses are inapplicable to the question of statutory construction presented by CPLR 202 (see generally, 1 Weinstein-Korn-Miller, NY Civ Prac ¶ 202.04, at 2-61).

Indeed, while this Court has not addressed the issue in the context of a contract case, we have consistently employed the traditional definition of accrual—a cause of action accrues at the time and in the place of the injury—in tort cases involving the interpretation of CPLR 202. Martin v Dierck Equip. Co. (43 NY2d 583) is illustrative. There, the plaintiff was injured while operating a forklift at his employer's warehouse in Virginia. The forklift manufacturer and distributor were located in New York, and the forklift was sold to plaintiff's employer in New York. Plaintiff sued the manufacturer and distributor in negligence and strict products liability.^[3] The Court held that for purposes of the borrowing statute, the negligence causes of action as well as the cause of action which plaintiff labeled "breach of warranty" accrued in Virginia: "[p]laintiff possessed no cause of action, in tort or in contract, anywhere in the world until he was injured in Virginia" (id., at 588, 591).

When an alleged injury is purely economic, the place of injury usually is where the plaintiff resides and sustains the economic impact of the loss (see, e.g., Matter of Smith Barney, Harris Upham & Co. v Luckie, 85 NY2d 193, 207, rearg denied 85 NY2d 1033, cert denied sub nom. Manhard v Merrill Lynch, Pierce, Fenner & Smith, 516 US 811; Gorlin v Bond Richman & Co., 706 F Supp 236, 240 [SD NY 1989] [internal citation omitted] ["For purposes of the New York borrowing statute, a cause of action accrues where the injury is sustained. In cases [530] involving economic harm, that place is normally the state of plaintiff's residence."]; cf., Lang v Paine, Webber, Jackson & Curtis, 582 F Supp 1421 [SD NY 1984] [Canadian plaintiff intentionally maintained separate financial base in Massachusetts; under the circumstances, injury of losing Massachusetts funds was felt in Massachusetts, not Canada]). Here, plaintiff's causes of action are time-barred whether one looks to its State of incorporation or its principal place of business. Thus, we need not determine whether it was in Delaware or Pennsylvania that plaintiff more acutely sustained the impact of its loss.

Plaintiff relies on Insurance Co. v ABB Power Generation (91 NY2d 180, supra) for the proposition that the place where the relevant contacts are grouped, not the place of the injury, determines accrual for purposes of the borrowing statute. The question in ABB Power was whether plaintiff's cause of action could accrue in California, even though the parties in their contract chose the forum and law of New York. The Court answered in the affirmative, holding that a forum-selection clause, or inability to obtain personal jurisdiction over a defendant in a foreign jurisdiction, would not override CPLR 202. Once the Court decided that CPLR 202 applied, it was clear that California was the State of accrual, as California was the place of the injury as well as the place where "all of the operative facts" occurred (id., at 183). Thus, the Court did not have to decide whether to use a choice-of-law analysis or place-ofinjury rule in order to determine where plaintiff's causes of action accrued.

Finally, as we underscored in ABB Power, "CPLR 202 is designed to add clarity to the law and to provide the certainty of uniform application to litigants" (id., at 187). This goal is better served by a rule requiring the single determination of a plaintiff's residence than by a rule dependent on a litany of events relevant to the "center of gravity" of a contract dispute.

Accordingly, the order of the Appellate Division should be affirmed, with costs.

Order affirmed, with costs.

[1] On appeal, defendant alleges that plaintiff's principal place of business is in Florida, not Pennsylvania. It is unnecessary for us to choose between these two States, as plaintiff's claims are time-barred under Florida's Statute of Limitations as well as Pennsylvania's (see, Fla Stat Annot § 95.11 [2] [five-year limitations period for breach of contract]).

[2] CPLR 202 states: "An action based upon a cause of action accruing without the state cannot be commenced after the expiration of the time limited by the laws of either the state or the place without the state where the cause of action accrued, except that where the cause of action accrued in favor of a resident of the state the time limited by the laws of the state shall apply."

[3] Although plaintiff had characterized its second cause of action as one for breach of warranty, the Court concluded that the claim was "in reality one in strict products liability" (id., at 589).

Costello & Shea for Harris Corporation, defendant. Norman J. Landau, P. C., for plaintiffs. Devitt & Spellman for Peterson & Sons, Inc., defendant and fourth-party plaintiff. J. Russell Clune, P. C., for third- and fourth-party defendant.

ARTHUR E. BLYN, J.

In this action for personal injuries resulting from an accident with a paper cutting machine, defendant Harris Corporation (Harris) moves for summary judgment dismissing the complaint against it on the ground that the action is barred by the applicable Statute of Limitations.

The facts are essentially undisputed. Plaintiff, a New York resident, was employed by the third- and fourth-party defendant Chaspec Manufacturing Company in Stamford, Connecticut, as a paper cutting machine operator. On November 14, 1980, at approximately 11:30 A.M., while operating the machine, [32] plaintiff sustained injury when the fingers of his left hand were severed by the blade of the cutting machine. Plaintiff received emergency treatment at Stamford Hospital and was then treated for several weeks at Yale-New Haven Hospital.

The machine was manufactured by the Seybold Machine Company on or before December 1923 and shipped to an unknown or unidentified buyer in December 1923. Years later Harris, a foreign corporation,^[1] purchased Seybold's assets. An affidavit by Harris' product safety engineer states that Harris never had possession or control of the cutter involved in the accident, that Harris never serviced the machine nor sold any parts for it, and that Harris was not even aware of the existence of Chaspec Manufacturing Company before the underlying lawsuit was commenced. From testimony elicited at various depositions, it appears that the machine was sold to Chaspec in 1965 by defendant Peterson and Sons, Inc., and was serviced by that defendant and by defendant Ed Peterson Cutting Equipment Corp.

The underlying action was commenced in or about May 1982. The complaint alleged causes of action in negligence, breach of warranty, strict products liability and a claim of loss of consortium on behalf of plaintiff's wife. Harris interposed an answer including, inter alia, the affirmative defense that the claims were barred by the applicable Connecticut Statute of Limitations.

In support of the instant motion for summary judgment, Harris argues that Connecticut law is applicable to this case and, under that law, the instant action is time barred. Specifically, Harris argues that because plaintiff traveled every day to Connecticut to work, was employed by a Connecticut company, was injured and was treated in Connecticut, Connecticut has the most significant contacts with this case, and therefore the substantive law of Connecticut shall govern. Further, it is urged, pursuant to Connecticut General Statutes § 52-577a, no products liability claim may be brought against any party "later than ten years from the date that the party last parted with possession or control of the product". Here, Harris maintains, according to various affidavits and deposition testimony, Harris never had possession or control of the machine in question and its predecessor parted with the machine nearly [33] 60 years before this lawsuit was commenced. Accordingly, since this action was commenced more than 10 years after Harris last had possession or control of the machine, Harris insists, this action should be dismissed as time barred.

Peterson and Sons appears and opposes Harris' motion, arguing that CPLR 202, the "borrowing statute" is controlling here and it directs that when a cause of action accrues outside New York in favor of a New York resident, only the New York Statute of Limitations applies. Therefore, here, since plaintiff was a New York resident at the time of the accident, the New York limitations period applies and the 10-year limitation in the Connecticut law should be disregarded. (In addition, it is urged that this court not address the issue of whether or not the substantive law of Connecticut should control here, since the conflicting interests and policy considerations must be considered, and, apparently, certain related issues have already been presented to a Special Referee [William Rothberg].)

Chaspec Manufacturing Company, on the other hand, agrees with Harris' position that Connecticut law governs and that Connecticut law applies.

Plaintiff, needless to say, strongly opposes Harris' motion, arguing that the Statute of Limitations argument is baseless and that numerous issues of material fact exist. Specifically, it is urged that choosing the proper Statute of Limitations is a matter of procedural law, which in turn, is determined by the law of the forum. Choice of law cases relate to which substantive law should be applied. In addition, plaintiff maintains, the cited Connecticut statute is of no avail to Harris, because the instant complaint contains a cause of action in negligence in addition to strict products liability and because there is an issue of fact as to whether Harris did part with control of the machine in the 10 years before this suit was commenced, in that in December 1975 Harris sent a safety mailing to all known owners of the machine. (Plaintiff does not allege that Harris knew who the owner was of the machine at issue here or that it was sent a copy of the safety guidelines.)

In reply, Harris argues that Connecticut's products liability statute goes to the very substance of a litigant's right to bring such an action and is, therefore, a substantive provision which cannot be displaced by CPLR 202. Further, it is urged, the Connecticut statute explicitly includes, in Connecticut General Statutes § 52-572m (b), within the definition of a products [34] liability claim, actions based on strict liability in tort, negligence and breach of warranty.

CPLR 202 provides: "An action based upon a cause of action accruing without the state cannot be commenced after the expiration of the time limited by the laws of either the state or the place without the state where the cause of action accrued, except that where the cause of action accrued in favor of a resident of the state the time limited by the laws of the state shall apply" (emphasis added). Thus, CPLR 202 expressly provides that only the New York period of limitations will apply when the cause of action accrues in favor of a resident (McCarthy v Bristol Labs., 86 AD2d 279, 283; Alex v Grande, 29 AD2d 616).

In the case at bar, it is undisputed that plaintiff was a New York resident at the time he was injured. Thus, pursuant to CPLR 202, the New York Statute of Limitations for an action to recover damages for a personal injury, CPLR 214 (5) providing for a three-year period, is applicable. It is further undisputed that the underlying action was commenced within the three-year period and that the tolling provisions of CPLR 207 are not alleged nor apparently applicable.

Despite the clear statutory mandate of CPLR 202 and its apparent relevance and application to the instant case, Harris contends that CPLR 202 has no application here, since Connecticut substantive law must apply and Connecticut's limitations period conditions the very right sued upon and is thus substantive. This contention, that Connecticut's 10-year limit barring strict liability and related claims against defendants who have parted with possession or control of the product is part of its substantive law, is premised on the assumption that this time limitation falls under a court-made exception that treats the limitation as one conditioning the right and enforced as substantive law (see, e.g., Clarke v Pennsylvania R. R. Co., 341 F.2d 430; Bournias v Atlantic Mar. Co., 220 F.2d 152). The tests used to determine whether a foreign Statute of Limitations should be regarded as substantive are "far from precise" and there are several different approaches (Bournias v Atlantic Mar. Co., 220 F2d, at pp 155-156). The predicate for most of these different approaches, however, is that a statute creates a new liability and then limits or qualifies the new right (Clarke v Pennsylvania R. R. Co., supra; Bournias v Atlantic Mar. Co., supra).

The court finds this argument unpersuasive. The liability [35] asserted by plaintiff's claims is not newly created by Connecticut's statute. It is rather based on principles of garden-variety tort embodied in the common law and recognized long before Connecticut existed. (Cf. Clarke v Pennsylvania R. R. Co., 341 F2d, at p 432.) Even the evolution of strict products liability was not considered by the Court of Appeals to be a newly created or discovered cause of action (Victorson v Bock Laundry Mach. Co., 37 N.Y.2d 395, 401). Further, the 10-year outside limit established by Connecticut, just as the three-year initial limit from the date the injury is sustained or discovered, does not, as Harris argues, go to the "very substance" of plaintiff's right to bring an action, any more than any Statute of Limitations does.

Accordingly, this court declines Harris' invitation to apply Connecticut's Statute of Limitations, even assuming, arguendo, that Connecticut substantive law applies. Instead this court finds that pursuant to CPLR 202 and 214, plaintiff's action was timely commenced and Harris' motion for summary judgment, based on its assertion the action is time barred, is denied. In light of this disposition, it is not necessary to consider, and no opinion is expressed, on whether New York or Connecticut substantive law is the proper law to be applied here.

---------

[1] Plaintiff asserts that Harris is an Ohio corporation with offices in Florida. This assertion is uncontradicted.

[162] Quinn Emanuel Urquhart & Sullivan, LLP, for defendant.

Levy, Phillips & Konigsberg, LLP, for plaintiffs.

OPINION OF THE COURT

MARTIN SHULMAN, J.

Defendant, Colgate-Palmolive Company, a Delaware corporation with a principal place of business in New York (C-P or defendant), has filed an in limine motion of apparent first impression in asbestos litigation to apply Oregon law which would cap any potential noneconomic damages award plaintiffs, Lori [163] Konopka-Sauer and Richard Konopka, as executors of the estate of Karen Tedrick, could receive in this personal injury/wrongful death action.

Factual Background^[1]

Prior to her death, decedent plaintiff, Karen Tedrick (plaintiff, Karen or Tedrick), filed her personal injury action in New York on November 14, 2008, alleging she contracted mesothelioma from asbestos exposure through her historic use of Cashmere Bouquet dusting powder, a talc powder product C-P manufactured and sold (talc powder or product). The following is plaintiff's brief life story.

Plaintiff, born on November 6, 1946, was raised and educated in Michigan and continuously resided in that state until April 1969 (during that 23-year period, Tedrick either resided in family residences, college housing and/or her own apartment) (VBT tr at 6, lines 6-18; EBT tr at 41, lines 5-17; at 47, lines 12-24; at 51, lines 21-25; at 52, lines 1-3). In April 1969, Tedrick was hired as an American Airlines flight attendant, left Michigan to complete a two-month training course at American Airlines Stewardess College in Dallas/Fort Worth, Texas and resided there on campus (EBT tr at 56, lines 20-22; at 57, lines 6-14).

After successfully completing the flight attendant training program, Tedrick was posted to New York City to cover domestic flights to and from LaGuardia, JFK and Newark Airports (VBT tr at 27, lines 6-25). During the next two years, plaintiff with three and then two of her colleagues successively shared two one-bedroom apartments in New York City. One Manhattan rental apartment was located at 63rd Street and 1st Avenue and the second was located at 77th Street and York Avenue (VBT tr at 28, lines 1-14). Depending on her flight schedules, plaintiff would on the average stay at her Manhattan apartments from two to five nights a week (EBT tr at 67, lines 23-25; at 68, lines 1-9). Concerning the 77th Street apartment, Tedrick stayed there only a little over six months and in the summer of 1971 transferred to American Airlines' Los Angeles, California base to be closer to George Ulm, someone she was then dating and whom she eventually married in January 1972 (EBT tr at 78, lines 2-14). Plaintiff never returned to New York.

Like mother, like daughter, and from the age of 12, plaintiff began using the talc powder. She liked its floral scent which [164] reminded her of her mother and made its use a part of her daily hygiene regimen (sometimes multiple times a day) and always after every bath/shower (VBT tr at 14, lines 5-24; at 15, lines 1-28; at 20, lines 23-25; EBT tr at 211, lines 15-25). Plaintiff was generous with her use of this product on her person and talc powder residue would typically cloud the air and settle on surfaces in any bathroom she used (VBT tr at 19, lines 10-21). For almost 15 years, Tedrick exhibited brand loyalty through her daily and repeated use of this product. However, because plaintiff had fortuitously married wealthy, she was able to then afford "more expensive . . . [p]owders [e.g., Chanel No. 19], makeup[ ] [and] perfume," and sometime in 1972, Tedrick began transitioning off the product. Certainly after her marriage to Ulm, plaintiff no longer used the talc powder (EBT tr at 216, lines 21-25; at 217, lines 1-19). Eventually, Tedrick stopped using any fragrance product in the late 1970s due to allergies (EBT tr at 224, lines 12-25).

From Los Angeles, plaintiff moved to Chicago, Illinois in March 1972, and after four years, divorced Ulm (EBT tr at 88, lines 2-3). From 1976 to 1985, plaintiff engaged in various jobs, remarried and divorced again, completed her course work at Northeastern University to finally obtain a B.A. in psychology and relocated back to Los Angeles (EBT tr at 92-127). During that period, Tedrick, while employed in the social services field, actively pursued her interest in yoga as a therapeutic modality and became a certified yoga instructor (VBT tr at 34, lines 10-25; at 35, lines 1-19). In 1993, plaintiff moved to Oregon, bought a home and became a mental health care professional until she retired in 2008 at or about the age of 62 (VBT tr at 38, lines 23-25; at 39, lines 1-25; at 40, lines 1-22).

Shortly after Karen retired, she began exhibiting flu-like symptoms (i.e., dry cough, weakness, fatigue, etc.) (VBT tr at 45, lines 3-14) and experiencing unusually intense pain in the upper part of her body (VBT tr at 45, lines 15-25; at 46, lines 1-16). In September-October 2008, after consulting with various specialists, undergoing imaging studies and having a needle biopsy, Karen learned she had malignant pleural mesothelioma,^[2] would suffer progressive breathing difficulties and have a pain-filled, [165] remaining life expectancy of anywhere from eight to nine months (VBT tr at 50, line 11-25; 51, lines 1-22). Plaintiff further learned that the standard treatments available to treat her incurable cancer (i.e., induction chemotherapy, extrapleural pneumonectomy^[3] and hemithoracic radiation therapy after surgery) (exhibit 9 to Thorn opp aff) might prolong her life but the quality of her life would be poor (VBT tr at 52, lines 5-25; at 53, lines 1-25; at 54, line 1). Karen believed she could manage her disease with yoga and other holistic approaches; however, this progressively debilitating disease evidently overwhelmed her. Within a year of diagnosis, Karen decided to end her life and did so in accordance with the Oregon Death with Dignity Act (ODWDA [Or Rev Stat Ann § 127.800 et seq.]; exhibit 2 to Thorn opp aff).^[4]

Shortly thereafter, Oregon counsel was retained to admit plaintiff's will to probate in the Circuit Court of the State of Oregon for the County of Multnomah (exhibits 3, 4 to Shaw opp aff), and Karen's brother, Richard Konopka, and sister, Lori Konopka-Sauer, were appointed her personal representatives (exhibit 3 to Thorn opp aff). On April 13, 2010, plaintiff's siblings became plaintiffs in this action (estate-plaintiffs) and amended the complaint to assert a wrongful death claim against C-P. Parenthetically, Tedrick's brother had been a long-term resident of Oregon, but, because of his career in the military, [166] maintains a second home in Georgia (see exhibit 4 to Thorn opp aff), whereas plaintiff's sister is currently a Georgia resident. Neither sibling has ever worked or resided in New York.

Defendant's In Limine Motion

In its motion, C-P essentially contends that under New York choice of law principles, Oregon Revised Statutes Annotated § 31.710 (Damages Cap Law)^[5] must apply to any recovery in this personal injury/wrongful death action. Defendant's central argument points are as follows:

Prefatorily, physician-assisted suicide is otherwise a crime in New York,^[6] and deliberate suicide may constitute an intervening cause precluding a wrongful death claim in New York as well,^[7] thus, estate-plaintiffs strategically rely on Oregon Revised Statutes Annotated § 127.890^[8] to sustain their wrongful death claim here in New York but conveniently ignore the Damages Cap Law to rely on New York law to potentially recover noneconomic damages without any limitation (a calculated attempt at forum shopping);

Plaintiff's alleged asbestos-related injury did not occur during the times and at places of exposure as an end-user of the talc powder (initially and primarily in Michigan^[9] and with less frequency in New York), but rather when Tedrick was first [167] diagnosed and then treated for mesothelioma in Oregon, which, unlike New York, is the "place of the tort for purposes of choice of law analysis" (defendant's mem of law at 7);^[10]

Oregon has the greatest outcome-interest here as it was in this state where plaintiff was domiciled and maintained a long-term residence, became ill and was diagnosed with mesothelioma and where she subsequently chose to end her life under the ODWDA and it is in Oregon where her personal representatives have probated her will to presently administer her estate which lists as an asset any potential recovery to be had in this New York action; and

Since the conflict of law issue here involves whether to apply Oregon's Damages Cap Law in this action, it is properly characterized as a loss allocation issue and not a conduct regulating one, thus, "New York courts have rejected any public policy concerns and uniformly concluded that a decedent's home state has the greatest interest in resolving loss allocation issues arising out of personal injury and wrongful death actions" (id. at 10).

Estate-Plaintiffs' Opposition

In opposing defendant's in limine motion to apply the Damages Cap Law, estate-plaintiffs contend:

Karen's exposure to C-P's product and her resultant terminal illness led to plaintiff's courageous choice to end her profound suffering and legally die with dignity;

Oregon Revised Statutes Annotated § 127.890 (3) (n 8, supra) expressly forecloses defendant from making any attempt to limit estate-plaintiffs' recovery for noneconomic losses;

Because New York was at one time Tedrick's and C-P's common domicile and the locus of the tort (Tedrick's injury occurred when she frequently inhaled the alleged asbestos-containing talc powder as a Manhattan resident from 1969-1971), the Neumeier choice of law rules^[11] require that New York law must apply;

[168] Defendant disingenuously accuses plaintiff and estate-plaintiffs of forum shopping as New York is the proper location for this lawsuit;

Relying on C-P's own argument that plaintiff should be held to the law of the jurisdiction where the "last event" occurred, then New York law would still control as it was in this state where she was last exposed to the product;

Defendant's reference to the possible application of Michigan law to limit estate-plaintiffs' recovery for noneconomic losses is a red herring, especially when plaintiff's "domicile, . . . [C-P's] corporate headquarters, . . . [C-P's] tortious conduct and Ms. Tedrick's injury caused by her last use of . . . [the talc powder] all occurred in the common forum of New York." (Estate-plaintiffs' opp mem of law at 14); and

New York's Constitution^[12] and its public policy against damages caps are clearly in conflict with the Damages Cap Law and require New York to apply its own law.

Discussion

This case presents an actual conflict between New York and Oregon concerning the substantive issue as to the amount of damages a plaintiff may recover for noneconomic losses in a personal injury/wrongful death action. New York has no limitation on the amount of such recovery, whereas Oregon's Damages Cap Law limits such recovery to $500,000.

In its choice of law analysis, a court looks to the state which has the greatest outcome-interest in an action, and towards [169] that end will usually utilize and apply one of the three Neumeier rules. Again, the court's required interest analysis must particularly focus on, and then apply, "the law of the jurisdiction having the greatest interest in the litigation . . . and . . . the [only] facts or contacts which obtain significance in defining State interests are those which relate to the purpose of the particular law in conflict." (Schultz v Boy Scouts of Am., 65 NY2d 189, 197 [1985].) "Under this formulation, the significant contacts are . . . the parties' domiciles and the locus of the tort." (Id. [citations omitted].) Further, a distinction must be

"drawn between laws that regulate primary conduct. . . and those that allocate losses after the tort occurs. . . If conflicting conduct-regulating laws are at issue, the law of the jurisdiction where the tort occurred will generally apply because that jurisdiction has the greatest interest in regulating behavior within its borders. But if competing `postevent remedial rules' are at stake other factors are taken into consideration, chiefly the parties' domiciles" (Cooney v Osgood Mach., 81 NY2d 66, 72 [1993]).

It should also be patently obvious that the purpose of the laws in conflict here is not to regulate conduct, but rather to allocate loss (Bodea v TransNat Express, 286 AD2d 5, 9 [4th Dept 2001] ["(l)oss allocating laws are those that `prohibit, assign, or limit liability after the tort occurs'" (citations omitted)]). And in this context, when "conflicting laws relate to the allocation of losses, then considerations of the State's admonitory interest [in ensuring appropriate standards of conduct in the future] and party reliance [on `the locus jurisdiction's interests in protecting the reasonable expectations of the parties'] are less important" (Cunningham v Williams, 28 AD3d 1211, 1212 [4th Dept 2006] [emphasis added]).

Indisputably, the parties to this personal injury/wrongful death action do not presently share a common domicile. However, against the foregoing analytical backdrop, estate-plaintiffs principally rely on the first Neumeier rule urging the court to apply New York law because New York was Tedrick's and C-P's historic common domicile and locus of the tort. Alternatively, they argue that even where the parties are diverse domiciliaries as is factually the case at the time this action started, to date, the third Neumeier rule would similarly require the court to apply New York law and not the Damages Cap Law, viz., for purposes of this lawsuit, plaintiff is deemed to [170] be a New York domiciliary because New York is where she resided when she was injured inhaling the alleged asbestos-contaminated product defendant manufactured and sold.

At the outset, based upon Tedrick's sworn description of her transitory, shared living arrangements when she was based in New York, there is some uncertainty as to whether plaintiff was truly domiciled here during the 1969-1971 period. (See generally Matter of Bodfish v Gallman, 50 AD2d 457, 458 [3d Dept 1976] ["The test of intent with respect to a (purported new) domicile has been stated `as whether the place of habitation is the permanent home of a person, with the range of sentiment, feeling and permanent association with it'"].)

Even if plaintiff arguably was, in fact, a New York domiciliary during her stint as an American Airlines flight attendant based in New York, the second critical element to trigger either the first or third Neumeier rule is missing as New York was not the locus of the tort (place of injury). This factual/legal conclusion rests on the principle that "when the defendant's negligent conduct occurs in one jurisdiction and the plaintiff's injuries are suffered in another, the place of the wrong is considered to be the place where the last event necessary to make the actor liable occurred" (Schultz, 65 NY2d at 195).

Notwithstanding the Schultz holding, estate-plaintiffs seemingly rely on the "first exposure" rule originating with Schmidt v Merchants Despatch Transp. Co. (270 NY 287 [1936]) and its progeny (e.g. Consorti v Owens-Corning Fiberglas Corp., 86 NY2d 449 [1995]; Blanco v American Tel. & Tel. Co., 90 NY2d 757 [1997]) to advance the notion that Tedrick's injury did not occur several decades later on the fact-based date of onset of her illness and medical diagnosis of mesothelioma. Rather, estate-plaintiffs argue this rule compels a finding as a matter of law that plaintiff's injury occurred during the period 1969-1971 "upon [her cumulative] exposure to the toxic substance [asbestos], because it is at that point that there ha[d] been `a wrongful invasion of personal or property rights' . . . [and] was based upon the assumption that a toxic substance acts immediately upon the body to produce injury" (Blanco, 90 NY2d at 772, quoting Schmidt, 270 NY at 300).

To be factually accurate, Tedrick was first exposed in Michigan, her birth state, when she started using the talc powder when she turned 12. And while not legally relevant in any New York action or relevant for purposes of this in limine motion (and putting aside the litigable issue of whether the product [171] actually contained asbestos fibers for another day),^[13] no one will seriously dispute that due to Tedrick's approximately 13 years of using the talc powder in Michigan, plaintiff would overwhelmingly satisfy the "frequency-regularity-proximity" test if need be in any jurisdiction that adopted a quantitative standard for specific causation.^[14] Arguendo, given plaintiff's initial and primary use of the product in Michigan and applying either the first or third Neumeier rule, estate-plaintiffs' "first exposure" rule argument would apparently require the court to apply Michigan's Damages Cap Law, a position neither party takes. Moreover, based on plaintiff's own sworn testimony, New York was not even Tedrick's place of last exposure to the product as she admitted sporadically using the talc powder in 1972 after she relocated from New York to California.

In any event, it appears estate-plaintiffs have substituted the verb "occur" with the verb "accrue" to find case law support for the proposition that the locus of Tedrick's tort was in New York. However, the "first exposure" rule described in Blanco (supra), that estate-plaintiffs mistakenly rely on to establish the locus of the tort in New York, actually reflected judicial sensitivity to the notion that defendants should achieve repose as to "stale claims" particularly when the onset of disease from the toxic substance was delayed many years after an alleged exposure due to its latency.

Stated differently, this judicial rule was being applied to determine the accrual date of toxic tort claims for statute of limitations purposes and discernibly for no other purpose. Notably relevant to this discussion, the introductory portion of Judge Read's scholarly dissenting opinion, infra (the substance of which the majority is in agreement), concisely explains that the "first exposure" rule the Court of Appeals formulated and applied in a long line of cases has been abrogated by CPLR 214-c (a legislatively enacted discovery rule for latent injuries from a toxic substance) and no longer has any legal significance:

"A latent disease is generally understood to be an illness that does not manifest clinically diagnosable symptoms until years after initial exposure to the disease-causing agent . . . And as we have recounted numerous times, the Legislature enacted CPLR 214-c to `overcome the effect of a line of Court of [172] Appeals decisions,' beginning with Schmidt v Merchants Despatch Transp. Co. (270 NY 287 [1936]), which held that the claims of plaintiffs suffering from latent diseases `accrue[d] upon "impact" or exposure even though the resulting illness [might not have been] manifested for a long time thereafter' (Matter of New York County DES Litig., 89 NY2d 506, 513 [1997] [emphasis added]; see also Snyder v Town Insulation, 81 NY2d 429, 433 [1993] [noting that Schmidt and its progeny addressed the `question of how accrual should be determined when an injury was latent and went undiscovered until long after exposure' (emphasis added)]; Consorti v Owens-Corning Fiberglas Corp., 86 NY2d 449, 454 [1995] [reviewing history of Court's adherence to `the Schmidt rule fixing the occurrence of tortious injury as the date when the toxic substance invades or is introduced into the body' (emphasis added)]). As a result of the Schmidt rule, the three-year statute of limitations in CPLR 214 (5) lapsed before these plaintiffs even became aware they were sick.

"To remedy this injustice, the Legislature adopted CPLR 214-c, which replaced the Schmidt rule in such cases with a rule of accrual keyed to `the discovery of the manifestations or symptoms of the latent disease that the harmful substance produced' (Matter of New York County DES Litig., 89 NY2d at 514)." (Giordano v Market Am., Inc., 15 NY3d 590, 602-603 [2010, Read, J., dissenting].)

What is legally significant in the choice of law context when applying the third Neumeier rule is that Tedrick's place of injury was in Oregon where she was domiciled and where her disease process began:

"It seems clear that, where slowly developing personal injury claims such as this one are concerned, this `last event' is the fact of plaintiff's becoming ill. It is becoming ill that supplies the final element of a negligence or strict liability action and entitles plaintiff to sue. The `last event' is not necessarily plaintiff's discovery of his illness; so to hold would be to confuse the beginning of plaintiff's cause of action with the beginning of its end, i.e., with the starting of the statute of limitations. In support of looking to the time and place of illness rather than to discovery, Comment[ ] . . . 2 to § 377 [173] of the Restatement (First) of Conflict of Laws, explains the `last event' as follows: . . .

"`2. Where a person causes another voluntarily to take a deleterious substance which takes effect within the body, the place of wrong is where the deleterious substance takes effect and not where it is administered.'[^[15]]

"The illness/discovery distinction comports with the common sense and of the plain meaning of the phrase in question: `place of injury.'

"That this distinction is not explored in the cases is understandable, since there was no point to making such a distinction until New York's 1986 switch to a discovery-based statute of limitations. NYCPLR § 214-c . . . But, now that the statute of limitations is discovery based, the difference between the events is apparent. I conclude that, when the legislature changed the time within which New Yorkers must sue, it did not address a different matter: the meaning of the conflict-of-laws phrases `last event' and `place of injury.'" (In re Joint E. & S. Dist. Asbestos Litig., 721 F Supp 433, 435 [ED SD NY 1988];^[16] Fusaro, 145 Misc 2d at 915 ["the word `injury' in (CPLR 214-c [6]) (b) should be equated with the physical manifestation of the particular disease for which compensation is sought"]; 145 Misc 2d at 916 n 2.)

Based on the facts sui generis to this case, this court resolves this choice of law dispute by determining that it is Oregon which has the greatest outcome-interest in this litigation, particularly when it was in this state where plaintiff was domiciled for almost 17 years; where plaintiff unfortunately was stricken with mesothelioma; where plaintiff chose to die with dignity; where plaintiff's will was executed and probated; and [174] where estate-plaintiffs (one of whom is an Oregon domiciliary) must comply with their legal responsibilities inter alia to administer plaintiff's estate and distribute its assets to Oregonian beneficiaries under the will (assets which would potentially include proceeds of any recovery in this action).

To be sure, the third Neumeier rule requires the court to apply the Damages Cap Law in this action, particularly when estate-plaintiffs have not demonstrated "`that displacing that normally applicable rule [i.e., "law of the site of the tort"] will advance the relevant substantive law purposes without impairing the smooth working of the multi-state system or producing great uncertainty for litigants'" (Butler v Stagecoach Group, PLC, 72 AD3d 1581, 1584 [4th Dept 2010]).^[17]

Finally, and as Butler (72 AD3d at 1585) makes clear, estate-plaintiffs have not met their burden of showing that a law limiting damages for nonpecuniary losses such as the Damages Cap Law is "truly obnoxious" and/or that it violates New York public policy. Moreover, even if this Oregon law does so, estate-plaintiffs have not "`established that there are enough important contacts between the parties, the occurrence and the New York forum to implicate our public policy and thus preclude enforcement of the foreign law' (Schultz, 65 NY2d at 202)." (Id.)

Accordingly, defendant's in limine motion to apply Oregon Revised Statutes Annotated § 31.710, which would cap any potential noneconomic damages award at $500,000, is granted.

---------

[1] The alleged facts are gleaned from plaintiff's discovery deposition (EBT tr as exhibit B to Kramer opp aff) and videotaped deposition (VBT tr as exhibit A to Kramer opp aff) respectively taken on December 1 and 2, 2008.

[2] "Mesothelioma is a rare malignancy which attacks the membrane surrounding the lung . . . The latency period for mesothelioma is 30 to 35 years after exposure, but unlike asbestosis, mesothelioma may occur as a result of a short exposure to asbestos fibers. Clinical features of the disease include severe chest pain, shortness of breath, weight loss and death which usually follows within two years of diagnosis." (Fusaro v Porter-Hayden Co., 145 Misc 2d 911, 916 [Sup Ct, NY County 1989], affd 170 AD2d 239 [1st Dept 1991].)

[3] This invasive radical surgery involves the removal of cancerous pleural tissue and the affected lung closest to the malignant tumor(s).

[4] On October 27, 1997, Oregon "enacted the Death with Dignity Act which allows terminally-ill Oregonians to end their lives through the voluntary self-administration of lethal medications, expressly prescribed by a physician for that purpose." (See Oregon Health Authority, Death with Dignity Act, available at http://www.oregon.gov/DHS/ph/pas/index.shtml.) For a patient to end his/her life under the ODWDA, he/she must be at least 18 years of age, an Oregon resident, mentally and physically capable of making and communicating his/her health care decisions and be suffering from a medically confirmed terminal illness with about a six-month life expectancy. An attending physician licensed to practice medicine in Oregon must determine whether a patient meets these statutory criteria. By affirming a 9th Circuit determination (Oregon v Ashcroft, 368 F3d 1118 [2004]) that an Oregon physician-assisted suicide due to the prescription of federally controlled substances was not a criminal act and does not run afoul of the 1970 Controlled Substances Act, the U.S. Supreme Court, for all intents and purposes, upheld the ODWDA (see Gonzales v Oregon, 546 US 243 [2006]).

[5] As cited, in relevant part, in an action for personal injury and/or wrongful death, Oregon Revised Statutes Annotated § 31.710 limits a potential damages award for noneconomic losses: "[I]n any civil action seeking damages arising out of bodily injury, including emotional injury or distress, death . . . the amount awarded for noneconomic damages [e.g., `pain, mental suffering, emotional distress, . . . interference with normal and usual activities' (Or Rev Stat Ann § 31.710 [2] [b])] shall not exceed $500,000."

[6] See Vacco v Quill, 521 US 793, 796 n 1 (1997), inter alia, citing Penal Law § 125.15.

[7] See generally Fuller v Preis, 35 NY2d 425 (1974) (a jury must decide whether an "involuntary" suicide breaks the chain of causation from negligent conduct, resulting in injury and death); see also Watkins v Labiak, 282 AD2d 601, 602 (2d Dept 2001) ("the suicide [must be] a foreseeable consequence of the tortfeasor's acts").

[8] Oregon Revised Statutes Annotated § 127.890 (3) ("Liabilities") states: "Nothing in ORS 127.800 to 127.897 limits further liability for civil damages resulting from other negligent conduct or intentional misconduct by any person." (Emphasis added.)

[9] Parenthetically, Michigan also imposes a statutory cap for noneconomic losses in product liability cases (see Mich Comp Laws Ann § 600.2946a [1] ["Product liability actions; noneconomic damages . . . In an action for product liability, the total amount of damages for noneconomic loss shall not exceed $280,000.00, unless the defect in the product caused either the person's death or permanent loss of a vital bodily function, in which case the total amount of damages for noneconomic loss shall not exceed $500,000.00"]).

[10] As reiterated and amplified in C-P's reply memorandum of law (at 7), the "last event necessary" for plaintiff to have a cognizable personal injury claim was the onset of her illness in Oregon and the "last event necessary" for the estate-plaintiffs "to have a `wrongful death' claim, of course, was Ms. Tedrick's death in Oregon."

[11] In Neumeier v Kuehner (31 NY2d 121, 128 [1972]), the Court of Appeals formulated three rules which the Court concluded would be "profitably utilized [to] . . . uncover the underlying values and policies which are operative" when a court is confronted with a conflict of laws issue. These are the Neumeierrules understandably stated:

"Rule 1 provides that if the plaintiff and defendant share a common domicile, that state's law should apply. Rule 2 provides that if the injury takes place in the defendant's home state and that state's law protects the defendant, or if the injury takes place in the plaintiff's home state and that state's law protects the plaintiff, then the law of the place of injury should apply. Finally, Rule 3 provides that in all cases not covered by Rules 1 or 2, the law of the place of the injury should apply unless different law `will advance the relevant substantive law purposes without impairing the smooth working of the multi-state system or producing great uncertainty for litigants.'" (Aaron D. Twerski, A Sheep in Wolf's Clothing: Territorialism in the Guise of Interest Analysis in Cooney v. Osgood Machinery, Inc., 59 Brooklyn L Rev 1351, 1360 n 38 [1994].)

[12] New York Constitution, article I, § 16 states: "The right of action now existing to recover damages for injuries resulting in death, shall never be abrogated; and the amount recoverable shall not be subject to any statutory limitation."

[13] See generally Slaughter v Southern Talc Co., 949 F2d 167 (5th Cir 1991).

[14] Lohrmann v Pittsburgh Corning Corp., 782 F2d 1156 (4th Cir 1986).

[15] Even without implicating any conflict of law issue, but in a related vein, New York requires proof of injury to sustain a claim for emotional distress due to exposure to a toxic substance. (See Wolff v A-One Oil, 216 AD2d 291, 292 [2d Dept 1995] ["The `rational basis' for . . . (plaintiff's) fear of contracting the disease . . . has been construed to mean . . . some indication of asbestos-induced disease (i.e., physical manifestation of asbestos contamination)"]; see similarly Cleary v Wallace Oil Co., Inc., 55 AD3d 773, 776 [2d Dept 2008] [physical manifestation of fuel oil contamination].)

[16] Parenthetically, this New York federal decision was recently cited with approval by the Supreme Court of Nevada in Wyeth v Rowatt (244 P3d 765, 776 [2010]) in personal injury/strict products liability actions involving hormone replacement therapy drugs.

[17] From a choice of law purist's viewpoint, it could be argued that neither state has a significant outcome-interest on this loss allocation issue because: (1) C-P is not an Oregon corporate domiciliary for whom the Damages Cap Law was ostensibly designed to directly benefit; and (2) Oregon, not New York, was Tedrick's place of injury. Nonetheless, this "unprovided for" case would still be covered by the third Neumeier rule.

[142] Thomas C. MacDonald, Jr., Charles P. Schropp and Raymond T. Elligett, Jr. of Shackleford, Farrior, Stallings and Evans, and James W. Kynes, Tampa, for petitioner in No. 66937.

Jane N. Saginaw of Baron & Budd, Dallas, Tex., and Louis S. Robles, Miami, for respondent in No. 66937.

Thomas C. MacDonald, Jr., Charles P. Schropp and Raymond T. Elligett, Jr. of Shackleford, Farrior, Stallings & Evans, Tampa, James W. Kynes, Tampa, James E. Tribble and Diane H. Tutt of Blackwell, Walker, Fascell & Hoehl, Miami, Susan J. Cole of Blaire & Cole, Coral Gables, Erik J. Blomqvist, Jr. of Wicker, Smith, Blomqvist, Tutan, O'Hara, McCoy, Graham & Lane, Miami, Tracey I. Arpen, Jr. of Marks, Gray, Conroy & Gibbs, Jacksonville, C. Bryant Boydstun, Jr. of Lyle & Skipper, St. Petersburg, [143] Tracy Howard of the Law Office of Harold C. Knecht, Coral Gables, Brian S. Keif of the Law Office of Karl L. Santone, Steven R. Berger, Carlos E. Casuso of Casuso & Trompeter, South Miami, Gilbert Haddad of Haddad, Josephs & Jack, Coral Gables, John Liebman, Orlando, and Thomas J. Schulte of Lee, Schulte, Murphy & Coe, Miami, for petitioners in No. 66938.

Freidin & Hirsch, P.A., and Sharon L. Wolfe of Cooper, Wolfe & Bolotin, P.A., Miami, for respondent in No. 66938.

Donald M. Middlebrooks, Thomas R. Julin and Norman Davis of Steel, Hector and Davis, Miami, amicus curiae, for Nat. Gypsum Co. in No. 66938.

Thomas C. MacDonald, Jr., Charles P. Schropp and Raymond T. Elligett, Jr. of Schackleford, Farrior, Stallings & Evans, and James W. Kynes, Tampa, for petitioner in No. 66939.

Jane N. Saginaw of Baron & Budd, Dallas, Tex., Louis S. Robles, Miami, and Michael Y. Rowland of Rowland & Rowland, Knoxville, Tenn., for respondents in No. 66939.

OVERTON, Justice.

This is a petition to review Meehan v. Celotex Corp., 466 So.2d 1100 (Fla. 3d DCA 1985), consolidated with petitions to review Nance v. Johns-Manville Sales Corp., 466 So.2d 1113 (Fla. 3d DCA 1985), and Colon v. Celotex Corp., 465 So.2d 1332 (Fla. 3d DCA 1985). These cases involve the application of section 95.10, Florida Statutes (1979), Florida's borrowing statute, to asbestosis claims. In Meehan and Nance, the Third District Court of Appeal refused to apply Florida's borrowing statute. The court held that causes of action which arose in New York and Virginia, because of exposure to asbestos in those states, could be brought in Florida because the injury was discovered in Florida and, therefore, was governed by this state's statute of limitations. In Colon, the Third District applied the borrowing statute as construed in Meehan, and held that an action in which the plaintiff was exposed to asbestos in Florida was governed by Tennessee's one-year statute of limitations because the injury was discovered, by medical diagnosis, in Tennessee.

In Meehan and Nance, the Third District Court of Appeal certified the following question as one of great public importance:

May an action which could not be maintained by reason of limitations in the state in which the allegedly wrongful conduct occurred because that state does not recognize postponement of accrual until discovery, nonetheless be maintained in Florida because Florida postpones accrual until discovery?

466 So.2d at 1107. We have jurisdiction over all three cases. See art. V, § 3(b)(4) and (3), Fla. Const. We answer the question in the negative.

The Florida borrowing statute, section 95.10, Florida Statutes (1979), reads as follows:

When the cause of action arose in another state or territory of the United States, or in a foreign country, and its laws forbid the maintenance of the action because of lapse of time, no action shall be maintained in this state.

The purpose of the statute is to discourage "forum shopping" and the filing of lawsuits in Florida that have already been barred in the jurisdiction where the cause of action arose.

After the district court of appeal's decisions, and while this cause was pending, we considered the application of our borrowing statute in Bates v. Cook, Inc., 509 So.2d 1112 (Fla. 1987). In Bates, we addressed the following question:

For the purpose of applying Florida's limitation of actions "borrowing" statute, Fla. Stat. Ann. § 95.10 (West 1982), is the determination ... to be made solely with reference to the state in which the "last act necessary to establish liability" occurred, or with reference to the "significant relationships" that the respective states have to the cause of action?

Id. at 1113 (citations omitted). We stated that we were answering that question "as if it related to any action arising in tort." Id. In applying our borrowing statute in [144] that decision, we approved for use in this type of case the newly revised version of the American Law Institute Restatement (Second) of Conflict of Laws § 142 (1971), which reads:

An action will be maintained if it is not barred by the statute of limitations of the forum unless the action would be barred in some other state which, with respect to the issue of limitations, has a more significant relationship to the parties and the occurrence.

Bates, 509 So.2d at 1114 (citing 54 U.S.L.W. 2597 (May 27, 1986)). We also approved the commentary which stated that statutes of limitations should be decided like any other choice-of-law issue and recognized the trend away from labeling statutes of limitations as "procedural." We concluded:

[J]ust as in the case of other issues of substantive law, the significant relationships test should be used to decide conflicts of law questions concerning the statute of limitations. Our ruling does not do violence to Florida's borrowing statute. We simply hold that the significant relationships test should be employed to decide in which state the cause of action "arose." The borrowing statute will only come into play if it is determined that the cause of action arose in another state.

509 So.2d at 1114-15.

In view of our Bates decision, the application of section 95.10 is now clearly dependent on whether there are significant relationships which establish that the cause of action arose in another state. The criteria for determining whether significant relationship exist are set forth in the Restatement (Second) of Conflict of Laws § 145(2) (1971), which provides, in part:

(2) Contacts to be taken into account in applying the principles of § 6 to determine the law applicable to an issue include:

(a) the place where the injury occurred,

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

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

(d) the place where the relationship, if any, between the parties is centered.

See Bishop v. Florida Specialty Paint Co., 389 So.2d 999, 1001 (Fla. 1980).

We will address the application of section 95.10 to the Meehan, Nance, and Colon cases separately, because each has distinguishing aspects relating to the certified question, as well as differences in the application of the significant relationships test. The Meehan case produced the primary opinion and the principles adopted in that case were utilized in deciding both Nance and Colon. Meehan has been further complicated by legislation adopted in New York while Meehan was pending in this Court.

Meehan

During World War II, from 1942 to 1944, Charles Meehan worked as a pipefitter at the Brooklyn Navy Yard, where he was exposed to asbestos products. Meehan and his wife, Carmella, did not move to Florida until 1969. Eight years later, Meehan was diagnosed as having asbestosis and mesothelioma, diseases caused by the inhalation of asbestos fibers. As a result of these afflictions, Meehan died in 1978. Carmella Meehan, as personal representative of the estate of her late husband, filed this suit in 1979. The trial court entered final summary judgment for Celotex in 1981 on grounds that Meehan's claim was barred by the New York statute of limitations as borrowed under section 95.10, Florida Statutes (1979). A revised panel decision reversed the summary judgment. On rehearing en banc, the revised panel decision stood as the final decision of the court by virtue of an en banc four-four tie on the merits, with Chief Judge Schwartz and Judge Hubbart writing dissenting opinions.

The panel decision determined that under Florida law a borrowing statute is purely procedural and the determination of whether a cause of action has arisen is made in accordance with the law of this state. Meehan, 466 So.2d at 1101 (citing Colhoun v. Greyhound Lines, Inc., 265 So.2d 18 (Fla. [145] 1972); Farris & Co. v. William Schluderberg, T.J. Kurdle Co., 141 Fla. 462, 193 So. 429 (1940); Pledger v. Burnup & Sims, Inc., 432 So.2d 1323 (Fla. 4th DCA 1983), review denied, 446 So.2d 99 (Fla. 1984)). In construing section 95.10, the district court reasoned that a cause of action in tort arises in the jurisdiction where the last act necessary to establish liability occurred, and since the accrual of a cause of action must coincide with the aggrieved party's discovery of the injury, a cause of action in tort arises only when the plaintiff knew or should have known of the existence of the cause of action. Meehan, 466 So.2d at 1102. The district court concluded that the trial court erred in finding as a matter of law that Meehan's cause of action arose in New York, where he was exposed to asbestos, rather than in Florida, where he discovered the injury. Furthermore, the district court held that Meehan could bring the cause of action in Florida unless he "knew or should have known through the exercise of due diligence," that his cause of action existed more than four years prior to filing the action in this state. Id. at 1103. In so holding, the district court overruled its decision in Marano v. Celotex, 433 So.2d 592 (Fla. 3d DCA), review denied, 438 So.2d 833 (Fla. 1983).

Chief Judge Schwartz dissented, stating: "The court's decision has resuscitated an action which has been barred for over thirty years in New York, where the defendants' allegedly wrongful acts took place." 466 So.2d at 1105-06. He reasoned that "to vindicate the very basis of section 95.10 — we must look to the law of the place where the wrongful act occurred and, under that law, the limitations period was simultaneously initiated." Id. at 1106. Judge Schwartz argued that this interpretation carried out the purpose of a borrowing statute "`which is to give a cause of action no greater life in the forum jurisdiction than it would have in the state whose substantive law is to be applied.'" Id. n. 2 (quoting J. Pearson's revised majority opinion, 466 So.2d 1102 n. 1).

Under Florida's discovery standard, the cause of action does not accrue, for limitations purposes, until the injured party discovers or has a "duty to discover the act constituting an invasion of his legal rights." Creviston v. General Motors Corp., 225 So.2d 331, 334 (Fla. 1969). Consequently, a medical diagnosis which revealed that the party was suffering from asbestos-related diseases would be the event that triggered Florida's statute of limitations unless it was shown that the party should have been aware of a cause of action before that time. In Florida, the statute does not begin to run until such a discovery occurs. As will be explained, that was not the law in the state of New York at the time this action was initiated, nor is it the law in the state of Virginia, each of which has a different method for determining when a statute of limitations begins to run.

Under New York law in effect at the time this claim was filed and the trial court and district court ruled on the matter, Meehan's cause of action arose and accrued in 1944, the final year of Meehan's employment in the Brooklyn shipyards. Further, the New York statute of limitations expired in 1947, and consequently Meehan's suit in New York had been barred for thirty-nine years. Unlike Florida, New York had expressly rejected the discovery standard. Steinhardt v. Johns-Manville Corp., 54 N.Y.2d 1008, 430 N.E.2d 1297, 446 N.Y.S.2d 244, amendment granted, 55 N.Y.2d 802, 432 N.E.2d 139, 447 N.Y.S.2d 437 (1981), appeal dismissed, cert. denied, sub nom. Rosenberg v. Johns-Manville Sales Corp., 456 U.S. 967, 102 S.Ct. 2226, 72 L.Ed.2d 840 (1982). Under New York law when the district court ruled, a cause of action arose and accrued regardless of Meehan's knowledge or discovery of the injury in the state of New York in 1944. Schmidt v. Merchants Despatch Transportation Co., 270 N.Y. 287, 200 N.E. 824 (1936).

Given the state of the law, we must reject the holding of the majority opinion of the district court of appeal. Its reasoning effectively allows a former New York resident to resurrect a cause of action in Florida barred in New York for over thirty-nine years (Meehan), but denies a Florida resident [146] the opportunity to bring his cause of action in Florida, where the wrongful act occurred, because the injury was discovered in Tennessee (Colon). In view of Bates, it is the significant relationship with the states involved that is the critical factor in determining the application of section 95.10. Where the injury is discovered is only one factor to be considered, not the determining factor.

The legislative purpose of section 95.10 is to not allow a longer statute of limitations in Florida than is provided in the jurisdiction where the cause of action arose. To determine the applicability of the statute, we must apply the significant relationship criteria to Meehan. In our opinion, the criteria clearly show that New York has the significant relationship with Meehan. Meehan was a resident of New York at the time of his exposure; the employer was domiciled in New York; the entire asbestos exposure was at one place of employment in New York; and Meehan continued to reside in New York for twenty-five years after his exposure to asbestos. These circumstances establish that the place where the conduct causing the injury occurred, Meehan's domicile, and the domicile of Meehan's employer at the time of the conduct causing the injury were all in the state of New York. The only significant contact with Florida is that the injury manifested itself and was discovered in this state. See Restatement (Second) of Conflict of Laws § 145(2) (1971). We find these circumstances establish a significant relationship with New York and, consequently, under the law of New York at the time of the district court of appeal decision, section 95.10 barred the action in Florida.

That should dispose of this matter. However, while this appeal was pending in this Court, the New York Legislature enacted a statute allowing a one-year period for claimants previously barred to bring actions for the recovery of damages for latent effects of exposure to deleterious substances, including asbestos. The new New York law, effective July 30, 1986, provided, in part:

[E]very action for personal injury ... caused by the latent effects of exposure to ... asbestos . .. which is barred as of the effective date of this act or which was dismissed prior to the effective date of this act solely because the applicable period of limitations has or had expired is hereby revived and an action thereon may be commenced provided such action is commenced within one year from the effective date of this act.

1986 N.Y. Laws, ch. 682, § 4 (emphasis added). Meehan has not advised this Court whether an action was filed by him in New York during the one-year savings period, which has now expired.

In supplemental briefs which we permitted, Meehan now contends that this change of law in New York "revives" any cause of action which may have expired in New York, and therefore makes our borrowing statute inapplicable. He also contends that a recent New York decision, Piccirelli v. Johns-Manville Sales Corp., 128 A.D.2d 762, 513 N.Y.S.2d 469 (1987), holding that a cause of action pending in a New York court would not need to be refiled in New York in order to satisfy the requirements of the statutory one-year window provision also applies in this circumstance. Clearly, this action was barred at the time the claim was filed and decided by the lower courts of this state; however, we find the action has now been revived by the newly enacted New York statute and New York case law. We agree with Meehan that we must follow the law in effect at the time of our decision and allow the revival of this cause of action in Florida based on the New York statutory window period. As the law now stands, this cause of action is no longer barred in New York. It may proceed, but, since the significant relationships are with the state of New York, New York law must be applied, and, if the New York statute is declared unconstitutional or Piccirelli is overruled during the pendency of this case, New York law will control and bar the action.^[1]

[147] Nance

Nance was exposed to asbestos while working in the Norfolk shipyards in Virginia between 1940 and 1945. In May, 1976, while living in Florida, a doctor diagnosed Mr. Nance as having asbestosis and mesothelioma. As a result of that diagnosis, Nance filed a personal injury action in April, 1980. Following Nance's death later that year, the personal representative of his estate was substituted as a party plaintiff and filed an amended complaint for wrongful death. The trial court entered summary judgment for the defendants based on the Virginia statute of limitations as applied by virtue of section 95.10. The appeal was heard en banc with the rehearing in Meehan v. Celotex Corp., 466 So.2d 1100 (Fla. 3d DCA 1985). Relying on the revised Meehan panel opinion, the district court reversed the summary judgment and remanded the cause for reconsideration under its Meehan decision because the record did not establish whether the last act occurred in Florida or Virginia.

The Virginia statute of limitations provides a two-year limitation period for bringing a cause of action. Virginia does not follow a "discovery standard." Virginia's two-year limitation period begins to run from the "time plaintiff was hurt," which is different from the law of either New York or Florida. In Virginia, the time the plaintiff was hurt "is to be established from available competent evidence, produced by a plaintiff or a defendant, that pinpoints the precise date of injury with a reasonable degree of medical certainty." See Locke v. Johns-Manville Corp., 221 Va. 951, 959, 275 S.E.2d 900, 905 (1981). In Virginia, the statute of limitations began to run when the cancer first occurred as established by medical testimony, rather than when the cancer was diagnosed. The limited record in Nance appears to establish that the significant relationships were with the State of Virginia, with the exception of the diagnosis of asbestosis. If the only relationship with Florida is the diagnosis, then section 95.10 bars Nance's cause of action in this state. Because of the limited record, we do not reach that conclusion and remand for a proper application of the significant-relationships test.

Nance also contends that, regardless of the status of the personal injury claim, the wrongful death action was an independent cause of action brought within two years of Mr. Nance's death. The district court correctly rejected this argument, and we agree that a wrongful death action is derivative of the injured person's right, while living, to recover for personal injury. Variety Children's Hospital v. Perkins, 445 So.2d 1010 (Fla. 1983).

Colon

The majority opinion of the Third District Court of Appeal would permit Meehan and Nance, who were exposed to asbestos in other states, to bring their causes of action in Florida under Florida's statute of limitations. On the other hand, the Third District's decision would not allow Louis Colon, a Florida resident who was exposed to asbestos in Florida, to bring his cause of action in Florida, and would require him to comply with Tennessee's one-year statute of limitations.

Colon worked in Florida for twenty-three years as an installer and dismantler of asbestos products manufactured by Celotex. On June 25, 1979, Mr. Colon visited a doctor in Tennessee who diagnosed his bronchial problems as asbestosis. As a result, Colon filed this suit on June 26, 1980, in Florida. The trial court entered a summary judgment in favor of Celotex based on Tennessee's one-year statute of limitations. The Third District Court of Appeal held that "in light of Meehan, Florida is required to borrow the Tennessee limiting statute because the cause of action was discovered while plaintiff was in Tennessee." Colon, 465 So.2d at 1333. The district court remanded, however, for further evidence concerning the date that would [148] begin the Tennessee statute of limitations period.

As the district court noted, this case presents the "other side of the coin" to the issue presented in Meehan and Nance. Here, a Florida resident, who was exposed to asbestos in Florida, may be barred from recovery because of Tennessee's statute of limitations. We hold that Florida's borrowing statute does not apply. Mr. Colon was employed in Florida, was exposed to asbestos in Florida, and has been a Florida resident from the time of that exposure to the present day. Florida, under these circumstances, clearly has significant relationships to this action. The fact that Colon traveled to Tennessee, where a doctor diagnosed his disease, does not change the fact that his injury arose in Florida. The district court of appeal held that an injury's diagnosis and discovery in another state binds the injured party to the foreign state's statute of limitations. We find that is not the intent and purpose of section 95.10. If we accepted the district court's analysis of section 95.10, a potential plaintiff suffering from a latent disease would always be required to comply with the statute of limitations period in the state where he or she received medical diagnosis of the injury. In other words, the foreign state's limitation period would be applied without regard to the significant relationships test. We further find the phrase "when the cause of action arose in another state" in section 95.10 precludes the application of the statute in these circumstances because the significant relationships with Florida have been clearly established. See Bates. Colon's suit was filed in 1980 and comes well within Florida's four-year statute of limitations. Consequently, the suit must be allowed to proceed.

For the reasons expressed, we quash the district court's opinion in Meehan with directions to remand to the trial court for further proceedings in accordance with this opinion; we quash the district court's opinion in Nance except as to the wrongful death issue, which we approve, and remand with directions for further proceedings to apply the significant relationships test in accordance with the principles expressed in this opinion; and we quash the district court's opinion in Colon with directions to remand to the trial court for further proceedings in accordance with the views expressed in this opinion.

It is so ordered.

McDONALD, C.J., and EHRLICH and SHAW, JJ., concur.

BARKETT, J., concurs in part and dissents in part with an opinion.

BARKETT, Justice, concurring in part, dissenting in part.

The essential holding in Bates, which I agree should be applied here, is: the state "where the cause of action arose" is deemed to be the state that has the most significant relationship to the parties and to the action. Consequently, the only issue to be resolved is what state has the most significant relationship to the cause of action and the parties in each of the three cases.^[2]

In my view, the following is the correct resolution of the case. The significant relationship test must be applied in its totality. In the Meehan case, there clearly are two states, Florida and New York, with significant contacts to the parties and the action. The relationship of each of these states to the action should be examined and analyzed fully. First, we must distinguish between the place of injury and the place of exposure. Second, we should at least note that other parts of the test are or are not applicable. Third, because we do not have enough information to determine all aspects of the test, I believe it should be remanded. To exemplify these points, I note that:

(1) The majority's application of the Restatement test focuses almost exclusively on the place of exposure, apparently finding insignificant the place where the injury [149] occurred or manifested. This approach, particularly in the context of a limitations issue, ignores established Florida law. This Court has long recognized the distinction between exposure and legal "injury" in occupational disease cases; that critical distinction is, in fact, the theoretical underpinning of our own discovery rule. As this Court stated thirty years ago in Seaboard Air Line Railroad Company v. Ford:

Generally, in actions for personal injuries resulting from the wrongful act or negligence of another, the cause of action accrues and the statute begins to run from the time when the injury was first inflicted, and not from the time when the full extent of the damages sustained has been ascertained. The rule of Urie and similar cases dealing with limitations of actions for occupational diseases was developed as an exception to the general rule because of the fact that such diseases may exist unrecognized for a long time and under a judicial determination that the legislature could not have "intended such consequences to attach to blameless ignorance." Urie v. Thompson, supra, 337 U.S. 163 [69 S.Ct. 1018, 93 L.Ed. 1282 (1949)]. The United States Supreme Court said in the Urie case that "`the afflicted employee can be held to be "injured" only when the accumulated effects of the deleterious substance manifest themselves, * * *'" In City of Miami v. Brooks, supra, 70 So.2d 306 (Fla. 1954), we adopted the theory of the Urie case and applied it in a nonoccupational disease case where there was no visible traumatic injury at the time of the negligent act nor other circumstance by which plaintiff could have "been put on notice of his right to a cause of action * * *" at that time. And it must be held, under those decisions, that until an occupational disease has manifested itself, there has been no "injury" to start the running of the statute.

92 So.2d 160, 164 (Fla. 1956) (emphasis added, citations omitted).

By focusing on the time and place of exposure, the majority completely ignores the unique features of occupational diseases, such as the asbestos-related diseases, which develop after long incubation periods. In most personal injury cases, the fact of injury is easily discernible. However, in cases involving latent injury, where the effects of exposure to the disease-causing product do not become evident for twenty to twenty-five years after initial contact, the time and place of injury necessarily is obscure. In such cases, courts must decide whether an "injury" occurred at the time of exposure or at some later time related to the disease's inception or progress. Furthermore, with asbestos-related diseases in particular, courts have recognized that not everyone who inhales asbestos fibers develops an asbestos-related disease.^[3] The asbestos may lay dormant [150] for years before any disease process begins, and the future time when it may develop is unpredictable. See Insurance Co. of North America v. Forty-Eight Insulations, Inc., 633 F.2d 1212, 1214 (6th Cir.1980), clarified, 657 F.2d 814 (6th Cir.), cert. denied, 454 U.S. 1109, 102 S.Ct. 686, 70 L.Ed.2d 650 (1981); Eagle-Picher Industries, Inc. v. Cox, 481 So.2d 517, 522 (Fla. 3d DCA 1985), review denied, 492 So.2d 1331 (Fla. 1986); Pierce v. Johns-Manville Sales Corp., 296 Md. 656, 660 n. 4, 464 A.2d 1020, 1023 n. 4 (1983); Locke v. Johns-Manville Corp., 221 Va. 951, 958, 275 S.E.2d 900, 905 (1981).

In determining when an injury from asbestos exposure should be deemed to occur, courts have employed three different rules: the discovery rule, the exposure rule, and the medical evidence rule. The discovery rule is the prevailing standard in all but a few jurisdictions. The exposure rule, i.e., that legal injury occurs upon exposure, is clearly a minority view, with New York one of the few states that continues to adhere to it. See Note, Preserving Causes of Action in Latent Disease Cases: The Locke v. Johns-Manville Corp. Date-of-the-Injury Accrual Rule, 68 Va.L.Rev. 615, 629 & n. 97 (1982); Special Project, An Analysis of the Legal, Social, and Political Issues Raised by Asbestos Litigation, 36 Vand.L. Rev. 573, 641-49 (1983).

Under the medical evidence rule, the injury is deemed to occur upon the onset of the disease sometime between exposure and discovery. Locke. In fashioning that rule, the Locke court found that the injury, mesothelioma in that case, did not occur upon exposure: "Simply put, legally and medically there was no injury upon inhalation of defendants' asbestos fibers." 221 Va. at 958, 275 S.E.2d at 905. The court based its conclusion on uncontradicted medical testimony that many persons exposed to asbestos particles never develop mesothelioma and that the cancerous tumor does not begin upon exposure but some time later:

[T]here was no injury at the time of the wrongful act. A disease like this cancer must first exist before it is capable of causing injury. To hold otherwise would result in the inequity of barring the mesothelioma plaintiff's cause of action before he sustains injury.

Id. at 959, 275 S.E.2d at 906.

The same considerations have compelled numerous courts to hold that claims for asbestosis and cancer arising from the same exposure to asbestos are separate and distinct so that they need not be joined in a single action. Jackson v. Johns-Manville Sales Corp., 727 F.2d 506, 520 (5th Cir.1984)(a plaintiff stricken with asbestosis but not cancer cannot recover based on assertion that his condition later may cause cancer), cert. denied, ___ U.S. ___, 106 S.Ct. 3339, 92 L.Ed.2d 743 (1986); Wilson v. Johns-Manville Sales Corp., 684 F.2d 111, 115-17 (D.C. Cir.1982) (manifestation of any asbestos-related disease does not trigger running of statute of limitations on all later-manifested diseases engendered by the same asbestos exposure); Fearson v. Johns-Manville Sales Corp., 525 F. Supp. 671 (D.D.C. 1981); Eagle-Picher, 481 So.2d at 522 (only 15% of those persons who contract asbestosis later develop mesothelioma); Pierce, 296 Md. at 660 n. 4, 464 A.2d at 1023 n. 4 (1983) (expert testimony that individual who has been diagnosed with asbestosis will not inevitably contract either mesothelioma or lung cancer); Lavelle v. Owens-Corning Fiberglass Corp., 30 Ohio Misc.2d 11, 507 N.E.2d 476 (1987)(a plaintiff can never prove causation of a disease which has not yet manifested itself).

All of these decisions are premised on the fact that cancer is a separate disease from asbestosis and that evidence cannot be adduced that asbestosis inevitably will lead to cancer. Indeed, as pointed out earlier, all exposure will not lead inevitably to asbestosis. See G. Peters & B. Peters, Sourcebook on Asbestos Diseases, Medical, Legal & Engineering Aspects, Vol. I, [151] B18-20 (1980). At early stages, a plaintiff could at most speculate that he or she might be injured and obviously could not establish proof of the "reasonably certain" damages necessary to establish a compensable injury. Wilson, 684 F.2d at 119-20.

The foregoing analysis suggests that in cases involving asbestos-related diseases, the place of exposure may not be the state with the most significant relationship to the claim. Consequently, I believe that under the Restatement test, a court must evaluate all aspects of the "injury" — exposure, discoverability, and manifestation — to determine overall what state has the most significant relationship to the claim.

(2) The majority opinion does not take into account the criteria for determining the most significant relationship listed in the Restatement (Second), § 146(6). As this Court noted in Bishop v. Florida Specialty Paint Co., 389 So.2d 999 (Fla. 1980), under the Restatement test, the contacts listed in § 145(2) should be evaluated with an eye to the following factors, important choice-of-law considerations in all areas of the law:

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

(b) the relevant policies of the forum,

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

(d) the protection of justified expectations,

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

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

(g) ease in the determination and application of the law to be applied.

Id. at 1001 n. 1 (quoting Restatement (Second) of Conflict of Laws § 6 (1971)).

Several of these criteria are applicable here. For example, Florida clearly has an interest in protecting its residents from the hazards of occupational disease and allowing resident victims a right of action in such cases, based not upon the time of exposure but upon the victim's reasonable discovery of the disease. In light of New York's recent legislation, New York has the identical interest and policy. In fact, the recent legislation indicates that New York now favors the plaintiff's right to sue in such actions over the defendant's right not to be subjected to such suits even when the incubation period of the disease is great. Thus, there is no countervailing policy consideration to the forum's state's interest in allowing this action to proceed.

(3) In Meehan, the plaintiff had been a Florida resident for eight years before the disease manifested. All of the witnesses and testimony on damages will be in Florida. Thus, on the damages issues, the relationship between the parties clearly is centered in Florida.

(4) The third factor under the Restatement, "domicile, residence, nationality, place of incorporation and place of business of the parties," should be examined both at the time of the plaintiff's exposure and at the time of the litigation since both may be important in evaluating which state has the most significant relationship to the action and the parties. Although I have been unable to discern from the briefs exactly where Celotex's principal place of business was at the time of exposure or where it is at the present time, Celotex clearly is a Florida resident at present. At the time of Meehan's exposure, Celotex apparently had no connection with the disease-causing asbestos at all. The asbestos was manufactured by Philip Carey, an Ohio corporation whose successor Celotex subsequently purchased. In terms of this factor, it is difficult to see what interest New York has in the action at all.

(5) Following from point four above, we do not know for purposes of the strict liability claim where the conduct causing the injury occurred, i.e., we do not know where the product was manufactured. It does appear, however, that the asbestos was being manufactured and marketed by an Ohio corporation, not a New York or Florida corporation.

In view of the fact that the district and trial courts applied the obsolete lex loci rule to construe our borrowing statute, and [152] because I do not believe the facts were developed sufficiently for a thorough application of the significant relationship test in either Meehan or Nance, I would remand both of these cases to the trial court.

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[1] We note that the law of Florida would only allow an expansion of a statute of limitations period when the change is made before the cause of action is barred by the prior statutory limitation period. Corbett v. General Engineering & Machinery Co., 160 Fla. 879, 37 So.2d 161 (1948).

[2] The certified question, as phrased, is no longer apropos since the "state in which the allegedly wrongful conduct occurred" may or may not be the state with the most significant relationship to the cause.

[3] The primary asbestos-related diseases are asbestosis, mesothelioma, and lung cancer. Although all result from exposure to asbestos, their etiology is very different. When asbestos particles enter the lungs, fibrous lung tissue surrounds the particles. When the encapsulation process diminishes pulmonary function and makes breathing difficult, the disease of asbestosis is said to be present. There is usually a latent period of 10 to 25 years between initial exposure and apparent effect. How many years of breathing asbestos it takes for asbestos to occur varies from person to person. Some workers exposed for 40 years or more will not become diseased at all whereas others exposed for shorter periods of time at lower concentrations will contract asbestosis. If the asbestosis is not seriously advanced, an individual may continue to lead a relatively normal life. Although the disease is progressive once it begins and is incurable, it is not cancerous. Mesothelioma, on the other hand, is a rare form of cancer, invariably fatal, which occurs in the mesothelial cells which line the chest wall and surround the organs of the chest cavity. The latency period may be from 20 to 40 years or more. The development of asbestos-related lung cancer is similar to that of mesothelioma. Although the correlation between asbestos and lung cancer is not established, it appears that inhalation of asbestos increases the risk of lung cancer in persons who smoke. The disease generally occurs 15 to 35 years after exposure and is incurable. See Insurance Co. of North America v. Forty-Eight Insulations, Inc., 633 F.2d 1212, 1214 & n. 1 (6th Cir.1980), clarified, 657 F.2d 814 (6th Cir.), cert. denied, 454 U.S. 1109, 102 S.Ct. 686, 70 L.Ed.2d 650 (1981); Pierce v. Johns-Manville Sales Corp., 296 Md. 656, 464 A.2d 1020, 1022 n. 1 (Md. 1983); Special Project, An Analysis of the Legal, Social, and Political Issues Raised by Asbestos Litigation, 36 Vand.L. Rev. 573, 579 (1983); G. Peters & B. Peters, Sourcebook on Asbestos Diseases, Medical, Legal & Engineering Aspects, Vol. I, B18-20 (1980).

[245] Before Judges KING, O'BRIEN and SCALERA.

Levinson, Conover, Axelrod, Wheaton & Grayzel, attorneys for appellants (Ronald B. Grayzel, on the brief).

Morley, Cramer, Tansey, Haggerty & Fanning, attorneys for respondent Nicolet, Inc. (Thomas M. Kelly, on the letter brief).

Chazen & Chazen, attorneys for respondent Empire Ace Insulation Mfg. Corp. (Bernard Chazen, on the letter brief).

Schwartz & Andolino, attorneys for respondent Eagle-Picher Industries, Inc. (James F. McNaboe, on the letter brief).

McCarter & English, attorneys for respondents Owens-Illinois, Inc., Celotex Corporation, Pittsburgh-Corning Corporation, H.K. Porter Company, Keene Corporation and Flintkote (Andrew T. Berry, of counsel; J. Forrest Jones, on the brief).

Respondents GAF Corporation, Todd Shipyards Corporation and Standard Insulation Company did not participate in the appeal.

The opinion of the court was delivered by KING, P.J.A.D.

Plaintiffs, Hyman Seckular,^[1] and his wife, Ruth, appeal from the Law Division judge's denial of their motion to voluntarily dismiss the complaint without prejudice and from his grant of [246] defendant's motion for summary judgment. The complaint was dismissed as time-barred under Florida substantive law and its borrowing statute which the judge thought dictated that the New York statute of limitations should be applied to preclude plaintiff's suit for damages sustained as a result of exposure to asbestos. Plaintiff contends that the Law Division judge wrongfully exercised his discretion in denying his motion to voluntarily dismiss the complaint and incorrectly interpreted the applicable Florida law on the time-bar issue.

The case arises in this factual background. Plaintiff came to Brooklyn, New York from Poland in 1920. He lived in Brooklyn until 1979 when he and his wife moved to Delray Beach, Florida where they bought a condominium. Plaintiff's only exposure to asbestos occurred sometime between 1941 and 1945 when he worked as a welder at Todd Shipyards in Brooklyn.

When plaintiff moved to Florida in 1979, he registered to vote, obtained a driver's license, and worked part-time selling shoes. He began experiencing a constant cough and difficulty breathing in August 1982. He consulted five doctors in Florida but none diagnosed his condition as mesothelioma. The first doctor gave him cough syrup. After he suffered an attack in which he could not breathe, he was admitted to the hospital for tests and surgery was performed. Although not clear to us, it appears that plaintiff's right lung was removed in Florida because of a cancerous condition.

Despite the surgery, plaintiff's coughing continued. Four months after surgery, which occurred around October 1982, plaintiff consulted a Dr. Stein. He had grown weaker and was losing his appetite. Stein recommended that he see a pulmonary specialist, Dr. Falkowitz, who sent him for tests and prescribed medication for asthmatic bronchitis. After seeing Falkowitz, plaintiff came north.

Plaintiff and his wife came to live with their daughter and son-in-law in Marlboro, New Jersey during the summer of 1983. Plaintiff and his wife retained ownership of the Florida condominium [247] and hoped to return there in the winter. Plaintiff said that he could no longer live in Florida year-round because of the heat and humidity; he could not "combat the outdoors ... with half a lung." While staying with his daughter, plaintiff's condition was diagnosed as mesothelioma by Dr. Teirstein at Mount Sinai Hospital in New York City in May 1983.

The present suit was instituted in August 1983. It is unclear on this record when plaintiff died or when he moved back to Florida. The only information we have comes from his daughter's affidavit where she stated that

Shortly before my father died, my parents returned to Florida against my wishes.... My mother has decided to remain in Florida.

This case presents a rather complex choice-of-law question. New Jersey, as the forum, is asked to decide whether New York or Florida law applies to a cause of action asserted by a now-deceased Florida domiciliary who was exposed to asbestos in New York during World War II. New Jersey has no real interest in the litigation. The applicable Florida law seems unclear to us. A death action is now pending in Florida.

Defendants moved for summary judgment on time-bar grounds. Plaintiff then moved for a voluntary dismissal of his complaint without prejudice. After issue is joined, plaintiff may dismiss without prejudice only with court approval. R. 4:37-1(b). Plaintiff's counsel desired the dismissal because (1) Florida was the appropriate forum under principle of forum non conveniens, (2) New Jersey should not decide the choice-of-law issue where it had no interest in the law suit, and (3) plaintiff's surviving wife had filed a death action in Florida and a dismissal would avoid multiple suits. The judge found the plaintiff's action time-barred, reasoning that New Jersey would apply Florida substantive law and in the circumstances Florida courts in turn would borrow New York's statute of limitations because plaintiff's diagnosis was made there.

Plaintiff argues that, under Florida law, his cause of action arose in Florida in August 1982 when his injury became manifest. [248] Fla. Stat. § 95.031(2) (1982). As such, plaintiff contends that Florida's four-year statute of limitations, Fla. Stat. § 95.11 (1982), governs and permitted this suit filed in August 1983 to proceed. Defendants counter that Florida substantive law provides that, in cases of asbestosis-related injuries, the cause of action arises in the jurisdiction in which the diagnosis is made. Since plaintiff's mesothelioma was diagnosed in New York, defendants contend that the Florida courts would borrow the New York statute of limitations, Fla. Stat. § 95.10 (1979), and under the New York statute of limitations, N.Y.Civ.Prac.Law, § 214 (McKinney 1984), plaintiff's action would be barred since it was not filed within three years from the last exposure to the deleterious substance. See Steinhardt v. Johns-Manville Corp., 54 N.Y.2d 1008, 446 N.Y.S.2d 244, 430 N.E.2d 1297, 1298-1299 (Ct.App. 1981), amended 55 N.Y.2d 802, 447 N.Y.S.2d 437, 432 N.E.2d 139 (Ct.App. 1981), cert. den. 456 U.S. 967, 102 S.Ct. 2226, 72 L.Ed.2d 840 (1982) (statute of limitations begins to run upon inhalation of deleterious substance). One defendant also argues on this appeal that New York substantive law should apply to plaintiff's cause of action because there were more significant contacts with New York than with Florida.

New Jersey has abandoned the traditional rule of lex loci delecti in choice-of-law tort cases in favor of a governmental interest approach to substantive choice-of-law questions. Deemer v. Silk City Textile Mach. Co., 193 N.J. Super. 643, 648-649 (App.Div. 1984). A governmental interest approach is also used to determine whether New Jersey should apply its own statute of limitations or that of a foreign state. Heavner v. Uniroyal, Inc., 63 N.J. 130, 140-141 (1973); Pine v. Eli Lilly & Co., 201 N.J. Super. 186, 190-191 (App.Div. 1985). Both "governmental interest" tests are similar. Pine v. Eli Lilly, 201 N.J. Super. at 191.

... This approach requires a two-step analysis in resolving conflicts questions: the court determines first the governmental policies evidenced by the laws of each related jurisdiction and second the factual contacts of the parties with each [249] related jurisdiction. [Deemer v. Silk City Textile Mach. Co., 193 N.J. Super. at 649].

The forum state, in a conflicts situation, must decide whether to apply its own substantive law or that of a sister state. In this case, the forum, New Jersey, has no interest in applying its own law and no party contends that New Jersey substantive law should apply. Rather, the "governmental interest" approach which New Jersey employs in substantive conflicts questions in tort cases must somehow be used to decide whether Florida or New York substantive law should apply. Our concern in this case is why New Jersey should decide any aspect of this case in light of plaintiff's request for a voluntary dismissal. In order to decide which state's substantive law should apply, the forum would have to delve into the various governmental policies behind both New York and Florida substantive law on torts. If both states would apply New York's statute of limitations under their substantive law, then this case would present a false conflict or no conflict at all. We conclude, however, that Florida substantive law is not clear on whether that state's courts would conclude that plaintiff's cause of action arose in New York, the place of the diagnosis.

Another problem with the governmental interest balance in this case, is that Florida apparently continues to adhere to fairly rigid rules in conflicts cases. See Meehan v. Celotex Corp., 466 So.2d 1100, 1101 (Fla. Dist. Ct. App. 1985) (substantive law of forum is applied to determine where the cause of action arose). Once Florida applies its own law to determine where the cause of action arose, i.e., where the last act necessary to establish liability occurred, Florida will borrow the other state's statute of limitations without regard to any governmental interest test. Colon v. Celotex Corp., 465 So.2d 1332, 1333 (Fla. Dist. Ct. App. 1985). Conversely, New York has abandoned the traditional rule of lex loci delicti in favor of an interest-balancing test similar to that in New Jersey. Schultz v. Boy Scouts of America Inc., 65 N.Y.2d 189, 491 N.Y.S.2d 90, 94-98, 480 N.E.2d 679 (Ct.App. 1985).

[250] If conflicts doctrine is to foster some uniformity and preclude forum shopping, we fail to see why New Jersey should engage in any extended governmental interest analysis as to Florida and New York substantive law where the courts of Florida apparently would not favor their own interests for a resident of that state. In other words, it is the forum's conflicts principles which cause the original complexity here since New Jersey appears in theory to accord more weight to a sister state's governmental interest than would that state.

In any event, we do not think we should engage in any extended discussion of the governmental interest balance as it concerns the substantive law of New York and Florida. This test developed not merely to weigh the factual contacts and apply the law of that jurisdiction, but to determine each state's governmental policies and then to determine the factual contacts which would be relevant to them. Pine v. Eli Lilly, 201 N.J. Super. at 192. Since Florida does not recognize this balancing test, its governmental policies must be inferred. Basically, the policies at issue would be Florida's apparent recognition of the discovery rule in statute of limitations cases compared to New York's rigid, yet uniform and easily applied, focus on the date of exposure with no time for an equitable discovery rule. If that rule was designed to provide an easily applied "bright-line" for New York courts, the policy decision would be inapplicable in a New Jersey court where no such policy obtains. Apparently, New York's policy would be lightly weighed where the suit is not being litigated in its courts. Pine v. Eli Lilly, 201 N.J. Super. at 194.

The factual contacts in this case show that the now-deceased plaintiff was a Florida domiciliary when his symptoms first became manifest and that he returned to Florida just before he died. Although not commented upon by any party, there seems to be an issue as to whether plaintiff was ever really a New Jersey resident.^[2] The factual contacts with New [251] York are that plaintiff's exposure occurred in New York and the diagnosis of the asbestos-related condition also occurred there. Since New Jersey conflicts cases recognize residency as a weighty factor in determining whose law should be applied, e.g., Pine v. Eli Lilly, 201 N.J. Super. at 193, we think that Florida substantive law should probably apply in this case in light of New Jersey's concern with a party's domicile. The conflicts cases in New Jersey, where residence is a determining factor, are cases where the injured party is domiciled in New Jersey, suit is brought here, and the injured party seeks application of this forum's substantive law. See Mellk v. Sarahson, 49 N.J. 226 (1967). In the case before us, the governmental interest balance and the factor of plaintiff's residence point not to the application of the substantive law of the forum, but to the application of the substantive law of plaintiff's true residence, Florida, as opposed to the substantive law of the place of exposure, New York.

A review of pertinent Florida law discloses uncertainty on what a Florida court might decide on the statute of limitations issue. There are three pertinent cases: Celotex Corp. v. Copeland, 471 So.2d 533 (Fla.Sup.Ct. 1985); Colon v. Celotex Corp., [252] 465 So.2d 1332; Meehan v. Celotex Corp., 466 So. 1100 (en banc split decision).

In Meehan, the decedent was exposed to asbestos in New York in 1945 and later moved to Florida in 1969. His mesothelioma was diagnosed in Florida in 1977 and he died in 1978. Suit was instituted in Florida in 1979. The Meehan court first looked to Florida's borrowing statute which stated that the statute of limitations of another jurisdiction should be applied where "the cause of action arose in another state ..." Ibid. Since the borrowing statute was considered procedural, the determination of where the cause of action arose would be made in accordance with Florida law. According to the court, a cause of action accrues under Florida law when a plaintiff knows or should have known of the existence of his cause of action or the invasion of his legal rights. Because the record did not demonstrate that the cause of action arose in New York or arose any time before the diagnosis in Florida, the court remanded the matter to the trial judge for a determination of the discovery issue. The net result of the Meehan decision was that the trial judge's ruling that, as a matter of law, plaintiff's action had arisen in New York was erroneous.

In Colon another appellate court was asked to apply the Meehan opinion in a case where a Florida resident commenced an action in Florida for asbestosis which he incurred while employed by a Florida installer of asbestos products but where the diagnosis was made in Tennessee. The Colon court concluded that Florida was required to borrow the shorter Tennessee statute of limitations because the cause of action was discovered in Tennessee. The court apparently focused on the diagnosis of the condition in Tennessee. However, in Colon there was a factual dispute presented which, if resolved favorably to plaintiff, would have made plaintiff's suit timely, even under the shorter Tennessee statute of limitations. Therefore, the Florida court did not time-bar an action by one of its residents as a matter of law.

[253] In Celotex Corp. v. Copeland, a Florida Supreme Court decision, the Court ruled that an action accrues in a "creeping disease" situation where "the accumulated effects of the substance manifest themselves in a way which supplies some evidence of the causal relationship to the manufactured product." 471 So.2d at 539. The Florida Supreme Court concluded that the symptoms of shortness of breath developed in April 1975 but that the diagnosis of asbestosis was not made until 1978. Under these circumstances, the court concluded that when the disease manifested itself for purposes of the accrual of the action was a question of fact not subject to resolution by summary judgment.

We conclude that the place of the diagnosis is not necessarily the determinative fact as a matter of Florida law. While Copeland was a case which interpreted an accrual under the Florida statute of limitations, the Meehan court noted that Florida courts have never made a distinction between the accrual of an action under the state's statute of limitations and when a cause of action arose for purposes of the borrowing statute. Meehan, 466 So.2d at 1102. Therefore, we do not think that Florida would definitely state that plaintiff's cause of action arose in New York because that was the place of the diagnosis. Rather, Copeland read in conjunction with Meehan suggests that even in a conflicts situation the place where the cause of action arose in an asbestos-related injury may be a question of fact. This could be especially true in a situation where the diagnosis is made in a jurisdiction other than where the symptoms first became manifest. Of importance to note, none of these three cases automatically precluded an action by a Florida resident as time-barred by borrowing another state's statute of limitations. Rather, each case recognized that the date when the cause of action arose was a disputed question of fact.

Unfortunately, the trial judge did not have the benefit of the Florida Supreme Court's decision in Copeland and none of [254] the parties raised an issue of a factual dispute which would preclude the New Jersey court from deciding as a matter of law whether Florida would borrow New York's statute of limitations and dismiss the action as time-barred. In light of the dispute concerning whether plaintiff's cause of action arose in Florida, where he first manifested symptoms of the asbestos related condition, or arose in New York, when the mesothelioma was first diagnosed, we decline to decide authoritatively that Florida would borrow New York's statute of limitations and bar this suit. In this situation we think the wiser path is to defer to the Florida courts on this issue as a matter of comity. For this reason, we allow a dismissal without prejudice. This claim can be asserted in Florida in conjunction with the pending death action and the Florida courts can decide which law is applicable in a forum with some governmental interest in the controversy.

We perceive no basic injustice in granting a voluntary dismissal without prejudice on leave of court, R. 4:37-1(a), and deferring to the Florida courts. The Florida death action must be defended anyway. Cf. Moss Estate, Inc. v. Metal & Thermit Corp., 73 N.J. Super. 56, 66 (App.Div. 1962) (dismissal denied when suit in advanced stage); see also Union Carbide Corp. v. Litton Prec. Prods. Inc., 94 N.J. Super. 315 (Ch.Div. 1967). The now-deceased plaintiff's original choice of a New Jersey forum was apparently motivated by good faith in light of his need for cancer therapy, his treatment base originating from his daughter's home here, and his problem with the southern climate in the summer season. If not for these fortuitous circumstances, Florida surely would have been the original and sole forum.

The complaint will be dismissed without prejudice. The grant of summary judgment adverse to plaintiff is reversed.

---------

[1] Actually, plaintiff Hyman Seckular died after the complaint was filed but his personal representative was never substituted as a party plaintiff. We will refer to plaintiff in the singular in this opinion.

[2]The pertinent facts are stated in appellant's brief.

Although Hyman Seckular resided in Florida at the time his disease manifested itself, finding Florida's climate unbearable, he subsequently moved to New Jersey to his daughter, Susan Klau's home to undergo treatment and to avail himself of family care.

Plaintiff's condition (mesothelioma) was diagnosed during an admission at Mt. Sinai Hospital in New York City, New York. Plaintiff instituted a cause of action for his asbestos-related disease in New Jersey Superior Court while he was residing in New Jersey and intending to remain here.

Plaintiff eventually terminated his medical treatment and returned to Florida. The Seckular and Klau families believed that decedent's widow would return to New Jersey to live rather than live alone but she has chosen to remain in Florida permanently.

Since plaintiff's death in Florida, plaintiff's widow has secured an appointment as Executrix of her late husband's estate and has filed a wrongful death action in Florida. This wrongful death action is filed against the same defendants and makes the same allegations.

[1344] George A. Hilborn, Southfield, Mich., John J. Corbett, Chicago, Ill., for plaintiffs.

Lloyd E. Williams, Jr., Jacobs, Williams & Montgomery, Chicago, Ill., for defendants.

MEMORANDUM OPINION AND ORDER

BRIAN BARNETT DUFF, District Judge.

This diversity action alleging strict products liability, negligence, and breach of express and implied warranties of merchantability comes before the court on two related motions: plaintiffs' motion to strike defendant's affirmative defenses, and defendant's "motion to declare the law of the case." Each motion requires the court to consider whether the substantive law of Illinois or Pennsylvania governs this case, and whether the applicable statutes of limitation bar plaintiffs' claims for strict liability and breach of warranty.

Defendant Sunbeam Corp. is a Delaware corporation with its principal place of business in Illinois. Sunbeam manufactured home cooker/fryers at its plant in Illinois and distributed them in Pennsylvania where, in October, 1980, a cooker/fryer filled with hot oil tipped over and severely burned the two plaintiff children, both Pennsylvania residents.

Plaintiffs filed this action in May, 1982, and Sunbeam answered the complaint soon afterwards. In November, 1984, Sunbeam amended its answer to assert two affirmative defenses: first, that because it initially sold the cooker/fryer no later than May, 1968, the 12-year statute of repose for products liability actions in Illinois, Ill.Rev. Stat. ch. 110, ¶ 13-213, bars plaintiffs' strict liability claim; and second, that for the same reason, the four-year statute of limitations for breach of warranty actions in Illinois, Ill.Rev.Stat. ch. 26, § 2-725, bars plaintiffs' breach of warranty claims.

DISCUSSION

Rule 12(f) of the Federal Rules of Civil Procedure authorizes courts to "order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Plaintiffs contend that the affirmative defenses are insufficient because Pennsylvania law governs this case and their claims are timely under Pennsylvania law. Plaintiffs also argue that it is unfair for Sunbeam to raise its limitations defenses for the first time more than two years into this litigation.

As a federal court exercising its diversity jurisdiction, this court applies the substantive law of the forum in which it sits, including that forum's choice-of-law rules, Goldberg v. Medtronic, Inc., 686 F.2d 1219, 1225 (7th Cir.1982), and its statutes of limitation, Guaranty Trust Co. v. York, 326 U.S. 99, 110-11, 65 S.Ct. 1464, 1470, 89 L.Ed. 2079 (1945).

Illinois applies the "most significant contacts" test to determine the applicable law in tort cases. Ingersoll v. Klein, 46 Ill.2d 42, 47-48, 262 N.E.2d 593 (1970). This test requires the court to weigh four factors: "(a) The place where the injury occurred; (b) The place where the conduct occurred; (c) The domicile, nationality, place of incorporation and place of business of the parties; (d) The place where the relationship of the parties is centered." Id.

These factors require the application of Pennsylvania substantive law. The injury occurred in Pennsylvania, and while part of the conduct at issue occurred in Illinois (the manufacture of the allegedly defective cooker/fryer), another part of the conduct occurred in Pennsylvania (the distribution and sale of such cooker/fryers). Plaintiffs are Pennsylvania citizens, and although Sunbeam's principal place of business is in Illinois, the company also does business in Pennsylvania. Finally, the relationship of the parties is centered in [1345] Pennsylvania because that is the only place where their spheres of activity intersected.

A determination that the substantive law of Pennsylvania governs this case does not settle the adequacy of Sunbeam's affirmative defenses, however, because it leaves open the question of whether an Illinois court would apply Illinois or Pennsylvania statutes of limitation to plaintiffs' claims. As a general rule Illinois courts apply Illinois statutes of limitation to common law causes of action arising in other states, even when those causes of action are governed by foreign law. Jackson v. Shuttleworth, 42 Ill.App.2d 257, 259, 192 N.E.2d 217 (3d Dist.1963); Bernard Food Industries v. Dietene Co., 415 F.2d 1279, 1282 (7th Cir.1969). Because both strict liability and breach of warranty are common law causes of action in Pennsylvania, Illinois statutes of limitation govern this suit.

Sunbeam's first affirmative defense invokes the 12-year statute of repose for strict liability actions in Illinois, Ill.Rev. Stat. ch. 110, ¶ 13-213. But not all statutes of "repose" are statutes of "limitations"; a statute of limitations is a procedural rule requiring a plaintiff to bring suit within a certain time after her cause of action has accrued. Thornton v. Mono Manufacturing Co., 99 Ill.App.3d 722, 726, 54 Ill.Dec. 657, 425 N.E.2d 522 (2d Dist.1981). The Illinois statute of repose for strict liability claims is not a true statute of limitations because it is a substantive rule extinguishing a cause of action upon the lapse of a given period of time — regardless of whether the cause of action ever accrued. Id.

Because the Illinois statute of repose for strict liability claims is substantive and the substantive law of Pennsylvania governs this case, Sunbeam cannot assert the Illinois statute of repose. Illinois applies its general statute of limitations for personal injury actions to product liability claims, Berry v. G.D. Searle & Co., 56 Ill.2d 548, 558-59, 309 N.E.2d 550 (1974), and that limitations period is two years, Ill.Rev.Stat. ch. 110 ¶ 13-202. Plaintiffs complied with ¶ 13-202 by bringing suit within two years from the date of the accident. Sunbeam's first affirmative defense therefore must be stricken.

Sunbeam's second affirmative defense asserts Illinois' four-year statute of limitations for actions on contracts for sale, Ill.Rev.Stat. ch. 26, § 2-725, which governs actions for breach of warranty, Berry, 56 Ill.2d at 556-57, 309 N.E.2d 550. Section 2-725 is a true statute of limitations, providing that an action for breach of warranty must be initiated within four years of its accrual, which the section defines as occurring upon tender of delivery, "except that where a warranty explicitly extends to future performance of the goods and discovery of the breach must await the time of such performance the cause of action accrues when the breach is or should have been discovered." Because § 2-725 is the applicable statute of limitations for plaintiffs' breach of warranty claims, and Sunbeam may be able to show that plaintiffs failed to comply with the statute, Sunbeam's second affirmative defense is proper.

There is no merit to plaintiffs' argument that it is unfair for Sunbeam to assert its statute of limitations defense so late in the litigation. Pennsylvania's statute of limitations for breach of warranty actions is identical to the Illinois statute, Williams v. West Penn Power Co., 467 A.2d 811, 814 (Pa.1983), so Sunbeam's late assertion of the defense has not deprived plaintiffs of the ability to pursue their claims in a more generous forum.

Accordingly, the court finds that Pennsylvania substantive law governs this case, and strikes Sunbeam's first affirmative defense. Sunbeam's second affirmative defense stands.

IT IS SO ORDERED.

[865] Edward Kelley and Robert J. Hoffer, Barron & Stadfeld, Boston, Mass., for Betty Alves, et al.

George E. Wakeman, Jr., Melick & Porter, Boston, Mass., for Leach Co., Inc.

John D. Cassidy, Ficksman & Conley, Boston, Mass., for Siegel's Broadway Auto Parts, Inc.

MEMORANDUM AND ORDER

HARRINGTON, District Judge.

This case presents a choice of law question regarding a state statute of repose. The issue is before the Court on the motion of third-party defendant Leach Company, Inc. ("Leach") for summary judgment. Jurisdiction is proper under 28 U.S.C. § 1332.

I. BACKGROUND

The facts giving rise to this lawsuit are relatively simple. Plaintiffs sue as administratrices of decedent's estate, alleging in a three-count complaint that decedent was crushed to death during the course of his employment by the compacting unit on a trash collecting truck. Plaintiffs contend that defendant, Siegel's Broadway Auto Parts, Inc. ("Siegel"), from whom decedent's employer purchased the truck, is liable in negligence, breach of warranty, and strict liability. Third-party defendant Leach, the manufacturer of the truck's compacting mechanism, is alleged to be liable under theories of contribution and indemnification for any liability which might be assessed against Siegel.

II. PROCEDURE

The parties have arrived in this Court by a rather circuitous route. Plaintiffs originally proceeded directly against Leach in a suit filed in Connecticut Superior Court on June 21, 1985, nearly two years after decedent's death. Defendant Siegel was not named in that complaint. Leach filed a motion for summary judgment in the Connecticut action on March 24, 1986, arguing that a Connecticut statute of repose precluded plaintiffs' recovery. The instant action was filed by plaintiffs in Massachusetts Superior Court on July 17, 1986, naming only Siegel as a defendant. Siegel impleaded the third party Leach on January 29, 1987, and Leach removed the case to this Court on March 4, 1987. Summary judgment was granted in Leach's favor in [866] the Connecticut action two weeks later, and Leach now moves for summary judgment in this Court on essentially the same ground.

III. THE ISSUE

The facts giving rise to this diversity action revolve around two states, and thus the applicable law could possibly emanate from one or more of three jurisdictions: (1) Connecticut, the state (i) where the plaintiffs are domiciled, (ii) where the plaintiffs' decedent was domiciled, (iii) where decedent's employer, the purchaser of the trash collecting truck, was domiciled, and (iv) where the injury occurred; (2) Massachusetts, the state (i) of defendant Siegel's incorporation and principal place of business, (ii) from which the compacting unit was ordered and to which it was delivered by Leach, (iii) in which the sale of the trash truck from Siegel to the decedent's employer took place, and (iv) in which this federal court is exercising its diversity of citizenship jurisdiction; and (3) the United States, which is providing the forum for this action.

The movant Leach supports its claim of non-liability with the following language of the Connecticut statute:

[n]o product liability claim ... may be brought against any party nor may any party be impleaded ... later than ten years from the date that the party last parted with possession or control of the product.

Conn.Gen.Stat. § 52-577a(a) (emphasis supplied). It is undisputed that, if applicable, this law would preclude liability of Leach. It is also undisputed that no other involved jurisdiction has such a law. The issue, then, is whether a federal court, exercising diversity of citizenship jurisdiction in the District of Massachusetts, should apply the Connecticut statute of repose to deny a third-party claim of contribution and indemnification in this products liability action.

IV. DISCUSSION

A federal court sitting in diversity jurisdiction applies the substantive law of the forum state, Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), including its choice of law rules. Klaxon Co. v. Stentor Elec. Mfg., 313 U.S. 487, 496, 61 S.Ct. 1020, 1021, 85 L.Ed. 1477 (1941). Statutes of repose are, under federal law, substantive in nature. See Arrieta-Gimenez v. Arrieta-Negron, 859 F.2d 1033, 1036 (1st Cir.1988). Accordingly, this Court looks toward Massachusetts law.

Since the analysis of Massachusetts law may involve a choice of law, this Court first seeks to determine whether there is a legislative directive, or "borrowing statute," as to what sovereign should supply the law. See Vaughn v. J.C. Penney Co., 822 F.2d 605, 611 (6th Cir.1987); see also Restatement (Second) of Conflict of Laws (hereinafter "Second Restatement") § 6(1) (1969) ("A court ... will follow a statutory directive of its own state on choice of law"). Leach argues, quite correctly, that Mass.Gen.L. ch. 260, § 9 is just such a borrowing statute. Leach is incorrect, however, in its assertion that the borrowing statute applies in this case. The statute provides that "no action shall be brought by any person upon a cause of action which was barred by the laws of any state or country while he resided therein." Mass.Gen.L. ch. 260, § 9. The claims put in issue by this motion are not the primary, first-party claims of the Connecticut plaintiffs, but rather the third-party derivative claims of Siegel, the Massachusetts defendant. Since the statute of repose is a Connecticut law, and Siegel is a Massachusetts resident, Siegel's claims are not barred by the laws of its state, and the borrowing statute does not by its terms apply.^[1]

[867] Having determined that there is no applicable legislative directive, the Court must now look to the forum state's choice of law method. This analysis requires the Court to retrace a step, this time under the guidance of state law. In other words, the Court must determine whether, under state law, the issue is to be regarded as substantive or procedural. If the forum state views the issue as procedural, this Court applies the law of the forum and declines to apply the Connecticut statute. See Sampson v. Channell, 110 F.2d 754, 759 (1st Cir.), cert. denied, 310 U.S. 650, 60 S.Ct. 1099, 84 L.Ed. 1415 (1940). If, however, Massachusetts views the issue as substantive, this Court declines to apply the lex fori automatically, and instead looks toward the forum state's choice of law rules to determine which state's law should control. Id.^[2]

No Massachusetts court has considered the question of whether, under its choice of law rules, a statute of repose is substantive or procedural. Statutes of repose are somewhat analogous to statutes of limitation, however, and it is clear that Massachusetts views statutes of limitation as procedural. Accordingly, Massachusetts courts decline to bar actions by application of another state's statute of limitation even if the other state is supplying the substantive law as to the cause of action being sued upon. See Wilcox v. Riverside Park, 21 Mass.App.Ct. 419, 421, 487 N.E.2d 860, 861 (1986) ("Massachusetts views statutes of limitation as relating to the remedy, and it applies its own law as the law of the forum"), rev'd. on other grounds, 399 Mass. 533, 505 N.E.2d 526 (1987); Clark v. Pierce, 215 Mass. 552, 553, 102 N.E. 1094 (1913); Hemric v. Reed and Prince Mfg., 739 F.2d 1, 2-3 (1st Cir.1984) ("We are aware of no case suggesting that Massachusetts would abandon the traditional rule that the local law of the forum determines whether an action is barred by a statute of limitations"); Wilson v. Hammer Holdings, Inc., 671 F.Supp. 94, 96 (D.Mass.1987) ("While Massachusetts has adopted modern choice of law analysis for substantive contract law issues, statutes of limitation are considered procedural rather than substantive"), aff'd 850 F.2d 3 (1st Cir.1988). Massachusetts is not unique for maintaining [868] this view. See, e.g., Second Restatement § 142(2) ("An action will be maintained if it is not barred by the statute of limitations of the forum, even though it would be barred by the statute of limitations of another state") and cases cited therein at the reporter's note. Most adherents to this view make an exception, however, when the asserted statute of limitation is so specific to the right being sued upon that it can be viewed as a condition of the right's creation and a part of the right itself. In such instances, the right-specific statute of limitation is viewed as substantive; the forum state accordingly declines to apply its own statute as a matter of procedure, but rather applies the statute of the state supplying the substantive law. See, e.g., Second Restatement § 143 ("An action will not be entertained in another state if it is barred in the state of the otherwise applicable law by a statute of limitations which bars the right and not merely the remedy") and cases cited therein at the reporter's note.

This distinction is not immediately dispositive of the issue before the Court, for two reasons. First, Massachusetts has not explicitly recognized an exception to its longstanding (and recently reaffirmed, see Wilcox v. Riverside Park Enter., supra) rule that statutes of limitation are procedural, and its choice of law decisions reveal no inclination toward recognizing such an exception. In Rose v. Town of Harwich, however, the First Circuit recognized the distinction while discussing the preclusive effect, under Massachusetts law, of a statute of limitation-based dismissal on subsequent litigation;

A typical statute of limitations might, for example, extinguish the plaintiff's "remedy" in State A, but would not in itself necessarily stop him from enforcing his substantive "right" in State B, which may apply a different limitations provision.

778 F.2d 77, 80 (1st Cir.1985), cert. denied, 476 U.S. 1159, 106 S.Ct. 2278, 90 L.Ed.2d 720 (1986). While Rose left open the question of whether "Massachusetts would deem the `right'/`remedy' distinction relevant in determining the preclusive effect of limitations-based dismissals," it nonetheless cited Massachusetts precedent establishing the distinction and accepting its validity in other contexts. Id. at 81; cf. Little v. Blunt, 26 Mass. 488, 491-92 ("If the debt remained, the remedy was gone [, but] a debt barred by the statute of limitations is a good consideration for an express promise").^[3]

A second factor complicating the analysis under state law is that, despite the similarities between statutes of repose and statutes of limitation, Massachusetts courts clearly perceive each to be of a significantly different character. See, e.g., Tindol v. Boston Housing Authority, 396 Mass. 515, 519, 487 N.E.2d 488, 490 (1986) (contrasting the two types of statutes, the court stated that a statute of repose "is of an entirely different legal genre"); Klein v. Catalano, 386 Mass. 701, 702, 437 N.E.2d 514, 516 [869] (1982) ("General Laws ch. 260, § 213, is not a statute of limitations but a statute of repose"); James Ferrera & Sons v. Samuels, 21 Mass.App.Ct. 170, 173, 486 N.E.2d 58, 60 (1985) ("There is a marked difference between a statute of limitations and a statute of repose").

The difference which the state courts perceive in the two types of limiting statutes is well stated in James Ferrera & Sons; "[u]nlike a statute of limitations, which bars a cause of action if not brought within a certain time period, a statute of repose prevents a cause of action from arising after a certain period." 21 Mass. App.Ct. at 173, 486 N.E.2d at 61. A statute of limitation can extinguish a cause of action only after an injury has occurred; when a statute of repose extinguishes a cause of action, however, "[t]he injury need not have occurred, much less have been discovered." Klein, 386 Mass. at 702, 437 N.E.2d at 516. The conventional statute of limitation, therefore, simply limits the time in which an action may be brought. The statute of repose, by contrast, "completely eliminates" and "abolishes" the cause of action. Klein, 386 Mass. at 702-03, 437 N.E.2d at 516-17. Stated differently, "[t]he bar of a statute of repose is absolute, whereas the bar of a statute of limitations is conditional." Tindol, 396 Mass. at 519, 487 N.E.2d at 491 (quoting James Ferrera & Sons, 21 Mass.App.Ct. at 173, 486 N.E.2d at 61).

The above-cited cases provide this Court with guidance sufficient to conclude that Massachusetts courts would view the instant statute of repose as substantive. While Wilcox, Hemric and Wilson, supra, state the general rule that statutes of limitation are procedural, Rose v. Harwich, supra, the Second Restatement § 143, supra, and logic suggest that this rule is, or should be, narrowly applied so that the forum state considers the statute substantive when the limitation is tied closely to the right. The Tindol, Klein and James Ferrera & Sons line of cases, supra, indicate that statutes of repose relate to the very existence of the cause of action itself and thus affect rights more directly, or perhaps more profoundly, than do statutes of limitation. Statutes of limitation, moreover, often reflect concern with the procedural difficulties inherent in litigating stale claims. Sun Oil Co. v. Wortman, ___ U.S. at ___, 108 S.Ct. at 2123. The instant statute of repose, by contrast, appears to reflect a belief that products should not be expected to last forever, and that ten years is appropriately considered the expiration of a product's useful life for liability purposes. For these reasons, the Court is confident that a Massachusetts court would read the precedent as indicating that statutes of repose are substantive in nature. Other courts have so held. See, e.g., Arrieta-Gimenez v. Arrieta-Negron, supra, 859 F.2d at 1036 (applying Puerto Rico choice of law rules); President and Directors v. Madden, 660 F.2d 91, 94 (4th Cir.1981) (applying Maryland choice of law rules); Pottratz v. Davis, 588 F.Supp. 949, 952-3 (D.Md.1984) (same). Accordingly, the Court proceeds to an analysis of state choice of law principles to determine whether, on the facts of the case at bar, Connecticut is the appropriate law-giver.

At one time, Massachusetts employed a strict territorial approach. Issues relating to tort were resolved in accordance with the lex loci delicti. See, e.g., Brogie v. Vogel, 348 Mass. 619, 621, 205 N.E.2d 234, 236 (1965). Issues relating to contract were resolved in accordance with the lex loci contractus. See, e.g., Cameron v. Gunstock Acres, Inc., 370 Mass. 378, 381-82, 348 N.E.2d 791, 793 (1976). Whatever the shortcomings of such a method, it had the virtue of simplicity and predictability of result. In the case at bar, for instance, there is no doubt but that the law of Connecticut would apply as the state where the injury occurred.^[4]

[870] Recent Massachusetts choice of law decisions have rendered the approach significantly more complex. It is clear that Massachusetts no longer follows the strict territorial approach of lex loci delicti in tort actions. See, e.g., Cohen v. McDonnell Douglas Corp., 389 Mass. 327, 333, 450 N.E.2d 581, 585 (1983); Saharceski v. Marcure, 373 Mass. 304, 310-11, 366 N.E.2d 1245, 1249 (1977); Pevoski v. Pevoski, 371 Mass. 358, 360, 358 N.E.2d 416, 417 (1976). The place of the wrong remains, however, an important consideration. See Cohen v. McDonnell Douglas Corp., 389 Mass. at 333-336, 450 N.E.2d at 584-86 (analyzing a breach of warranty claim "in light of choice of law principles applicable in tort actions," the Supreme Judicial Court stated that the "place where the injury occurred `is the place where the last event necessary to make an actor liable for an alleged tort takes place,'" and then devoted several pages of text to determining where that event occurred); see also Ahmed v. Boeing Co., 720 F.2d 224, 226 (1st Cir.1983) (interpreting Pevoski to indicate that "in tort cases Massachusetts generally follows doctrine of lex loci delicti"); Continental Cablevision, Inc. v. Storer Broadcasting Co., 653 F.Supp. 451, 454 (D.Mass.1986) ("while the traditional rule of lex loci delicti no longer strictly controls choice of law questions in tort suits ... it still provides a useful rule for most multi-state torts"); King v. Williams Indus., 565 F.Supp. 321, 325 (D.Mass.1983) ("In Pevoski, the Supreme Judicial Court indicated that the lex loci delicti rule `has provided, and will continue to provide, a rational and just procedure for selecting the law governing the vast majority of issues in multi-state tort suits'"), aff'd 724 F.2d 240, 241 (1st Cir.), cert. denied, 466 U.S. 980, 104 S.Ct. 2363, 80 L.Ed.2d 835 (1984); Schulhof v. Northeast Cellulose, Inc., 545 F.Supp. 1200, 1203 (D.Mass.1982) ("Essentially, then, Pevoski stands for the following propositions of law ... a) lex loci delicti would continue as the general tort conflicts rule governing most issues in multi-state tort suits").

The current approach appears to be a bit of a hybrid, mixing lex loci delicti and the Second Restatement's "most significant relationship" test. See Cohen v. McDonnell Douglas Corp., 389 Mass. at 333, 450 N.E. 2d at 585 ("ordinarily the substantive law governing an action of tort for physical injury is that of the place where the physical injury occurred [but] on the particular facts of a case another jurisdiction may sometimes be more concerned and more involved with certain issues"); Pevoski v. Pevoski, 371 Mass. at 359-60, 358 N.E.2d at 417 ("there also may be particular issues on which the interests of lex loci delicti are not so strong [and] another jurisdiction may sometimes be more concerned and more involved with certain issues than the State in which the conduct occurred"); Engine Specialties, Inc. v. Bombardier, Ltd., 605 F.2d 1, 19 (1st Cir.1979), cert denied, 446 U.S. 983, 100 S.Ct. 2964, 64 L.Ed.2d 839 (1980); Emery Corp. v. Century Bancorp, Inc., 588 F.Supp. 15, 16 (D.Mass.1984) ("Massachusetts has abandoned strict adherence to the rule of lex loci delicti ... and has adopted a flexible approach to choice of law questions which is similar to the approach used in the Restatement (Second)"); Church of Scientology v. Flynn, 578 F.Supp. 266, 267 (D.Mass.1984) ("Whether I apply the doctrine of lex loci delicti [citation omitted] or the interests analysis embodied in Restatement (Second) [citation omitted], the result is the same"); cf. Computer Sys. Eng'r, Inc. v. Quantel Corp., 740 F.2d 59, 70 (1st Cir. 1984) ("a Massachusetts court would apply a test not materially different from that of the Restatement (Second)"); Freeman v. World Airways, Inc., 596 F.Supp. 841, 845 (D.Mass.1984) ("Massachusetts would follow an analysis similar to if not identical with that of the Restatement (Second)"); King v. Williams Indus., 565 F.Supp. at 324 ("Sub silentio, the Supreme Judicial Court adopted the approach set forth in the Restatement (Second) of Conflict of Laws §§ 145, 146"). Choice of law in tort actions was discussed most recently in Cohen v. McDonnell Douglas Corp., where the Supreme Judicial Court selected the law of [871] the place of the injury after concluding that, under § 146 of the Second Restatement, no other state had a "more significant interest."^[5] 389 Mass. at 336, 450 N.E.2d at 586. Evaluation of the significance of a state's interests is determined, under § 146, by examining the principles of § 6, which section is set forth below.^[6]

Applying the Massachusetts hybrid approach, the Court finds that Connecticut should supply the substantive law. Connecticut is the place of the injury, and thus its law should be supplanted only if Massachusetts has a more significant relationship to the cause of action. See Cohen, 389 Mass. at 336-37, 450 N.E.2d at 586; Schulhof, 545 F.Supp. at 1203. Were Siegel's claim of indemnification based on an express contractual provision, this Court might be inclined to accord substantial weight to "the protection of justified expectations," Second Restatement § 6(d), and apply the law of Massachusetts as the state from which the order was placed and to which the compactor was delivered. Leach and Siegel have had no contractual relationship, however, and this action is not in contract but rather in tort. See id. at § 6, comment g ("There are occasions, particularly in the area of negligence, where the parties act without giving thought to the legal consequences of their conduct or to the law that may be applied. In such situations, the parties have no justified expectations to protect"). Although Massachusetts does have a legitimate interest in allowing its retailers to delegate liability by impleading third-party manufacturers, this interest is not sufficient to overcome the interest of Connecticut in extinguishing liability for products the useful lives of which have expired. Particularly is Massachusetts' interest insufficient where, as here, its retailer sold the product to a Connecticut domiciliary. Accordingly, "the relevant polic[y] of the forum" is implicated, id. at § 6(b), but is insufficient when compared to "the relevant policies of other interested states [Connecticut] and the relative interests of those states in the determination of the particular issue." Id. at § 6(c). The "needs of the interstate ... system," id. at § 6(a), counsel the application of Connecticut law, since "harmonious relations" are not fostered when Massachusetts allows liability which Connecticut has already denied, [872] nor is "commercial intercourse" furthered by denying Connecticut the application of a law the effect of which should be to encourage the exchange of products within its borders. Id. at § 6, comment d. The remaining factors ("the basic policies underlying the particular field of law," id. at § 6(e), "certainty, predictability, and uniformity of result," id. at § 6(f), and "ease in the determination and application of the law to be applied," id. at 6(g)) point neither toward one state nor the other. This is so because the policies underlying the law of products liability are reflected in the policies of the two states, the competing laws are easily determined and applied, and neither party appears to have planned its conduct with legal consequences in mind. Cf. id. at § 6, comment i ("Predictability and uniformity of result are of particular importance in areas where the parties are likely to give advance thought to the legal consequences of their transactions"). Under both the lex loci and the Second Restatement strains of the Massachusetts hybrid approach, therefore, the Connecticut statute of repose applies.^[7]

The movant Leach posits an alternative analytical route by which the Court could reach this same result. Instead of examining the Massachusetts precedent to determine whether a statute of repose is conflicts-substantive or conflicts-procedural, Leach would have the Court proceed directly to § 143 of the Second Restatement; "[a]n action will not be entertained in another state if it is barred in the state of the otherwise applicable law by a statute of limitations which bars the right and not merely the remedy." Applying § 143, the Court would first inquire as to whether "the limitation provision was directed to the right `so specifically as to warrant saying that it qualified the right.'" Id. at § 143, comment c, (quoting Davis v. Mills, supra, 194 U.S. at 454, 24 S.Ct. at 693). Concluding that the Connecticut statute of repose is directed specifically to the right to maintain a products liability action, the Court could then determine that the statute "bars the right and not merely the remedy." Id. at § 143. An analysis of the principles set forth in § 6 would indicate that Connecticut is "the state of the otherwise applicable law," id. at § 143, and the Connecticut statute of repose would accordingly apply.

Leach's argument has a great deal of appeal to it, and this Court would not hesitate to favor Leach's approach were it not for the constraints of Massachusetts precedent. In support of its approach, Leach argues that the Second Restatement is "an authority the Massachusetts Supreme Judicial Court has regularly looked to for guidance in opinions employing modern conflict analysis." Hemric v. Reed and Prince Mfg., 739 F.2d at 3. At the same time, however, Massachusetts has not backed off entirely from the traditional lex loci approach, see Cohen, King v. Williams Indus., and Schulhof v. Northeast Cellulose, Inc., supra, and the Appeals Court of Massachusetts recently reaffirmed the traditional lex loci approach to statutes of limitation in language which the Supreme Judicial Court left entirely intact while reversing on other grounds. See Wilcox v. Riverside Park Enter., supra, 21 Mass. App.Ct. at 421, 487 N.E.2d at 861. Additionally, the Tindol, Klein, and James Ferrera & Sons, Inc. line of cases, supra, [873] suggest that Massachusetts courts, even if they were to embrace the Second Restatement without qualification, might not apply its sections discussing "statute[s] of limitations" to a statute of repose. In sum, Leach's argument is quite persuasive; the Court is constrained, however, to travel an alternate route to the same result.

For the foregoing reasons, the Court concludes that the Connecticut statute of repose, Conn.Gen.Stat. § 52-577a(a), precludes Siegel from impleading the third party Leach, and accordingly GRANTS Leach's motion for summary judgment as to both counts of the third-party complaint.

[1] There is an additional reason why the borrowing statute does not support Leach's position. The statute contains language regarding tolling of statutes of limitation, as well as the above-quoted language regarding borrowing. Massachusetts courts have interpreted the borrowing clause as modifying the statute's language regarding tolling. Wilcox v. Riverside Park Enter., 399 Mass. 533, 539, 505 N.E.2d 526, 530 (1987). It has, therefore, no independent force of its own, and no application in a case such as this where no party asserts that the Massachusetts statute of limitation has been tolled due to the defendant having resided out of state.

[2] This analysis may appear unnecessarily duplicative, since it involves deciding whether the issue is substantive or procedural under federal law, and then making the same determination again under state law. Settled precedent, however, "rejects the notion that there is an equivalence between what is substantive under the Erie doctrine and what is substantive for purposes of conflict of laws ... the terms `substance' and `procedure' precisely describe very little except a dichotomy, and what they mean in a particular context is largely determined by the purposes for which the dichotomy is drawn." Sun Oil Co. v. Wortman,___ U.S. ___, ___, 108 S.Ct. 2117, 2124, 100 L.Ed.2d 743 (1988). The purposes for which the dichotomies are drawn ought, however, to be similar, and the separate determinations ought, therefore, to achieve the same result;

It is submitted that the Erie outcome test can furnish [a conflicts] guide, for the underlying rationale for the application of the state law in an Erie situation is substantially the same as the rationale for the application of the lex loci in a conflicts situation. The sole purpose of a federal court in a diversity case is to furnish an impartial forum. The only purpose of a court in a conflicts case, once it has decided that it will look to the law of another state, is to serve as a forum of convenience. In each situation the court should use as a model as much of the law of the reference point as will materially affect the outcome.

Sedler, The Erie Outcome Test as a Guide to Substance and Procedure in the Conflicts of Laws, 37 N.Y.U.L.Rev. 813, 821-822 (1962) (emphasis in original). That the separate determinations ought to reach the same result, however, does not mean that they do. See, e.g., Sampson v. Channell, 110 F.2d at 762 ("This result may seem to present a surface incongruity, viz., the deference owing to the substantive law of Massachusetts as pronounced by its court requires the federal court in that state to apply a Massachusetts rule as to burden of proof which the highest state court insists is procedural only"). When each separate determination is that the issue is substantive, moreover, the federal court may be required to wander very far afield. Cf. Nolan v. Transocean Airlines, 276 F.2d 280, 281 (2d Cir.1960) (Friendly, J.) ("Our principal task, in this diversity of citizenship case, is to determine what the New York courts would think the California courts would think on an issue about which neither has thought"). The justification, however, lies in "reasons of policy, set forth in the [Erie v.] Tomkins case, [which] make it desirable for the federal court in diversity of citizenship cases to apply the state rule," including its conflicts rule. Sampson v. Channell, 110 F.2d at 762.

[3] Rose actually takes a dim view of the issue presented by the case at bar, citing the following language of the Supreme Court; "[t]here has been considerable academic criticism of the rule that permits a forum state to apply its own statute of limitations regardless of the significance of contacts between the forum state and the litigation." Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 778, 104 S.Ct. 1473, 1480, 79 L.Ed. 2d 790 (1984), cited in Rose v. Town of Harwich, 778 F.2d at 80-81. This Court also takes a critical view of the rule, and takes a critical view of the right/remedy distinction as well; "the distinction amounts to nothing, because to deny all remedy, direct or indirect, within the state is practically to deny the right." Davis v. Mills, 194 U.S. 451, 456-57, 24 S.Ct. 692, 694-95, 48 L.Ed. 1067 (1903). Under the federal Erie test, which ought to reach the same result as the state conflicts test (see note 2, supra), statutes of limitation are viewed as outcome determinative, and therefore substantive. Accordingly, they are supplied not by the federal court as the forum, but rather by the forum state as the provider of substantive law. See, e.g., Guaranty Trust Co. v. York, 326 U.S. 99, 65 S.Ct. 1464, 89 L.Ed. 2079 (1945); cf. Unif. Conflict of Laws — Limitations Act § 2 (1982) (stating the rule that the limitation period applicable shall be that of the state which supplies the substantive law upon which the claim is based). This can not end the matter, however, for a federal diversity court is called upon to discern what would be the position of the state courts, and not to substitute its own position. Otherwise, "the ghost of Swift v. Tyson ... still walks abroad." Sampson v. Channell, 110 F.2d at 761.

[4] The only claim in either the original or the third-party complaint which could be characterized as sounding in anything but tort is the claim for breach of warranty. It is clear, however, that under Massachusetts law "a claim for breach of warranty of merchantability is in essence a tort claim [and therefore] it is appropriate to view the choice of law issue raised by the [breach of warranty] claim in light of choice of law principles applicable in tort actions." Cohen v. McDonnell Douglas Corp., 389 Mass. 327, 332-33, 450 N.E.2d 581, 584 (1983).

[5] Cohen's use of the phrase "more significant interest" (emphasis supplied) is typical of many Massachusetts choice of law cases. See, e.g., Engine Specialties, Inc. v. Bombardier, Ltd., 605 F.2d at 19 ("[Massachusetts] would look to the law of the jurisdiction having the strongest interest"); Emery Corp. v. Century Bancorp, Inc., 588 F.Supp. at 18 ("[Massachusetts] would resolve this issue by comparing the strength of the governmental interests at stake"); Computer Sys. Eng'r v. Quantel Corp., 571 F.Supp. 1365 at 1368 ("[Massachusetts] would look to the law of the jurisdiction having the strongest interest"), aff'd 740 F.2d 59, 70 (1st Cir.1984); Schulhof v. Northeast Cellulose, Inc., 545 F.Supp. at 1203 ("Another jurisdiction might have a greater interest such that the law of that jurisdiction should control"). Like these other cases, however, Cohen cites and applies the criteria of the Second Restatement. It is most likely, therefore, that the test which these courts apply is the "most significant relationship" test of the Second Restatement, and not the governmental "interest analysis" test pioneered by Professor Currie, see B. Currie, Selected Essays on the Conflict of Laws 183-187 (1963), and adopted by states such as New York. See, e.g., Schultz v. Boy Scouts of America, Inc., 65 N.Y.2d 189, 491 N.Y.S.2d 90, 480 N.E.2d 679 (N.Y.1985). Conventional interest analysis differs from other methods in that it looks primarily at the interests of the parties' states of domicile, which interests are evaluated, compared, and reconciled if in conflict. Were conventional interest analysis a favored approach in Massachusetts, this Court would consider the law and policy of Wisconsin, since Wisconsin is the state in which Leach was incorporated and in which it maintains its principal place of business. Since Wisconsin is of minimal significance given the Massachusetts approach, however, the Court declines to undertake this foray.

[6] § 6 Choice-of-Law Principles

(2) When there is no [contrary statutory] directive, the factors relevant to the choice of the applicable rule of law include

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

(b) the relevant policies of the forum,

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

(d) the protection of justified expectations,

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

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

(g) ease in the determination and application of the law to be applied.

[7] The Court declines specifically to analyze the case at bar under Professor Leflar's "better law" approach, despite the indication of the Supreme Judicial Court that the approach might be coming into favor; "[a]lternatively, we could consider the five considerations proposed by Professor Leflar ... [w]e agree with Professor Leflar that these five considerations generally parallel the considerations contained in longer lists, including § 6(2) of the Second Restatement." Bushkin Assoc. v. Raytheon Co., 393 Mass. 622, 634, 473 N.E.2d 662, 670 (1985). The only consideration which is both present in Professor Leflar's list and absent from the Second Restatement is "[a]pplication of the better rule of law." Id. at 634, n. 7, 473 N.E.2d at 670, n. 7. Absent a clearer command of the Supreme Judicial Court, the Court is reluctant to resolve this case by second-guessing the Connecticut legislature as to the wisdom of enacting such a law, or by second-guessing the decision of the Massachusetts legislature not to enact such a law. See also Bi-Rite Enter. v. Bruce Miner Co., 757 F.2d 440, 443 (1st Cir.1985) (noting Bushkin's mention of the Leflar considerations, but opting instead to apply exclusively the criteria of § 6(2) of the Second Restatement).

[481] Alan Y. Medvin argued the cause for appellant (Medvin & Elberg, attorneys).

Peter B. Van Deventer, Jr., argued the cause for respondent (Robinson, St. John & Wayne, attorneys; Douglas H. Amster and John S. Wisniewski, on the brief).

The opinion of the Court was delivered by HANDLER, J.

In this case, a young woman, working in a chicken processing plant in Georgia, was killed when struck in the head by a moving part of a machine. The machine had been manufactured more than thirteen years before the fatal accident by a New Jersey corporation with its principal place of business in Linden, New Jersey.

Representatives of the decedent, asserting that the machine was defective, brought this personal-injury action based on claims of survivorship and wrongful-death against the New Jersey manufacturer [482] in the Law Division in Union County. The action was filed within New Jersey's two-year statute of limitations for personal-injury actions, but beyond Georgia's ten-year statute of repose applicable to products-liability claims against manufacturers. Because of the conflict between the two statutes, the case poses a fundamental choice-of-law issue over which statute applies and whether, depending on that choice, the action will be barred.

I

Graciela Gonzalez was a twenty-two year-old who lived in Georgia with her husband and two small children. She was employed at a chicken processing plant called Dutch Quality House in Gainesville, Georgia. On February 27, 1991, Ms. Gonzalez was killed at work when she was struck in the head by a moving part of a shaker machine. Plaintiff Samuel Gantes, also a Georgia resident, is the administrator ad prosequendum for the estate and heirs of the decedent.

The shaker machine was manufactured by defendant Kason Corporation, which is a New Jersey corporation with its principal place of business in Linden, New Jersey. It was disputed below whether the machine was manufactured at defendant's New Jersey plant, or at one of its plants in New York. However, for purposes of the disposition by summary judgment, the courts below assumed that defendant manufactured the machine in New Jersey.

Evidence indicating New Jersey manufacture included the original certification to the trial court of Kason's president, Lawrence H. Stone. This certification expressly stated that defendant manufactured the shaker machine, a forty-eight inch "Kason Vibroscreen," in the Linden, New Jersey plant. In addition, numerous documents affixed to Stone's original certification, consisting of correspondence, invoices, receipts, and the like, indicate that the machine was manufactured in and shipped from New Jersey. They indicate that defendant originally sold the shaker machine in 1977 to Salvo Corporation of Fall River, Massachusetts, for shipment [483] to Snyder's Potato Chips in Berlin, Pennsylvania. Thus, all of the correspondence from defendant regarding that original sale and shipment to Snyder's Potato Chips contain a New Jersey return address. With one exception, all of the receipts, invoices and other similar documents regarding that sale and shipment contain defendant's New Jersey letterhead. In addition, the "purchase order" sent from Salvo Corporation to defendant was directed to a New Jersey address belonging to defendant. Finally, the Federal Express invoice that documents the shipment of the machine to Snyder's Potato Chips reflects that defendant made that shipment from its offices in Linden, New Jersey. The "Instruction Manual" for the Kason Vibroscreen, another document affixed to Stone's original certification, also supports the conclusion that defendant manufactured the machine in New Jersey. That manual lists defendant's Linden, New Jersey address and telephone number as the point of contact for "additional information or assistance."^[1]

It is undisputed that defendant placed the shaker machine into the stream of commerce in November 1977 when it shipped the machine to Snyder's Potato Chips in Pennsylvania. After April 1985, Snyder's Potato Chips sold the machine to Otto Cuyler Associates. Otto Cuyler Associates later sold the machine to Dutch Quality House, Ms. Gonzalez's Georgia employer.

On February 23, 1993, plaintiff filed this action on behalf of the estate and heirs of Ms. Gonzalez against defendant Kason Corporation and Otto Cuyler Associates and various unidentified business [484] entities. The complaint seeks money damages based on strict liability. Defendant filed an answer that contained a general denial of liability, as well as numerous affirmative defenses, crossclaims for contribution and indemnification against all co-defendants. The trial court, in a published opinion, 278 N.J. Super. 473, 651 A.2d 503 (Law Div. 1993), determined that Georgia's statute of repose applies and bars plaintiff's action, and granted defendant's motion for summary judgment. The Appellate Division affirmed that judgment. 276 N.J. Super. 586, 648 A.2d 517 (App.Div. 1994). Based on a dissent in the Appellate Division, the appeal is before us as of right. R. 2:2-1(a)(2).

II

The issue before the Court is whether to invoke the Georgia statute of repose or the New Jersey statute of limitations. Because the action was brought in New Jersey, the issue must be determined in accordance with this State's choice-of-law rule. New Jersey's rule applies a flexible "governmental-interest" standard, which requires application of the law of the state with the greatest interest in resolving the particular issue that is raised in the underlying litigation. Veazey v. Doremus, 103 N.J. 244, 247-49, 510 A.2d 1187 (1986); see State Farm Mutual Automobile Ins. Co. v. Estate of Simmons, 84 N.J. 28, 36-37, 417 A.2d 488 (1980); O'Keeffe v. Snyder, 83 N.J. 478, 490, 416 A.2d 862 (1980).

A.

The initial prong of the governmental-interest analysis entails an inquiry into whether there is an actual conflict between the laws of the respective states, a determination that is made on an issue-by-issue basis. Veazey, supra, 103 N.J. at 248, 510 A.2d 1187. The particular issue to be resolved in this case — whether the action was filed timely — is subject to an obvious and direct conflict between Georgia's ten-year statute of repose and New Jersey's two-year statute of limitations.

[485] The Georgia statute of repose bars the commencement of strict products-liability actions "after ten years from the date of the first sale for use or consumption of the personal property causing or otherwise bringing about the injury." O.C.G.A. § 51-1-11(b)(2). See Chrysler Corp. v. Batten, 264 Ga. 723, 450 S.E.2d 208, 212 (noting "strict-liability actions filed more than ten years after the `date of the first sale for use or consumption of' the product are completely barred"), rev'd on other grounds, 264 Ga. 723, 450 S.E.2d 208 (1994); LFE Corp. v. Edenfield, 187 Ga. App. 785, 371 S.E.2d 435, 436 (1988) (ruling that where statute of repose was enacted both before injury occurred and before complaint was filed, statute applies even if first sale occurred before statute's enactment). Ms. Gonzalez's accident occurred more than ten years after defendant made its "first sale for use" of the shaker machine, in November 1977. It is undisputed that this action is barred by Georgia's ten-year statute of repose applicable to products-liability actions.

New Jersey law provides that personal-injury actions, including those based on strict-products liability, are governed by a two-year statute of limitations. N.J.S.A. 2A:14-2. It is clear that under New Jersey's statute of limitations, plaintiff's suit would not be barred because the complaint was filed less than two years after Ms. Gonzalez' accident.

B.

The second prong of the governmental-interest analysis seeks to determine the interest that each state has in resolving the specific issue in dispute. That analysis requires the court to "identify the governmental policies underlying the law of each state and how those policies are affected by each state's contacts to the litigation and to the parties." Veazey, supra, 103 N.J. at 248, 510 A.2d 1187. We look first to the policies that underlie the respective state statutes that are in conflict in this case.

In 1978, the Georgia legislature enacted its statute of repose, O.C.G.A. § 51-1-11(b)(2), as an amendment to its strict products-liability [486] statute. Daniel v. American Optical Corp., 251 Ga. 166, 304 S.E.2d 383, 384 (1983). In Love v. Whirlpool Corporation, 264 Ga. 701, 449 S.E.2d 602 (1994), the Georgia Supreme Court explained that its legislature adopted the statute of repose to serve the dual purposes of stabilizing insurance underwriting and eliminating stale claims. In so concluding, the court indicated that the statute of repose was the legislature's response to a 1978 report of the Senate Products Liability Study Committee that addressed insurance-industry problems generated by the open-ended liability of manufacturers, and recommended "that a ten-year statute of repose be enacted." Id. 449 S.E.2d at 605. Just one month after its decision in Love, the Georgia Supreme Court again had occasion to address the statute of repose. Chrysler Corp., supra, 450 S.E.2d at 211-13. There the court reiterated: "The ten-year statute of repose was enacted in order to address problems generated by the open-ended liability of manufacturers so as to eliminate stale claims and stabilize products liability underwriting." Id. at 212.

New Jersey's statute of limitations applicable to personal-injury actions reflects well-articulated policy. In Rivera v. Prudential Property & Casualty Ins. Co., 104 N.J. 32, 39, 514 A.2d 1296 (1986), the Court stated the rationale for statutes of limitation:

The purposes of statutes of limitations, oft-repeated by this Court, are two-fold: (1) to stimulate litigants to pursue a right of action within a reasonable time so that the opposing party may have a fair opportunity to defend, thus preventing the litigation of stale claims, and (2) `to penalize dilatoriness and serve as a measure of repose.' E.g., Ochs v. Federal Ins. Co., 90 N.J. 108, 112, 447 A.2d 163 (1982) (quoting Farrell v. Votator Div. of Chemetron Corp., 62 N.J. 111, 115, 299 A.2d 394 (1973).

The purpose underlying any statute of limitations is "to `stimulate to activity and punish negligence' and `promote repose by giving security and stability to human affairs.'" Savage v. Old Bridge-Sayreville Medical Group, P.A., 134 N.J. 241, 248, 633 A.2d 514 (1993) (quoting O'Keeffe, supra, 83 N.J. at 491, 416 A.2d 862 (quoting Wood v. Carpenter, 101 U.S. 135, 139, 25 L.Ed. 807, 808 (1879))). In addition to encouraging the diligent and timely [487] prosecution of claims, the statute of limitations is subject to the "discovery rule." See Savage, supra, 134 N.J. at 246-50, 633 A.2d 514. That dimension of the statute of limitations incorporates flexible, equitable considerations based on notions of fairness to the parties and the justice in allowing claims to be resolved on their merits. O'Keeffe, supra, 83 N.J. at 491, 416 A.2d 862. We note, further, that New Jersey's statute of limitations applies to all personal-injury actions, including those based on strict products-liability. Apgar v. Lederle Laboratories, 123 N.J. 450, 455, 588 A.2d 380 (1991); Vispisiano v. Ashland Chemical Co., 107 N.J. 416, 426, 527 A.2d 66 (1987). New Jersey has no special rule, similar to Georgia's statute of repose, governing the accrual or limitation of products-liability actions.

Whether the policy that underlies the law of a state gives rise to a governmental interest calling for the application of that state's law depends on the nature of the contacts that the state has to the litigation and to the parties. The kind of analysis of those contacts to be undertaken is exemplified by Heavner v. Uniroyal, Inc., 63 N.J. 130, 305 A.2d 412 (1973) and an earlier decision, Marshall v. Geo. M. Brewster & Son, Inc., 37 N.J. 176, 180 A.2d 129 (1962).

In Heavner, residents of North Carolina sued a New Jersey corporation for personal injury that resulted when a truck tire manufactured by the defendant blew out while one of the plaintiffs was driving a truck in North Carolina. 63 N.J. at 133-34, 305 A.2d 412. The defendant was a national corporation whose only contact with New Jersey was that it was incorporated here. Id. at 134, 305 A.2d 412. There was no allegation that defendant had actually manufactured the allegedly defective tire in New Jersey. The Court concluded that New Jersey had "no substantial interest in the matter," and consequently the statute of limitations of North Carolina would be applied. Id. at 141, 305 A.2d 412.

Marshall involved an action by an Ohio resident against various New Jersey corporations that were part of a joint venture doing construction work on a railroad crossing in Pennsylvania. 37 N.J. [488] at 178, 180 A.2d 129. The plaintiff's decedent was killed in an automobile accident at that railroad crossing. Ibid. The defendants in Marshall were not merely incorporated in New Jersey, but actually had their principal places of business here. Id. at 188, 180 A.2d 129. The Court approved of the application of New Jersey limitations law, rather than Pennsylvania's more restrictive limitations law. Id. at 176, 180 A.2d 129.

The Court in Heavner acknowledged the analysis and result reached in the Marshall case. It noted that Marshall, in contrast to Heavner, "presented a different factual picture," and that Marshall exemplified a case where "there may very well be" a significant interest that could require the application of New Jersey limitations law. Heavner, supra, 63 N.J. at 141 n. 6, 305 A.2d 412. As explained by Judge Pressler in her dissenting opinion below, the critical factual distinction between Heavner and Marshall was that the defendant in Marshall had a significant presence in New Jersey by virtue of its doing business here, while the defendant in Heavner had a "virtual nonpresence" because its only contact with New Jersey was that it was incorporated in this State. 276 N.J. Super. at 593, 648 A.2d 517.

In this case, as in Marshall, the machine causing the fatal injury was manufactured in, and placed into the stream of commerce from, this State. The question thus posed is whether, in the context of this litigation, those contacts give rise to a substantial governmental interest that would be served by applying New Jersey's statute of limitations and permitting this action to proceed.

The courts below acknowledged that, in this case, the only New Jersey interest implicated by its contacts with the parties is that derived from the status of the defendant as a domestic manufacturer. That interest is in deterring the manufacturing of unsafe products within its borders. However, both the trial court and Appellate Division majority determined that a deterrent interest is not significant enough to warrant the application of New Jersey's [489] limitations law. 278 N.J. Super. at 478-79, 651 A.2d 503, 276 N.J. Super. at 589-90, 648 A.2d 517.

This Court has recognized generally that a purpose of the tort laws is to encourage reasonable conduct, and, conversely, to discourage conduct that creates an unreasonable risk of injury to others. E.g., Hopkins v. Fox & Lazo, 132 N.J. 426, 448, 625 A.2d 1110 (1993); People Express Airlines, Inc. v. Consolidated Rail Corp., 100 N.J. 246, 255, 495 A.2d 107 (1985). That deterrent goal of the tort laws is effectuated through the recognition of a duty to exercise reasonable care and the imposition of liability for the breach of such a duty. E.g. Weinberg v. Dinger, 106 N.J. 469, 486-87, 524 A.2d 366 (1987). We note also that Georgia has recognized that "courts are concerned not only with compensation of the victims but with admonition of the wrongdoer" and that the "`prophylactic' fact of preventing future harm has been quite important in the field of torts." Denton v. Con-Way Southern Express, Inc., 261 Ga. 41, 402 S.E.2d 269, 270 (1991) (quoting Prosser & Keeton on Torts § 4 at 25 (5th ed. 1984)), overruled on other grounds, McKin v. Gilbert, 208 Ga. App. 788, 432 S.E.2d 233 (1993).

The interest in deterrence has been recognized as a relevant factor to be considered in choice-of-law decisions. See, e.g., Pfau v. Trent Aluminum Co., 55 N.J. 511, 524, 263 A.2d 129 (1970) (noting "We are not certain that a defendant's domicile lacks an interest in seeing that its domiciliaries are held to the full measure of damages or the standard of care which that state's law provide[s] for."); Mueller v. Parke Davis, 252 N.J. Super. 347, 354-55, 599 A.2d 950 (App.Div. 1991); Seals v. Langston Co., 206 N.J. Super. 408, 412, 502 A.2d 1185 (App.Div.), certif. denied, 104 N.J. 386, 517 A.2d 392 (1986); Pine v. Eli Lilly & Co., 201 N.J. Super. 186, 192, 492 A.2d 1079 (App.Div. 1985); Deemer v. Silk City Textile Mach. Co., 193 N.J. Super. 643, 650, 475 A.2d 648 (App.Div. 1984).

The goal of deterrence, acknowledged generally to be part of tort law, is especially important in the field of products-liability [490] law. In Fischer v. Johns-Manville Corp., 193 N.J. Super. 113, 124, 472 A.2d 577 (1984), aff'd, 103 N.J. 643, 512 A.2d 466 (1986), the Appellate Division noted that since Henningsen v. Bloomfield Motors, Inc., 32 N.J. 358, 161 A.2d 69 (1960), this State's judiciary has been "in the vanguard of the development of a responsive and progressive products liability law" and "has led the country in its ideological commitment to the protection of consumers and concomitant consequence of inducing those who place products into the stream of commerce to act with social responsibility." Judge Pressler observed in her dissent below "the development of [products liability law in New Jersey] and the consequent imposition of strict liability on manufacturers has been a powerful force — perhaps the most powerful force — in effecting, over the last two and a half decades, product safety and social responsibility by industry." 276 N.J. Super. at 594, 648 A.2d 517.

We conclude that this State has a strong interest in encouraging the manufacture and distribution of safe products for the public and, conversely, in deterring the manufacture and distribution of unsafe products within the state. That interest is furthered through the recognition of claims and the imposition of liability based on principles of strict products-liability law.

Both the Appellate Division majority and the trial court found that the interest in deterrence would be outweighed by the possibility of unduly discouraging manufacturing in New Jersey if products-liability actions were allowed in circumstances where they would be barred in the courts where the cause of action arose. 278 N.J. Super. at 479, 651 A.2d 503 (quoting Deemer, supra, 193 N.J. Super. at 650-652, 475 A.2d 648); 276 N.J. Super. at 589-90, 648 A.2d 517. The courts below relied on Seals, supra, 206 N.J. Super. 408, 502 A.2d 1185.

Seals involved a New Jersey action for damages for injuries caused in Louisiana by a defective machine manufactured in New Jersey by a New Jersey corporation. 206 N.J. Super. at 409, 502 A.2d 1185. The court recognized a "noticeable difference" between Heavner and the case before it, namely, that in Seals, New [491] Jersey was the place of manufacture of the allegedly defective machine. Id. at 411, 502 A.2d 1185. Notwithstanding that difference, the court found Louisiana's limitations law applicable, Ibid., concluding that New Jersey's deterrence interest did not warrant the application of New Jersey's limitations law. 206 N.J. Super. at 413-14, 502 A.2d 1185. It also observed that the court has "no significant interest in exposing New Jersey manufacturers to greater jeopardy in our courts than they would face where a cause of action against them arose, or in a disinterested forum provided by another state," further explaining that "if we were to apply rules that favor foreign plaintiffs against local manufacturers, when we could not do so against foreign ones, we would pointlessly discriminate against our own residents." Id. at 412-13, 502 A.2d 1185.

We disagree with the rationale employed in Seals and the lower courts' reliance on that decision. In light of this State's commitment to protection of the public against the manufacture and distribution of unsafe products and the strong governmental interest in deterrence against such practices, it does not seem "pointless" to apply this State's statute of limitations to resident manufacturers, even if the suit would be barred against foreign manufacturers. The difference in result is grounded in the distinctive policy concerns that each state has in making its domestic manufacturers amenable to suits. A governmental interest based on a policy of deterrence that seeks to discourage domestic manufacturers from the manufacture and distribution of unsafe products through the allowance of a products-liability action is not unnecessarily burdensome nor is it discriminatory or baseless.

It is significant that New Jersey's statute of limitations does not single out manufacturers or distributors of manufactured products as a class meriting special protection from personal-injury tort actions. New Jersey recently enacted a statute that provides and clarifies certain standards in products-liability actions, yet leaves intact many common-law principles that define that cause of action. N.J.S.A. 2A:58C-1 to -11; Senate Judiciary Committee, [492] Statement to Senate Bill No. 2805 at 1 (July 22, 1987). See, e.g., Roberts v. Rich Foods, Inc., 139 N.J. 365, 374-75, 654 A.2d 1365 (1995). That statute does not prescribe a limitations period that is more lenient toward or protective of manufacturers than the general personal-injury limitations law applicable to other tortfeasors. It is also significant in the circumstances of this litigation, a strict-products liability action, that New Jersey does not have a statute of repose that qualifies or limits the liability of manufacturers. Although our Legislature has enacted a statute of repose for certain causes of actions, see N.J.S.A. 2A:14-1.1 (creating ten-year statute of repose for claims arising out of defective and unsafe conditions of improvements of real property), it has not enacted such a statute for personal-injury actions based on unsafe products.

The lower courts also concluded that application of New Jersey's statute of limitations would encourage forum shopping, which would increase litigation and needlessly burden the courts of this State. 278 N.J. Super. at 479, 651 A.2d 503 (quoting Deemer, supra, 193 N.J. Super. at 650-653, 475 A.2d 648); 276 N.J. Super. at 589-90, 648 A.2d 517. However, this State's interest against forum shopping will not be compromised by the application of New Jersey's statute of limitations in the circumstances of this litigation. In essence, the policy against forum shopping is intended to ensure that New Jersey courts are not burdened with cases that have only "slender ties" to New Jersey. See Henry v. Richardson-Merrell, Inc., 508 F.2d 28, 35 (3d Cir.1975). In this case, plaintiff does not seek to use New Jersey's court system to litigate a dispute that has only a slight link to New Jersey and where the only plausible reason to select this State is because it is a hospitable forum. This action is materially connected to New Jersey by the fact that the allegedly defective product was manufactured in and then shipped from this State by the defendant-manufacturer.

We are satisfied, therefore, that New Jersey in this case has a cognizable and substantial interest in deterrence that would be [493] furthered by the application of its statute of limitations, and that interest is not outweighed by countervailing concerns over creating unnecessary and discriminatory burdens on domestic manufacturers or by fears of forum shopping and increased litigation in the courts of this State.^[2]

C.

The determination that New Jersey in this litigation has a cognizable and substantial interest does not end the inquiry into whether the choice of its statute of limitations law is appropriate to resolve the conflict over whether this action is time barred. New Jersey's interest in deterrence must be compared and weighed against any governmental interest that Georgia has in applying its statute of repose in light of Georgia's contacts with the litigation and the parties.

The Appellate Division upheld the conclusion of the trial court that Georgia has an important governmental interest derived from its statute of repose. In effect, the trial court characterized the Georgia statute of repose as expressing a broad policy to encourage manufacturing generally by barring products-liability actions after ten years from the date of sale of an alleged unsafe product; it rejected as "parochial" the notion that Georgia's intended by its statute of repose to benefit only Georgia manufacturers. 278 N.J. Super. at 479, 651 A.2d 503. However, Georgia's statute of repose was not enacted to create generally a favorable environment for manufacturing. Rather, the Georgia statute of repose was enacted as an effort to stabilize the Georgia insurance industry and to keep stale claims out of Georgia courts. Love, supra, 449 S.E.2d at 605. See discussion, supra at 485, 679 A.2d at 109. [494] Thus, the question to be addressed is whether, in this case, those policy concerns give rise to a governmental interest that calls for the application of Georgia's statute of repose.

The answer is clear. Georgia has no contacts with the defendant manufacturer or with this lawsuit. Hence, its special policy concerns over the impact of "open-ended liability" on its insurance industry and stale claims on its courts do not, in the context of this litigation, give rise to a governmental interest that must be protected by applying its statute of repose to foreclose this suit in New Jersey.

The dissent asserts that a decision to allow the action to go forward in New Jersey would run counter to Georgia's interest in stabilizing the products-liability insurance rates in Georgia. Ante at 484-85, 679 A.2d at 108-09. It suggests the decedent's employer may become involved in the New Jersey litigation on the issue of whether it misused or substantially changed the machine that is the subject of this products liability action. It is not contended, however, that the Georgia manufacturer could become a party to this action. See O.C.G.A. § 34-9-11 (providing that, where applicable, workers' compensation remedy is employee's exclusive remedy against statutory employer); Smith v. Gortman, 261 Ga. 206, 403 S.E.2d 41 (1991) (holding that policy of the exclusive remedy provision of the worker's compensation law is served equally whether employee is injured or killed). Nor is it likely that the inconvenience to the decedent's employer that may be entailed in participating in discovery or in responding to subpoenas in conjunction with the New Jersey litigation could have any significant underwriting influence in respect of products-liability insurance rates in Georgia.

The Deemer case, relied on by the lower courts to reach a different conclusion, is distinguishable. In that case, the court found that the application of New Jersey law to allow an action brought by the North Carolina resident against a manufacturer that was no longer in New Jersey would actually "frustrate the policies of North Carolina's workers' compensation laws." 193 [495] N.J. Super. at 651, 475 A.2d 648. No Georgia law is frustrated by the application of New Jersey's statute of limitations to allow the action to proceed in this State.

The lower courts were also persuaded by the fact that Georgia's substantive law would apply to the case, and that the Georgia statute at issue is one of repose, as opposed to a standard statute of limitations. 276 N.J. Super. at 589, 648 A.2d 517, 278 N.J. Super. at 480, 651 A.2d 503. The Appellate Division majority noted that "New Jersey holds that a statute of repose prevents what might otherwise be a cause of action from arising, whereas a statute of limitations concerns when a cause of action arises, or, once arisen, when it is barred." Id. at 589 n. 2, 648 A.2d 517 (citing E.A. Williams, Inc. v. Russo Development Corp., 82 N.J. 160, 167, 411 A.2d 697 (1980)). The lower courts reasoned that because the statute of repose was a substantive law under which "[p]laintiffs have no cause of action in Georgia," id. at 589, 648 A.2d 517, it was entitled to more weight than a statute of limitations that could serve only as a bar to plaintiff's "Georgia-based right." 278 N.J. Super. at 480, 651 A.2d 503, 276 N.J. Super. at 588-89, 648 A.2d 517.

That statutes of repose are generally considered substantive in nature does not compel its selection in this case, even though it is conceded that Georgia's substantive tort law will be applied. Whether Georgia's statute of repose must be applied as a constituent part of its substantive tort law depends not on its characterization as substantive law but on the issue-specific analysis that governs choice-of-law determinations and on whether the contacts that Georgia has with the parties and the litigation create a governmental interest that requires the application of its statute of repose to settle that issue.

The Court in Veazey dealt with an analogous issue in deciding whether Florida's marital immunity doctrine should be applied to an action brought in New Jersey involving Florida domiciliaries for injuries arising out of a New Jersey automobile accident. The plaintiff was a passenger in the automobile driven by her husband, [496] one of the defendants. The conflict posed in that action was whether Florida's marital immunity law or New Jersey law abrogating interspousal immunity should be followed. New Jersey's substantive tort law would apply because the accident occurred in New Jersey; the marital-immunity doctrine was a substantive law. See, e.g., Tevis v. Tevis, 79 N.J. 422, 400 A.2d 1189 (1979); Merenoff v. Merenoff, 76 N.J. 535, 388 A.2d 951 (1978). The critical contact of the State of Florida to the parties was their domicile; that contact served to create an interest on the part of Florida in their marital relationship and whether they should be able to sue one another in light of its policy of marital immunity. In contrast, New Jersey's only contact with these parties was as the geographical site of the automobile accident. New Jersey thus had no governmental interest in the marital relationship of the parties and whether they should be able to sue one another. Accordingly, the Court ruled that New Jersey had no interest that would call for the application of its own policy abrogating inter-spousal immunity, and, therefore, the Florida marital-immunity doctrine should apply, notwithstanding New Jersey's substantive law would otherwise govern the adjudication.

Here, although the plaintiffs are Georgia residents, that contact with the State of Georgia does not implicate the policies of its statute of repose, which is intended only to unburden Georgia courts and to shield Georgia manufacturers from claims based on product defects long after the product has been marketed or sold. Consequently, the application of Georgia's substantive law in these circumstances does not dictate the inclusion of its statute of repose.

The majority of the Appellate Division further emphasized that "the weight of authority clearly favors following the law of the state with the interest of compensating its residents, where such law conflicts with that of the state having solely a deterrence interest." Id. at 590, 648 A.2d 517. However, the cases relied on by the majority as making up that "weight of authority" do not suggest, much less require, that the deterrence interest of New [497] Jersey as the domicile and locus of the defendant manufacturer must yield in this case to the compensation interest of Georgia as the state of domicile of the claimants. See Mueller, supra, 252 N.J. Super. at 355, 599 A.2d 950 (citing Schum v. Bailey, 578 F.2d 493, 503 (3rd Cir.1978); Allen v. Volkswagen of America, Inc., 555 F.2d 361, 364 (3d Cir.1977); Henry, supra, 508 F.2d at 33; Heavner, supra, 63 N.J. at 130, 305 A.2d 412; Rose v. Port of New York Authority, 61 N.J. 129, 140, 293 A.2d 371 (1972); Pine, supra, 201 N.J. Super. at 193, 492 A.2d 1079; Deemer, supra, 193 N.J. Super. at 651-52, 475 A.2d 648). The results in those cases were based on the particular configuration of state interests to be balanced, and the relative weight of those interests, as dictated by the relevant contacts with the parties. Those cases may be distinguished from the present case on one of two grounds, either because the state with the deterrent interest had insubstantial contacts with the defendant, thus minimizing the weight of the deterrence interest in comparison to the compensation interest of the plaintiff's domicile, see, e.g., Allen, supra, 555 F.2d at 364; Henry, supra, 508 F.2d at 33; Pine, supra, 201 N.J. Super. 186, 492 A.2d 1079; Deemer, supra, 193 N.J. Super. at 651-52, 475 A.2d 648; or because both states in the conflict had deterrent interests so that the interests of the state with both a compensation and a deterrence interest outweighed the interest of the state having only a deterrence objective, see, e.g., Schum, supra, 578 F.2d at 503; Rose, 61 N.J. at 140, 293 A.2d 371.

By contrast, New Jersey's policy in deterring tortious conduct of manufacturers is implicated by the defendant's material contacts with this State, and thus represents a substantial interest to be weighed against Georgia's interest in compensation of its resident plaintiffs. In the context of this litigation, Georgia's policy of fair compensation for injured domiciliaries is one that allows compensation, except if recovery is sought from a Georgia manufacturer because the defective product causing the accident was sold by that manufacturer more than ten years before the accident. The limitation on fair compensation expressed by that narrow exception is not raised in this case. Application of New [498] Jersey law will not undermine Georgia's interest in compensating its injured residents because that interest is not actually implicated or compromised by allowing a products-liability action brought by Georgia residents to proceed against a non-Georgia manufacturer.

Finally, we note the trial court's conclusion that in their totality Georgia had more contacts than New Jersey and therefore was the "controlling state," whose law should be applied. See, e.g., Dara Patrick Karam, Note, "Conflicts of Laws — Liberative Prescription," 47 La.L.Rev. 1153, 1167 n. 85 (1987). Although the contacts with each state must be compared and weighed, that analysis encompasses only those contacts that bear on the specific issue that is the focus of the legal conflict between the two states. The Appellate Division dissent explained:

As is made clear by Veazey v. Doremus, 103 N.J. 244, 248, 510 A.2d 1187 (1986), in a proper government interest analysis, choice of law is not a single, immutable decision governing the entire action and all the issues therein arising. Rather, the decision as to whose law to apply must be made issue by issue on the basis of which state has the greatest interest in the application of its own law to that issue.

[276 N.J. Super. at 591, 648 A.2d 517.]

Here, the narrow issue is whether the action will be deemed time-barred. Georgia's contacts with the litigation and the parties, though numerically greater, are not more significant or weighty than those of New Jersey in generating an interest that calls for the invocation of its laws to preclude a claim in New Jersey solely because of the passage of time.

III

Defendant argues that it is entitled to summary judgment based on the doctrine of forum non conveniens. It contends specifically that "the proofs, witnesses, medical records, and scene of the accident are all in Georgia." Defendant further contends that because the witnesses reside in Georgia, some if not all of them may be unavailable for trial and "there is no method for a New Jersey Court to compel their attendance here for trial."

[499] Neither the trial court nor the Appellate Division addressed defendant's forum non conveniens argument. Moreover, defendant did not file a petition for certification in conjunction with this appeal as of right. Therefore, the forum non conveniens issue is not properly before the Court. R. 2:2-1(a)(2); Brandenburg v. Brandenburg, 83 N.J. 198, 203, 416 A.2d 327 (1980).

We note, however, that a dismissal pursuant to the doctrine of forum non conveniens cannot occur if the transfer will result in significant hardship to the plaintiffs. Wangler v. Harvey, 41 N.J. 277, 286, 196 A.2d 513 (1963). Here, without doubt, a dismissal of this action will cause severe hardship to plaintiff. If this action cannot proceed in New Jersey, plaintiff will be left with no forum in which to proceed and will be denied recovery altogether. This Court's case law teaches that where the plaintiff will be so adversely affected by the transfer of jurisdiction, the court may not dismiss the action under the doctrine of forum non conveniens.

IV

The judgment of the Appellate Division is reversed, summary judgment is vacated, and the matter is remanded for a determination of the underlying disputed facts and the application of those facts to the choice-of-law question, consistent with this opinion.

GARIBALDI, J., dissenting.

In this appeal, the only issue is whether, in applying New Jersey's "governmental interests" conflicts of law test, Georgia or New Jersey has the paramount interest in this personal injury case. This case arose when a Georgia resident, working at a Georgia food processing factory, was killed when struck by a part from a shaker machine that was manufactured by a New Jersey corporation and placed into commerce more than ten years before the accident. The majority's opinion subjects New Jersey businesses to an increased risk of litigation that would be time-barred in the state where the injured person lives and where the accident [500] occurred, increases forum shopping and further taxes an already overburdened court system, without offering any countervailing benefit to a New Jersey resident or business. For those reasons, I dissent.

I

It is undisputed that if Georgia law applies, decedent's claim is barred pursuant to Georgia's ten-year statute of repose. Because the machine that caused the injury was sold in 1977 and the injury occurred on February 27, 1991, more than ten years after the initial sale, Georgia's statute of repose bars this action. Conversely, should New Jersey law apply, the claim is not barred as there exists no statute of repose and the claim was brought within New Jersey's two-year statute of limitations.

New Jersey's "governmental interest" conflicts of law test is not based on where a litigant will have the greatest likelihood of success. Instead, the "governmental interest" test requires the court to apply the law of the state with the greatest interest in resolving the issue in the underlying litigation. Veazey v. Doremus, 103 N.J. 244, 247-49, 510 A.2d 1187 (1986); see State Farm Mutual Automobile Ins. Co. v. Estate of Simmons, 84 N.J. 28, 36-37, 417 A.2d 488 (1980); O'Keeffe v. Snyder, 83 N.J. 478, 490, 416 A.2d 862 (1980).

[T]he governmental interest approach to choice of law questions ... requires a two-step analysis in resolving conflicts questions: the court determines first the governmental policies evidenced by laws of each related jurisdiction and second the factual contacts of the parties with the related jurisdiction.

[Deemer v. Silk City Textile Mach. Co., 193 N.J. Super. 643, 649, 475 A.2d 648 (App.Div. 1984) (citations omitted)].

Applying the two-prong test I am convinced, as was the trial court, Gantes v. Kason Corp., 278 N.J. Super. 473, 651 A.2d 503 (1993) and the majority of the Appellate Division, Gantes v. Kason Corp., 276 N.J. Super. 586, 648 A.2d 517 (1994), that Georgia has the paramount interest in this matter, and its law should apply. Indeed, the majority concedes that Georgia's substantive tort law will be applicable. Ante at 494, 679 A.2d at 114.

There are two major problems with the majority's reasoning. First, it substantially underestimates, misinterprets and misapplies [501] Georgia's strong policy in having its statute of repose apply; and second, it focuses solely on New Jersey's interest in deterring the marketing of a defective product and ignores New Jersey's other substantial interests. I turn first to a discussion of Georgia's interest.

II

As the majority in the Appellate Division stated, "[T]he weight of authority clearly favors following the law of the state with the interest of compensating its residents, where such law conflicts with that of the state having solely a deterrence interest." Gantes, supra, 276 N.J. Super. at 590, 648 A.2d 517. "[F]air compensation of a tortiously injured party is the predominant concern of a personal injury claim for the state of domicile of the injured party, particularly where it is the locus of an industrial accident." Id. at 589, 648 A.2d 517 (citations omitted). New Jersey's interest in the tortious injury action of a non-domiciliary resident is nonexistent. Deemer, supra, 193 N.J. Super. at 649, 475 A.2d 648. Here the accident occurred in Georgia, the machine was being used in a Georgia factory, decedent was a resident of Georgia who died in Georgia, and decedent's heirs also are residents of Georgia. Accordingly Georgia's contacts to this litigation and its interest in its residents and in accidents that occur in its state are substantially greater than New Jersey's interest.

The majority wrongly concludes that the Georgia Legislature's motives in enacting its ten-year statute of repose are limited solely to parochial concerns within the Georgia court system and the Georgia insurance market, and that those policies therefore are not implicated in the current case. "There is nothing to indicate Georgia's interest is parochial, limited to protecting only manufacturers within its borders." Gantes, supra, 278 N.J. Super. at 479, 651 A.2d 503. Georgia enacted its statute of repose to address the problems generated by the open-ended liability of manufacturers. Love v. Whirlpool Corporation, 264 Ga. 701, 449 S.E.2d 602, 605 (1994). It was "a deliberate recognition of that state's government [502] interest in allowing its businesses to operate free of the concern that alleged defects will produce product liability claims after the passage of a set period of time." Gantes, supra, 278 N.J. Super. at 479, 651 A.2d 503. Specifically, that statute's purpose was to eliminate stale claims and to reduce and stabilize product-liability insurance rates. Those policy concerns extend to cases, such as this one, outside Georgia's courts.

First, the policy against stale claims is a general concern with respect to all lawsuits. Georgia's policy is certainly implicated if its residents, both individuals and corporations, have to go to other states to testify in cases that would be barred under its statute of repose. This case presents a perfect example of the inconveniences that will be imposed on Georgia residents when barred claims are allowed to be litigated in foreign states. Here the proofs, the witnesses, and medical records, as well as the scene of the accident, are in Georgia. Undoubtedly, to litigate this case, several Georgia residents will have to be witnesses and will have to come to New Jersey to testify. For example, the decedent's fellow employees who previously used the machine and who were present when the accident occurred, most likely will have to testify. Defendant also claims that the sheriff officers who investigated the accident and the medical examiner who performed the autopsy will be called to testify. Thus, Georgia residents will now be forced to participate in litigation on a stale claim, that would be barred under Georgia's statute of repose.

Similarly, allowing lawsuits in New Jersey about accidents that occur in Georgia might well increase insurance costs in that State. In product liability cases, the original manufacturer's defense often is that the product was substantially changed or misused after it left that manufacturer's hands. Brown v. United States Stove Co., 98 N.J. 155, 172, 484 A.2d 1234 (1984). That defense is particularly relevant in cases where the product has been used for several years by many different companies. The shaker machine at issue was sold in 1977 to Salvo Corp. of Massachusetts for shipment to Snyder's Potato Chips of Berlin, Pennsylvania. It [503] was subsequently sold around 1985 to Otto Cuyler Associates of New York, who, in turn, sold the machine to the decedent's employer, Dutch Quality House. At this stage of the proceedings, it is impossible to determine whether those were the only companies through whose hands the shaker machine passed and whether any of those companies substantially changed or misused that machine. However, it is reasonable to assume that defendant's attorney will investigate and question the subsequent owners of the machine, including Dutch Quality House, the decedent's employer, to determine if any one of them had substantially changed or misused the shaker machine. It is not unreasonable to assume that, when this case is tried, defendant may seek to join in this lawsuit those prior companies, including the Georgia company, Dutch Quality House, which may be held liable to defendant for a portion of its losses. Such a result will undoubtedly increase the product liability insurance rates in Georgia and contribute to instability in that insurance market.

III

New Jersey's contacts to this litigation, on the other hand, are at best de minimus. The only connection New Jersey has to this claim is that the machine may have been manufactured in New Jersey. Although we assume this fact for purposes of the summary judgment motion, there was considerable evidence presented suggesting that the machine was in fact manufactured in New York.^[3]

Although the policy identified by the majority, deterring the manufacturing of unsafe products by suing the manufacturer is a laudable goal, its results are problematic. As New Jersey courts have previously recognized, liability judgments only have "incidental benefits ... towards the correction of a defective design or the [504] deterrence of wrongful conduct with respect to the future distribution of a product." Deemer, supra, 193 N.J. Super. at 651, 475 A.2d 648. As the Appellate Division observed the majority ignores the other important New Jersey interests suggested in Heavner v. Uniroyal, Inc., 63 N.J. 130, 305 A.2d 412 (1973) and clearly enunciated in Deemer, supra, 193 N.J. Super. at 650-51, 475 A.2d 648, Mowrey v. Duriron Co., Inc., 260 N.J. Super. 402, 408, 616 A.2d 1300 (App.Div. 1992), and in Seals v. Langston, 206 N.J. Super. 408, 412, 502 A.2d 1185 (App.Div.), certif. denied 104 N.J. 386, 517 A.2d 392 (1986). See Gantes, supra, 276 N.J. Super. at 589, 648 A.2d 517. Those other "important interests" were listed by the Appellate Division majority as follows:

to prevent "exposing New Jersey manufacturers to greater jeopardy in our courts than they would face where a cause of action against them arose, or in a disinterested forum provided by another state", and to avoid forum shopping, overuse of our judicial system, or requiring us to treat local manufacturers sued by foreign plaintiffs more rigorously than foreign manufacturers sued in our courts by foreign plaintiffs.

[Gantes, supra, 276 N.J. Super. at 589-90, 648 A.2d 517 (quoting Seals, supra, 206 N.J. Super. at 412, 502 A.2d 1185).]

This case involves those "other important interests" identified by the Appellate Division majority. By ignoring those other interests, the majority subjects New Jersey manufacturers to an increased risk of litigation that would otherwise be time-barred in the state where the injured person lives and where the accident occurred. Such a result will have a chilling effect on new businesses coming into New Jersey.

Despite the majority's attempt to distinguish prior New Jersey cases, our prior cases all support my conclusion. In Heavner, supra, 63 N.J. 130, 305 A.2d 412, plaintiff, a resident of North Carolina, purchased a truck tire from Pullman, in North Carolina. 63 N.J. at 133, 305 A.2d 412. The tire was manufactured by Uniroyal, a New Jersey corporation. Ibid. Plaintiff sought recovery for personal injuries sustained by him and contemporaneous damages to his car, when a defect in the tire induced a blow out, causing plaintiff to crash. Ibid. Plaintiff brought a personal injury action against Pullman and Uniroyal. Id. at 134, 305 A.2d 412. [505] No cause of action was ever commenced in North Carolina. Ibid. By the time the action was commenced in New Jersey, the statute of limitations in North Carolina had expired, barring any claims. Ibid.

The Heavner court rejected the mechanical rule that the Statute of Limitations of the forum state must be applied in every action involving a foreign cause of action. Id. at 140-41, 305 A.2d 412. The court explained:

We need go no further now than to say that when a cause of action arises in another state, the parties are all present in and amenable to the jurisdiction of that state, New Jersey has no substantial interest in the matter, the substantive law of the foreign state is to be applied, and its limitation period has expired at the time the suit is commenced here, New Jersey will hold the suit barred.

[Id. at 141, 305 A.2d 412].

The court further identified plaintiff's decision to bring the action in New Jersey as "forum shopping," explaining that the plaintiff's motivation was to seek a forum "more favorable than that of North Carolina." Id. at 134 n. 3, 305 A.2d 412. Holding that New Jersey law should not apply, the court observed: "[W]e do not believe that New Jersey has any sufficient interest in this action to call for the application of its substantive law in preference to that of North Carolina under the governmental interests choice-of-law principles." Id. at 135 n. 3, 305 A.2d 412. The only possible interest, the court noted, was that Uniroyal was incorporated in New Jersey. However, the court remarked "that is not enough." Ibid.

As in Heavner, the cause of action in this case arose in the foreign state, all parties were present and amenable to suit in the foreign state and New Jersey had no substantial interest in resolving the issue. Finally, as in Heavner, the plaintiffs in this case forum shopped, seeking a forum state that would yield a more favorable result. In view of Georgia's interest in the enforcement of its statute of repose and the fact that all contacts with this case are in Georgia, to permit the application of New Jersey law would encourage the very type of forum shopping this Court rejected in Heavner.

[506] Deemer, supra, is a case substantially similar to this case. There, a wrongful death action was instituted in the New Jersey Superior Court by plaintiff, individually, and as administratrix ad prosequendum of her deceased husband's estate against Silk City Textile Machinery Co. (Silk City). 193 N.J. Super. at 647, 475 A.2d 648. Plaintiff's husband, Deemer, suffered a crush-type injury to his left ankle while performing maintenance work on a shear-cut batcher manufactured by Silk City. Ibid. Ultimately, Deemer died and the action was instituted, asserting that his death was caused by the injury. Ibid. At the time the machine was sold and when the accident occurred, Silk City was a New Jersey corporation doing business nationwide. Id. at 648, 475 A.2d 648. The machine was also manufactured in New Jersey. At the time of the accident, the machine was being used in a factory in North Carolina. The decedent was, at the time of the accident and the time of his demise, a resident of North Carolina. The decedent also filed a worker's compensation claim in North Carolina. Finally, plaintiff was a resident of North Carolina. Ibid.

Reversing the trial court's decision to apply New Jersey law, the Deemer court held that "the trial court erred in concluding that the substantive law of New Jersey governed this matter." Id. at 649, 475 A.2d 648. The court explained that "New Jersey has no interest in protecting the compensation rights of a non-domiciliary resident." Ibid. Citing Heavner, supra, the Deemer court recognized that this Court "appears to evidence a policy of discouraging forum shopping where, as here, the contacts with the state are at best tenuous." Ibid.

In applying the two-prong governmental interests test, the Deemer court contended that the competing policies at issue are: "(1) those relating to the defect free design and manufacturing of a product and (2) those that regulate the full and fair compensation of the injured party." Id. at 650-51, 475 A.2d 648. The Deemer court concluded:

[507] Whatever incidental benefits a liability judgment may contribute towards the correction of a defective design or the deterrence of wrongful conduct with respect to the future distribution of a product, the principal aim of a product liability or personal injury claim is fairly to compensate the injured party. We therefore determine that the second of the two noted policies must control.

[Id. at 651, 475 A.2d 648].

Additionally, the court identified plaintiff's attempt to bring suit in New Jersey as forum shopping. Ibid. The North Carolina Legislature, the court explained, did not adopt strict liability in product liability cases. The Deemer court held: "North Carolina, having chosen not to afford its own residents the protection of strict liability, there is no compelling reason for us to extend to such non-domiciliary plaintiffs the benefit of our decisional law." Ibid.

Furthermore, the court recognized the adverse effect on New Jersey manufacturers of applying New Jersey law under those circumstances.

[T]he effect of holding New Jersey law to be applicable in a matter of this kind is to subject any corporation conducting manufacturing activities in this state against whom a product liability claim is asserted to suit in New Jersey under New Jersey law. Such a holding would have the undesirable consequence of deterring the conduct of manufacturing operations in this state and would likely result in an unreasonable increase in litigation and thereby unduly burden our courts.

[Ibid.]

Similarly, in Seals, supra, the Appellate Division upheld the application of Louisiana's more restrictive statute of limitations over that of New Jersey, notwithstanding this State's interest in deterring the marketing of defective products by local manufacturers. 206 N.J. Super. at 410, 502 A.2d 1185. Seals involved a New Jersey action for damages for injuries caused in Louisiana by a defective machine manufactured in New Jersey by a New Jersey corporation. Id. at 409, 502 A.2d 1185. Under Louisiana's statute of limitations, the plaintiff's action was time-barred, but under New Jersey limitations law, it was not. Ibid.

In Seals, the Appellate Division recognized a "noticeable difference" between Heavner and the case before it: in Seals, New [508] Jersey was the place of manufacture of the allegedly defective machine. Id. at 411, 502 A.2d 1185. Notwithstanding that difference, the court found Louisiana's limitations law applicable. Id. at 413, 502 A.2d 1185. The court in Seals concluded that New Jersey's deterrence interest did not warrant the application of New Jersey's limitations law, reasoning:

We see no significant interest in exposing New Jersey manufacturers to greater jeopardy in our courts than they would face where a cause of action against them arose, or in a disinterested forum provided by another state. Such a course would encourage forum shopping to avoid the statute of limitations of the state where the cause of action arose. It would also encourage overuse of our judicial system, and would require us to treat local manufacturers more rigorously than foreign manufacturers sued in our courts by foreign plaintiffs.

[Id. at 412, 502 A.2d 1185].

The court further reasoned that "if we were to apply rules that favor foreign plaintiffs against local manufacturers, when we could not do so against foreign ones, we would pointlessly discriminate against our own residents." Id. at 413, 502 A.2d 1185. The court concluded, "Consistent with Deemer, [supra, 193 N.J. Super. at 651, 475 A.2d 648], we hold that New Jersey has no significant interest under the Heavner test in deterring and correcting the marketing by local manufacturers of defective machines." Seals, supra, 206 N.J. Super. at 413-14, 502 A.2d 1185.

As in Deemer and Seals, the injury-causing product involved in this case was manufactured in New Jersey by a New Jersey corporation. As in Heavner, Deemer and Seals, all other contacts occurred in a foreign state, here Georgia. The plaintiffs and decedents were residents of that foreign state, Georgia, the shaker machine was located in Georgia, the accident occurred in Georgia and plaintiff and decedent's heirs are Georgia residents.

IV

In this case the respective contacts of the two states dictate the application of Georgia law. Georgia by far has the paramount interest and its law should apply.

Moreover, as the majority of the Appellate Division concluded:

[509] Choice of law in this case requires recognition that deterrence is but one of New Jersey's interests, and that it is outweighed by our policy against forum shopping which exposes local manufacturers to greater burdens than they would face in the state having the most interest in compensation of the injured party.

[Gantes, supra, 276 N.J. Super. at 590, 648 A.2d 517].

I agree with Heavner, Deemer, Seals, and the majority in the Appellate Division. The effect of the Court's decision is that every manufacturer located in New Jersey will remain potentially liable regardless of where the accident occurs. The majority's opinion also will open the door to forum shopping. With an already overburdened court system, our goal should be to lessen the strain on the court's limited resources, not to further deplete them.

I would affirm the judgment of the Appellate Division.

Justice COLEMAN, joins in this opinion.

For reversal — Justices HANDLER, POLLACK, O'HERN and STEIN — 4.

For affirmance — Justices GARIBALDI and COLEMAN — 2.

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[1] Other evidence indicates that defendant manufactured the shaker machine at its plant in Champlain, New York. For example, defendant's president's supplemental certification asserts that the serial number assigned to the machine at issue indicates that defendant manufactured the machine in Champlain, New York, although, that supplemental certification neither denies nor explains the president's earlier, unequivocal statement that the machine in question was manufactured in New Jersey. In addition, a "specification sheet" for the machine, which reflects the shipment of the shaker machine to Snyder's Potato Chips in Pennsylvania, contains a stamp that reads, "Rec'd Kason Corporation, Champlain, N.Y., Sep. 9 1977."

[2] Judge Pressler also recognized two other New Jersey interests in applying New Jersey limitations law to this action. These were (1) "our jurisprudential commitment to the victims of defective products" and (2) "the recognition that the place where a product manufactured here ultimately comes to rest and causes injury is a matter of pure fortuity." 276 N.J. Super. at 596, 648 A.2d 517 (Pressler, J., dissenting).

[3] For example, evidence was presented indicating that the letter prefix on the product's serial number was a code designation indicating the Champlain, New York plant as place of manufacture.

Present: LIACOS, C.J., ABRAMS, NOLAN, O'CONNOR, & GREANEY, JJ.

Cynthia J. Cohen (Samuel M. Furgang with her) for the plaintiff.

[644] Joseph D. Regan (James P. Kerr with him) for the defendants.

NOLAN, J.

This case presents the sole issue whether Connecticut's statute of repose should apply in the plaintiff's product liability action brought in a court of this Commonwealth. The Superior Court judge granted the defendant's motion for summary judgment, ruling that the Connecticut statute applies to this action and bars the plaintiff's claim for relief. The plaintiff appealed and we granted his application for direct appellate review. We reverse the judgment, and remand this case for further proceedings. The few relevant facts follow.

The plaintiff, Daniel Cosme, at all relevant times was a resident of the Commonwealth, and was employed in Connecticut. On July 21, 1986, while in the course of his employment, he was injured while cleaning a machine at his place of employment. The machine which allegedly caused his injuries is a Whitin full roller card machine. The machine was designed and manufactured in 1939 by the defendant, Whitin Machine Works, Inc. (Whitin), then a Massachusetts corporation with its principal place of business in Massachusetts. The machine was delivered to the plaintiff's place of employment in 1939, and has remained there since.

The plaintiff commenced this action in the Superior Court on March 13, 1987. The plaintiff alleges that his injuries were caused by Whitin's negligent design and manufacture of the machine, failure to warn of the dangerous condition of the machine, and breach of express and implied warranties concerning the machine. After a period of discovery, Whitin moved the court for summary judgment on the ground that the plaintiff's action is barred by Conn. Gen. Stat. § 52-577a (a) (1993),^[2] which provides in part that certain products liability [645] action shall not be brought after ten years from the date that the product left the control of the defendant. The judge granted Whitin's motion, and judgment was entered in favor of the defendant. The judge ruled that under Massachusetts choice-of-law rules, the Connecticut statute of repose applies.

We examine whether the ten-year repose provision of Conn. Gen. Stat. § 52-577a (a), applies in the circumstances of this case.

Traditionally, in matters of tort, the courts of this Commonwealth apply the substantive laws of the jurisdiction wherein the tort occurred. See Cohen v. McDonnell Douglas Corp., 389 Mass. 327, 333 (1983). Generally, however, Massachusetts courts will apply their own rules of procedure. Murphy v. Smith, 307 Mass. 64, 66 (1940). Where it is not clear that a rule of law is procedural in the Commonwealth for choice-of-law purposes, we take a functional approach in determining the choice-of-law issue, using established conflicts criteria and considerations. See Bushkin Assocs., Inc. v. Raytheon Co., 393 Mass. 622, 631-636 (1985).

The Commonwealth considers statutes of limitations as procedural: "Massachusetts views statutes of limitation as relating to the remedy, and it applies its own law as the law of the forum." Wilcox v. Riverside Park Enters., Inc., 21 Mass. App. Ct. 419, 421 (1986), S.C., 399 Mass. 533 (1987), and cases cited. We have not determined whether statutes of repose are procedural with respect to choice of law. We have ruled in another context, however, that statutes of repose are distinguishable from statutes of limitation, in that they "completely eliminate[] a cause of action," McGuinness v. Cotter, 412 Mass. 617, 622 (1992), quoting Klein v. Catalano, 386 Mass. 701, 702 (1982), whereas statutes of limitation [646] "[are] procedural measure[s] which `normally govern[] the time within which legal proceedings must be commenced after the cause[s] of action accrue[] (emphasis supplied).'" McGuinness, supra at 621, quoting Klein, supra. Because statutes of repose are not clearly procedural for choice of law purposes in the Commonwealth, we examine the issue using a functional approach.

In examining conflicts issues using a functional approach, "we have not elected by name any particular choice-of-law doctrine." Bushkin Assocs., Inc., supra at 631. Rather, we consider choice-of-law issues "by assessing various choice-influencing considerations," id., including those provided in the Restatement (Second) of Conflict of Laws (1971), and those suggested by various commentators. See id. at 631-632; Cohen, supra at 336. We examine the present issue guided by the Restatement.

Section 145 of the Restatement^[3] provides the general principle "applicable to all torts and to all issues in tort," id. at § 145 comment a, and § 146 of the Restatement^[4] provides a [647] principle applicable in issues concerning causes of action involving personal injury.^[5] Both sections require an examination of the relevant issue in accordance with the principles provided in § 6 of the Restatement.^[6]

We begin by examining the contacts which Connecticut and Massachusetts have with the parties and the occurrence in this case. See id. at § 145 (2). Connecticut is the place where the injury occurred, and the place of the plaintiff's employment. In addition, the plaintiff, after being injured, received compensation pursuant to Connecticut's compensation statute. Massachusetts is the plaintiff's place of residence, Whitin's principal place of business and former State of incorporation, and the State wherein the alleged conduct causing the plaintiff's injury occurred.

Under § 146, the law of Connecticut — as the "state where the injury occurred" — applies, unless Massachusetts has a "more significant relationship" to the parties and the occurrence under the considerations provided in § 6. We thus examine the various relevant considerations provided in § 6 as they relate to the issue at hand to determine whether Massachusetts has a more significant relationship.

We recognize the basic policies underlying the field of products liability. Generally, providing a cause of action for [648] compensation of individuals injured is the policy behind products liability actions: "[P]ublic policy demands that the burden of accidental injuries caused by products intended for consumption be placed upon those who market them ... and that the [user] of such products is entitled to the maximum of protection at the hands of someone, and the proper persons to afford it are those who market the products." Restatement (Second) of Torts § 402A comment c (1965), quoted in Correia v. Firestone Tire & Rubber Co., 388 Mass. 342, 354-355 (1983). There exists a corresponding policy of holding accountable those whose defective products cause injuries: "Recognizing that the seller is in the best position to ensure product safety, the law of strict liability imposes on the seller a duty to prevent the release of `any product in a defective condition unreasonably dangerous to the user or consumer,' into the stream of commerce." Correia, supra at 355, quoting Restatement (Second) of Torts, supra at § 402A(1).

The Legislature of Connecticut has chosen to limit the products liability cause of action to a period of ten years from the date that the product was released from the possession or control of a party. See Conn. Gen. Stat. § 52-577a (a). The courts of Connecticut have recognized that this provision was intended to protect defendants, and presumably the courts of Connecticut, from "stale claims." See Daily v. New Britain Mach. Co., 200 Conn. 562, 583 (1986). Massachusetts has not limited products liability actions with a statute of repose, and it therefore has illustrated no similar policy of protecting defendants from claims for injuries caused by older products. We examine the relative interests of Connecticut and Massachusetts in applying their policies in the present case.

Connecticut has an obvious interest in having its law apply, as it is the place where the plaintiff's injury occurred. However, Connecticut's interest in protecting defendants from claims concerning older products is not as compelling in the circumstances as it would be if Whitin were a Connecticut business, and Connecticut's corresponding interest in protecting [649] its courts from such claims is obviously not at stake. It is worth noting that the Supreme Court of Connecticut has ruled that Conn. Gen. Stat. § 52-577a is procedural in nature: "Section 52-577a does not create a right of action in the product liability context. That right of action is created by the common law or the product liability act. Thus, § 52-577a must be considered procedural." Champagne v. Raybestos-Manhattan, Inc., 212 Conn. 509, 525 (1989). Thus, Connecticut does not view Conn. Gen. Stat. § 52-577a as part of its substantive law, and it therefore likely has a diminished expectation of having it apply in other jurisdictions as part of its substantive law.

Massachusetts has a significant interest in seeing that its resident plaintiff be compensated, and that its resident defendant, Whitin, be held accountable for its conduct, which took place in Massachusetts, and which allegedly caused the plaintiff's injury. "[T]he fact that the domicil and place of business of [the plaintiff and the defendant] are grouped in a single state is an important factor to be considered in determining the state of the applicable law. The state where these contacts are grouped is particularly likely to be the state of the applicable law if either the defendant's conduct or the plaintiff's injury occurred there." Restatement (Second) of Conflict of Laws, supra at § 145 comment e, at 421. The interests at stake for Massachusetts, because of its relationship to the parties and the conduct causing the plaintiff's alleged injury are greater than those of Connecticut. Clearly, Massachusetts has a dominant interest in seeing its policy enforced.

The needs of the interstate system do not point us in any particular direction. "Deference to sister state law in situations in which the sister state's substantial contacts with a problem give it a real interest in having its law applied ... will at times usefully further this part of the law's total task." R.A. Leflar, American Conflicts Law § 104, at 293 (4th ed. 1986). As discussed above, although Connecticut has some interest, its contacts to the parties and the occurrence [650] do not demonstrate a significant interest in applying its statute of repose.

The protection of justified expectations is not here a concern. "This is because persons who cause injury on nonprivileged occasions, particularly when the injury is unintentionally caused, usually act without giving thought to the law that may be applied to determine the legal consequences of this conduct. Such persons have few, if any, justified expectations in the area of choice of law to protect, and as to them the protection of justified expectations can play little or no part in the decision of a choice of law question." Restatement (Second) of Conflict of Laws, supra at § 145 comment b, at 415-416.

Similarly, the values of certainty, predictability, and uniformity of result do not point us in the direction of applying Connecticut law. The interests of the Commonwealth in allowing the plaintiff's action are too strong to be affected by the general value of having Connecticut's law apply uniformly to all actions having a connection with that State.

Simplification of the judicial task fails to suggest that we apply the law of either State. The courts of this Commonwealth are more familiar with the laws and rules of Massachusetts than with those of Connecticut; however, application of the Connecticut statute of repose would end the action, and thus, in effect also simplify the judicial task.

In sum, Massachusetts has a more significant relationship to the parties and the occurrence than does Connecticut. We recognize that we are not following the result in the case of Alves v. Siegel's Broadway Auto Parts, Inc., 710 F. Supp. 864 (D. Mass. 1989) where the facts are somewhat different. We hold that the repose provision found in Conn. Gen. Stat. § 52-577a (a), shall not apply to this action. We reverse the judge's entry of judgment in favor of the defendant, and remand this case for further proceedings.

So ordered.

[1] ATF Davidson Co., a division of White Consolidated Industries. White Consolidated Industries, Inc., is the successor in interest to Whitin Machine Works, Inc. We shall refer to a single defendant.

[2]Connecticut Gen. Stat. § 52-577a (1993) provides:

"(a) No product liability claim as defined in section 52-572m shall be brought but within three years from the date when the injury, death or property damage is first sustained or discovered or in the exercise of reasonable care should have been discovered except that ... no such action may be brought against any party nor may any party be impleaded pursuant to subsection (b) later than ten years from the date that the party last parted with possession or control of the product.... (c) The ten-year limitation provided for in subsection (a) shall not apply to any product liability claim brought by a claimant who is not entitled to compensation under chapter 568...."

[3]Restatement (Second) of Conflict of Laws § 145 (1971), entitled "The General Principle," provides:

"(1) The rights and liabilities of the parties with respect to an issue in tort are determined by the local law of the state which, with respect to that issue, has the most significant relationship to the occurrence and the parties under the principles stated in [Restatement (Second) of Conflict of Laws] § 6.

"(2) Contacts to be taken into account in applying the principles of § 6 to determine the law applicable to an issue include: (a) the place where the injury occurred, (b) the place where the conduct causing the injury occurred, (c) the domicil, residence, nationality, place of incorporation and place of business of the parties, and (d) the place where the relationship, if any, between the parties is centered.

"These contacts are to be evaluated according to their relative importance with respect to the particular issue."

[4]Restatement (Second) of Conflict of Laws § 146 (1971), entitled "Personal Injuries," provides:

"In an action for a personal injury, the local law of the state where the injury occurred determines the rights and liabilities of the parties, unless, with respect to the particular issue, some other state has a more significant relationship under the principles stated in § 6 to the occurrence and the parties, in which event the local law of the other state will be applied."

[5] We do not, as the plaintiff suggests, consider the issue under § 142 of the Restatement, which pertains to statutes of limitation, as we have concluded in the past that statutes of repose are different in nature from statutes of limitation. See, e.g., McGuinness v. Cotter, 412 Mass. 617, 621-622 (1992).

[6]Restatement (Second) of Conflict of Laws § 6, entitled "Choice of Law Principles, provides in part:

"[T]he factors relevant to the choice of the applicable rule of law include (a) the needs of the interstate and international systems, (b) the relevant policies of the forum, (c) the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue, (d) the protection of justified expectations, (e) the basic policies underlying the particular field of law, (f) certainty, predictability and uniformity of result, and (g) ease in the determination and application of the law to be applied."

[338] [339] James M. Doran, Jr., Manier, Herod, Hollabough & Smith, Nashville, TN, S. Jerome Levy (argued and briefed), Todd M. Gascon, Levy, Leopold & Associates, Chicago, IL, for Alexander MacDonald, Joan MacDonald, Ofray Hall, Susan Stanfield, Peter Cannistra.

Hugh C. Griffin, Chicago, IL, Diane I. Jennings (argued and briefed), Thomas J. Burke, Jr., Lord, Bissell & Brook, Chicago, IL, Noel F. Stahl, Cornelius & Collins, Nashville, TN, for General Motors Corporation.

Before: MARTIN, Chief Judge; WELLFORD and MOORE, Circuit Judges.

MARTIN, C.J., delivered the opinion of the court, in which MOORE, J., joined. WELLFORD, J. (pp. 348-51), delivered a separate dissenting opinion as to parts II and III.

BOYCE F. MARTIN, Jr., Chief Judge.

At approximately 10:30 p.m. on October 29, 1987, six members of the University of Kansas debate team and three of their coaches were driving to a tournament in Georgia when a deer appeared in front of their van on an interstate highway near Clarksville, Tennessee. The driver, Philip Voight, a graduate student and a debate coach at the University of Kansas, had received his driver's license just a few months earlier. When Voight swerved to avoid the deer, the rear brakes of the van locked up, Voight lost control of the vehicle, and the van ran off the highway and rolled over several times before coming to rest. David MacDonald, a student and debate team member, died as a result of the accident. Another student, Peter Cannistra, was rendered a paraplegic. Two other passengers, Ofray Hall and Susan Stanfield, suffered substantial injuries but recovered fully.

Cannistra, Hall, Stanfield, and MacDonald's estate initially sued the University of Kansas and its employees, including Voight, alleging that their negligence caused the accident. The plaintiffs later added a claim against General Motors, alleging that it failed to advise the van's purchaser adequately regarding proper brake maintenance, and that the van was defectively designed because the rear wheels would lock before the front wheels under some braking conditions, thus making the vehicle "rear-biased."

Ultimately, the plaintiffs settled their claims against the University of Kansas and its employees and proceeded to trial against General Motors alone. On April 10, 1995, the jury returned a verdict in the plaintiffs' favor, finding General Motors one percent, and the University of Kansas and its employees ninety-nine percent at fault. The district court entered judgment on the verdict and denied the parties' motions for judgment as a matter of law and for a new trial.

On appeal, both the plaintiffs and General Motors raise objections to the district court's decision. The plaintiffs assert that the district court abused its discretion when it permitted General Motors to offer evidence of the negligence of the University of Kansas and its employees. The plaintiffs base this objection on their claim that certain remarks made during General Motors' opening statement constituted "judicial admissions" that should have excluded such evidence. In addition, the plaintiffs argue that the district court erred in applying the local law of Kansas rather than that of North Dakota to the measurement of damages for the MacDonalds' wrongful death claim, on the ground that all members of the MacDonald family were domiciliaries of North Dakota. In its appeal, General Motors asserts that the district court improperly denied its motion for judgment as a matter of law. For the reasons set forth below, we hold that the district court did not err in admitting the challenged evidence or denying General Motors' motion for judgment as a matter of law. However, we reverse the district court's decision to apply Kansas law to the measurement of damages for the MacDonalds' wrongful death claim, and remand with instructions to apply North Dakota law to that issue.

I.

The first issue on appeal is the plaintiffs' challenge to the admission of certain evidence. During opening statements, General Motors' counsel made the following remarks:

[Voight] didn't do anything wrong in our estimation. He probably should have struck the deer or tried to brake in a [340] straight line rather than swerve to avoid it. He did probably what many and most of us would have done if the same emergency situation presented itself.

Let me suggest that we are not suggesting Phil Voight was negligent. What he did was probably predictable. Probably not appropriate.

Don't lose sight. It was an accident. It was an accident not the result of negligence or fault of General Motors or anybody else.

The next day of trial, the plaintiffs asked the court to bar General Motors from introducing any evidence of Voight's driving experience or negligence, on the ground that the above statements were judicial admissions that Voight was not negligent. The court denied the plaintiffs' request. Later in the trial, but prior to General Motors' case in chief, the plaintiffs made a similar request by written motion. It, too, was denied by the court. On appeal, the plaintiffs challenge these rulings.

We review the district court's determination as to whether a particular statement constitutes a judicial admission that excludes certain evidence under the abuse of discretion standard. United States v. Cohen, 946 F.2d 430, 435 (6th Cir.1991). In the context of an evidentiary ruling, an abuse of discretion exists when the reviewing court is firmly convinced that a mistake has been made regarding the admission of evidence. Nida v. Plant Protection Ass'n Nat'l, 7 F.3d 522, 527 (6th Cir.1993). Applying this standard to the facts of the present case, we cannot say that the district court abused its discretion in finding that General Motors' remarks during opening statements were not judicial admissions, and therefore denying the plaintiffs' request to exclude evidence related to the challenged statements.

In order to qualify as judicial admissions, an attorney's statements must be deliberate, clear and unambiguous. Oscanyan v. Arms Co., 103 U.S. 261, 263, 13 Otto 261, 26 L.Ed. 539 (1880). The statements of General Motors' counsel do not rise to this level. First, counsel used words such as "probably" and "suggesting" in making his comments, indicating that such remarks were guarded and qualified. Under the principles set forth in Oscanyan, we are most reluctant to hold that such ambiguous statements constitute judicial admissions. As the Oscanyan court made clear, "[i]f a doubt exists as to the statement of counsel, the court will withhold its directions, as where the evidence is conflicting, and leave the matter to the determination of the jury." Id. at 263. See also Koserkoff v. Chesapeake & Ohio Ry. Co., 427 F.2d 1049, 1054 (6th Cir.1970), cert. denied, 401 U.S. 947, 91 S.Ct. 924, 28 L.Ed.2d 230 (1971) (holding that "positive statement of fact" is required for a binding admission, not "contradictory statements").

Second, the statements were not deliberate waivers of the right to present evidence of Voight's and the University's negligence. The First Circuit has stated:

Because of their binding consequences, judicial admissions generally arise only from deliberate voluntarily waivers that expressly concede ... an alleged fact.... [C]onsiderations of fairness and the policy of encouraging judicial admissions require that trial judges be given broad discretion to relieve parties from the consequences of judicial admissions in appropriate cases.

United States v. Belculfine, 527 F.2d 941, 944 (1st Cir.1975) (citations omitted). Under these principles, the district court was well within its discretion to conclude that General Motors' counsel's statements were not binding admissions. Counsel's remarks simply were not "deliberate voluntary waivers." During the same opening statement, counsel discussed Voight's lack of driving experience and explained that the plaintiffs had originally sued only Voight and the University of Kansas for negligence. Such comments are fundamentally at odds with any intent to waive the argument that Voight's negligence caused the accident. Our decision in Harrison Construction Co. v. Ohio Turnpike Commission, 316 F.2d 174 (6th Cir.1963) supports this conclusion. In Harrison we held that the Turnpike Commission's counsel's opening statement remarks regarding proximate causation did not constitute judicial admissions, on the ground that the remarks were inconsistent with the Commission's pleadings, evidence, and closing argument. Id. at 177.

[341] Third and finally, General Motors' counsel's statements dealt with opinions and legal conclusions, and we are thus reluctant to treat them as binding judicial admissions. See, e.g., New Amsterdam Cas. Co. v. Waller, 323 F.2d 20, 24 (4th Cir.1963), cert. denied, 376 U.S. 963, 84 S.Ct. 1124, 11 L.Ed.2d 981 (1964). See also Glick v. White Motor Co., 458 F.2d 1287, 1291 (3d Cir.1972) ("The scope of judicial admissions is restricted to matters of fact which otherwise would require evidentiary proof, and does not include counsel's statement of his conception of the legal theory of a case."). Determinations of negligence and proximate causation require the application of rules of law to complex factual patterns. Judicial admissions, in contrast, typically concern only matters of fact. Since General Motors' counsel's statements dealt with legal conclusions (i.e., whether Voight was negligent and whether he caused the accident), they do not, under the reasoning set forth in Waller and Glick, constitute binding judicial admissions. Were we to rule otherwise, we would be turning a valuable time-saving device, the voluntary use of which should be encouraged, into a trap for the unwary.

The district court was unpersuaded that the comments of General Motors' counsel were judicial admissions. In light of the weight of authority against the plaintiffs' position, we cannot say that the court abused its discretion when it refused to treat them as such and admitted evidence of Voight's and the University's negligence.

II.

The next issue on appeal is the choice of law for the measurement of damages for the MacDonalds' wrongful death claim. The district court applied Kansas law, which limits non-pecuniary damages to $100,000.00. See Kan.Stat.Ann. § 60-1903 (1995). The MacDonalds argue that North Dakota law, which places no cap on damages, was more appropriate. See N.D.Cent.Code § 32-03.2-04 (1993). We review a district court's choice of law determination de novo. Salve Regina College v. Russell, 499 U.S. 225, 231, 111 S.Ct. 1217, 1221, 113 L.Ed.2d 190 (1991).

In a diversity action such as the present one, a federal court applies the conflicts law of the forum state. Erie R.R. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed.1188 (1938). Thus, we apply Tennessee law to determine whether the district court properly applied Kansas law to determine damages for the MacDonalds' wrongful death claim. Tennessee has adopted the "most significant relationship" approach of the Restatement (Second) of Conflict of Laws (1971). Hataway v. McKinley, 830 S.W.2d 53, 59 (Tenn. 1992).

Section 178 of the Restatement explains that "the law selected by an application of the rule of § 175 determines the measure of damages in an action for wrongful death." Restatement (Second) of Conflict of Laws § 178. Section 175, in turn, sets forth the foundation of the "most significant relationship test," and reads as follows:

§ 175. Right of Action for Death.

In an action for wrongful death, the local law of the state where the injury occurred determines the rights and liabilities of the parties unless, with respect to the particular issue, some other state has a more significant relationship under the principles stated in § 6 to the occurrence and the parties, in which event the local law of the other state will be applied.

Restatement (Second) of Conflict of Laws § 175.

Other relevant Restatement principles are set forth in sections 6 and 145, which are referenced by section 175 and which address, respectively, general choice of law principles and choice of law principles applicable to tort actions. The full text of these sections is as follows:

§ 6. Choice-of-Law Principles.

(1) A court, subject to constitutional restrictions, will follow a statutory directive of its own state on choice of law.

(2) When there is no such directive, the factors relevant to the choice of the applicable rule of law include:

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

(b) the relevant policies of the forum,

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

(d) the protection of justified expectations,

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

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

(g) ease in the determination and application of the law to be applied.

§ 145. The General Principle.

(1) The rights and liabilities of the parties with respect to an issue in tort are determined by the local law of the state which, with respect to that issue, has the most significant relationship to the occurrence and the parties under the principles stated in § 6.

(2) Contacts to be taken into account in applying the principles of § 6 to determine the law applicable to an issue include:

(a) the place where the injury occurred,

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

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

(d) the place where the relationship, if any, between the parties is centered.

These contacts are to be evaluated according to their relative importance with respect to the particular issue.

Restatement (Second) of Conflict of Laws §§ 6, 145.

Under the Restatement approach, where wrongful death damages are at issue, the court applies the local law of the state where the injury occurred, unless some other state has a more significant relationship to the issue of damages, the occurrence and the parties. Restatement (Second) of Conflict of Laws §§ 175, 178 (1971). In the present case, the parties agree that the law of Tennessee, the state where the injury occurred, should not be applied because the location of the accident there was fortuitous. Thus, section 175 of the Restatement requires that we determine, with respect to the issue of damages, which other state has the most significant relationship to the occurrence and the parties. We do this by examining the contacts set forth in section 145 of the Restatement: (1) the place where the injury occurred; (2) the place where the conduct causing the injury occurred; (3) the domicile, residence, nationality, place of incorporation and place of business of the parties; and (4) the place where the relationship between the parties is centered. See Hataway, 830 S.W.2d at 59. We are guided in this analysis by general principles governing choice of law, including: the interests of each state in having its law applied; the relevant policies of the forum; certainty, predictability and uniformity of result; ease in the determination and application of the law to be applied; the promotion of interstate order; and the basic policies underlying the field of law. Restatement (Second) of Conflict of Laws § 6. See also Hataway, 830 S.W.2d at 59 (explaining that general principles of choice of law contained in section 6 of the Restatement guide the application of the "most significant relationship" test). A proper application of these factors shows that the law of North Dakota, not Kansas, should be applied to the measurement of damages for the MacDonalds' claim.

A simple examination of the contacts listed in section 145 is of little importance in the present case, as it points toward several different states. The injury occurred in Tennessee. The conduct causing the injury occurred in Tennessee, the site of the accident, and Michigan, the state where General Motors designed the van. The decedent was domiciled in North Dakota but was a resident of Kansas at the time of his death. The decedent's parents, the plaintiffs in this wrongful death suit, are domiciled and reside in North Dakota. General Motors' domicile is Delaware, Michigan is its place of incorporation and principal place of business, and it conducts business in Kansas, North Dakota, and Tennessee. The center of the relationship is Kansas: all persons in the van were residents of Kansas; the van was purchased, garaged, and maintained in Kansas by a Kansas organization; the passengers boarded the van in Kansas; and the trip was scheduled to terminate there as well. Thus, [343] the Restatement contacts point toward no one state in particular, but rather cover Tennessee, Michigan, North Dakota, Kansas, and Delaware.

At trial, General Motors argued, and the district court agreed, that Kansas was the state that had the most significant relationship with all aspects of the MacDonalds' wrongful death claim. General Motors based this assertion on the ground that where the contacts are scattered, the "center of the relationship" is the most important factor in making a choice of law determination. This premise is incorrect. The mere fact that contacts are scattered does not automatically heighten the importance of the "center of the relationship" contact. Here, Kansas may be the center of the relationship, but no other important contacts are located there: the decedent was a resident of Kansas, but his domicile remained in North Dakota. See Restatement (Second) of Conflict of Laws § 145 cmt. e (1971) (noting that the center of the relationship may be the most important contact on rare occasions, such as when a plaintiff from state X is injured in a train accident while passing through state Y and other important contacts are also located in that state) (emphasis added). Instead, the Restatement makes clear that the court is to evaluate the contacts "according to their relative importance with respect to the particular issue," and that this is to be accomplished by carefully examining the policies behind the laws of the interested states and the interests of those states in the claim. Restatement (Second) of Conflict of Laws §§ 6, 145(2); § 145 cmt. e (1971). In this regard we emphasize that the Restatement specifically discusses the importance of domicile in determining choice of law for the measurement of damages in a wrongful death action. Comment b to section 178 explains, for example, that "[i]n a situation where one state is the state of domicil of the defendant, the decedent and the beneficiaries, it would seem that, ordinarily at least, the wrongful death statute of this state should be applied to determine the measure of damages." Restatement (Second) of Conflict of Laws § 178 cmt. b.

The parties agree that the first two contacts, place of injury and place of conduct (which point toward Tennessee and Michigan), should not be controlling here. Thus, we must examine the last two contacts to determine which state's law to apply to determine damages, giving due consideration to the policy concerns discussed above.

The third set of contacts — domicile, residence, nationality, place of incorporation and place of business of the parties — involves several states, including Delaware, Michigan, Kansas, and North Dakota. A person's "domicile" is his or her permanent and principal home, to which he or she intends to return whenever away. Snodgrass v. Snodgrass, 49 Tenn.App. 607, 357 S.W.2d 829, 831 (1961) (defining "domicile" as "the place `where a person has his principal home and place of enjoyment of his fortunes; which he does not expect to leave, except for a purpose; from which when absent, he seems to himself a wayfarer; to which when he returns, he ceases to travel'") (citations omitted). See also Eastman v. Univ. of Michigan, 30 F.3d 670, 672-73 (6th Cir.1990) (stating that a person's domicile is his or her "true, fixed, and permanent home and principal establishment" and is "the place to which he [or she] returns whenever ... absent") (citing Black's Law Dictionary 484 (6th ed. 1990)). In contrast, "residence" requires "physical presence and an intention to remain some indefinite period of time, but not necessarily permanently." Id. at 673 (citing Black's Law Dictionary at 1308-9). Under these definitions, North Dakota is the domicile of both David MacDonald and his parents. It is his parents' domicile because it is their established and permanent home. Likewise, North Dakota is David MacDonald's domicile because it was his domicile prior to college and there is no evidence that he ever intended to abandon it to establish a new domicile in Kansas, which is what he would have had to have done to change his domicile to that state. See In re Conservatorship of Clayton, 914 S.W.2d 84, 89 (Tenn. Ct.App.1995) (stating that to change domicile, a person must actually change his or her residence to a new place, intend to abandon his or her old domicile, and intend to establish a new domicile at the new residence). [344] That David resided in Kansas while in school thus does nothing to diminish the fact that North Dakota was his domicile.

While David MacDonald and his parents were clearly domiciliaries of North Dakota, we note, and General Motors makes much of the fact that David MacDonald, who was attending the University of Kansas, was technically a resident of Kansas at the time of his death. While we acknowledge David's connection to Kansas, we nonetheless find that the third set of Restatement contacts points to the law of North Dakota, where David and his parents were domiciled, rather than to Kansas, where David alone was merely a resident. This conclusion is based on our opinion that although residence is a factor in the third set of contacts, it is not as significant a factor as domicile. Not only is a person's connection to his or her domicile more substantial than any links he or she may have to his or her place, or places, of residence, but a state clearly has more of an interest in preserving the welfare of its domiciliaries — those persons who have made the state their true, fixed, and permanent home — than that of its residents — persons who live in the state without necessarily having any permanent connections there, and who are domiciled and may have residences in other states. Indeed, the Restatement itself suggests that domicile is the more important factor in the third set of section 145 contacts. See Restatement (Second) of Conflict of Laws § 178 cmt. b (emphasizing the importance of the domicile of the defendant, the decedent, and the beneficiaries in determining which state's wrongful death statute to apply to determine damages), § 145 cmt. d (noting that the state where interested persons are domiciled typically has the greatest interest in having its law applied to resolve a tort action). For these reasons, we find that David MacDonald's domicile — North Dakota — is a more important contact than his residence for purposes of applying the Restatement's most significant relationship test. Given that both David MacDonald and his parents were domiciliaries of North Dakota, we conclude that the third set of section 145 contacts suggests that North Dakota has the most significant relationship to the measure of damages for the MacDonald's wrongful death claim.

The fourth contact — the center of the relationship — points to Kansas. As noted earlier, all persons in the van lived in Kansas. The van was purchased, garaged, and maintained in Kansas by a Kansas organization, and the students and coaches boarded the van in Kansas for a trip that was to terminate in that state.

The third and fourth contacts thus point to the law of North Dakota and Kansas, respectively. To determine which of these contacts is more important, we first examine the policies behind the laws of these two states. Restatement (Second) of Conflict of Laws § 6, § 145 cmt. e (1971). See also In re Air Crash Disaster at Boston, Massachusetts on July 31, 1973, 399 F.Supp. 1106, 1112 (D.Mass.1975) (noting that "[t]he policy underlying each statute is an important consideration in determining which state has the more significant connection with the issue"). North Dakota's wrongful death statute is designed to compensate the victim fully for both pecuniary and non-pecuniary loss. N.D.Cent.Code § 32-03.2-04 (1993). This purpose conforms with the policy of compensation underlying the theory of recovery in all tort actions. See Restatement (Second) of Conflict of Laws § 6 (1971) (stating that general choice of law principles include a consideration of the policies underlying the relevant field of law). In comparison, Kansas' wrongful death statute, Kan.Stat.Ann. § 60-1903 (1995), has two goals: compensating the victim's next of kin and eliminating excessive verdicts that can result from jury sympathy for the decedent's family. In an effort to balance these two goals, the statute imposes a $100,000.00 cap on non-pecuniary damages.^[1] Given this limitation, Kansas' statute does not completely satisfy the goal of tort actions — to make the plaintiff whole.

Our next step is to evaluate the interests of Kansas and North Dakota in applying [345] their own laws to the measurement of damages for this particular wrongful death claim. Restatement (Second) of Conflict of Laws § 6, § 145 cmt. e (1971). North Dakota's interest is substantial. North Dakota is the domicile of both the decedent and his heirs, and it has a "strong interest in assuring that next of kin are fully compensated for the tortious death" of its domiciliaries. Air Crash Disaster, 399 F.Supp. at 1112. Significantly, the Restatement emphasizes the importance of applying the law of the state where interested persons are domiciled to determine damages in wrongful death and other tort actions. See Restatement (Second) of Conflict of Laws § 178 cmt. b (stating that where one state is the state of domicile of the defendant, the decedent, and the beneficiaries, the wrongful death statute of that state should ordinarily be applied to determine damages), § 145 cmt. d (noting that the state where interested persons are domiciled will typically have the "greatest interest in determining the extent to which each shall share in a tort recovery"). And while no Tennessee case has directly addressed the issue, other courts have held in wrongful death cases that the most important contact in the Restatement analysis is the domicile of the decedent or his or her heirs. In Air Crash Disaster, for example, residents of Vermont brought wrongful death claims arising out of an airplane crash that occurred in Massachusetts. Id. at 1107. The court, applying the most significant relationship test, determined that Vermont law should apply since the decedents were domiciled in Vermont and their next of kin were residents of Vermont. The court made this finding despite the fact that the accident occurred in Massachusetts and that the defendant did business in both Massachusetts and Vermont. Id. at 1112. The court noted that Vermont had a strong interest in assuring that next of kin were fully compensated for the deaths of its domiciliaries, while, on the other hand, Massachusetts' sole significant contact was that it was the site of the accident. Id.^[2]

As with Massachusetts' interest in the Air Crash Disaster claim, Kansas' interest in this claim is not as great as North Dakota's. Kansas does have an interest in ensuring that its residents are adequately compensated for their injuries, but this interest is adequately served by applying North Dakota law. Moreover, applying the Kansas statute would frustrate North Dakota's policy of fully compensating its domiciliaries for their injuries. And while Kansas also has an interest in protecting its residents from excessive jury verdicts, this interest is not as compelling in this case, where all residents of Kansas (the University, its employees, and Voight) who were defendants have settled and will not be affected by the jury's damages calculations. General Motors, of course, remains a party to the suit, and Kansas has an interest in protecting the automobile manufacturer from an excessive verdict, since that manufacturer does business within Kansas' borders. However, General Motors also does business in North Dakota, so there is no compelling reason to give greater weight to Kansas' interest in this matter. We therefore find that the domicile of the decedent and his survivors, rather than the center of the parties' relationship, is the most important contact in this application of the Restatement analysis. In keeping with this finding, we hold that the law of North Dakota, rather than that of Kansas, should be applied in determining damages for the MacDonalds' wrongful death claim.

We note that General Motors argues that the "center of the relationship" element should be the dominant factor in this application of the most significant relationship test, and thus that Kansas law should apply. In support of this argument, General Motors cites this Court's decision in Bowman v. Koch Transfer Co., 862 F.2d 1257 (6th Cir. 1988). Bowman held, in applying the Restatement's test, that where an Ohio resident was killed in Illinois by a vehicle driven by an [346] Illinois resident, and the only contact with Ohio was that the decedent was domiciled there and certain beneficiaries were domiciled (but did not live) there, Illinois law should be applied. Id. at 1262.

While Bowman may lend some support to General Motors' position, our decision here is not controlled by that case. The Restatement test is a fact-driven approach that necessarily varies from case to case, and the Bowman decision was not based on an analysis of the "center of the relationship" factor. Bowman, 862 F.2d at 1258-62. Moreover, even if we assume Illinois was the "center of the relationship" in Bowman, Illinois had several other contacts that made its law appropriate — contacts Kansas does not have in this case. Illinois was the site of the Bowman accident, id. at 1258, and all the defendants in Bowman were residents of Illinois. Id. at 1261. Furthermore, while the plaintiff-survivors in Bowman favored application of the law of Ohio, none of them lived in that state. Id. Here, in contrast, Kansas, the center of the relationship, was neither the site of the accident nor the residence of any of the remaining defendants, and the claimants reside and are domiciled in North Dakota, the state whose law they wish to have applied to determine damages for their wrongful death claim. The Bowman court favored Illinois law not simply because Illinois was the center of the parties' relationship,^[3] but because Illinois had many other contacts with the occurrence and the claim — contacts which Kansas does not have with this dispute. Therefore, Bowman does not alter our conclusion that the district court should have applied North Dakota law, rather than that of Kansas, to determine damages for the MacDonalds' wrongful death claim.

III.

We now turn to General Motors' appeal of the district court's denial of its motion for judgment as a matter of law pursuant to F.R.Civ.P. 50(b). General Motors' motion is based on a defense that arises under the Kansas Product Liability Act. The Act provides, in relevant part:

When the injury-causing aspect of the product was, at the time of manufacture, in compliance with legislative regulatory standards or administrative regulatory safety standards relating to design or performance, the product shall be deemed not defective by reason of design or performance ... unless the claimant proves by a preponderance of the evidence that a reasonably prudent product seller could and would have taken additional precautions.

Kan.Stat.Ann. § 60-3304(a) (1995).

General Motors asserts that it satisfied its initial burden of proving that the van was in compliance with the appropriate regulatory standard relating to design or performance, and thus that it was entitled to a rebuttable presumption that the van was not defective in design. Specifically, General Motors produced evidence, undisputed by the plaintiffs, that the braking system on the van successfully passed the brake performance testing mandated by the National Highway Traffic Safety Administration's Federal Motor Vehicle Safety Standard (FMVSS) 105, and thus fully complied with the applicable federal safety standards set forth in FMVSS 105. Under the Kansas Product Liability Act, argues General Motors, this compliance created a rebuttable presumption that the van did not suffer from a design defect, shifting the burden of proof to the plaintiffs to demonstrate that a prudent seller nevertheless could and would take additional precautions. At dispute in this appeal are two issues: first, whether FMVSS 105 regulates the injury-causing aspect of the van, and thus whether compliance with FMVSS 105 entitled General Motors to a rebuttable presumption of non-defectiveness under the Act, and second, whether the plaintiffs successfully rebutted this presumption by demonstrating that a prudent seller nonetheless could and would have taken additional precautions. The district court, in denying General Motors' motion for judgment as a matter of law, found that there was evidence upon which the jury [347] could have based its decision against General Motors on this matter. General Motors, of course, argues otherwise. Because we find that the jury could reasonably have concluded that FMVSS 105 did not relate to the injury-causing aspect of the van, and thus that General Motors was not entitled to a presumption of non-defectiveness, we hold, without reaching the issue of whether the plaintiffs successfully rebutted the presumption, that the district court properly denied General Motors' motion for judgment as a matter of law.

A federal court sitting in diversity applies the law of the state whose substantive law governs the action to determine whether a motion for judgment as a matter of law should be granted. Siggers v. Barlow, 906 F.2d 241, 247 (6th Cir.1990). Under Kansas law, a court, in ruling on a motion for judgment notwithstanding the verdict pursuant to Kan.Stat.Ann. § 60-250(c) (1995) (the equivalent of a F.R.Civ.P. 50(b) motion for judgment as a matter of law), must "resolve all facts and inferences reasonably to be drawn from the evidence in favor of the party against whom the ruling is sought and where reasonable minds could reach different conclusions based on the evidence the motion must be denied." Turner v. Halliburton Co., 240 Kan. 1, 722 P.2d 1106, 1112 (1986). Thus, we will uphold the district court's denial of General Motors' motion unless, resolving all facts and inferences from the evidence in favor of the plaintiffs, we determine that reasonable minds could only conclude that General Motors was entitled to the statutory presumption of non-defectiveness and that plaintiffs failed to rebut that presumption. Given the evidence, however, it is impossible to reach this conclusion. Reasonable minds could differ as to whether General Motors was entitled to a presumption of non-defectiveness under the Act, and therefore General Motors' motion for judgment as a matter of law was properly denied by the district court. Id.

The plaintiffs presented testimony at trial that the regulation in question, FMVSS 105, does not even concern the issue of brake balance and stability (i.e., whether the brakes are front or rear-biased). Given that the Kansas statute creates a presumption that a product is non-defective only if the "injury-causing aspect of the product" is in compliance with a regulation, plaintiffs argue that the van's compliance with FMVSS 105 fails to create the presumption of non-defectiveness sought by General Motors, and thus that plaintiffs never had the burden of rebutting the presumption. General Motors claims that such differentiation is "metaphysical hairsplitting" on the ground that "brake stability" is a concept which does not even exist, and that FMVSS 105, the stated purpose of which is to provide standards for brake performance, necessarily encompasses standards for all aspects of brake performance, including so-called "brake stability." We address each of these criticisms in turn.

First, General Motors asserts that "brake stability" does not exist as a concept independent of brake performance, the focus of FMVSS 105. Thus, General Motors argues, the injury-causing aspect of the van necessarily falls within the scope of FMVSS 105 and General Motors' compliance with that regulation entitles it to a rebuttable presumption of non-defectiveness under the Act. The plaintiffs, however, point out that FMVSS 105 addresses only stopping distances and contains no specific standards for brake design as it relates to balance and stability. General Motors, in turn, challenges this assertion by noting that the regulation requires that all stops be made "without any part of the vehicle" leaving a twelve-foot wide roadway, and that it permits "locked wheels" at speeds greater than ten miles per hour during "spike stops." While General Motors may be correct in that "stability" of some sort may be encompassed by FMVSS 105, we find that reasonable minds could conclude, based on the evidence presented at trial, that FMVSS 105 did not relate to the injury-causing aspect of the van (the rear-bias problem) because it did not encompass brake design and stability, and thus that General Motors was not entitled to a rebuttable presumption of non-defectiveness under the Act.

Second, General Motors argues that since the stated purpose of FMVSS 105 is brake performance, the regulation necessarily [348] encompasses all aspects of brake performance, including brake stability. This reasoning is unpersuasive. The fact that FMVSS 105's formal purpose is brake performance does not mean that the regulation necessarily encompasses all aspects of brake performance. It is quite possible to conclude that FMVSS 105 covers only certain aspects of brake performance. The fact that FMVSS 105 primarily tests stopping distance (albeit with the requirement that the vehicle not leave a twelve-foot wide roadway during the test) lends credence to the notion that FMVSS 105 is something less than the all-encompassing brake performance standard General Motors claims it to be.

While it would be possible to conclude that FMVSS 105 did relate to the injury-causing aspect of the van, the jury was free to decide from the evidence, and inferences to be drawn therefrom, whether the FMVSS 105 standard was sufficient to create a presumption of non-defectiveness. Given the evidence presented, the jurors could reasonably conclude that the FMVSS 105 standard was inapplicable to the rear-bias problem, and therefore that the van could not be presumed non-defective under Kan.Stat.Ann. § 60-3304(a) (1995). Thus, we cannot say that the district court erred in denying General Motors' motion for judgment as a matter of law.

IV.

For the foregoing reasons, we affirm the district court's decision to admit evidence relating to General Motors' opening statement remarks and its denial of General Motors' motion for judgment as a matter of law. However, because we have determined that the law of Kansas was inappropriate to determine damages for the MacDonalds' wrongful death claim, we reverse the district court's judgment and remand for further proceedings applying North Dakota law to that issue.

WELLFORD, Circuit Judge, dissenting.

While I am in agreement with part I of the majority opinion regarding the admission of evidence as to the negligence of driver Phil Voight and the University of Kansas, I must dissent from parts II and III for the reasons indicated.

A. Choice of Kansas law as applicable to the wrongful death claim.

I differ with the other panel members in their application of North Dakota law to this claim. Mr. and Mrs. MacDonald sued as residents of Bismark, North Dakota, based upon diversity of citizenship. They allege that David was a "resident of the home of the Plaintiffs" when the fatal accident occurred in Tennessee. David MacDonald, however, and other plaintiffs who were passengers in the vehicle, clearly resided in Lawrence, Kansas, immediately before the accident as regular students or faculty at the University of Kansas, as the panel has concluded.^[4]

The vehicle at issue was sold and delivered to the University of Kansas in Kansas for university use. It was operated, serviced, and kept in Kansas after its acquisition. The vehicle was manufactured in Canada.^[5] At the time of the accident, MacDonald and the others were in the vehicle because of their status as University of Kansas students, and it was operated under the aegis of the University by a Kansas resident subject to University policies. Plaintiffs alleged that the vehicle (and specifically its brake system) was defectively maintained in Kansas by the University, contributing to its alleged unreasonably dangerous condition. It is clear that David MacDonald was traveling on a University function. The vehicle was en route to Georgia from Kansas, where the trip originated.

In an amended pretrial order submitted to the district court on June 22, 1992, defendant maintained "that Kansas law governs the trial and disposition of the case." In the [349] final pretrial order, filed on February 1, 1995, any mention of that legal issue was omitted. Later that month, plaintiffs submitted a motion to apply North Dakota law to the measure of damages on the wrongful death claim. Plaintiffs conceded that "Kansas law will be used to determine liability and certain damages issues."

The parties agree with the district court that Hataway v. McKinley, 830 S.W.2d 53 (Tenn.1992), adopts as a conflicts of law rule the "most significant relationship" approach of the Restatement (Second) for wrongful death. In an affidavit submitted by plaintiffs, the deceased's brother averred that David paid non-resident tuition to Kansas and retained a North Dakota driver's license. The affidavit further set out that, after his second year at Kansas, David spent the summer of 1987 living in Minneapolis, Minnesota. It would thus appear that he spent most of his life, from the late summer or early fall of 1986 to the date of the accident, in Kansas and in Minnesota and away from North Dakota. The plaintiffs' position on applicability of North Dakota law rested almost entirely on the alleged domicile of the deceased and that of his parents. The district court, after consideration of the parties' positions, ruled that Kansas law should apply. I consider that the district court determined, as a matter of fact, that only the factor of domicile favored the plaintiffs' assertions. I would affirm the district court in its determination that Kansas, the state of residency and many other contacts, was the state with the most significant relationship.

I am of the opinion that the "center of the relationship" is the most important contact under the circumstances of this case pursuant to the Restatement (Second) on Conflict of Laws.^[6] In this case, Kansas was "the center of the relationship," and the majority concedes this. The majority rested its position almost entirely on the importance of the state of domicile, relying on the reasoning in In re Air Crash Disaster at Boston, 399 F.Supp. 1106 (D.Mass.1975). It is important to note that in that case both the domicile and residence of the plaintiffs was in Vermont, which was also the place of departure and the expected place of return on the illfated plane trip. Air Crash Disaster, 399 F.Supp. at 1112. These essential facts in Air Crash Disaster, supra, form a clear basis for distinguishing it from the instant case. The only similar circumstance was that the place of injury and death was mere "happenstance," and, therefore, Massachusetts law did not apply. Id. Vermont was also clearly in that case the center of the relationship and had the most significant contacts.

This court observed in Bowman v. Koch Transfer Co., 862 F.2d 1257 (6th Cir.1988), a conflict of laws decision, that "[s]ection 145(2)(c) does not confine itself to consideration of the domicile of the parties, but extends itself to a consideration of their residence." Id. at 1262 (emphasis added). In Bowman, we determined that the most significant relationship was in Illinois, not in Ohio, the domicile of the plaintiffs. We emphasized, moreover, that plaintiffs had not actually lived in Ohio for one an one-half years. Bowman appears to me to be far more applicable to the facts of this case than Air Crash Disaster, supra. See also Foster v. United States, 768 F.2d 1278 (11th Cir. 1985) (holding that the law of residence, not the law of the domicile of the deceased parents, after a plane crash in Lake Michigan, should apply as to wrongful death damages under the "most significant contacts" test).

Patten v. General Motors Corp., 699 F.Supp. 1500 (W.D.Okla.1987), also supports the conclusion that Kansas has the most significant relationship in this case. Patten emphasized the center of relationship test where the van in question, involved in a Colorado accident, "was titled in Oklahoma, owned by an Oklahoma Bank, and regularly used in Oklahoma by an Oklahoma resident, and was being used by Oklahoma residents at the time of the time of the accident." Id. at 1505. The center of the relationship of the parties was found to have great significance because of the scattered multistate contacts involved. Similarly, in our case, [350] Kansas (conceded by the majority to be the state of residence, the "homeplace" of the vehicle, and the "center of the relationship") was unquestionably the state of the most significant relationship.

Furthermore, the Kansas and North Dakota statutes on wrongful death damages, in my view, deserve equal respect. I cannot agree that this court should adopt a policy to denigrate the Kansas statute which sets a $100,000 cap on non-pecuniary damages whereas the North Dakota statute does not. The Kansas notion of "eliminating excess verdicts that can result from jury sympathy" is neither an unsatisfactory nor an undesirable concept. Kansas surely has a significant interest in protecting its residents and its state university in the application of its wrongful death statute.

Considering the matter of policy of the Kansas law limiting non-pecuniary damages, I would find that Kansas has a declared interest in the measure of damages awarded in wrongful death cases where, as here, residents of Kansas were involved in an accident with a defendant that regularly conducted business in Kansas, and other individual defendants who were residents of and domiciled within Kansas. Kansas has a "strong interest" in its law limiting non-pecuniary damages, and the "fit" between the purpose of its law and "our facts is strong." See In re Air Crash Disaster Near Chicago, 644 F.2d 594, 625 (7th Cir.1981) (discussing Restatement (Second) §§ 6, 145, and comment c, denying punitive damages although the law of the domiciliary states of several decedents in the crash would have permitted such damages); see also Bruce v. Martin-Marietta Corp., 418 F.Supp. 837, 839-40 (W.D.Okla.1975) (the law of the place of misconduct and defendant's place of business prevailed over the domicile of deceased plaintiffs' law in a conflicts of law situation involving Restatement (Second) in product liability suit), aff'd, 544 F.2d 442 (10th Cir.1976); Bruce v. Martin-Marietta Corp., 418 F.Supp. 829, 833 (W.D.Okla.1975) (arising out of same plane crash, holding that the law of the place where the plane was kept and maintained and place of business of defendant prevailed over law of domicile of deceased plaintiffs under the significant contacts test), aff'd, 544 F.2d 442 (10th Cir.1976).

The majority applies North Dakota law which "would compensate ... fully for both pecuniary and non-pecuniary loss," and would allow plaintiffs to realize a greater recovery than allowed under Kansas law, which would otherwise apply under the center of relationship test and the residency standard. Personal representatives in such situations under the majority rationale would be encouraged to move their domicile to the state affording the most generous recovery for wrongful death. See Huang v. Lee, 734 F.Supp. 71, 75-76 (E.D.N.Y.1990) (applying the law of the decedent's residence because of the "strong public policy [of New York] to `specifically [limit] recovery in wrongful death actions to pecuniary damages'" (citation omitted)).

One of the bases for the mistaken decision of the majority is to refer to David MacDonald as "technically a resident of Kansas at the time of his death." The deceased was, in every sense, truly a resident of Kansas, and had been for some time, as were all of the others involved in the accident. The majority cites only In re Air Crash Disaster at Boston, a district court case, as favoring application of North Dakota law, a case distinguishable from the situation in the instant case. To apply the rule of domiciliary "control" as the majority does, with very little precedential support, would be to bring about different measures of damages if there had been two deaths among the Kansas residents involving persons domiciled in different states. This seems an illogical and unprincipled resulted where the center of relationship admittedly is established in Kansas.^[7]

[351] B. Judgment notwithstanding the verdict.

The majority observes that plaintiffs are not in disagreement that General Motors "was in compliance with the appropriate regulatory standard relating to design or performance" of the vehicle at issue. The majority also notes that defendant produced undisputed evidence "that the braking system on the van successfully passed the brake performance testing mandated by the National Highway Traffic Safety Administration" (Standard FMVSS 105).

To rebut the presumption following such facts under Kan.Stat.Ann. § 60-3304(a), the vehicle in question is deemed not to be defective "unless the claimant proves by a preponderance of the evidence that a reasonably prudent product seller could and would have taken additional precautions." Miller v. Lee Apparel Company, 19 Kan.App.2d 1015, 881 P.2d 576, 584 (1994) (emphasis added). Giving plaintiffs the benefit of their expert's disputed testimony, at best Dr. Limpert's testimony indicates his opinion, contrary to the opinion of others at least as well qualified in this regard, that General Motors could or might have improved the design "to be more `front-biased,'" and that this would have been safer under the circumstances. Dr. Limpert was critical of the brake balance of many manufacturers, not just GM; he conceded that in tests of the vehicle in question both rears did not lock before the fronts and he was dissatisfied with standards for braking both in this country and in Europe. The proof was undisputed that no vehicle of this type in the world did or would meet Dr. Limpert's design notions.

The majority does not controvert the authority of Miller. As the Miller court held, "[t]estimony that a product `could have been made a lot safer' or in alternate ways ... does not create a jury question under K.S.A. § 60-3304(a)." Id. 881 P.2d at 585 (citing Jones v. Hittle Service, Inc., 219 Kan. 627, 631-32, 549 P.2d 1383 (1976)). The court added:

In Goins v. Clorox Co., 926 F.2d 559, 562 (6th Cir.1991), the court examined a Tennessee statute similar to K.S.A. 60-3304(a) and determined that on a motion for summary judgment the nonmovant must "`make a showing sufficient to establish the existence of an element essential to that party's case.'" It further held that a plaintiff who fails to introduce any evidence to challenge the defendant's compliance with federal regulations must be found to have failed to rebut the presumption that a product was not defective.

Id. 881 P.2d at 586. I would hold that plaintiffs and their expert "failed to overcome the presumption of nondefectiveness created by K.S.A. 60-3304(a)." Id. Reasonable and prudent factfinders could not, from the evidence presented, have found that plaintiffs established, as they must, that "a reasonably prudent manufacturer could and would have taken additional precautions by incorporating any of those safer alternatives into the manufacture" of the vehicle at issue. Id. See also Garst v. General Motors Corp., 207 Kan. 2, 484 P.2d 47, 60 (1971): "One of the most significant factors is whether others in the field are using the same design ... [and] whether a safer design not yet in use is known to be feasible." The evidence produced at trial supports the conclusion that a prudent seller would not take any additional precautions, but this was deemed not to be enough without any reference to the Garst decision. I do not believe that reasonable minds could differ as to whether General Motors was entitled to the statutory presumption of non-defectiveness of the brake system.

I would hold that the federal standards on brake performance were clearly met by the defendant, and that plaintiffs failed to meet or establish proof sufficient to overcome General Motors' showing. I would, therefore, hold that the district court was also in error in not granting defendant's motion for judgment notwithstanding the verdict.

Accordingly, I DISSENT and would enter judgment for defendant under Kansas law.

---------

[1] The cap was added to the Kansas statute in an effort to alleviate a perceived crisis in the availability and affordability of liability insurance. See Report on Kansas Legislative Interim Studies to the 1987 Legislature 568-9, 575 (Dec.1986).

[2] We note that the Air Crash Disaster court also based its decision on the fact that Vermont was the center of the relationship between the parties. Air Crash Disaster, 399 F.Supp. at 1112. However, a close reading of the opinion in that case shows that the court found that the fact that most of the decedents and plaintiffs were domiciled and resided in Vermont was the more compelling contact. See id.

[3] As noted above, it is not even clear whether the "center of the relationship" contact was a factor at all in the Bowman court's choice of law decision, as the court did not discuss this aspect of the Restatement test.

[4] The majority opinion concedes that "the deceased was a resident of Kansas at the time of his death." (Emphasis added.) David had lived in Kansas for the vast majority of the time during the two years prior to his death, and this was the period of his adult life.

[5] The majority opinion indicates that the vehicle in question was designed in Michigan.

[6] I would agree with the majority opinion that the place of injury and place of conduct are less important contacts here.

[7] The majority cites Restatement (Second), Conflict of Laws, § 178 cmt. b, as emphasizing the importance of domicile. But that is so "[i]n a situation where one state is the state of domicile of defendant, the decedent and the beneficiaries." (Emphasis added.) North Dakota, of course, is not the state of domicile of the defendant, or any original defendant. All parties were residents of Kansas. The majority opinion in another part refers to MacDonald as "merely a resident." Why is it more accurate to say that the deceased, who had been away from North Dakota most of his adult life, was "technically" or "merely" domiciled there? One wonders where he would have established domicile after graduation from the University of Kansas.

[525] David M. Langevin, Rhett McSweeney, McSweeney & Fay, PLLP, Minneapolis, MN; and Erik B. Walker, Hissey, Kientz & Herron, PLLC, Houston, TX; and Martin D. Crump, Davis and Feder P.A., Gulfport, MS, for plaintiff.

Edward F. Fox, Charles E. Lundberg, Carrie L. Hund, Bassford Remele, Minneapolis, MN; and Jack W. Vardaman, Jr., Steven L. Urbanczyk, F. Lane Heard III, Williams & Connolly, LLP, Washington, DC, for Wyeth defendants.

Gary Hansen, David P. Graham, Oppenheimer, Wolff and Donnelly, LLP, Minneapolis, MN; and Steven Glickstein, William Hoffman, Robert Grass, Alan E. Rothman, Kaye Scholer, LLP, New York City, for defendant Greenstone, Ltd.

OPINION

MAGNUSON, Chief Justice.

Plaintiff Rachel Fleeger, a resident of Pennsylvania, took hormone medication manufactured by defendants Wyeth, Wyeth Pharmaceuticals, Inc. (Wyeth) and Greenstone, Ltd. Neither defendant is a Minnesota resident; however, both defendants admit that Minnesota courts have general personal jurisdiction over them. Fleeger filed her lawsuit in the United States District Court, District of Minnesota, and the Judicial Panel on Multidistrict Litigation (MDL) transferred the case to the United States District Court, Eastern District of Arkansas (the MDL court). Pursuant to Minn.Stat. § 480.065, subds. 3, 4 (2008), the MDL court certified a question of law to this court, which we accepted and reformulated as follows:

In a case commenced in Minnesota, does the Minnesota statute of limitations apply to the personal injury claims of a non-Minnesota resident against a defendant not a resident of Minnesota, where the events giving rise to the claims did not occur in Minnesota and took place before August 1, 2004?

We answer the certified question "yes."

From 1995 to 2001, Fleeger took Premarin and Prempro, two hormone therapy [526] medications sold and distributed by defendant Wyeth. From 1995 to 1996, Fleeger took medroxyprogesterone, a generic hormone therapy medication manufactured and distributed by defendant Greenstone. Fleeger lived in Pennsylvania at the time that she used the medications. In 2001, she was diagnosed with breast cancer. She received the diagnosis and subsequent treatment in Pennsylvania.

In 2002, a study by the Woman's Health Initiative (WHI) related hormone therapy to an increased risk of breast cancer and heart disease. Subsequent studies by WHI also concluded that hormone therapy may be linked to an increased risk for breast cancer. In the wake of the 2002 study, thousands of plaintiffs nationwide, including Fleeger, sued Wyeth and other defendants, alleging that hormone therapy caused their breast cancer. For purposes of answering the certified question, we will assume that Fleeger's claim accrued upon the release of the WHI study.^[1]

Fleeger filed her case in the United States District Court, District of Minnesota in 2007. Fleeger does not claim that she has any significant connections to Minnesota. Neither Wyeth nor Greenstone are incorporated or have their principal place of business in Minnesota. Pennsylvania's 2-year statute of limitations barred Fleeger's claim, 42 Pa. Cons. Stat. Ann. § 5524 (West 2009), but Minnesota's 6-year statute of limitations did not, Minn.Stat. § 541.05 (2008). More than 4,000 other plaintiffs in the MDL proceedings have filed cases in Minnesota against Wyeth or Greenstone, despite not being residents of Minnesota. The federal multi-district panel transferred Fleeger's case and thousands of others to the MDL court, which asks us to resolve the question of whether Minnesota's statute of limitations applies to this case.

From the early days of statehood until 1977, Minnesota had a "borrowing statute"—a statute that adopted the statute of limitations of the state where the claim arose, with an exception for Minnesota resident plaintiffs. See Minn.Stat. § 541.14 (1976). In 1977 the Minnesota Legislature repealed the borrowing statute. Act of May 20, 1977, ch. 187, § 1, 1977 Minn. Laws 310. Available legislative history suggests that the legislature acted because it believed we would adopt a choice-of-law analysis in statute of limitations cases different from the one we had historically applied. See Hearing on S.F. 380, S. Judiciary Comm., 70th Minn. Leg., Mar. 9, 1977 (remarks of S. Davies), cited in Willard L. Converse & Pamela Converse Zenn, Minnesota's Choice of Law Dinosaur: Still in the Jurassic Period When it Comes to Statutes of Limitations, Minnesota Defense, Summer 1996, at 2, 3.

The legislature's impression that our choice-of-law jurisprudence was changing arose in part from our decision in Milkovich v. Saari, 295 Minn. 155, 203 N.W.2d 408 (1973). Prior to that decision, for substantive choice-of-law issues, Minnesota used the rule of lex loci—applying the law of the location where the tort occurred. Id. at 157-58, 162, 203 N.W.2d at 410, 412. In Milkovich, we expressly stated that we [527] were departing from the doctrine of lex loci and adopting a more "modern" five-part test as articulated by Professor Robert Lefler. Id. at 161-64, 203 N.W.2d at 412-13.

The next year, in Myers v. Government Employees Insurance Co., 302 Minn. 359, 361-62, 225 N.W.2d 238, 240-41 (1974), we considered whether Louisiana's direct-action statute applied in a suit brought by Minnesota residents in Minnesota against an insurer arising out of an accident that occurred in Louisiana. Louisiana's statute of limitations barred the action, but Minnesota's did not. Id. at 361-63, 225 N.W.2d at 240-41. We analyzed both the statute of limitations and direct action issues together and applied the Milkovich tests to determine that the Minnesota statute of limitations applied as well as the Louisiana direct action statute. Id. at 365-69, 225 N.W.2d at 242-43.

Despite the legislature's assumption that we would apply the Lefler analysis to all choice-of-law cases, we declined to do so in Davis v. Furlong, 328 N.W.2d 150, 150, 153 (Minn.1983), where we applied Minnesota's procedural rules regarding joinder to a case brought in Minnesota by a Minnesota resident arising out of a Wisconsin automobile accident. We concluded that "the Milkovich analysis should not be extended to conflicts of procedure" and that "when conflicts of procedure arise, the lex fori is to be applied." Id. at 153.

In Davis, we did not discuss whether statutes of limitation were procedural or substantive, but we did clearly affirm that the law of the forum applies to procedural conflicts. Id. The holding that the law of the forum applies to procedural conflicts was consistent with our long-standing treatment of statute-of-limitations issues not governed by the borrowing statute. In Fletcher v. Spaulding, 9 Minn. 64 (Gil. at 54) (1864), a suit brought by a Massachusetts resident against a former Massachusetts resident living in Minnesota, we held that the action was barred by the Minnesota statute of limitations. Although we did not address the borrowing statute in that case, we said that "[t]he limitation of actions will always be governed by the lex fori, unless there is some provision therein referring such limitation to other law.... Time, place, and manner[ ] of commencing a suit pertain to the remedy, and he who elects to prosecute his action in this State must abide by our laws on all these subjects." Id. at 66 (Gil. at 55-56). See also Weston v. Jones, 160 Minn. 32, 35, 199 N.W. 431, 432-33 (1924) where, in the context of addressing a tolling argument, we said that "[i]t is a fundamental principle that remedies are governed by the law of the forum, and this principle is controlling in all matters relating to the statute of limitations."

In Whitney v. Daniel (In re Estate of Daniel), 208 Minn. 420, 420-22, 294 N.W. 465, 466 (1940), a Minnesota plaintiff sued a Minnesota defendant based on a car accident that occurred in Iowa. The plaintiff filed the lawsuit in Minnesota under an Iowa wrongful death statute, which had a 2-year statute of limitations. Id. at 421-23, 294 N.W. at 467. Minnesota had a 6-year statute of limitations. Id. at 427, 294 N.W. at 469. We analyzed whether the statute of limitations affected the right, in which case the lex loci would apply, or whether it conditioned the remedy, in which case the lex fori would apply. Id. at 429, 294 N.W. at 469-70. We ultimately concluded that the statute of limitations conditions the remedy because it merely "prescribes the time within which rights may be enforced[,]" and applied the Minnesota statute of limitations. Id. at 429, 294 N.W. at 470. See also Am. Mut. Liab. Ins. Co. v. Reed Cleaners, 265 Minn. 503, 506 n. 1, 122 N.W.2d 178, 180 n. 1 [528] (1963) (noting that "Limitation of time relates to the remedy and is governed by the law of the forum" in applying Minnesota statute of limitations).

In other circumstances, we have also described statutes of limitations as procedural. See Weston v. McWilliams & Assocs., Inc., 716 N.W.2d 634, 641 (Minn. 2006) (noting that "statutes of limitations are procedural in nature," as opposed to statutes of repose which are substantive); Kennecott Holdings Corp. v. Liberty Mut. Ins. Co., 578 N.W.2d 358, 361 n. 7 (Minn. 1998) ("Although ... statutes of limitations have both substantive and procedural aspects," they are "primarily procedural laws"); City of Willmar v. Short-Elliott-Hendrickson, Inc., 512 N.W.2d 872, 875 (Minn.1994) ("[A] statute of limitations does not negate liability; it is only a procedural device that is raised after the events giving rise to liability have occurred, and which precludes the plaintiff from collecting on that liability."); Calder v. City of Crystal, 318 N.W.2d 838, 844 (Minn.1982) (describing a statute of limitations as "procedural"); State ex rel Moser v. Kaml, 181 Minn. 523, 527, 233 N.W. 802, 804 (1930) (holding that because a statute of limitations affects the remedy and not the right, the defense can be waived).

In 2004, the legislature enacted a new borrowing statute based on the Uniform Conflict of Laws-Limitations Act. Minn. Stat. § 541.31 (2008).^[2] The new statute, which would require application of Pennsylvania's statute of limitations if it controlled in this case, only applies to "claims arising from incidents occurring on or after August 1, 2004." Minn.Stat. § 541.34 (2008). Because the parties agree, for purposes of the certified question, that Fleeger's claim arose in 2002, the statute does not determine the outcome here. Rather, the common law does.

The common law in Minnesota is clear. When directly faced with the issue, we have considered statutes of limitations to be procedural without exception.^[3] As a result, because we apply the lex fori to procedural conflicts, we have applied the Minnesota statute of limitations to cases properly commenced here regardless of whether those cases have any connection to this state. The question before us is whether that common law rule should continue to guide us.

[529] Defendants cite a great deal of legal commentary supporting a departure from our established precedent. See, e.g., Russell Weintraub, Commentary on the Conflict of Laws § 3.2C2 (3d ed. 1986); Robert Leflar et. al., American Conflicts Law § 127 (4th ed. 1986); Laura Cooper, Statutes of Limitations in Minnesota Choice of Law: The Problematic Return of the Substance-Procedure Distinction, 71 Minn. L.Rev. 363, 381 (1986). Moreover, the Restatement (Second) of Conflict of Laws § 142 (1998) uses a substantive choice of law analysis. We recognize that there are strong policy reasons to alter our common law rule. Because of those policy reasons, other courts have departed from the lex fori choice of law rule for statutes of limitations in recent years. See, e.g., DeLoach v. Alfred, 192 Ariz. 28, 960 P.2d 628, 629 (1998); New England Tel. & Tel. Co. v. Gourdeau Constr. Co., 419 Mass. 658, 647 N.E.2d 42, 46 (1995); Heavner v. Uniroyal, Inc., 63 N.J. 130, 305 A.2d 412, 418 (1973).

But the situation presented here differs dramatically from the situations presented to those other state courts, as our legislature has already acted to change the law. See Minn.Stat. § 541.34. When considering changes in our common law, we are mindful of the importance of the rule of stare decisis. Although we are not bound to "unsound principles," following precedent promotes stability, order, and predictability in the law. Oanes v. Allstate Ins. Co., 617 N.W.2d 401, 406 (Minn.2000). Therefore, we require "a compelling reason" to overrule precedent. State v. Lee, 706 N.W.2d 491, 494 (Minn.2005) (internal quotation marks omitted).

Here, we do not have a compelling reason to overrule our long-standing precedent that the Minnesota statute of limitations applies in cases properly commenced here. The new borrowing statute became effective on August 1, 2004, and all cases arising after that date are subject to it. A prospective change in the common law would apply only to cases commenced between the date of this decision and August 1, 2010. And a retroactive change would only affect cases that arose before August 1, 2004, which have not yet been finally resolved. Such a limited effect does not present the compelling reason necessary to overrule our precedent.

Certified question answered in the affirmative.

ANDERSON, G. BARRY, and GILDEA, JJ., took no part in the consideration or decision of this matter.

[1] We recognize that there is a dispute over whether the claim arose at the release of the WHI study or whether it arose earlier. Under Minnesota law, a cause of action accrues when it can be brought in a court of law without being dismissed for failure to state a claim. MacRae v. Group Health Plan, Inc., 753 N.W.2d 711, 716-17 (Minn.2008) (citing Dalton v. Dow Chem. Co., 280 Minn. 147, 153, 158 N.W.2d 580, 584 (1968)). The parties have not addressed when Fleeger's claim might have accrued under Pennsylvania law, but have agreed for purposes of answering this certified question that we may assume Fleeger's claim arose in 2002.

[2]The statute states:

Subdivision 1. General. (a) Except as provided by subdivision 2 and section 541.33, if a claim is substantively based:

(1) upon the law of one other state, the limitation period of that state applies; or

(2) upon the law of more than one state, the limitation period of one of those states chosen by the law of conflict of laws of this state applies.

(b) The limitation period of this state applies to all other claims.

Subd. 2. Action arising out of state; resident plaintiff. If a cause of action arises outside of this state and the action is barred under the applicable statute of limitations of the place where it arose, the action may be maintained in this state if the plaintiff is a resident of this state who has owned the cause of action since it accrued and the cause of action is not barred under the applicable statute of limitations of this state.

[3] We have noted on more than one occasion that statutes of limitation have both procedural and substantive aspects. See State v. Lemmer, 736 N.W.2d 650, 657-58 (Minn.2007) (recognizing that statutes of limitations are "both procedural and substantive in nature," citing State v. Johnson, 514 N.W.2d 551, 555 (Minn. 1994)). We recognized in Johnson that statutes of limitations possess substantive qualities because they are outcome determinative. 514 N.W.2d at 555. Those comments were dicta, however, as statutes of limitations were not at issue in those cases. Furthermore, since our decision in Johnson, we have reaffirmed that statutes of limitations are "primarily procedural." E.g., Kennecott, 578 N.W.2d at 361 n. 7.

[73] Waters & Kraus, Waters Kraus & Paul, Paul C. Cook and Michael B. Gurien for Plaintiffs and Appellants.

Sedgwick, Detert, Moran & Arnold, Frederick D. Baker; Gordon & Rees and James G. Scadden for Defendant and Respondent.

[74] National Chamber Ligation Center, Inc., Robin S. Conrad; Shook, Hardy & Bacon and Patrick J. Gregory for American Tort Reform Association, Coalition for Litigation Justice, Inc., Chamber of Commerce of the United States of America, American Chemistry Council, American Insurance Association, National Association of Mutual Insurance Companies, Property Casualty Insurers Association of America, National Association of Manufacturers and the State Chamber of Oklahoma as Amici Curiae on behalf of Defendant and Respondent.

Fred J. Hiestand for The Civil Justice Association of California as Amicus Curiae on behalf of Defendant and Respondent.

Gordon & Rees, Michael Pietrykowski and Don Willenburg for Ingersoll-Rand Company and Leslie Controls, Inc., as Amici Curiae on behalf of Defendant and Respondent.

OPINION

GEORGE, C. J.

This case presents a choice-of-law issue arising in a lawsuit filed by plaintiff Terry McCann (plaintiff) to recover damages for an illness, mesothelioma, allegedly caused by his exposure to asbestos. Although the complaint seeks recovery from numerous defendants, the issue before us relates solely to the potential liability of a single defendant, Foster Wheeler LLC (Foster Wheeler), a company that specially designed, manufactured, and provided advice regarding the installation of a very large boiler at an oil refinery in Oklahoma in 1957. At the time the boiler was being installed at the Oklahoma refinery, plaintiff, then an Oklahoma resident and a newly hired engineering sales trainee employed by the construction company that was installing the boiler, allegedly was exposed to asbestos at various times over a two-week period while he observed the application of asbestos insulation to the boiler by an independent insulation contractor.

Eighteen years later, in 1975, after working at various jobs in Minnesota and Illinois, plaintiff moved to Dana Point, California, to take a position as executive director of Toastmasters International. In 2005, after having retired from his Toastmasters position in 2001 and continuing to reside in California, plaintiff was diagnosed with mesothelioma. A few months later, plaintiff filed this action in California, naming numerous defendants, including Foster Wheeler.

Prior to trial, Foster Wheeler moved for summary judgment on various grounds, including that plaintiff's action against it was governed by, and barred under, an Oklahoma statute of repose that required any cause of action [75] against a designer or constructor of an improvement to real property to be filed within 10 years of the substantial completion of the improvement. In opposing the motion, plaintiff contended, first, that his cause of action for an injury or illness caused by exposure to asbestos should be governed by the relevant California statute of limitations (under which the action would have been timely filed), rather than by Oklahoma law, and, second, that in any event Foster Wheeler's boiler was not an improvement to real property within the meaning of the relevant Oklahoma statute of repose.

After the trial court initially determined that Oklahoma, rather than California, law should apply to the timeliness issue but that there were disputed questions of fact regarding whether the action against Foster Wheeler fell within the reach of the Oklahoma statute of repose, the parties agreed that the trial court, instead of a jury, should determine whether the Oklahoma statute applied. After considering the declarations filed by each party and a number of judicial decisions interpreting the Oklahoma statute, the trial court found that Foster Wheeler was a designer of an improvement to real property within the meaning of the Oklahoma statute of repose and entered judgment dismissing Foster Wheeler as a defendant in plaintiff's underlying action.

On appeal, the Court of Appeal concluded that the trial court erred in determining that Oklahoma law rather than California law should apply in these circumstances; as a consequence, the Court of Appeal did not reach the question whether the trial court erred in finding that the action against Foster Wheeler fell within the reach of the applicable Oklahoma statute of repose. In analyzing the choice-of-law issue under the "governmental interest" approach endorsed by the governing California decisions, the Court of Appeal reasoned that California "has an obvious interest in providing a remedy to its long-term residents who sustain asbestos-related injuries," but that Oklahoma's interest in the application of its statute of repose "is substantially . . . an interest in protecting Oklahoma defendants from liability for conduct occurring in Oklahoma." Because Foster Wheeler's corporate headquarters was located in New York rather than in Oklahoma, the Court of Appeal found that Foster Wheeler was not "among the defendants in whose favor Oklahoma's statute of repose is primarily directed" and consequently that "any significant interest of Oklahoma in the application of its statute of repose . . . is difficult to discern." The Court of Appeal further concluded that even if it were assumed a "true conflict" exists in this case, the interests of California would be more impaired by the application of Oklahoma law than would be the interests of Oklahoma by the failure to apply its law. Accordingly, the appellate court held that the trial court erred in applying the Oklahoma statute of repose to McCann's claim against Foster Wheeler, and reversed the trial court's judgment in favor of Foster Wheeler.

[76] On petition by Foster Wheeler, we granted review primarily to consider whether the Court of Appeal was correct in determining (1) that Oklahoma's interest in the application of its statute of repose is substantially limited to application of the statute to companies headquartered in Oklahoma and does not equally encompass out-of-state companies who design or construct improvements to real property located in Oklahoma, and (2) that California's interests, rather than Oklahoma's interests, would be more impaired by the failure to apply the respective state's law on the facts presented here.

For the reasons discussed more fully below, we conclude that the decision of the Court of Appeal should be reversed. As we explain, prior California choice-of-law decisions demonstrate that, contrary to the conclusion reached by the Court of Appeal, Oklahoma's interest in the application of its statute of repose applies as fully to out-of-state companies that design and construct improvements to real property in Oklahoma as to Oklahoma companies that design and construct such improvements. Further, although California has a legitimate interest in affording a remedy to a resident of California whose asbestos-related illness first manifests itself when the individual is a California resident, past California cases indicate that it is generally appropriate for a court to accord limited weight to California's interest in providing a remedy for a current California resident when the conduct of the defendant from whom recovery is sought occurred in another state, at a time when the plaintiff was present in (and, in the present situation, a resident of) that other state, and where that other state has its own substantive law, that differs from California law, governing the defendant's potential liability for the conduct that occurred within that state. Taking these factors into consideration, we conclude that Oklahoma's interest would be more impaired by the failure to apply its law in these circumstances than would be California's interest by the failure to apply its law, and thus that the law of Oklahoma, rather than the law of California, should apply to the issue presented here.

I

A

The facts relevant to the choice-of-law issue before us are not in dispute.

As noted, Foster Wheeler's asserted liability for plaintiff's illness is based upon plaintiff's alleged exposure to asbestos in Oklahoma over a two-week period in July 1957, nearly 50 years prior to the time plaintiff was diagnosed with mesothelioma in 2005.

In July 1957, plaintiff, then an Oklahoma resident and a recent college graduate, was a newly hired engineering sales trainee employed by Tulsa [77] Refinery Engineering Company (TRECO), an oil refinery construction company that was engaged in constructing an expansion of an oil refinery owned by D'X Sunray Oil Company of Tulsa, Oklahoma (Sunray). In connection with the expansion, Sunray had ordered a specially designed steam generator from Foster Wheeler, a corporation headquartered in New York. The generator consisted of a custom-designed and extensively engineered boiler and related equipment that was to be designed and manufactured by Foster Wheeler in New York, and shipped in a disassembled condition to the refinery in Oklahoma, where it was to be assembled and installed by TRECO at the refinery, in consultation with an adviser employed by Foster Wheeler. The boiler in question was "huge"—more than 25 feet high and weighing many tons—and was to be installed on a specially poured foundation constructed by TRECO.

Pursuant to the terms of the contract between Sunray and Foster Wheeler, the generator was shipped to Sunray without insulation. The responsibility for installing the necessary insulation for the generator was to be borne by Sunray. Sunray hired an independent contractor—a company other than TRECO but not identified in the record—to install the insulation around the boiler. Plaintiff maintains that Foster Wheeler specified the need for insulation and knew or should have known the insulation was likely to contain asbestos.

As noted, at the time of the alleged exposure plaintiff was a newly hired engineering sales trainee employed by TRECO. Plaintiff testified at his deposition that his job responsibility at that time was simply to observe the ongoing construction at the refinery and to learn all there was to know about building a refinery. When plaintiff began work with TRECO, the assembly and installation of the Foster Wheeler boiler had been largely completed, and the independent contractor was in the process of installing insulation around the boiler and related equipment. Plaintiff acknowledged he did not assist in the actual application or installation of the insulation, but stated he observed the installation work for brief periods and occasionally stepped inside the boiler to take a look. He recalled observing the sawing of block insulation, the preparation and installation of insulating cement on the boiler, and the rising of dust clouds created by the mixing of the cement. In response to a question concerning the total amount of time he had been around the Foster Wheeler boiler, plaintiff stated that a "wild guess" would be "two or three days in total."

Construction of the generator and its insulation was completed within a few weeks of plaintiff's arrival at the Sunray refinery. After observing other aspects of the construction of the refinery expansion for more than a year, plaintiff moved to an office job in TRECO's Oklahoma headquarters in Tulsa.

[78] In 1965, plaintiff left Tulsa and moved to Minnesota, where he began working in the advertising industry. In 1967, plaintiff moved to Chicago, Illinois, to take a job as manager of education for a food industry trade association. While in Chicago, he earned an MBA degree from Loyola University Chicago.

In 1975, plaintiff moved to Dana Point, California, accepting the position of executive director of Toastmasters International, a nonprofit organization that assists individuals in becoming more competent and comfortable in public speaking. He remained director of Toastmasters for 26 years until retiring in 2001.

In April 2005, plaintiff, who continued to reside in California, was diagnosed with mesothelioma. He filed the complaint in the underlying action in July 2005, naming numerous defendants, including Foster Wheeler.^[1]

B

As noted above, prior to the commencement of trial Foster Wheeler filed a motion for summary judgment. Among other contentions, the summary judgment motion asserted that the timeliness of the action should be governed by Oklahoma law, rather than California law, and that under Oklahoma law plaintiff's cause of action against Foster Wheeler was barred by an Oklahoma statute of repose^[2] providing that any tort action for injury arising from "the [79] design, planning, supervision or observation of construction or construction of an improvement to real property" must be brought within 10 years of the "substantial completion" of the improvement. (Okla. Stat. tit. 12, § 109 (hereafter section 109).) Because plaintiff's lawsuit was filed long after the 10-year period specified in the Oklahoma statute of repose had expired, Foster Wheeler maintained that the action against it must be dismissed.

In support of this contention, the summary judgment motion first maintained that under the "governmental interest" analysis generally applied by California courts in resolving choice-of-law issues, the application of Oklahoma law rather than California law is appropriate. Thereafter, to support its claim that section 109—the Oklahoma statute of repose—applies to the facts of this case, the summary judgment motion relied upon an Oklahoma decision that determined the statute was applicable to the manufacturer and designer of a very large, specially designed piece of equipment installed in an industrial building. (Ball v. Harnischfeger Corp. (1994) 1994 OK 65 [877 P.2d 45] [holding § 109 applied to designer and manufacturer of large crane specially designed for installation in a particular building].) The motion attached a declaration of an engineer describing in detail the size and features of the boiler in question and the extensive engineering efforts that were entailed in designing and constructing the boiler to meet the particular specifications of the Sunray refinery.

In his opposition to the motion for summary judgment, plaintiff first maintained that section 361 of the Code of Civil Procedure (section 361)— California's so-called "borrowing statute," which we discuss below (pp. 83-87, post)—requires application of the California statute of limitations in this case without consideration of the governmental interest analysis that ordinarily governs the resolution of choice-of-law issues under California law. Although section 361 provides that, in general, a cause of action arising in another state cannot be maintained in California if the other state's law bars the action due to a lapse of time, this statute contains an exception for a person "who has been a citizen of this State, and who has held the cause of action from the time it accrued." The opposition to the summary judgment motion argued that plaintiff fell within this exception and that, as a consequence, section 361 mandated application of the relevant California statute of limitations without regard to the governmental interest analysis.

Plaintiff further argued that even if section 361 did not preclude resort to the governmental interest analysis, under a proper application of that analysis, [80] California law, rather than Oklahoma law, should be found applicable. Plaintiff maintained that California's governmental interest would be significantly impaired by application of the Oklahoma statute of repose to bar plaintiff's action against Foster Wheeler, whereas Oklahoma had no interest in barring a cause of action that, plaintiff claimed, arose outside Oklahoma's borders because plaintiff first incurred the symptoms and effects of mesothelioma while he was a longtime resident of California. Finally, plaintiff contended that even if Oklahoma law were applicable, Foster Wheeler did not fall within the reach of the Oklahoma statute of repose, because Foster Wheeler was merely the manufacturer of a defective product and should not be considered the designer of an improvement to real property within the meaning of the Oklahoma statute.

In ruling on the summary judgment motion, the trial court, although agreeing with Foster Wheeler's argument that Oklahoma law, rather than California law, should govern the timeliness of the action, nonetheless denied Foster Wheeler's motion for summary judgment, on the ground that there was a triable issue of fact concerning whether Foster Wheeler was a designer of an improvement to real property for purposes of the Oklahoma statute of repose.

Thereafter, Foster Wheeler filed a motion under Evidence Code section 402, seeking to have the trial court determine the "narrow factual question" whether Foster Wheeler was a designer of an improvement to real property under the terms of the Oklahoma statute of repose. Plaintiff joined in the request to have this question resolved by the trial court rather than by a jury, asking the trial court to rule in its favor on this issue and to preclude Foster Wheeler from bringing any evidence relating to the Oklahoma statute of repose before the jury.

After considering the evidence and legal argument presented by both parties on this issue, the trial court found that Foster Wheeler was a designer of an improvement to real property within the meaning of the Oklahoma statute of repose. Accordingly, the trial court entered judgment in favor of Foster Wheeler, dismissing plaintiff's action against Foster Wheeler.

C

In the Court of Appeal, plaintiff on a number of grounds challenged the trial court's judgment in favor of Foster Wheeler.

First, plaintiff asserted the trial court erred in failing to conclude that the timeliness of plaintiff's action should be governed by California law, rather than Oklahoma law. Plaintiff again argued initially that application of the [81] California statute of limitations was compelled under the provisions of section 361, California's borrowing statute, without any need to consider the governmental interest analysis generally applicable to choice-of-law issues. Further, plaintiff maintained that even if the governmental interest analysis were applied, under that analysis the California statute of limitations for asbestos-caused injuries or illnesses, rather than the Oklahoma statute of repose, should apply.

Second, plaintiff maintained that even if Oklahoma law were applicable, the trial court erred in finding that Foster Wheeler fell within the reach of the Oklahoma statute of repose, because the evidence failed to support the trial court's conclusion that the boiler was an improvement to real property for purposes of the Oklahoma statute. In advancing this argument, plaintiff relied primarily upon Foster Wheeler's failure to prove that the boiler had been taxed as real property in Oklahoma.

In addressing plaintiff's contentions, the Court of Appeal initially expressed skepticism regarding plaintiff's argument that the provisions of section 361 properly should be interpreted to compel application of the California statute of limitations, without consideration of the governmental interest analysis, whenever the plaintiff in an action filed in a California court is a citizen of California at the time his or her cause of action accrues. Instead, the Court of Appeal suggested that although the language of section 361 requires a California court to apply the law of a foreign state barring an action arising in the foreign state as untimely when the plaintiff is not a California citizen at the time the cause of action accrues, when the plaintiff is a California citizen when the cause of action accrues "the statute, on its face, permits the court to apply California law . . . but it does not expressly require the court to do so; it merely excepts California citizens from the mandatory application of foreign law. We doubt . . . that the statutory exception for plaintiffs who were citizens when their cause of action accrued requires the court to apply California law, in circumstances where the application of California's choice of law principles would dictate otherwise." The Court of Appeal went on to state, however, that "[w]e need not definitively determine the point," in light of that court's subsequent conclusion that in this case "California's choice of law principles require the application of California law rather than Oklahoma law."

Thereafter, in discussing the choice-of-law issue, the Court of Appeal began by summarizing the governmental interest approach set forth in prior California decisions: "Three steps are involved. First, the court must determine whether the foreign law differs from California law. Second, if there is a difference, the court must determine whether a `true conflict' exists by determining whether both states have a legitimate interest in applying their [82] own law to the case at hand. [Citation.] Third, when both states have a legitimate interest in the application of their respective laws, the court analyzes the `comparative impairment' of the interests of the two states and applies the law of the state whose interest would be more impaired if its law were not applied. [Citation.]" The appellate court then proceeded to apply this approach to the circumstances here at issue.

The Court of Appeal first observed that the laws of Oklahoma and California clearly differ, because if the Oklahoma statute of repose applied, plaintiff's action against Foster Wheeler would be barred by the lapse of time, whereas plaintiff's action would be timely under the applicable California statute of limitations (Code Civ. Proc., § 340.2), which permits an action for injury or illness based upon exposure to asbestos to be brought within a year of the date the plaintiff first suffered disability and knew or reasonably should have known that such disability was caused by exposure to asbestos.

In considering the second step of the analysis—whether a "true conflict" exists—the Court of Appeal stated that "[w]e harbor serious doubt that a true conflict exists in this case between the interests of California and Oklahoma. California has an obvious interest in providing a remedy to its long-term residents who sustain asbestos-related injuries . . . . Oklahoma's interest—in protecting defendants who design or construct improvements to real property by placing a time limitation on their liability for tortious conduct—is considerably less evident in the circumstances of this case. Oklahoma's interest is substantially a local one, that is, an interest in protecting Oklahoma defendants from liability for conduct occurring in Oklahoma. [Citation.] In this case, however, Foster Wheeler is not a citizen of Oklahoma, and is therefore not among the defendants in whose favor Oklahoma's state of repose is primarily directed. Moreover, Foster Wheeler's allegedly tortious conduct was in the design and fabrication of the boiler, which conduct occurred in New York or some location other than Oklahoma. Consequently, any significant interest of Oklahoma in the application of its statute of repose—and hence a `true conflict'—is difficult to discern."

Finally, in the third step of the analysis, the Court of Appeal stated that even if it assumed Oklahoma has a legitimate interest in the application of its statute of repose in this case, California law should apply because California's interest would be more impaired than Oklahoma's interest if its law were not applied. In reaching this conclusion, the Court of Appeal reasoned: "California has a significant interest in permitting [plaintiff] to seek compensation for asbestos-related injuries manifesting themselves in California. [Plaintiff] has been a California resident for many years, his injury accrued in California, and he relied on California's health care facilities for his care. California has an interest in limiting health care costs that accrue as a result of barred [83] claims. This is particularly important in light of the prevalence of debilitating asbestos-related disease. California's interest in providing him with a remedy is far more significant than Oklahoma's interest in protecting a nonresident defendant from excessive financial burdens, particularly when the nonresident defendant's liability is premised on design and manufacturing activity that did not occur in Oklahoma. We therefore conclude that the interests of California would be more significantly impaired by the application of Oklahoma law than the converse. Accordingly, the trial court erred in applying the Oklahoma statute of repose to [plaintiff's] claim against Foster Wheeler."

Because it concluded the trial court erred in failing to apply California law in determining the timeliness of plaintiff's action against Foster Wheeler, the Court of Appeal did not reach plaintiff's alternative contention that the trial court erred in finding that, under Oklahoma law, Foster Wheeler was entitled to the protection of the Oklahoma statute of repose. Having concluded that plaintiff's action against Foster Wheeler was timely under California law, the Court of Appeal reversed the trial court's judgment in favor of Foster Wheeler.

We granted Foster Wheeler's petition for review.

II

(1) Traditionally, a state's general choice-of-law rules have been formulated by courts through judicial decisions rendered under the common law, rather than by the Legislature through statutory enactments. In California, over the past four decades this court's decisions have adopted and consistently applied the so-called "governmental interest" analysis as the appropriate general methodology for resolving choice-of-law questions in this state. (See, e.g., Reich v. Purcell (1967) 67 Cal.2d 551 [63 Cal.Rptr. 31, 432 P.2d 727] (Reich); Bernhard v. Harrah's Club (1976) 16 Cal.3d 313 [128 Cal.Rptr. 215, 546 P.2d 719] (Bernhard); Offshore Rental Co. v. Continental Oil Co. (1978) 22 Cal.3d 157 [148 Cal.Rptr. 867, 583 P.2d 721] (Offshore Rental); Kearney v. Salomon Smith Barney, Inc. (2006) 39 Cal.4th 95 [45 Cal.Rptr.3d 730, 137 P.3d 914] (Kearney).)

With respect to the category of statutes of limitation and statutes of repose, however, many jurisdictions have enacted specific statutory provisions that address the subject of choice of law. As discussed in a leading treatise and a number of law review articles, a majority of American states have adopted so-called "borrowing statutes" that direct the courts of a state, in lawsuits filed within that state, to apply or "borrow" the relevant statute of limitations or statute of repose of a foreign jurisdiction under the particular circumstances specified in the statute, rather than to apply the statute of limitations [84] of the forum jurisdiction. (See generally Leflar et al., American Conflicts Law (4th ed. 1986) §§ 127-128, pp. 348-354 (Leflar Treatise); Ester, Borrowing Statutes of Limitation and Conflict of Laws (1962-1963) 15 U.Fla. L.Rev. 33 (Ester Article); Vernon, Statutes of Limitation in the Conflict of Laws: Borrowing Statutes (1960) 32 Rocky Mtn. L.Rev. 287.)

The general popularity of borrowing statutes is explained by the common law background against which such statutes were enacted. Under early common law conflict-of-law principles, rules of law ordinarily were characterized as either "substantive" or "procedural," and procedural matters universally were held to be governed by the local or forum law. Because early common law decisions characterized statutes of limitations as procedural rather than substantive, the general rule at that time was that the local statute of limitations of the forum state—rather than another state's statute of limitations—applied to an action filed in the forum state, regardless of the location of the most significant events and circumstances underlying the cause of action or relating to the parties. (Leflar Treatise, supra, § 127, pp. 348-349.) Thus, even when a cause of action arose out of an accident in one state and all the parties were residents of that state, if a lawsuit was filed in a different state, the court in which the action was filed generally would apply its own state's statute of limitations, rather than the statute of limitations of the other state.

When the period specified in the forum state's statute of limitations was shorter than that in the other state's statute of limitations, application of the early common law rule would not necessarily create a serious problem or result in an unfair result, because if the forum's statute of limitations had expired the plaintiff, at least as a theoretical matter, still could bring the action in the other state. A more problematic situation was presented, however, when the period provided in the applicable statute of limitations of the forum state was longer than that in the applicable statute of limitations in the state where the cause of action arose. In that setting, a plaintiff who failed to timely file an action in the state in which the action arose would be provided the opportunity to search out another jurisdiction in which the applicable period under the relevant statute of limitations for the cause of action at issue was longer and in which the action could be maintained—a classic example of questionable forum shopping.

This is the principal problem to which borrowing statutes were generally addressed. (See, e.g., Pack v. Beech Aircraft Corporation (1957) 50 Del. 413 [132 A.2d 54, 57].) Although the provisions of the various states' borrowing statutes differ in a variety of respects, these enactments typically "borrow" the statute of another state when the cause of action in question "arose," "originated," or "accrued" in the other state and would be barred as untimely [85] in that state. (See Ester Article, supra, 15 U.Fla. L.Rev. 33, 45-56.) Many borrowing statutes, however, also include exceptions that exempt from the reach of the borrowing statute lawsuits that are filed in the courts of the enacting state by residents or citizens of that state. (See id., at pp. 69-72.)

California first enacted a borrowing statute very early in its history, in 1851, as part of the state's initial comprehensive legislation regulating proceedings in civil cases. (Stats. 1851, ch. 5, § 532, p. 134.)^[3] When the Code of Civil Procedure was adopted in 1872, the early 1851 statute was codified, with only a minor change in language, as section 361. The language of section 361, as enacted in 1872, remains unchanged to this day.

Section 361 provides in full: "When a cause of action has arisen in another State, or in a foreign country, and by the laws thereof an action thereon cannot there be maintained against a person by reason of the lapse of time, an action thereon shall not be maintained against him in this State, except in favor of one who has been a citizen of this State, and who has held the cause of action from the time it accrued."

(2) Section 361 thus creates a general rule that when a cause of action has arisen in another jurisdiction but cannot be maintained against a particular defendant in that jurisdiction because of the lapse of time, the action cannot be maintained against that defendant in a California court. The statute contains an exception, however, for a plaintiff "who has been a citizen of this State, and who has held the cause of action from the time it accrued." Past cases establish that this exception applies only where the plaintiff was a California citizen at the time the cause of action accrued, and does not extend to a plaintiff who became a citizen of California after the cause of action accrued but before the lawsuit in question was filed. (See, e.g., Biewend v. Biewend (1941) 17 Cal.2d 108, 115 [109 P.2d 701]; Grant v. McAuliffe (1953) 41 Cal.2d 859, 865 [264 P.2d 944]; accord, Miller v. Stauffler Chem. Co. (1978) 99 Idaho 299 [581 P.2d 345, 347-348].)

Although application of section 361 generally is straightforward in a case involving, for example, a typical automobile accident—in which the allegedly tortious conduct, the resulting injury, and compensable damage all occur at the same time and in the same place—proper application of the statute is more problematic in a case, like the present one, in which the defendant's allegedly injury-producing conduct occurred in another state at a much earlier [86] date but the plaintiff's resulting illness or injury does not become apparent and reasonably is not discovered until many decades later, at a time when the plaintiff has established residence in California.^[4] In the factual setting here at issue, it may be reasonably debatable whether plaintiff's cause of action against Foster Wheeler "arose" in Oklahoma or instead in California for purposes of section 361, and whether plaintiff was a citizen of California or of Oklahoma at the time the cause of action "accrued" within the meaning of the term as used in this borrowing statute.^[5]

(3) Even if we assume either that the cause of action at issue "arose" in California for purposes of section 361 or that plaintiff was a citizen of [87] California from the time the cause of action "accrued" within the meaning of this statute—and thus that section 361 does not require application of Oklahoma law rather than California law on the facts of this case—we agree with the Court of Appeal that this statute cannot properly be interpreted to compel application of the California statute of limitations without consideration of California's generally applicable choice-of-law principles. Although at the time section 361 was adopted, the then prevailing choice-of-law doctrine generally would have called for the application of the relevant California statute of limitations in a case in which section 361 did not mandate application of another jurisdiction's law (see, e.g., Royal Trust Co. v. MacBean (1914) 168 Cal. 642, 646 [144 P. 139]), nothing in section 361 indicates that this statute was intended to freeze the then prevailing general choice-of-law rules into a statutory command, so as to curtail the judiciary's long-standing authority to adopt and modify choice-of-law principles pursuant to its traditional common law role. (Cf. Li v. Yellow Cab Co. (1975) 13 Cal.3d 804, 813-823 [119 Cal.Rptr. 858, 532 P.2d 1226].) Accordingly, now that the earlier methodology for resolving choice-of-law issues has been replaced in this state by the governmental interest mode of analysis (see, e.g., Reich, supra, 67 Cal.2d 551, 553-557; Bernhard, supra, 16 Cal.3d 313, 316-321), in those instances in which section 361 does not mandate application of another jurisdiction's statute of limitations or statute of repose the question whether the relevant California statute of limitations (or statute of repose) or, instead, another jurisdiction's statute of limitations (or statute of repose) should be applied in a particular case must be determined through application of the governmental interest analysis that governs choice-of-law issues generally. (See, e.g., Ashland Chemical Co. v. Provence (1982) 129 Cal.App.3d 790, 793-794 [181 Cal.Rptr. 340] [holding that under California law, governmental interest analysis is applicable to resolve a choice-of-law issue relating to the statute of limitations]; Nelson v. International Paint Co. (9th Cir. 1983) 716 F.2d 640, 644 [same].)

Thus, we now turn to the task of applying the general governmental interest analysis to the circumstances before us in the present case.

III

(4) Recently, in Kearney, supra, 39 Cal.4th 95, we summarized the mode of analysis called for by the governmental interest approach. "In brief outline, the governmental interest approach generally involves three steps. First, the court determines whether the relevant law of each of the potentially affected jurisdictions with regard to the particular issue in question is the same or different. Second, if there is a difference, the court examines each jurisdiction's interest in the application of its own law under the circumstances of the particular case to determine whether a true conflict exists. Third, if the court [88] finds that there is a true conflict, it carefully evaluates and compares the nature and strength of the interest of each jurisdiction in the application of its own law `to determine which state's interest would be more impaired if its policy were subordinated to the policy of the other state' [citation], and then ultimately applies `the law of the state whose interest would be more impaired if its law were not applied.'" (39 Cal.4th at pp. 107-108.)

A

With regard to the first of these steps, we agree with the Court of Appeal that "[t]he laws of Oklahoma and California clearly differ."

1

(5) Under section 109 (the Oklahoma statute of repose), plaintiff's cause of action would be barred by the lapse of time, because that statute "bars any tort action which arises more than ten years after the substantial completion of the improvement to real property." (Riley v. Brown and Root, Inc. (1992) 1992 OK 114 [836 P.2d 1298, 1300].)^[6] Although the Oklahoma statute in question has been interpreted not to bar products liability actions against the manufacturers and sellers of mass-produced products (see, e.g., Durham v. Herbert Olbrich GMBH & Co. (10th Cir. 2005) 404 F.3d 1249, 1254-1255; Uricam Corp. v. W.R. Grace & Co. (W.D.Okla. 1990) 739 F.Supp. 1493)— and thus would not preclude plaintiff from suing companies that manufactured or sold the asbestos insulation to which he was exposed (Uricam Corp. v. W.R. Grace & Co., supra, 739 F.Supp. at p. 1496)—the Oklahoma Supreme Court has interpreted the statute of repose to protect a manufacturer/designer of a specially designed improvement to real property. (Ball v. Harnischfeger Corp., supra, 877 P.2d 45, 50 ["If the manufacturer was acting as a designer, planner, construction supervisor or observer, or constructor, the statute of [89] repose will apply. It is the specialized expertise and rendition of particularized design which separates those protected from mere manufacturers and suppliers."]; see also Goad v. Buschman Co. (N.D.Okla. 2008) 2008 U.S.Dist. Lexis 27297, pp. *7-*21 and cases cited, affd. (10th Cir. 2009) 2009 U.S. App. Lexis 6058.)

Although, as we have explained above, plaintiff argued in the Court of Appeal and continues to maintain in this court that the trial court erred in finding that the boiler in question was an improvement to real property for purposes of the Oklahoma statute of repose, the Court of Appeal never reached that issue, because it concluded that even if Foster Wheeler fell within the reach of the Oklahoma statute, under California's choice-of-law principles California law would apply. In reviewing the conclusion reached by the Court of Appeal, we similarly shall assume for purposes of determining the choice-of-law issue that Foster Wheeler's conduct brought it within the reach of the relevant Oklahoma statute of repose.^[7] Under this premise, plaintiff's action against Foster Wheeler plainly would be untimely under Oklahoma law, because this action was filed more than 10 years after substantial completion of the improvement.^[8]

2

(6) By contrast, plaintiff's action against Foster Wheeler clearly would be timely if California law were applied. Although this state has enacted a [90] statute of repose applicable to causes of action arising out of a latent deficiency in the design or construction of an improvement to real property that is somewhat similar to the relevant Oklahoma statute of repose (see Code Civ. Proc., § 337.15),^[9] the California statute, unlike its Oklahoma counterpart, applies only to actions for injury to property, not to personal injury actions. (Martinez v. Traubner (1982) 32 Cal.3d 755, 757-761 [187 Cal.Rptr. 251, 653 P.2d 1046].) (7) Furthermore, California has enacted a special statute of limitations explicitly governing the time for bringing an action "for injury or illness based upon exposure to asbestos," which permits such an action to be brought up to one year after the plaintiff both (1) first suffered disability and (2) knew or reasonably should have known that the disability was caused or contributed to by exposure to asbestos. (Code Civ. Proc., § 340.2;^[10] see Hamilton v. Asbestos Corp. (2000) 22 Cal.4th 1127, 1138 [95 Cal.Rptr.2d 701, 998 P.2d 403].) Here, plaintiff, who previously had retired for reasons unconnected to his asbestos-related illness, filed this action within a few months after he first was diagnosed with mesothelioma, and thus the action clearly would be timely under the provisions of section 340.2. (See Hamilton v. Asbestos Corp., supra, 22 Cal.4th at pp. 1138-1147.)

Accordingly, the law of Oklahoma clearly differs from the law of California with respect to the timeliness of plaintiff's cause of action.

B

The second step of the governmental interest analysis requires us to examine "each jurisdiction's interest in the application of its own law under the circumstances of the particular case to determine whether a true conflict exists." (Kearney, supra, 39 Cal.4th at pp. 107-108.)

[91] 1

Oklahoma decisions indicate that by establishing a relatively lengthy (10-year) period in which a cause of action for a deficiency in design of an improvement to real property may be brought, but at the same time terminating all liability after that deadline regardless of whether the plaintiff's injury had yet occurred or become manifest, the relevant statute of repose was intended to balance the interest of injured persons in having a remedy available for such injuries against the interest of builders, architects, and designers of real property improvements in being subject to a specified time limit during which they would remain potentially liable for their actions in connection with such improvements. (See, e.g., St. Paul Fire & Marine Ins. Co. v. Getty Oil Co., supra, 782 P.2d 915, 920-921.) The Oklahoma high court held in St. Paul Fire & Marine Ins. Co. that the statute of repose, by establishing this type of fixed time limit in which any cause of action must be brought, serves "the legitimate government objectives of providing a measure of security for building professionals whose liability could otherwise extend indefinitely." (Id. at p. 921.) The court further noted that the statute "also serves the legitimate objective of avoiding the difficulties in proof which arise from the passage of time." (Ibid.)

In discussing the interest of Oklahoma embodied in the statute, the Court of Appeal in the present case expressed the view that "Oklahoma's interest is substantially a local one, that is, an interest in protecting Oklahoma defendants from liability for conduct occurring in Oklahoma." The appellate court indicated that Oklahoma's interest in the application of this statute does not extend to, or at least does not apply as strongly to, a non-Oklahoma business that designs or constructs an improvement to real property located in Oklahoma. Because Foster Wheeler is a non-Oklahoma corporation (incorporated in Delaware, with its headquarters in New York), and because the design and manufacture of the boiler occurred in New York, the Court of Appeal expressed the view that "any significant interest of Oklahoma in the application of its statute of repose . . . is difficult to discern."

(8) We conclude that the Court of Appeal did not accurately assess the interest of Oklahoma embodied in the statute of repose here at issue. When a state adopts a rule of law limiting liability for commercial activity conducted within the state in order to provide what the state perceives is fair treatment to, and an appropriate incentive for, business enterprises, we believe that the state ordinarily has an interest in having that policy of limited liability applied to out-of-state companies that conduct business in the state, as well as to businesses incorporated or headquartered within the state. A state has a legitimate interest in attracting out-of-state companies to do business within the state, both to obtain tax and other revenue that such businesses may [92] generate for the state, and to advance the opportunity of state residents to obtain employment and the products and services offered by out-of-state companies. In the absence of any explicit indication that a jurisdiction's "business friendly" statute or rule of law is intended to apply only to businesses incorporated or headquartered in that jurisdiction (or that have some other designated relationship with the state—for example, to those entities licensed by the state), as a practical and realistic matter the state's interest in having that law applied to the activities of out-of-state companies within the jurisdiction is equal to its interest in the application of the law to comparable activities engaged in by local businesses situated within the jurisdiction.

This court's decision in Offshore Rental, supra, 22 Cal.3d 157, supports the foregoing conclusion. In Offshore Rental, the plaintiff was a California company that brought suit to recover economic damages it had suffered when one of its key employees had been injured in Louisiana, allegedly as a result of the negligence of one of the defendant company's employees in Louisiana. The case presented a choice-of-law issue because California law permits a company to maintain a cause of action for the economic damage suffered by the company as a result of an injury to a key employee (an action separate from, and independent of, the employee's own personal injury action), whereas Louisiana law does not permit an employer to maintain such a cause of action (permitting only the employee's personal injury action). The defendant company in Offshore Rental was a Delaware corporation, headquartered in New York, that did business in Louisiana, California, and other states.

In examining the question whether Louisiana had an interest in having its law (denying the plaintiff company's cause of action for injury to a key employee) applied in the circumstances of that case, the court in Offshore Rental, supra, 22 Cal.3d 157, explained: "The accident in question occurred within Louisiana's borders; although the law of the place of the wrong is not necessarily the applicable law for all tort actions [citation], the situs of the injury remains a relevant consideration. At the heart of Louisiana's denial of liability lies the vital interest in promoting freedom of investment and enterprise within Louisiana's borders, among investors incorporated both in Louisiana and elsewhere. The imposition of liability on defendant, therefore, would strike at the essence of a compelling Louisiana law." (22 Cal.3d at p. 168, italics added & omitted.) Thus, although the defendant in that case was an out-of-state company doing business in Louisiana, the California court [93] in Offshore Rental recognized that the interest of Louisiana in protecting companies from what the latter state viewed as excessive liability extended to such a company.^[11]

In concluding that Oklahoma had little or no interest in the application of its law to the present case because Foster Wheeler was not an Oklahoma company, the Court of Appeal relied upon two passages in Reich, supra, 67 Cal.2d 551, in which the court observed that "[t]he state of the place of the wrong has little or no interest in [the application of its statute limiting damages for wrongful death] when none of the parties reside there" (67 Cal.2d at p. 556), and that a state's interest in avoiding the imposition of excessive financial burdens on defendants is a "primarily local" interest. (Ibid.) The Court of Appeal also relied upon a similar passage in Hurtado v. Superior Court (1974) 11 Cal.3d 574 [114 Cal.Rptr. 106, 522 P.2d 666], which declared that "a state's interest in limiting recovery in wrongful death actions is in protecting resident defendants from excessive financial burdens." (11 Cal.3d at p. 586.) Both Reich and Hurtado, however, concerned automobile accidents involving private individuals, not commercial entities, and nothing in those decisions suggests that a state's interest in the application of a statute limiting liability for specified commercial activity carried on within the state applies only to local companies and not equally to out-of state companies doing business within the state. Unlike our decision in Offshore Rental, supra, 22 Cal.3d 157, Reich and Hurtado had no occasion to address that question.

(9) Furthermore, just as the Court of Appeal erred in relying on the non-Oklahoma location of Foster Wheeler's incorporation or headquarters as a basis for determining that Oklahoma lacked an interest in having its statute of repose applied here, the appellate court similarly erred in suggesting that Oklahoma's interest in having its statute applied was negated by the circumstance that the design and manufacture of the boiler in question occurred in New York rather than in Oklahoma. The statute of repose here at issue protects not only construction-related businesses that engage in their activities at the Oklahoma site of the improvement, but also commercial entities, such as establishments performing architectural and other design-improvement work, that conduct their activities away from the location of the improvement but whose potential liability flows from a plaintiff's interaction with, or exposure to, the real property improvement in Oklahoma. Under the premise that the activities of Foster Wheeler in this case bring it within the reach of the Oklahoma statute of repose (see, ante, at p. 89), we conclude that, for [94] purposes of the governmental interest analysis, Oklahoma clearly possesses an interest in having the statute applied in the present case and that its interest is not diminished by the circumstance that some of Foster Wheeler's activities occurred outside of Oklahoma.^[12]

Accordingly, contrary to the view expressed by the Court of Appeal, we conclude that Oklahoma has a real and legitimate interest in having its statute of repose applied under the circumstances presented here.

2

At the same time, we also recognize that California has an interest in having California law applied in this case.

(10) As discussed above, the applicable California statute—Code of Civil Procedure section 340.2—permits an action for injury or illness based upon exposure to asbestos to be brought up to one year after the plaintiff first suffered disability (as defined by the statute) and knew or reasonably should have known that the disability was caused or contributed to by such exposure. This statute, enacted in 1979 to lengthen the period of time in which an asbestos-related claim may be brought, reflects a state interest in providing persons who suffer injury or illness as a result of their exposure to asbestos a fair and reasonable opportunity to seek recovery for their injury or illness, taking into account not only the typically lengthy period between exposure to asbestos and the development of disease but also the often substantial period between the initial discovery or diagnosis of a disease and the time when the disease becomes disabling. (See, e.g., Hamilton v. Asbestos Corp., supra, 22 Cal.4th 1127, 1138-1139; Blakey v. Superior Court (1984) 153 Cal.App.3d 101, 105-106 [200 Cal.Rptr. 52]; Nelson v. Flintkote Co. (1985) 172 Cal.App.3d 727, 735 [218 Cal.Rptr. 562].) The language of section 340.2 does not specify the class of persons to whom the statute was intended to apply, but by its terms the provision is not limited only to persons who were exposed to asbestos in California. In view of the legislation's clear recognition of the unusual nature of asbestos-related injury and illness, and the statute's objective to provide injured or ill persons a fair and adequate opportunity to seek recovery for such asbestos-related harm, we conclude that [95] California has an interest in having this statute applied to a person, like plaintiff, who is a California resident at the time the person discovers that he or she is suffering from an asbestos-related injury or illness, even when the person's exposure to asbestos occurred outside California.

(11) A number of prior California cases support the conclusion that California has a legitimate interest in having a statutory provision that affords a remedy for or a benefit to an injured person or business applied when, as here, the injured person or business is a California resident or business, even when the injury-producing conduct occurs outside California. In Offshore Rental, supra, 22 Cal.3d 157, for example, although ultimately concluding that the Louisiana rule of law denying a cause of action for injury to a company's "key employee" should be applied, this court, in discussing the second step of the governmental interest analysis, determined that California had a real and legitimate interest in having its rule of law—permitting such a cause of action—applied in favor of a California company that had suffered such an injury, even though the injury to the company's key employee had occurred in another state. (See 22 Cal.3d at p. 164 ["California's economy and tax revenues are affected regardless of the situs of physical injury."].)

The decision in Castro v. Budget Rent-A-Car System, Inc. (2007) 154 Cal.App.4th 1162 [65 Cal.Rptr.3d 430] (Castro) also supports the conclusion recognizing a legitimate interest on the part of California under such circumstances. In Castro, the plaintiff, a California resident, was injured in a traffic accident that occurred in Alabama, allegedly caused by the negligence of the driver of a rented truck that was owned and leased by the defendant Budget Rent-A-Car. Under Alabama law, the owner of a motor vehicle is not liable for the negligence of a permissive user of the vehicle except under limited circumstances; under California law, by contrast, an owner of a motor vehicle generally is vicariously liable, up to a specified amount, for the negligence of a permissive user. (154 Cal.App.4th at p. 1179.) In discussing whether California had an interest in having its law applied under the circumstances presented by that case, the court in Castro first observed that a primary purpose of the California permissive user law—"motivating vehicle owners who allow others to use their vehicles within California to exercise care in the selection and supervision of such permissive users, and . . . protecting persons using California roadways" (id. at p. 1182)—would not be furthered by the application of California law in that case, because the accident in question occurred in Alabama rather than in California (id. at pp. 1181-1182). Nonetheless, the court in Castro concluded that California "does have a legitimate governmental interest in having its permissive user statute applied based on Castro's status as a California resident. Application of that statute to circumstances such as these would serve to ensure that California residents injured in traffic accidents in other states would be compensated for [96] their injuries and not become dependent on the resources of California for necessary medical, disability, and unemployment benefits." (Id. at p. 1182, italics added.)

Although, as we discuss further below (p. 100, post), the court in Castro ultimately concluded in the third step of the governmental interest analysis (the comparative impairment prong) that Alabama law rather than California law should apply in the circumstances of that case, the passage in Castro quoted above supports the conclusion that California has a legitimate governmental interest in having California law applied in the present case. Application of the California statute of limitations to a current California resident who suffers an injury or illness as a result of his or her prior exposure to asbestos in another jurisdiction would assist such residents in obtaining compensation for their injuries and in not becoming dependent on the resources of California for necessary medical, disability, and unemployment benefits.^[13]

Accordingly, California, as well as Oklahoma, has an interest in having its own law applied in this case.

Because the applicable laws of Oklahoma and California differ and each state has an interest in having its law applied under the circumstances of the present case, we are faced with a "true conflict." As explained above, in such instances we apply the so-called "comparative impairment" approach.

C

(12) Under the comparative impairment analysis, we must "carefully evaluate[] and compare[] the nature and strength of the interest of each jurisdiction in the application of its own law `to determine which state's [97] interest would be more impaired if its policy were subordinated to the policy of the other state.'" (Kearney, supra, 39 Cal.4th 95, 108.) In conducting this evaluation, our prior decisions emphasize that it is important to keep in mind that "[t]he court does not `"weigh" the conflicting governmental interests in the sense of determining which conflicting law manifested the "better" or the "worthier" social policy on the specific issue. An attempted balancing of conflicting state policies in that sense . . . is difficult to justify in the context of a federal system in which, within constitutional limits, states are empowered to mold their policies as they wish. . . . [Instead, the process] can accurately be described as . . . a problem of allocating domains of law-making power in multi-state contexts—[by determining the appropriate] limitations on the reach of state policies—as distinguished from evaluating the wisdom of those policies. . . . [E]mphasis is placed on the appropriate scope of conflicting state policies rather than on the "quality" of those policies . . . .'" (Bernhard, supra, 16 Cal.3d 313, 320-321.)

Accordingly, our task is not to determine whether the Oklahoma rule or the California rule is the better or worthier rule, but rather to decide—in light of the legal question at issue and the relevant state interests at stake—which jurisdiction should be allocated the predominating lawmaking power under the circumstances of the present case.

1

In light of the relevant facts of this case, we conclude that a failure to apply Oklahoma law would significantly impair Oklahoma's interest. The conduct for which plaintiff contends Foster Wheeler should be held liable—plaintiff's alleged exposure to asbestos during the application of insulation to a boiler designed and manufactured by Foster Wheeler—occurred in Oklahoma in 1957, at a time when plaintiff was present in Oklahoma and was an Oklahoma resident. As already discussed, the circumstance that Foster Wheeler is not an Oklahoma company—the circumstance relied upon by the Court of Appeal—is not a persuasive basis for finding that the failure to apply Oklahoma law would not significantly impair Oklahoma's interest. Oklahoma's interest in the application of its statute of repose applies equally to out-of-state businesses that design improvements to real property located in Oklahoma and to Oklahoma businesses that design such improvements situated within that state.

(13) Although California no longer follows the old choice-of-law rule that generally called for application of the law of the jurisdiction in which a defendant's allegedly tortious conduct occurred without regard to the nature of the issue that was before the court (see Reich, supra, 67 Cal.2d 551, 553), California choice-of-law cases nonetheless continue to recognize that a [98] jurisdiction ordinarily has "the predominant interest" in regulating conduct that occurs within its borders (Reich, supra, 67 Cal.2d 551, 556; see Cable v. Sahara Tahoe Corp. (1979) 93 Cal.App.3d 384, 394 [155 Cal.Rptr. 770]), and in being able to assure individuals and commercial entities operating within its territory that applicable limitations on liability set forth in the jurisdiction's law will be available to those individuals and businesses in the event they are faced with litigation in the future. (See, e.g., Offshore Rental, supra, 22 Cal.3d 157, 168; Castro, supra, 154 Cal.App.4th 1152, 1180; Cable, supra, 93 Cal.App.3d 384, 394.)

In the present case, in the event Foster Wheeler were to be denied the protection afforded by the Oklahoma statute of repose and be subjected to the extended timeliness rule embodied in California law, the subordination of Oklahoma's interest in the application of its law would rest solely upon the circumstance that after defendant engaged in the allegedly tortious conduct in Oklahoma, plaintiff happened to move to a jurisdiction whose law provides more favorable treatment to plaintiff than that available under Oklahoma law.

Although here it is clear that plaintiff's move to California was not motivated by a desire to take advantage of the opportunities afforded by California law and cannot reasonably be characterized as an instance of forum shopping (cf. Reich, supra, 67 Cal.2d 551, 555-556), the displacement of Oklahoma law limiting liability for conduct engaged in within Oklahoma, in favor of the law of a jurisdiction to which a plaintiff subsequently moved, would—notwithstanding the innocent motivation of the move—nonetheless significantly impair the interest of Oklahoma served by the statute of repose. If Oklahoma's statute were not to be applied because plaintiff had moved to a state with a different and less "business-friendly" law, Oklahoma could not provide any reasonable assurance—either to out-of-state companies or to Oklahoma businesses—that the time limitation embodied in its statute would operate to protect such businesses in the future. Because a commercial entity protected by the Oklahoma statute of repose has no way of knowing or controlling where a potential plaintiff may move in the future, subjecting such a defendant to a different rule of law based upon the law of a state to which a potential plaintiff ultimately may move would significantly undermine Oklahoma's interest in establishing a reliable rule of law governing a business's potential liability for conduct undertaken in Oklahoma. (Accord, Castro, supra, 154 Cal.App.4th 1162, 1181 [Alabama, whose law limited the potential liability of a vehicle owner for the negligence of a permissive user, has an interest "in not having vehicle owners and drivers in its jurisdiction subjected to different liabilities based on the fortuity of which state a plaintiff happens to be a resident. . . . Alabama has an interest in the uniform application of motor vehicle laws to owners and drivers in Alabama."]; see also Hancock, The Effect in Choice of Law Cases of the Acquisition of a New [99] Domicile After the Commission of a Tort or the Making of a Contract (1979) 2 Hastings Int'l & Comp. L.Rev. 215, 218-219.)

2

(14) By contrast, a failure to apply California law on the facts of the present case will effect a far less significant impairment of California's interest. Certainly, if the law of this state is not applied here, California will not be able to extend its liberal statute of limitations for asbestos-related injuries or illnesses to some potential plaintiffs whose exposure to asbestos occurred wholly outside of California. Nonetheless, our past choice-of-law decisions teach that California's interest in applying its laws providing a remedy to, or facilitating recovery by, a potential plaintiff in a case in which the defendant's allegedly tortious conduct occurred in another state is less than its interest when the defendant's conduct occurred in California. As we shall see, in a number of choice-of-law settings, California decisions have adopted a restrained view of the scope or reach of California law with regard to the imposition of liability for conduct that occurs in another jurisdiction and that would not subject the defendant to liability under the law of the other jurisdiction. Our view is that a similar restrained view of California's interest in facilitating recovery by a current California resident is warranted in evaluating the relative impairment of California's interest that would result from the failure to apply California law in the present setting.

Two California decisions discussed above are closely on point. As we have seen, in Offshore Rental, supra, 22 Cal.3d 157, the question before this court was whether Louisiana law (which barred an employer from maintaining an independent cause of action for economic damages resulting from an injury to a key employee) or California law (which permitted such a cause of action) should apply when an employee of a California company was injured in Louisiana allegedly as a result of the negligence of a company doing business in that state. Although recognizing that California had an interest in applying its law permitting recovery, because the plaintiff in that case was a California company, the court in Offshore Rental ultimately concluded that Louisiana law should apply, reasoning in part that "[b]y entering Louisiana, plaintiff `exposed [i]tself to the risks of the territory,' and should not expect to subject defendant to a financial hazard that Louisiana law had not created." (22 Cal.3d at p. 169.) By parity of reasoning, because plaintiff in the present case was in (and, indeed, a resident of) Oklahoma at the time of his exposure to asbestos, for which he claims Foster Wheeler should be held responsible, it is reasonable to conclude that he "should not expect to subject defendant to a financial hazard that [Oklahoma] law had not created," and that California has a lesser interest in applying its law in that setting than it would in a case in which a defendant is responsible for exposing a plaintiff to asbestos within California.

[100] Similarly, in Castro, supra, 154 Cal.App.4th 1162, the Court of Appeal reached a comparable conclusion in another choice-of-law case arising out of a factual setting in which a California resident was injured in another state and sought recovery from a commercial entity doing business in that other state. As described above, in Castro the California plaintiff was injured in Alabama in an accident allegedly caused by a negligent permissive user of a truck owned by defendant Budget Rent-A-Car, which had been leased in Alabama to an Alabama company. Alabama law provides that the owner of a motor vehicle who is not personally negligent is generally not liable for damages caused by the negligence of a permissive user of the vehicle, whereas California law generally imposes vicarious liability, up to a limited dollar amount, on a vehicle owner when a permissive user of the vehicle negligently injures another person. Although recognizing that California had a legitimate interest in the application of its law based upon Castro's status as a California resident (on the ground, as noted above, that application of California law "would serve to ensure that California residents injured in traffic accidents in other states would be compensated for their injuries and not become dependent on the resources of California for necessary medical, disability, and unemployment benefits" (154 Cal.App.4th at p. 1182)), the court in Castro concluded that such an interest was "not sufficient to reallocate Alabama's and California's `"respective spheres of lawmaking influence."' . . . [¶] . . . [B]y entering and driving in Alabama, Castro voluntarily exposed himself to the risks of that `territory,' and therefore plaintiffs should not expect to subject Budget to a `financial hazard' that Alabama law had not created. Based on the respective governmental interests of Alabama and California, Alabama's interest in allocating liability and deterring negligent driving within its borders would be more impaired by the application of California's permissive user statute than would California's interests if Alabama law is applied." (154 Cal.App.4th at p. 1182.) (See also Tucci v. Club Mediterranee (2001) 89 Cal.App.4th 180, 190-194 [107 Cal.Rptr.2d 401] [holding that other jurisdiction's law would be more impaired if defendant employer, who had obtained adequate workers' compensation insurance in compliance with the law of that jurisdiction, were to be subjected to a common law tort action, permitted under California law, that was filed by a California resident who was injured while working for defendant in the other jurisdiction]; Arno v. Club Med Inc., supra, 22 F.3d 1464, 1468 [holding that under California choice-of-law principles, French law, rather than California law, applied to tort action arising out of injury to California resident that occurred in France].)

(15) As these decisions demonstrate, in allocating the "`respective spheres of lawmaking influence'" (Offshore Rental, supra, 22 Cal.3d 157, 165) in cases in which a California resident is injured by a defendant's conduct occurring in another state, past California choice-of-law decisions [101] generally hold that when the law of the other state limits or denies liability for the conduct engaged in by the defendant in its territory, that state's interest is predominant, and California's legitimate interest in providing a remedy for, or in facilitating recovery by, a current California resident properly must be subordinated because of this state's diminished authority over activity that occurs in another state. Although under the circumstances of the present case this allocation of "lawmaking influence" results in the subordination of California's interest to the interest of Oklahoma, in other instances in which a defendant is responsible for exposing persons to the risks associated with asbestos or another toxic substance through its conduct in California, this general principle would allocate to California the predominant interest in regulating the conduct. (See, e.g., North American Asbestos Corp. v. Superior Court (1986) 180 Cal.App.3d 902, 907-908 [225 Cal.Rptr. 877] [holding California law applicable when the plaintiff was exposed to asbestos in California by a company incorporated in another state, where plaintiff's action against the company would have been barred as untimely under the other state's law].)

Plaintiff contends, however, that the foregoing analysis is erroneous and that cases such as Offshore Rental, supra, 22 Cal.3d 157, and Castro, supra, 154 Cal.App.4th 1162, are inapposite because the circumstances of the present case—in which plaintiff was a California resident when he was first diagnosed with an asbestos-related disease and when he incurred medical expenses in this state as a result of the disease—render this case analogous instead to the circumstances in Kearney, supra, 39 Cal.4th 95, in which the defendant's conduct, although engaged in within another state, had the direct effect of causing an injury in California. In our view, the proposed analogy to Kearney is not persuasive. The present situation is not similar to that presented in Kearney, in which the defendant, while outside of California, participated in an interstate telephone call with a California resident who was in California and, where the defendant, in violation of California privacy law, recorded (without the California resident's knowledge or consent) the words that were spoken by the California resident in California. Nor is this a case similar to one in which a defendant manufactures a product in another state and places the product in the stream of commerce under circumstances in which it is reasonably foreseeable that the product will make its way to California, and the product ultimately injures a person who uses it in California. (See, e.g., Buckeye Boiler Co. v. Superior Court (1969) 71 Cal.2d 893, 906 [80 Cal.Rptr. 113, 458 P.2d 57].) Instead, here plaintiff seeks to hold Foster Wheeler legally responsible for exposing him to asbestos in Oklahoma, and it is Oklahoma that bears the primary responsibility for regulating the conduct of those who create a risk of injury to persons within its borders.

[102] (16) In arguing that Foster Wheeler should be viewed as having caused an injury that occurred in California, plaintiff relies heavily upon the circumstances that he was a resident of California when his exposure to asbestos many years earlier in Oklahoma ultimately manifested itself as an illness and caused him to incur considerable medical expenses resulting from the disease. Those circumstances, however, do not realistically distinguish the present matter from a case, such as Castro, supra, 154 Cal.App.4th 1162, in which a California resident is seriously injured in an automobile accident in another state and returns home to California for extensive medical treatment and long-term care. Although in such a case the plaintiff's long-term medical expenses are likely to be incurred in California and, if the plaintiff's resources are insufficient, the state ultimately may expend considerable financial resources for his or her care, past California choice-of-law decisions as we have seen have not treated that type of case as one in which a defendant's conduct has caused an injury in California. Those decisions instead have applied the choice-of-law analysis discussed above, recognizing that the state in which the alleged injury-producing conduct occurred (and in which a significant risk of harm to others is posed) generally has the predominant interest in determining the appropriate parameters of liability for conduct undertaken within its borders. (Accord, Ferren v. General Motors Corp. (1993) 137 N.H. 423 [628 A.2d 265, 268-269] [choice-of-law decision applying law of state where exposure to lead dust occurred, rather than of state where the plaintiff resided when illness was later discovered]; Stephens v. Norwalk Hospital (D.Conn. 2001) 162 F.Supp.2d 36, 43-44 [choice-of-law decision applying statute of limitations of state where medical malpractice occurred, rather than of state where the plaintiff resided and where injury manifested itself].)

3

For the reasons discussed above, we conclude that Oklahoma's interest (as embodied in its statute of repose) would be more impaired if its law were not applied under the circumstances of this case than would be California's interest if its statute of limitations is not applied. Accordingly, we conclude that the Court of Appeal erred in holding that California law rather than Oklahoma law should apply to the issue before us.^[14]

[103] IV

The judgment of the Court of Appeal is reversed and the matter is remanded to that court with directions to address plaintiff's additional contention that the trial court erred in finding that the boiler in question constituted an improvement to real property within the meaning of the relevant Oklahoma statute of repose. (See, ante, at p. 89, fn. 7.)

Kennard, J., Baxter, J., Werdegar, J., Chin, J., Moreno, J., and Corrigan, J., concurred.

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[1]In addition to the causes of action seeking damages for plaintiff's illness, the complaint contains a cause of action on behalf of plaintiff's wife, Lucille McCann, for loss of consortium. Because there is no contention that the wife's loss of consortium action could be maintained against Foster Wheeler in the event her husband's action against Foster Wheeler is barred under the Oklahoma statute of repose, for convenience we employ the term "plaintiff" in the singular to refer to Terry McCann.

After judgment was entered in the trial court and while the case was pending on appeal, Terry McCann died. A motion was filed in the Court of Appeal to substitute his wife as successor in interest pursuant to Code of Civil Procedure section 377.32, and that court granted the motion.

On September 22, 2008, plaintiff filed a motion in this court, requesting that we take judicial notice of both the motion to substitute filed in the Court of Appeal and the Court of Appeal's order granting the motion. Because the documents in question already had been transmitted to this court by the Court of Appeal, we denied the request for judicial notice, explaining that the documents in question were part of the record on appeal transmitted to this court by the Court of Appeal.

[2] In Giest v. Sequoia Ventures, Inc. (2000) 83 Cal.App.4th 300, 305 [99 Cal.Rptr.2d 476], the court explained the general difference between a statute of limitations and a statute of repose: "[W]hile a statute of limitations normally sets the time within which proceedings must be commenced once a cause of action accrues, [a] statute of repose limits the time within which an action may be brought and is not related to accrual. Indeed, `the injury need not have occurred, much less have been discovered. Unlike an ordinary statute of limitations which begins running upon accrual of the claim, [the] period contained in a statute of repose begins when a special event occurs, regardless of whether a cause of action has accrued or whether any injury has resulted.' [Citation.] A statute of repose thus is harsher than a statute of limitations in that it cuts off a right of action after a specified period of time, irrespective of accrual or even notice that a legal right has been invaded. [Citation.]"

[3] The 1851 statute provided in full: "When a cause of action has arisen in another State, or in a foreign country, and by the laws thereof an action thereon cannot there be maintained against a person by reason of the lapse of time, an action thereon shall not be maintained against him in this State, except in favor of a citizen thereof, who has held the cause of action from the time it accrued." (Stats. 1851, ch. 5, § 532, p. 134.)

[4] In Buttram v. Owens-Corning Fiberglas Corp. (1997) 16 Cal.4th 520, 529 [66 Cal.Rptr.2d 438, 941 P.2d 71] (Buttram), we discussed some of the difficulties in determining when a cause of action for asbestos-related mesothelioma can be said to accrue: "Mesothelioma is a latent, progressively developing disease—decades can often pass between the time a person is first exposed to asbestos and the time he first develops a cancerous mesothelioma tumor. Moreover, although early formation of undetected cellular changes ultimately leads to contraction of the disease, it may be years before the cancerous cells will result in a tumor large enough to be detected, be medically diagnosed, or cause symptomatology of the disease. It has been observed generally that `diagnosis of toxic related disease is almost always an uncertain enterprise, particularly in the early stages of the disease. Lack of understanding of biological and physiological mechanisms, absence of serious dysfunction, and the slowly progressive nature of some diseases contribute to the difficulties of diagnosis. . . . [¶] The combination of lengthy latency periods and diagnostic difficulties is a unique feature of toxic substances cases for purposes of statutes of limitations analysis [or related legal issues]: No temporally discrete event exists that encompasses the defendant's breach and the plaintiff's injury. Instead, insidious disease litigation involves an extended chronology of causation unlike traditional snapshot torts.'" (Material in brackets added in Buttram.)

[5] As we explained in Buttram, supra,16 Cal.4th 520, 530, "a cause of action may be viewed in the eyes of the law as `accruing' [or `arising'] for different purposes on different dates, depending on the purpose for which the accrual [or the arising] determination is being sought." (Material in brackets added here.)

In the present circumstances, there may be some question whether, for purposes of section 361, plaintiff's cause of action should be considered to have "arisen" in Oklahoma, where plaintiff was exposed to the asbestos for which Foster Wheeler assertedly is responsible, or, instead, in California, where plaintiff resided when his illness first was diagnosed and gave rise to compensable damage that constitutes a necessary element of his cause of action. Similarly, it may be debatable whether plaintiff was a citizen of California when his cause of action "accrued" within the meaning of section 361 (because, under California law, the general rule is that "for statute of limitations purposes, . . . a cause of action for a latent injury does not accrue until the plaintiff discovers or reasonably should have discovered that he has suffered a compensable injury" (Buttram, supra, 16 Cal.4th 520, 530)), or, instead, plaintiff should be viewed as having been a citizen of Oklahoma when his cause of action "accrued" within the meaning of section 361 (to avoid the risk that persons who have been exposed to a toxic substance but have not yet suffered a compensable injury may "forum shop" by thereafter moving to California).

In a variety of settings, cases in other jurisdictions have reached differing conclusions in determining where a cause of action has "arisen" or "accrued" within the meaning of a borrowing statute. (See generally Annot. (1959) 67 A.L.R.2d 216, 221-223; Annot. (1944) 149 A.L.R. 1224, 1226-1227; Annot. (1931) 75 A.L.R. 203, 211-220.)

[6]Section 109 provides in full: "No action in tort to recover damages [¶] (i) for any deficiency in the design, planning, supervision or observation of construction or construction of an improvement to real property, [¶] (ii) for injury to property, real or personal, arising out of any such deficiency, or [¶] (iii) for injury to the person or for wrongful death arising out of any such deficiency, [¶] shall be brought against any person owning, leasing, or in possession of such an improvement or performing or furnishing the design, planning, supervision or observation of construction or construction of such an improvement more than ten (10) years after substantial completion of such an improvement."

Although section 109 was enacted in 1978, well after the boiler in question was designed and installed, Oklahoma decisions make clear that section 109 applies to tort actions for injuries resulting from improvements that predated the statute, and that such application does not improperly infringe upon an injured plaintiff's rights. (See, e.g., St. Paul Fire & Marine Ins. Co. v. Getty Oil Co. (1989) 1989 OK 139 [782 P.2d 915, 918-921]; Jaworsky v. Frolich (1992) 1992 OK 157 [850 P.2d 1052, 1054-1056]; Mooney v. YMCA of Greater Tulsa (1993) 1993 OK 33 [849 P.2d 414, 416].)

[7] Because the Court of Appeal did not address plaintiff's challenge to the trial court's determination that the boiler in question constituted an improvement to real property for purposes of the relevant Oklahoma statute, we conclude, in light of our determination that the appellate court erred in its resolution of the choice-of-law issue, that it is appropriate to remand this matter to the Court of Appeal to permit that court, in the first instance, to pass on plaintiff's challenge to the trial court's application of Oklahoma law to the circumstances of this case.

[8]While this matter was pending before this court, the Oklahoma Legislature enacted comprehensive "lawsuit reform" legislation that includes the following provision pertaining to asbestos-related claims: "Notwithstanding any other provision of law, with respect to any asbestos or silica claim not barred as of the effective date of this act, the limitations period shall not begin to run until the exposed person or claimant discovers, or through the exercise of reasonable diligence should have discovered, that the exposed person or claimant is physically impaired as set forth in this chapter by an asbestos- or silica-related condition." (2009 Okla. House Bill No. 1603, § 64, subd. A [chaptered as ch. 228].)

Although the initial clause of this provision ("Notwithstanding any other provision of law") could be interpreted to mean that the new statute creates an exception to the Oklahoma statute of repose for asbestos-related claims (permitting such claims to be brought so long as they satisfy all of the requirements and limitations embodied in the new statute), the new provision explicitly applies only "to any asbestos . . . claim not barred as of the effective date of this act" (italics added) and thus would not affect an action, like the present one, that was barred by the Oklahoma statute of repose long before the enactment of the new legislation. Accordingly, the Oklahoma statute of repose continues to represent the relevant Oklahoma law for purposes of the present proceeding.

[9] Code of Civil Procedure section 337.15 provides in relevant part: "(a) No action may be brought to recover damages from any person . . . who develops real property or performs or furnishes the design, specifications, surveying, planning, supervision, testing, or observation of construction or construction of an improvement to real property more than 10 years after the substantial completion of the development or improvement for any of the following: [¶] (1) Any latent deficiency in the design, specification, surveying, planning, supervision, or observation of construction or construction of an improvement to, or survey of, real property. [¶] (2) Injury to property, real or personal, arising out of any such latent deficiency."

[10] Code of Civil Procedure, section 340.2 provides in relevant part: "(a) In any civil action for injury or illness based upon exposure to asbestos, the time for the commencement of the action shall be the later of the following: [¶] (1) Within one year after the date the plaintiff first suffered disability. [¶] (2) Within one year after the date the plaintiff either knew, or through the exercise of reasonable diligence should have known, that such disability was caused or contributed to by such exposure. [¶] (b) `Disability' as used in subdivision (a) means the loss of time from work as a result of such exposure which precludes the performance of the employee's regular occupation."

[11] The defendant company in Offshore Rental, supra, 22 Cal.3d 157, owned property in Louisiana in addition to doing business in that state (id. at pp. 160-161, 164), but the policy underlying the applicable Louisiana rule—to protect businesses acting within Louisiana's borders "from the financial hardships caused by the assessment of excessive legal liability or exaggerated claims resulting from the loss of services of a key employee" (id. at p. 164)— would apply to all commercial entities doing business in Louisiana.

[12] Furthermore, although the Court of Appeal appears to have assumed that plaintiff's claim against Foster Wheeler rested solely upon that entity's conduct in New York, plaintiff asserted in his opposition to the summary judgment motion that, because Foster Wheeler "knew or should have known that the normal and intended operation of its boilers would include the use and application of asbestos containing insulation, and that end users, like [plaintiff], would be exposed to asbestos during the installation of that insulation[,] Foster Wheeler . . . had a duty to warn of this foreseeable hazard." To be effective, of course, such a warning would have to have been communicated to plaintiff in Oklahoma.

[13] One federal court has expressed skepticism regarding whether "a state has a legitimate interest in having one of its residents collect money from the resident of another jurisdiction based on conduct that occurred outside the state's boundaries." (Arno v. Club Med Inc. (9th Cir. 1994) 22 F.3d 1464, 1468, fn. 5.) Although a few early United States Supreme Court decisions demonstrate that under some circumstances a state's interest in affording a remedy to a current resident is insufficient in itself to justify the choice of forum law over the law of another much more significantly involved jurisdiction (see, e.g., John Hancock Ins. Co. v. Yates (1936) 299 U.S. 178 [81 L.Ed. 106, 57 S.Ct. 129]), more recent high court decisions indicate that a state's interest in affording a remedy for an injury suffered by a current state resident, even when the injury results from a defendant's conduct in another state, is a constitutionally legitimate interest that properly may be considered as a relevant factor in determining the validity of a state court's choice-of-law ruling. (See, e.g., Phillips Petroleum Co. v. Shutts (1985) 472 U.S. 797, 819-821 [86 L.Ed.2d 628, 105 S.Ct. 2965]; Allstate Ins. Co. v. Hague (1981) 449 U.S. 302, 318-320 [66 L.Ed.2d 521, 101 S.Ct. 633] (plur. opn. of Brennan, J.); see also Turcotte v. Ford Motor Co. (1st Cir. 1974) 494 F.2d 173, 173-174.)

[14] Because we conclude that under California's choice-of-law principles the law of Oklahoma should be applied to the issue presented by this case, we have no occasion to address Foster Wheeler's claims that application of California law under these circumstances would be so "arbitrary and unfair" as to violate the federal Constitution (see Phillips Petroleum Co. v. Shutts, supra, 472 U.S. 797, 818-822), or would violate the equal protection clauses of the California and federal Constitutions.