Indiana Law Review


Depecage: Embracing Complexity to
Solve Choice-of-Law Issues

Christopher G. Stevenson*

Introduction

An airplane crashes in the Arizona desert with no survivors. There are
numerous causal links to the crash, such as: (1) a defective aircraft engine

manufactured in Missouri by a company incorporated in Delaware; (2) a
defectively designed airframe made in France by a company that has its U.S.
headquarters in Virginia; (3) negligent actions ofthe pilot who was employed by
a Texas company, but was trained and certified by a Florida based company
through a contract with the pilot's employer; (4) negligent actions ofthe Federal

Aviation Administration (FAA) air traffic controller in Nevada; (5) faulty
information on the pilot's aeronautical maps, which were printed by a

governmental agency in Washington D.C.; and (6) poor weather conditions

which were not reported by an FAA weather observer in New Mexico.
Additionally, there were passengers on board from twenty different states. The
question is: Which state's law applies?

A difficult hypothetical question to say the least, but not far from the truth.
Courts have been faced with factual scenarios similar to this hypothetical not

only in aircraft disasters, but also in complex mass tort litigation where
tortfeasors and victims are dispersed across the country.'

Then, what does a court do when it faces a situation similar to the one posed
under this hypothetical scenario? Does a court pick one state's law and apply it

to all parties on all issues? By using this approach a court could, devoid of any
legal analysis, find that because the plane crashed in Arizona, Arizona law should

apply across the board. On the other hand, a court could choose to apply
different states' laws depending on a state's relationship to individual defects,

negligent acts, passenger's domicile or residency in determining liability and

damages. Under the hypothetical, the court might apply Missouri law to the
engine manufacturer who produced the defect in the doomed aircraft's engine,
but apply Virginia law as to any defects in the airframe. Furthermore, the court

could calculate compensatory damages for passenger Smith, a Califomian,

according to California law, and for passenger Jones, from Georgia, according

to Georgia law.

It is this approach of applying various states' laws to separate issues which

has been labeled as "depecage." Specifically, "under the doctrine of depecage.

* J.D. Candidate, 2004, Indiana University School of Law—Indianapolis; B.S., 1996,
Purdue University.

1 . Use of depecage in mass tort litigation is frequently found in large class action suits. A
class action suit filed against Philip Morris, Inc. provided fertile ground for the court's application

of depecage. See Simon v. Philip Morris, Inc., 124 F. Supp. 2d 46, 75-78 (E.D.N.Y. 2000); In re

Simon II Litigation, 21 1 F.R.D. 86, at 11 1 (E.D.N.Y 2002) (applying principles of depecage to

multi-state tobacco litigation). But see In re Bridgestone/Firestone, Inc., 288 F.3d 1012 (7th Cir.

2002) (failing to mention depecage as a possible solution).



304 INDIANA LAW REVIEW [Vol. 37:303

different substantive issues in a tort case may be resolved under the laws of
different states where the choices influencing decisions differ."^ This Note
attempts to explore depecage and offer it as a needed tool for efficient and

effective choice-of-law analysis. Part I provides examination of the origins of

depecage from modern day choice-of-law principals. Part II discusses the
mechanics of applying depecage to complex litigation, and demonstrate how
various courts have used depecage as a successful judicial instrument.

Part III explores the reasons why some courts have not embraced depecage.
There are some theoretical underpinnings behind this counter-rationale, and a
tremendous push by some legal scholars to disregard the doctrine completely.
Assisting in this counter-movement against depecage are those cases where either

the court used depecage without any formal recognition ofwhat it was doing, or
failed to apply depecage to a situation which desperately called for its use.^ Part

IV discusses the lack of direction that has left courts in confusion with little

knowledge and guidance from higher authority on the application ofdepecage to
choice-of-law problems. While most courts have not expressly rejected

depecage, their use of the doctrine has hardly been a model of clarity.

Despite the opposition to the doctrine expressed by courts and the

indifference exhibited by others, Part V provides the rationale for applying
depecage and the necessity of its application to an otherwise irreconcilable

conflict."* Part V contends that, when dealing with complicated choice-of-law
issues, courts should actively embrace complexity by applying the doctrine of

depecage. Depecage allows courts to isolate and limit true conflicts between

differing bodies of law, which facilitates more adequate analysis of underlying

interests and policies.^ By promoting diversity among state law, depecage is also
consistent with the federalist view of state sovereignty.^ Thus, through its use,

courts will provide better direction for the doctrine, protect state and individual

interests, and eventually broaden its use.^

I. The Origins OF Depecage

A French word, depe9age (DE-PA-SAJ) is defined as a "cutting up,
dismembering, carving up."^ In a legal setting "depecage" is "[a] court's

application of different state laws to different issues in a legal dispute; choice of

2. LaPlante v. Am. Honda Motor Co. Inc., 27 F.3d 731, 741 (1st Cir. 1994).

3

.

See Allen v. Great Am. Reserve Ins. Co., 766 N.E.2d 1157 (Ind. 2002) (applying Indiana

law to the construction of a contract and South Carolina law to claim based on multistate agency

principle); see discussion infra Part III.

4. See Schalliol v. Fare, 206 F. Supp. 2d 689, 700 n.30 (E.D. Pa. 2002),

5. See infra^diriVA.
; - s

6. See infra Part V.B.

7. Courtland H. Peterson, Private International Law at the End ofthe Twentieth Century:

Progress or Regress?, 46 Am. J. COMP. L. 197, 224 (1998).

8. Collins Robert French English Dictionary 233 (4th ed. 1 995).



2003] DEPECAGE 305

law on an issue-by-issue basis. "^ In other words, depecage is "the process of

cutting up a case into individual issues, each subject to a separate choice-of-law

analysis.'"'

A. Vested Rights and Lex Loci Delicti

Before the modern choice-of-law approach used by courts which entertains

concepts of a party's relationship or contact with other states, courts strictly

enforced the doctrine of lex loci delicti. Under this "vested rights" doctrine, in

determining which state's law to apply, a court looks solely at the place where

the tort was committed." This doctrine was in full force at the turn of the
century when choice-of-law questions were often raised by railroad accidents.

In Northern Pacific Railroad Co. v. Babcock, a locomotive engineer was
killed when the train derailed in Montana.'^ His estate brought suit in Minnesota
citing Montana law; however, the defendant wanted Minnesota law to apply.

^^

The defendant admitted the general rule of lex loci delicti, but contended that,

because plaintiffs action was founded in state statutory language, the law ofthe
forum and the law ofthe place where the right of action accrued must concur in

order for the lex loci to apply.''* Quoting from the Supreme Court of Minnesota,

the Court reasoned that:

[I]t by no means follows that, because the statute of one state differs

from the law of another state, therefore it would be held contrary to the

policy ofthe laws of the latter state. Every day our courts are enforcing

rights under foreign contracts where the lex loci contractus and the lex

fori are altogether different, and yet we construe these contracts and
enforce rights under them according to their force and effect under the

laws of the state where made.'

^

Under lex loci delicti, the Court held that because the contract of employment
was made in Montana, and the accident occurred in that state, there was no error
in holding that the right to recover was governed by Montana law.'^

Justice Holmes strongly affirmed the doctrine of lex loci delicti in Slater v.
Mexican National Railroad Co.^^ In Slater, a Texas resident, employed by a

Colorado railroad company, was killed while coupling cars together in Nueva

9. Black's Law Dictionary 448 (7th ed. 1 999).
1 0. See Ruiz v. Blentech Corp., 89 F.3d 320, 324 n. 1 (7th Cir. 1 996).

1 1

.

Black's Law Dictionary, supra note 9, at 923.
12. N. Pac. R.R. Co. V. Babcock, 154U.S. 190, 196(1894)(quotingHarrick v. Minneapolis

& St. Louis Ry. Co., 16 N.W. 413, 414 (Minn. 1883)).
13. Id. at 197.

14. Id.

15. y^. at 198.

16. Id. ax 199.

17. Slater v. Mexican Nat'l R.R. Co., 194 U.S. 120 (1904).



306 INDIANA LAW REVIEW [Vol. 37:303

Laredo, Mexico. His widow and children brought suit in Texas.'* Without any
discussion of relationships, contacts, or state interests the Court stated that "[a]s

the cause of action relied upon is one which is supposed to have arisen in
Mexico, under Mexican laws, the place of the death and the domicile of the
parties have no bearing upon the case.'"^ Thus, the Slater Court affirmed the
circuit court's ruling dismissing plaintiffs' claim brought in Texas.^^ This

"vested rights" approach was enshrined in the 1934 Restatement (First) of
Conflict of Laws, which advocated hard and fast choice-of-law rules "premised

on the principle that the last event necessary to create or change a legal
relationship determines where a right vests."^'

However, even in 1 894 \mdQV National Pacific Railroad Co. v. Babcock, the
Court recognized that there may be some situations where the use of lex loci
delicti should not be used. In order to justify the disregard of lex loci delicti, "it

must appear that it is against good morals or natural justice, or that, for some
other such reason, the enforcement of it [lex loci delicti] would be prejudicial to
the general interests ofour own citizens."^^ Such policy considerations had been
argued by legal scholars for many years prior to their adoption by American
courts. Scholars discredited lex loci delicti because it failed to take into account

underlying policy considerations in evaluating the significance to be ascribed to

the circumstance that an act had concerning the rights and liabilities which arise

out of that act.^^

B. The Move Toward Interest Analysis

As our nation began to industrialize, the mass production and marketing of
goods such as telephones, radios, wire services, and automobiles, on a national

scale, made the nation seem smaller and more closely knit.^"^ This national
industrialization corresponded with a diminished sense ofthe importance ofstate

lines that served to divide people. In the mobile Twentieth Century, courts began

to ask themselves whether the results dictated by the inflexible rules of lex loci

delicti and vested rights retained their past attraction.^^ Courts began to decide

cases in ways that made "good socio-economic sense."^^ However, the rule of

18. Id.z.i 124.

19. Id.dX 127.

20. /^. at 126, 131.

21

.

Simon v. Philip Morris, Inc., 124 F. Supp. 2d 46, 65 (E.D.N.Y. 2000) (quoting J. Beale,

A Treatise on the Conflict of Laws 1 288 ( 1 93 5)).
22. N. Pac. R.R. Co. v. Babcock, 154 U.S. 190, 198 (quoting Hervick v. Minneapolis & St.

Louis Ry. Co., 16N.W. 413 (Minn. 1883)).

23

.

Harold P. Southerland, Sovereignty, Value Judgments, and Choice ofLaw, 3 8 Brandeis

L.J. 451,478-79(2000).

24. Simon, 124 F. Supp. 2d at 66; Southerland, supra note 23, at 471-72.

25. Simon, 124 F. Supp. 2d at 66; Babcock v. Jackson, 191 N.E.2d 279, 283 (N.Y. 1963);

Southerland, supra note 23, at 471.

26. Southerland, supra note 23, at 473 (quoting Robert A. Lefler, Conflict Laws: More on



2003] DEPECAGE ' 307

lex loci delicti still formally governed tort actions. To circumvent this rigid rule
and give courts an excuse to look beyond the law of the state where the action

accrued, parties began to invent escape devices.^^ One such escape device was
the characterization of a tort claim as a contract claim, which raised the

contention that the issue was more procedural than substantive.^^

In the 1960s, courts began to change course and take into consideration

varying factors separate from lex loci delicti. The watershed case ofBabcock v.
Jackson is a defining moment in choice-of-law analysis.^^ In Babcock, an
automobi le passenger from Rochester, New York, was seriously inj ured when the
driver (also from Rochester) lost control of a car in Ontario, Canada.^^ The
passenger, Ms. Babcock, filed suit in New York, where she had a cognizable
claim. A Canadian statute absolved the driver of any liability for injuries
sustained by a guest passenger in his or her vehicle.^' The court resoundingly
stated that the law ofNew York should apply regardless of where the accident
occurred. ^^ In so doing, the Babcock court thoroughly denounced the vested
rights and lex loci delicti doctrine. The court stated that "the vice of the vested
rights theory, it has been aptly stated, 'is that it affects to decide concrete cases

upon generalities which do not state the practical considerations involved.'""

The court instead used a "center ofgravity" or "grouping ofcontacts" to analyze
the choice-of-law issue.^'* The court explained this new test as a way to achieve
the best practical result "by giving controlling effect to the law ofthejurisdiction

which, because of its relationship or contact with the occurrence or the parties

has the greatest concern with the specific issue raised in the litigation."^^ By
drawing upon the ideas legal scholars had been advocating for years, the Babcock
court laid the ground work for other courts to follow suit in denouncing lex loci
delicti?^

However, Babcock left many questions regarding this new approach
unanswered for other courts. The Babcock opinion furnished no guidance
whatsoever for situations where all the contacts fail to converge in a single state.

For example, what should the result be when a trip's starting point and
destination are in different states, or codomiciliaries of one state rent a car

Choice-Influencing Considerations, 54 Cal. L. Rev. 1 584, 1 587-88 ( 1 966)).

27. Id.

28. Id.

29. Babcock, 191 N.E.2d at 279; Harold L. Korn, The Choice-of-law Revolution: A

Critique, 83 COLUM. L. REV. 772, 827 (1983).

30. Babcock, \9\'^.E.2&2X2m.

31. Id.

32. Id at 285.

33. Id. at 281 (quoting Hassel E. Yatena, The Hornbook Method and the Conflict ofLaws,

37 Yale L.J. 468, 482-83 (1928)).

34. Mat 283.
35. Id.

36. Korn, 5Mpra note 29, at 83 1

.



308 INDIANA LAW REVIEW [Vol. 37:303

licensed, garaged and insured in another.^^ This same type of failure, where
higher courts fail to give adequate guidance on choice-of-law analysis, continues
to occur today.^*

C. The Restatement (Second) ofConflict ofLaws

After almost twenty years in the making, in 1 97
1 ,

the Restatement (Second)

ofConflict ofLaws ("Restatement") attempted to summarize the nature ofchoice
of law in American courts under the new "significant relationship test." Section
6 ofthe Restatement introduced the various considerations of interest analysis as:

(a) the needs ofthe 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 ofjustified expectations, (e) the basic

policiesunderlyingtheparticularfieldoflaw,(f) certainty, predictability

and uniformity of result, and (g) ease in the determination and
application of the law to be applied.^^

From the Restatement section 145 came the expressed language of the
doctrine of depecage. Section 145 introduced this concept as:

(1

)

The rights and liabilities ofthe 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 domicile, residence, nationality, place of incorporation and place

of business of the parties, and

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

These contacts are to be evaluated according to their relative importance

with respect to the particular issue."^^

Thus, by calling for choice-of-law analysis for each particular issue and by
providing what contacts are to be considered, the Restatement lays a framework

for the application of depecage.

II. Mechanics of Using Depecage: Which Courts Have Used the
Doctrine and Why

Choice-of-law analysis involving the use ofdepecage often involves complex

37. /^. at 835.

38. Allen v. Great Am. Reserve Ins. Co., 766 N.E.2d 1 157 (Ind. 2002); see infra Part IV.

39. Restatement (Second) of Conflict of Laws § 6 ( 1 97 1 ).

40. /<i. § 145 (emphasis added).



2003] DEPECAGE 309

legal and factual parameters. In order to better understand how these complex
factors work together it is beneficial to carefully examine how courts, which have
been particularly adept in applying depecage, have used the doctrine in deciding

choice-of-law issues. However, before considering how courts have used
depecage, it is important to understand how depecage works through the
acknowledgment of its driving forces.

A. Driving Forces ofDepecage

The legal concepts of federalism, advocacy, and the prevention of forum
shopping create choice-of-law problems which may require the use ofdepecage.
While these concepts do not promote a particular rationale for or against the
usage ofdepecage, they do provide a honest look at why choice-of-law becomes
an issue to be dealt with in the first place.

The constitutional concept of federalism and the individual sovereignty it
conveys to each state cuts to the core of depecage. Federalism is defined as

"[t]he doctrine holding that a federal court must refrain from hearing a

constitutional challenge to state action if federal adjudication would be
considered an improper intrusion into the state's right to enforce its own laws in
its own courts.'"^' Justice Marshall also described the concept of federalism in
M'Culloch V. State. He stated "[i]n America, the powers of sovereignty are
divided between the government of the Union, and those of the states. They are
each sovereign, with respect to the objects committed to it, and neither sovereign,

with respect to the objects committed to the other."'^^

Federal/state political structuring creates the phenomenon ofdifferential state
sovereignty."^^ When the federal government was created, certain powers
previously subject only to state authority were vested in the federal government.'*''

Because every state gave up the same powers to the federal government, states

still possessed identical powers after the creation of the federal government.
''^

While all the states possess the same authority, it was expected that the states
will exercise these powers differently. "The states are allowed—indeed,
expected—^to disagree on substantive issues. '"'^ The most valuable aspects of
federalism is what courts and commentators frequently have recognized as the
fifty state laboratories, which provide for the development of new social,
economic, and political ideas."*^ Additionally, federalism preserves the ability of

citizens to learn the democratic processes through participation in local

4 1

.

Black's Law Dictionary, supra note 9, at 1 1 28.
42. M'Culloch V. Sate, 17 U.S. 316, 410(1819).

43. Lea Brilmayer & Ronald D. Lee, State Sovereignty and the Two Faces ofFederalism:
A Comparative Study ofFederal Jurisdiction and the Conflict ofLaws, 60 NOTRE Dame L. Rev.

833,852(1985).

44. Id.

45. Id.

46. Id.

47. Fed. Energy Regulatory Comm'n, 456 U.S. 742, 788 (1982).



310 INDIANA LAW REVIEW [Vol. 37:303

government and to govern their local problems/^ Thus, federalism enhances
states' ability to disagree with each other creating the atmosphere necessary for

the use of depecage.

Federalism and its creation of state sovereignty contributes to choice-of-law

problems because each state is free, and even encouraged, to develop its own
sovereign body of law. However, courts pay a high price for federalism in the
enormous challenge of respecting each state's sovereignty. Judicial resources,
including time and effort, are spent attempting to respect each state's sovereignty

in determining whose law will apply. Application of one federal body of law to
all multi-state actions would conserve judicial resources.'*^

The second root ofdepecage and modern day choice of law is the concept of
advocacy. "A lawyer shall act with reasonable diligence and promptness in
representing a client."^^ Lawyers must diligently advocate for their clients.

Carrying out this charge often calls for lawyers to contend that one state's law

should apply over another. If there is a remote chance that a more liberal state's
law will offer a victim more compensation, a plaintiffs lav^er will most often
zealously pursue the application of that state's law. Similarly, a lawyer

counseling the defendant will be equally adamant that a more conservative state's
law should apply. Thus, when applicable, courts are faced with motions to apply
whichever state's law best helps each party's position. If neither party cared

which state's law should apply, then a court's job in choosing applicable law

would be much easier.
The third driving force ofdepecage and modem day choice-of-law principles

is the goal of preventing "forum shopping." The goal of Erie Railroad Co. v.

Tompkins, in prescribing uniformity between federal and state courts, was to

prevent forum shopping between those court systems.^' While Erie deals with

state and federal forums, the same danger offorum shopping occurs among states
when a lexfori choice-of-law approach is used. Ifthere were a uniform rule that
the law of the forum governs a claim, the problem would arise that all injured

victims would run to file their claim in a forum with the most favorable law for
their situation. Thus, a flood of litigation would ensue in only certain forums.

At the same time, refusing to apply the law of the forum to an entire cause of
action in turn requires selecting which state's law will apply. Again, conflicts

48. /d/. at 789-90.

49. The face of our political design may be changing with the enactment of the Muhiparty,

Multiforum Trial Jurisdiction Act, 28 U.S.C § 1369 (2003). The Act gives federal district courts

original jurisdiction of any action involving "minimal diversity" between adverse parties from a

single accident where at least seventy five persons have died. This Act directly attacks the

Erie doctrine in that it will create federal common law, threatening federalism by arbitrarily

preempting state law. Undoubtedly, the constitutional basis of this newly enacted law will be

questioned, which may force the United State's Supreme Court to defend its era of federalism and

finally speak on a conflicts of law issue.

50. Model Rules of Prof'l Conduct R. 1 .3 ( 1 999).
5 1

.

Maryellen Corna, Confusion and Dissension Surrounding the Venue Transfer Statutes,

53 Ohio St. L.J. 319, 328 (1992).



2003] DEPECAGE 311

analysis would be simplified, if not eliminated, by the courts ability to apply the

law of the forum to all issues.

After examining three driving forces—federalism, advocacy, and the
prevention of forum shopping—one can quickly realize that these principles in
American law are not likely to disappear any time in the near future. Therefore,

some framework for choosing applicable law must be in place which makes
depecage an essential part of this framework.

B. Air Crash Disaster Litigation: Fertile Ground

for the Application ofDepecage

Air crash disaster litigation has been the primary means by which the

principles and application of depecage has grown. In In re Disaster at Detroit

MetropolitanAirport onAugust 16, 1987 (^'Detroit Metro''), the court recognized

the need for depecage in the choice-of-law problem presented." The court found
where there are legally significant facts which have occurred in more than one

state, the court must identify those states that have sufficient contacts with the

litigation. Once these states have been identified, the court must determine
whether the various substantive laws at issue differ with regard to the particular

issues in contest. In other words, is there a conflict? If so, this may result in the
application of "the rules of different states to determine different issues in the

same case."^^
In Detroit Metro, the plaintiffs filed wrongful death claims against

McDonnell Douglas Corporation and Northwest Airlines seeking compensatory
and punitive damages. ^'^ In deciding to use depecage, the court used Michigan's

choice-of-law rule for claims filed in Michigan.^^ The Detroit Metro court first
split the plaintiffs' products liability claims against McDonnell Douglas from
their punitive damages claim against Northwest Airlines.^^

In determining which state's law to apply to the product liability claim

against McDonnell Douglas, the court found three possible states: (1)
Michigan—^the place ofthe crash; (2) Missouri—McDonnell Douglas' principal
place ofbusiness; and (3) California—^the place ofmanufacture and design ofthe
accident aircraft.^^ In Detroit Metro, there was a conflict between Michigan's

52. In re Disaster at Detroit Metro. Airport on Aug. 16, 1987, 750 F. Supp. 793, 796 (E.D.

Mich. 1989) [hereinafter Detroit Metro].

53. Id. (quoting Willis L. McReese, Depecage: A Common Phenomenon in Choice ofLaw.,

73 COLUM. L. Rev. 58, 75 (1973)).

54. Id.

55. Although Michigan had abandoned the doctrine lex loci delicti, at that time, they had

declined to adopt a particular choice-of-law rule. Without expressly adopting the Restatement

(Second) of Conflict of Laws, see supra notes 39-40 and accompanying text, the court in Detroit

Metro did hint that Michigan law may be displaced when there are particular interests that each

state has in having its substantive law apply to the precise issue in question. Id. at 797.

56. Id. at 799, 804-05.

57. /^. at 801-02.



312 INDIANA LAW REVIEW [Vol. 37:303

products liability law, which applied a negligence standard to design defect

claims, and Missouri and California products law which used strict liability.^^

The court analyzed which state's rule of law had the greater interest in seeing
that its law was applied. The court discounted Michigan's interest stating that
"Michigan simply has no interest in applying its law to protect a foreign state

producer that supplies products for a company doing business in that state."^^ In
contrast, the court found that both Missouri and California had a strong interest

in applying their products hability law. The court reasoned that Missouri's and
California's strict liability laws "reflect a desire to (1 ) regulate culpable conduct

occurring within its borders, (2) induce corporations to design safe products and

deter future misconduct, and (3) impose the financial repercussions, which have

been incurred by the user of a defective product, upon the producer."^^ Because

Missouri's and California's product liability laws were essentially identical, the

court could have used either state's law, but the court ultimately concluded that

California law should be applied since the alleged wrongful conduct occurred

within its borders.^' Thus, after splitting out the issue of product liability, the

Detroit Metro court found a "false conflict" existed between Michigan's interest

in seeing its law applied and California's interest.

With regard to the punitive damage claim against Northwest Airlines, the
court decided that either Michigan law (the place of injury) or Minnesota law

(the place of alleged misconduct and principal place of business) would apply.^^

The court found a conflict between the law of Michigan and Minnesota.

Minnesota law allowed for punitive damages, while Michigan law did not.^^ As
far as state interests in seeing its law applied to this particular issue, Michigan

had a strong interest in prohibiting the imposition of punitive damages on

companies doing substantial business within its borders.^"* On the other hand,
Minnesota, Northwest's principal place of business, had an interest in deterring

and preventing any wrongful conduct by corporations which locate their

corporate headquarters within its borders.^^ This presented a "true conflict" for

the court because application ofeither Minnesota's law or Michigan's law would

undoubtedly undermine the policy which is reflected in the law ofthe other state.

The court is then back to square one, and must make an arbitrary decision not
unlike a lex loci delicti decision. In so doing, the court held that, as the forum

state, the law of Michigan (which would not allow punitive damages) should

apply.^^

The series of decisions written by Judge Ruben Castillo concerning choice

58. Id. at 799-800.

59. /^. atSOl.

60. /^.at802.

61. Id.

62. /^. at 804-06.

63. A/.at805-06.

64. /^. at807. ,

65. Id.

66. Id. at 808 (applying the law of the forum where a true conflict is presented).



2003] DEPECAGE 313

of law in the air crash near Roselawn, Indiana utilized depecage as well. In In

re Air Crash Disaster Near Roselawn, Ind. on Oct. 31, 1994, the court found
importance in understanding that

the search for the applicable law is not a general one, but rather it is one

that takes proper notice of the fact that the significance of a state's

relationship to a particular aviation disaster may vary as a function ofthe
particular issue presented. Consequently, under the doctrine of

depecage, it is not uncommon for courts to apply the substantive law of
several different states in resolving air crash cases.^^

Roselawn involved flight 4184, which crashed in Indiana en route from

Indianapolis to Chicago. Flight 4184 was an Avions de Transport Regionale
(ATR) aircraft built in France.^^ The day ofthe accident, 4 1 84 had touched four
different states and at the time of the accident was on its final leg of the day.^^

Plaintiffs claimed that both American Airlines and ATR were liable for the ice
accumulation on the aircraft's wings which ultimately led to the plane's

instability, loss of control, and subsequent destruction, killing all on-board.^°

Over the course of almost two years, the court weighed motions and

responses regarding which law should be applied to which issues. In ruling upon

these motions, the court first had to determine what state's choice-of-law rule

would be used. The court found that different state's choice-of-law rules should

be applied to different substantive choice-of-law analyses. For example, for

those cases where the court's jurisdiction was based on the Foreign Sovereign

Immunities Act, the court chose to apply a federal common law choice-of-law
rule.^' For those cases where the court's jurisdiction was based on diversity of

citizenship, the court applied the choice-of-law rule of the forum state. ^^ The
majority of the cases' choice-of-law rules had adopted the Restatement and

application of depecage.

At issue in Roselawn ///was which substantive law regarding compensatory

damages should apply to those passengers from Indiana who died in flight 41 84.
The defendants maintained that the law of Indiana should apply, while the
plaintiffs urged that either Illinois or Texas law should apply.^^ Definitive

differences in state law existed between Indiana and Illinois/Texas law, such as

whether siblings of decedents were allowed to recover damages and whether a

plaintiff could have brought survival claims for conscious pain and suffering.^"*

67. 926 F. Supp. 736, 740 (N.D. 111. 1996) [hereinafter Roselawn III].

68. /J. at 737-38.

69. Id.

70. In re Aircrash Disaster Near Roselawn, Indiana on October 31, 1994, No. 95 C 4593,

MDL 1070, 1997 WL 572897, at *2-4 (N.D. 111. Sept. 9, 1997) [hereinafter Roselawn V].
7 1

.

Roselawn III, 926 F. Supp. at 739.

72. In re Air Crash Near Roselawn, Indiana on October 31,1 994, 948 F. Supp. 747, 753-54

(N.D. 111. 1996) [hereinafter Roselawn IV].

73. Roselawn 111,926?. Supp. at 74\.

74. /^. at 741-42.



314 INDIANA LAW REVIEW [Vol. 37:303

In its application of depecage to this issue, the court went straight down the list
of factors set forth in the Restatement (Second) of Conflicts section 145(2): (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, if
any, between the parties is centered.^^ As to factor one, the court obviously
found that Indiana was the place where the injury occurred.^^ Concerning factor
two, the court found that with regard to compensatory damages, the place where

the conduct causing the injury occurred has little significance.^^ However, the

court noted plaintiffs' claims that several acts of negligence occurred at

American Airlines headquarters in Texas.^^ Factor three was easily decided by
the court because all ofthe decedents were residents of Indiana with all of their

estates pending in Indiana as well.^^ The court's analysis of factor four found
that there was no real relationship established between the decedents and ATR
or American Eagle.^^ Most of the decedents' tickets were purchased through a
travel agent, and suggested if any relationship existed it revolved around the

place of departure, Indianapolis, Indiana.^' Therefore, the court found that

Indiana had the greatest interest in determining and providing for the appropriate

recovery for survivors and estates of Indiana decedents.^^

The court found the domicile of the decedents to be the greatest factor in
determining which state's law to apply. The court discussed the rationale for
giving this factor more weight when considering the issue of compensatory
damages:

The legitimate interests of [the domiciliary states], after all, are limited
to assuring that the plaintiffs are adequately compensated for their

injuries and that the proceeds of any award are distributed to the

appropriate beneficiaries. . . . Those interests are fully served by

applying the law of the plaintiffs' domiciles as to issues involving the

measure of compensatory damages (insofar as that law would enhance

the plaintiffs' recovery) and the distribution of any award. Once the
plaintiffs are made whole by recovery of the full measure of
compensatory damages to which they are entitled under the law of their

domiciles, the interests of those states are satisfied."

Judge Castillo, in a separate opinion, similarly ruled that for those decedents

75. Mat 742-44.
76. /^. at 742-43.

77. /^. at 743.

78. Id.

79. A/, at 743-44.

80. Id at 744,

81. Id

82. /^. at 744-45.

83. Id. at 745 (quoting In re Air Crash Disaster Near Chicago on May 25, 1979, 644 F.2d

594, 613 (7th Cir. 1981) [hereinafter Air Crash Chicago]).



2003] DEPECAGE 315

who were non-Indiana residents, the substantive law relating to compensatory
damages for pre-impact fear should be governed by each passengers' domicile.
In so deciding the court reasoned that:

[ajpplying the law of the injured person's domicile to issues of

compensatory damages advances the principles of predictability and the
protection ofjustified expectations set out in Second Restatement § 6,
in that it respects the decedent's deliberate choice to make his or her
home in a state and be governed by the laws of that state. Especially
with respect to the claims of a decedent's estate, which are traditionally

governed by the laws ofthe decedent's domicile, this deliberate decision

to submit the daily affairs of life to the laws of a particular state may
create justifiable expectations worthy of protection.^"*

Castillo further dissected the Roselawn litigation by separating out the issue

of punitive damages. The plaintiffs claimed that Texas law should be applied to
their punitive damage claims against American Airlines and ATR, while the
defendants sought the application of the laws of France and Indiana.^^ Again, a

difference existed between the law of Texas, which permitted punitive damages

in wrongful death and survival claims, and the laws ofIndiana and France, which

would not permit punitive damages.^^

Under the same depecage analysis, the court applied the law of Texas to
plaintiffs' punitive damages claims against American Airlines. ^^ In so holding,

the Court reasoned that "the state that is both the principal place of business and
the site of much of the alleged misconduct, Texas, has a far stronger interest in
seeing its punitive damages law applied than any one of the half-dozen states in

which some isolated aspects of the alleged misconduct occurred."^^ As to ATR,
the Court held that French law should apply to punitive damage claims for the
exact same reasons that Texas law would apply to American Airlines. ^^ ATR's
principal place of business was in France, and all of the alleged misconduct
relating to the design, testing and manufacture of the ATR 72 airplane occurred
in France.

^°

Finally, as \i Roselawn had not been sufficiently dissected, the court found

that as to plaintiffs' punitive damage claims against ATR's domestic corporation
located in Virginia, Texas law should apply.^' A conflict existed between Texas'
allowance of uncapped punitive damages and Virginia's cap on punitives at

$350,000 per person.^^ Much like the true conflict pertaining to Northwest

84. Roselawn IV, 948 F. Supp. at 758.

85. Roselawn V, 1997 WL 572897, at *1 (N.D. III. Sept. 9, 1997).
86. Id.

87. Id at *3.

88. Id.

89. Id. at *4

90. Id.

91. M at*5
92. Id



316 INDIANA LAW REVIEW [Vol. 37:303

Airlines which arose in DetroitMetro, atruc conflict existed here because ATR's
wrongdoing occurred in Texas, while its principal place of business was in
Virginia.^^ The court looked to Air Crash Chicago for precedent on how to
"break the tie" when the misconduct took place in one state (Texas) and the
principal place of business is in another (Virginia).^'* Air Crash Chicago held
that when the interests of other jurisdictions are equal and opposed, the law of
the place of injury should be applied.^^

However, the court did not use this "tie breaker" rule because it's application

would result in the use of Indiana law as the place of injury.^^ As Indiana law
would not permit punitive damages, this would only serve to frustrate and
undermine the policies behind both Virginia and Texas law.^^ To apply this sort
of tie breaking test would put courts back into the arbitrary analysis of lex loci
delicti. The court looked to comments found in the Restatement (Second) of
Conflicts section 145 to determine that the law of Texas should apply because

that is where the misconduct of ATR's domestic corporation took place.^*
The case presented in Schoeberle v. United States involved an aircrash that

killed a pilot and his two passengers.^^ All plaintiffs asserted claims against the

United States ofAmerica under the Federal Tort Claims Act (FTCA) and against
Signature Flight Corporation. The plaintiffs representing the deceased
passengers also brought a claim against Monarch Aviation Services, the company
who owned the aircraft, and the estate ofthe deceased pi lot. '°^ The plane crashed
en route from Cedar Rapids, Iowa, to Milwaukee, Wisconsin, near a farm in

Bernard, Iowa. The pilot had been having problems with the plane en route to
Cedar Rapids and decided to have Signature Flight perform maintenance on the

aircraft before returning to Milwaukee.

However, shortly after departing from Cedar Rapids, the plane began to

experience severe engine problems, and the pilot contacted air traffic controllers

(United States employees) located in Chicago.'^' Although there was an airport
only 6.5 miles from the plane's position, controllers advised the pilot not to

proceed to this airport because it did not have an instrument flight approach

which would enable the pilot to guide his plane to the ground safely through the
low clouds and poor visibility. '^^ The plane traveled another 7.5 miles and then
crashed, never reaching the controller's recommended airport in Dubuque, Iowa.

It was later discovered that at the time of the accident, the airport which air

93. Id.; see supra notes 62-66 and accompanying text.

94. Id. at S.

95. See Air Crash Chicago, 644 F.2d 594, 615-16 (7th Cir. 1981).

96. Roselawn V, 1997 WL 572897 at *5.
97. Id

98. Id.

99. Schoeberle v. United States, Nos. 99 C 0352, 99 C 2599, 99 C 2292, 2000 WL 18681 30
at*l (N.D. III. Dec. 18,2000).

100. Id.

101. Id.Sit*\-2.

102. Id.at*!.



2003] DEPECAGE 317

traffic controllers thought was without an instrument approach did in fact have
an instrument approach, which would have enabled the pilot to guide the plane

safely to the ground.
'^^

In analyzing what law to apply, the Schoeberle court was required under the
FTCA to use the law of the state where the government's negligent act or
omission occurred, which in this case was Illinois, the location of the air traffic

control lers.'^"^ In applying Illinois choice-of-law principles, the court used

depecage to wade through the complex but interesting connection the plane and
its passengers had with three different states: Illinois, Wisconsin, and Iowa.'°^

In its analysis, the court first examined what law would apply to issues of
defendants' liability. Relying upon the Restatement (Second) of Conflicts

section 1 75, the court applied the presumption that the law ofthe place of injury

governs issues of liability in a wrongful death action, and therefore ruled that

Iowa law must apply to the liability of Monarch Corp., Signature Flight Corp.,
and the pi lot. '^^ However, as to the United States' liability for the negligence of

its air traffic controllers, the Court ruled that Illinois law must govern.
'°^

In so holding, the court looked to the Restatement (Second) of Conflicts,
'°^

which defines the place of injury as "the place where the force set in motion by

the actor first takes effect on the person. This place is not necessarily that where

the death occurs."'^^ Although the pilot's misconduct took place in Iowa where

the aircraft crashed, this choice-of-law question involved the alleged misconduct

of the United States which occurred in Illinois.'
'°

The court determined the applicable law for compensatory and punitive

damages separate from liability. The Schoeberle court followed Roselawn III&
IV in finding the domicile of the decedents (Wisconsin) should govern
compensatory damage claims. ' " As to plaintiffs' punitive damage claims against
Signature Flight Corp., Monarch Corp., and the pilot, the court found that Iowa
law should apply. "^ Again, s'lmWar to Roselawn V, the court considered both the

place of injury and the place where the misconduct occurred as the rationale for

their decision.''^

103. Id.

104. See Richards v. United States, 369 U.S. 1,6-11 (1962).

105. Schoeberle,2000WL]S6S\30sit*2-3.

106. Id at*4-6.

107. Id.aX*9.

1 08. Restatement (Second) of Conflicts § 1 7 cmt. b ( 1 97 1 ).

1 09. Schoeberle, 2000 WL 1 868 1 30 at *8.
110. Id.

111. Id at *\0-\l.

112. Id at*13-14.

113. Id.



318 INDIANA LAW REVIEW [Vol. 37:303

C Summary ofthe Choice-of'Law Analysis Used Under
the Principles ofDepecage

Although those cases which involve in-depth choice-of-law issues are often
complex, there is a pattern to the analysis that has developed. Courts evaluate

which choice-of-law rule they should use, whether there is a conflict among state
laws, and then decide what state's substantive law should apply to each issue.

1. Whose Choice-of-law Rule Should the Court Use?—This question
ultimately asks whether the principles of depecage may be applied in the first
place. If the court uses a state's choice-of-law rule that has not rejected lex loci

delicti, then depecage may not be used.""^ However, as later discussed, some
states have adopted modified forms oilex loci delicti, which further complicates

the question as to whether depecage may be applied."^ Are there any federal
statutes that may dictate what state's choice of law must be used? For example,
under the Federal Tort Claims Act the whole law of the state where the "act or
omission occurred," including its choice-of-law rule, must be used."^ If the

federal court has jurisdiction based on diversity, then the court must use the

choice-of-law rule of the forum state.
"^

2. Is There a Conflict in the Laws?—For the analysis to continue, the states
which may have an interest in seeing their law applied to a particular issue must
have conflicting laws. A "true conflict" is one where the states with interests in
the question presented have different laws, and the application ofone state's law

would conflict with or impair the interests of another state.' '^ "A false conflict
exists ifonly one jurisdiction's governmental interests would be impaired by the
application of the other jurisdiction's law. In such a situation, the court must

apply the law of the state whose interests would be harmed if its law were not
applied.'"'^ However, as Schoeberle, Roselawn III, IV, & V, and Detroit Metro
demonstrate, choice-of-law rules do not distinguish between true conflicts and

false conflicts. '^^ Courts continue to analyze "false conflicts" when most legal
scholars agree that they involve no choice-of-law problem at all.'^'

3. What State 's Substantive Law Should Apply to a Particular Issue?—In
this final step courts must examine the Restatement section 145 factors: (1) the

1 14. See Roselawn IV, 948 F. Supp. 747, 754-55 (N.D. 111. 1996).

115. See Schalliol v. Fare, 206 F .Supp. 2d. 689 (E.D. Pa. 2002); Allen v. Great Am. Reserve

Ins. Co., 766 N.E.2d 1 157 (Ind. 2002); Northwest Pipe Co. v. Eighth Judicial Dist. Ct., 42 P.3d

244, 245-46 (Nev. 2002); Motenko v. MGM Dist. Inc., 921 P.2d 933, 935-36 (Nev. 1996).
1 16. 28 U.S.C. § 1346(b)(1) (2000); Richards v. United States, 369 U.S. 1,6-11 (1962).

117. See Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938).

118. See Air Crash Chicago, 644 F.2d 594, 615 (7th Cir. 1981) (reexamining the apparent

conflict of laws reveals no way in which conflict can be resolved by a restrained or moderate

interpretation, conflict is indeed a "true" conflict).

119. See Lacey v. Cessna Aircraft Co., 932 F.2d 170, 187 (3d Cir. 1991).

1 20. Christian L. Wilde, Depecage in the Choice ofTort Law, 4 1 S. Cal. L. Rev. 329, 342-45

(1968).

121. Id.



2003] DEPECAGE 319

place where the injury occurred; (2) the place where the conduct causing the

injury occurred; (3) the domicile ofthe parties (in the case of corporations, this

would include the place ofincorporation and principal place ofbusiness); and (4)
the place where the relationship between the parties is centered, if that can be

determined. '^^ To determine which factors to weigh more heavily, courts look
to case law on a particular issue. For example, in determining what state's law

will apply to compensatory damages, courts consider the domicile of the

decedent or injured plaintiff to be paramount.
'^^

As seen by these examples of courts applying depecage, there are definite
benefits realized through its use. Depecage reveals and disposes of false

conflicts where the contacts and/or interests ofone state greatly outweigh another

state's contacts or interests on a separate issue. Although bodies of law may
differ, a false conflict does not present a choice-of-law problem because one

state's law may be applied without undermining the other disinterested state's
laws or policies.'^"* Thus, a court can focus on the true conflicts where multiple

states have a significant interest in seeing their law applied to a particular issue

and where the application of one state's law will undermine the laws and policy

of other interested states.

III. Rationale for Rejecting Depecage

Without delving into the alleged flaws contained behind the theory of

depecage, it is easy to see why some courts are hesitant to trod down the path of
depecage. First, depecage forces the court's legal analysis to become extremely
complex. Secondly, there is a question as to how far a court should split issues.
Splitting liability from damages, punitive damages from compensatory damages,

and then further dissecting these issues as they relate to individual parties may
water-down the decisive perception that courts should possess. This type ofissue

splitting presents the picture ofRussian Matryoshka dolls where inside each doll

is a smaller doll. Every time a court examines an issue to determine which

state's law will apply to that issue, it then finds an issue inside of that issue.

Most recently, "a counterrevolution of sorts appears to be emerging, marked
by the insistence that the concept of rights should have a greater role to play.'"^^

Although the United States Supreme Court has stated otherwise, many scholars
believe that the Constitution has something to say about uniformity in choice-of-

law analysis. '^^ These scholars argue that the Privileges and Immunities

Clause'^^ "destroys the domiciliary-centered conception of governmental

1 22. Restatement (Second) of Conflict of Laws § 1 45 ( 1 971 ).

123. See Roselawn III, 926 F. Supp. 736, 745-46 (N.D. 111. 1996).

1 24. See Wilde, supra note 120.

125. Kermit Roosevelt III, The Myth ofChoice ofLaw: Rethinking Conflicts, 97 MiCH. L. Rev.

2448,2466(1999).

126. /c/. at 2466-67.

127. U.S. Const, art. IV, § 2.



320 INDIANA LAW REVIEW [Vol. 37:303

interests.'"^^ If a state grants rights to its domiciliaries, it must grant them to
nondomiciliaries in the same cases. "The Privileges and Immunities Clause thus
prevents the crudely selective exercise of legislative jurisdiction to favor

domiciliaries.'"^^ This constitutional approach would eliminate the need for
depecage in its current form.

Included in the push to alter the concept of depecage is an acknowledgment

of the danger of distorting legislative intent by choosing certain portions of a

state's laws to applyto a particular issue. '^° "[Ljegislators may enact a given law
only because of its expected interaction with a complementary law. [It would be]
inappropriate to apply a state's wrongful death rule without its damage cap,
which may have been an important condition on the adoption of the wrongful
death statute.'"^' For example, state A might provide broad recovery for injuries
but adopt defenses or immunities to prevent fraudulent claims, which prevents

too broad a recovery. In contrast, state B might permit all injured plaintiffs to
sue for compensation, but prohibit direct actions, cap damages, limit negligence

per se, and apply a narrow res ipsa loquitur doctrine.
'^^

These bundles of law reflect different legislative decisions providing the

optimal combination of legal standards deemed appropriate for that state.
Plaintiffs should not be allowed to put "together half a donkey and half a camel,

and then ride to victory on the synthetic hybrid."
'^^ How can, on the one hand,

depecage emphasize governmental interests and, on the other, accept an outcome

that none of the supposedly interested states would condone.'^"* Additionally,

when laws remain bundled together, any party need only make a single prediction
as to what law may apply rather than making the separate, multiple predictions
that depecage requires.

'^^
In order for people to abide by the law, they have to

know which law applies. Separation of issues under depecage makes it much
more difficult to predict which law a court will apply to each issue for any

alleged misconduct.

In some ways depecage is no better than lex loci delicti. Like the lex loci
delicti vested rights theory, depecage interest analysis avoids the difficult task of

resolving conflicts between laws, though in a somewhat different way. Lex loci

delicti denies the possibility of conflict, allowing only one law to govern the

transaction. Depecage admits the conflict. Indeed, depecage recognizes the

128. Roosevelt, 5M/7m note 125, at 2534.

129. Id.

1 30. See William H. Allen & Erin A. O'Hara, Generation Law and Economic ofConflicts of
Laws: Baxter's Comparative Impairment and Beyond, 51 STAN. L. REV. 101 1, 1034-36 (1999);

Erin A. O'Hara & Larry E. Ribstein, From Politics to Efficiency in Choice ofLaw, 67 U. Chi. L.
Rev. 1151, 1192-93(2000).

131. O'Hara & Ribstein, supra note 130, at 1 193.
132. /«^.;Allen&0'Hara,^MpA"« note 130, at 1034-36.

133. Frederick K. Juenger, How Do You Rate a Century?, 37 WiLLlAMETTE L. Rev. 89, 1 06

(2001) (quoting Brainerd Currie).

134. Id

135. O'Hara & Ribstein, supra note 130, at 1 193-94.



2003] DEPECAGE 321

distinction between true conflict and false conflict. However, even depecage

reverts to an arbitrary analysis for true conflicts where multiple states have equal

interests in the application of their law. It is here where interest analysis under

depecage fails by employing a technique that suggests that these true conflicts do

not need to be resolved.
'^^

Reverting to an altered form of lex loci delicti

analysis may eliminate the need for depecage. For example, lex loci delicti
"could be modified to include a common domicile rule for Moss distribution'
rules while retaining a 'place of injury' rule for those laws directed toward

conduct.'"''

Depecage has been labeled as an escape device to often harsh choice-of-law
determinations.

'^^
"Because formal rules can never capture the complexities or

depth of [every] situation they are meant to govern, they have a tendency to

multiply exponentially," thus producing escape devices.''^ Escape devices, such

as depecage, while producing just results, are intellectually dishonest. "They .
. . tend to produce narrow rules that are not helpful in other cases with different

facts.
"''*^ Thus, depecage as it coexists with interest analysis, may give courts too

much discretion. This is especially true in single-accident mass-tort cases, where
the interests of multiple states are at issue. Depecage only compounds the wide
discretion courts have under a state interest analysis, and thereby allows courts

more discretion over their resolution of choice-of-law questions.''*'

Depecage also threatens neutrality and equality. Neutrality could be

threatened through a court's abuse ofdepecage combining states' laws on various

issues to create a set of rules that is more favorable to one party than the law of

any single state. '"^^ Equality among parties is also in danger.

[D]epecage favors the party with access to greater legal resources

(usually defendants) because it requires a separate state-interest analysis

as to each legal issue in the case, which must be multiplied by the

number of interested states. It is thus much simpler, yet no less fair in
single-accident mass-tort cases, to select one state's law to govern all

issues in the entire controversy."*'

One court has even compared the use of depecage to a type of lottery
system.''*'' The "winners" of the lottery would be those injured by tortfeasors

136. Roosevelt, jwpra note 125, at 2463.

137. Allen & O'Hara, supra note 1 30, at 1 044.
138. Erich H. Gaston, Reassessing Connecticut 's Eclectic Choice ofLaw Methodology: Time

for (Another) New Direction, 73 CONN. B.J. 462, 465-66 (1999).

139. Id. dit 466.

140. Id.

141

.

Thomas M. Reavley & Jerome W. Wesevich, An Old Rule for New Reasons: Place of
Injury as a Federal Solution to Choice ofLaw in Single-Accident Mass-Tort Cases, 1 1 Tex. L. Rev.

I,38n.l84(1992).

142. Id.

143. Id.

144. See Boomsma v. Star Transport, Inc., 202 F. Supp. 2d 869, 879 (E.D. Wis. 2002).



322 INDIANA LAW REVIEW [Vol. 37:303

from a foreign state that has liberal liability and damage rules, such as no cap on
wrongful death damages. The "losers" would be those injured by fellow citizens
of their own conservative state where recovery is limited. Such a system would
undermine certainty, predictability, and uniformity of result.'"*^

IV. Lack of Direction for the Doctrine of Depecage

Despite the recent scholarly push to eliminate the use of depecage, courts

have not followed suit. However, while courts have not affirmed the elimination

of depecage, neither have they provided any direction for the doctrine. With the
exception of air crash disaster litigation, very few courts have provided access
for application of the doctrine. Thus, one reason for the courts' failure to
embrace the use of depecage in choice-of-law analyses is the lack of precedent
available from higher authority.

There are few written legal opinions from appellate and supreme courts
which concern the doctrine of depecage. In fact, the U.S. Supreme Court has
never used the term depecage in a written opinion.''*^ Conflicts as a whole has

been abandoned by the Supreme Court flowing from the recognition of the
difficult and complex nature of conflict of law issues, and from the Court's
current views to err on the side of federalism rather than nationalism."*^ Almost
as lacking are written opinions from the circuit court of appeals. Only twenty-

three circuit court of appeals written opinions exist which have used the term

depecage, while there are literally hundreds of opinions written by the court of

appeals which discuss choice of law.^"*^ State supreme courts have not fared

much better in explaining the doctrine of depecage.'"*^
Unfortunately, some courts have used a form ofdepecage without expressly

stating so, or explaining the reasoning and source behind their analysis. In Allen

V. Great American Reserve Insurance Co., the Indiana Supreme Court applied a
form of depecage without expressly stating so.^^** Thus, when courts look to
Indiana's choice-of-law rule, they are left in a state ofuncertainty. Choice-of-law

analysis is difficult enough without courts implementing legal rules which lead

to a lack of clarity and continuity. In Allen, North and South Carolina insurance

agents brought an action against the life insurer. Great American Reserve

Insurance Co. ("GARCO") and the general agent, Glen Guffey, for

145. See id.

146. Search performed on February 25, 2003 ofWestLaw databases "SCT" and "SCT-OLD"

using search term "depecage."

1 47. Roosevelt, supra note 1 25, at 2503-04.

1 48. Search performed on February 25, 2003 of Westlaw database "CTA" and "CTA-OLD"

using search term "depecage."

149. See Allen v. Great American Reserve Ins. Co., 766 N.E.2d 1 157 (Ind. 2002); see also

Brown v. Kleen Kut Mfg. Co., 714 P.2d 942, 943-46 (Kan. 1986) (claiming to adhere to lex loci

delicti while separating out issues of successor corporation liability and tort law).

150. Allen, lee^.E.ld at 1157.



2003] DEPECAGE 323

misrepresentations about front-end load annuities.'^' Twelve counts were

asserted against the two defendants alleging claims for breach ofcontract, fraud,

Indiana Crime Victims Relief Act, Indiana statutory fraud, Indiana statutory

deception, Indiana criminal mischief, North Carolina unfairtrade practices. South

Carolina unfair trade practices, civil conspiracy, tortious interference with a

business relationship, negligence, indemnification, and accounting. '^^ The
Indiana Supreme Court reversed the trial court's application of South Carolina

law to all of the claims/" In so ruling, the Allen court held that

because the parties hail from different states, and because many of the
activities in question occurred in different states, this case raises

significant choice of law issues. In analyzing each of the counts of the

plaintiffs' complaint, it is first necessary to determine which state's law

applies to that count. The answer may differ for different counts and
may differ between defendants as to a single count.

'^"^

In applying this rule, the court used various state's laws to different counts, and

used the Restatement factors to analyze the contacts ofthe various states. '^^ For

example, plaintiffs' count I claim against GARCO for breach of a covenant of
good faith implied in their contracts with GARCO was controlled by Indiana
law.'^^ Conversely, plaintiffs' count I claim against Guffey for a breach of the

duty of good faith and fair dealing arising from the agency relationship itself,

apart from any claims of breach of contract, was governed by South Carolina

law.'"

At first glance, it appears clear that Allen embraces the principles of

depecage. However, Allen never uses the term "depecage," nor does it state that

it is applying different state's law to different issues. Allen only purported to

apply different state's law to different counts and different parties, and did not

go so far as to separate out issues of damages and liability.'^^ What then is

151. Mat 1160-61.
152. Mat 1162-70.
153. Mat 1161-62, 1170.
154. M. at 1162.

155. Restatement (Second) OF Conflicts § 145(1971).

156. /i//e/2, 766N.E.2datll62.

157. Id. at 1163.

158. Simon v. United States, 341 F.3d 193, 201 (3d Cir. 2003) CAllen was a routine

application of different choice-of-law analyses to different counts, as opposed to different issues

within a single count."). Indiana may be forced to clarify its choice-of-law rule as Simon has

certified two questions, which have arisen out of Schalliol, to the Indiana Supreme Court. First,

the Indiana Supreme Court is to determine ifa true conflict exists between Indiana's and the District

of Columbia's choice-of-law rules. Id. at 205. In other words, the court must decide if Indiana

recognizes depecage. Id. at 195-96. Secondly, the court must decide "how to resolve a split among

the Hubbard fdiCtors in choosing a jurisdiction's substantive law when one factor points toward

Indiana, another toward Pennsylvania, and the third is indeterminate " Id. at 205. The Indiana

Supreme Court's rulings on these certified questions could significantly reshape Indiana's choice-



324 INDIANA LAW REVIEW [Vol. 37:303

Indiana's stance on depecage? Part of the problem lies with Indiana's partial

adoption ofthe Restatement (Second) of Conflicts. Indiana has never expressly

adopted the Restatement as a whole but has established a modified lex loci delicti
standard that looks first to the place of the tort to determine if there is any

significant connection to the legal action. '^^ However, in Indiana's defining
choice-of-law case, HubbardManufacturing Co. v. Greeson, the court did adopt
the Restatement section 145, which specifically states that "[t]he rights and
liabilities ofthe parties with respect to an issue in tort are determined by the local
law of the state . . . with respect to that issue . . . .'"^^ Indiana is left in a state of
uncertainty as to what its choice-of-law rule really is.

Indiana is not alone in failing to clearly set forth a framework for the use of
depecage. Nevada, which is also a "twilight zone" state somewhere between lex
loci delicti and the Restatement (Second) ofConflicts analysis, has also failed to

grasp an opportunity to give guidance to lower courts concerning the doctrine of

depecage. In Northwest Pipe Co. v. Eighth Judicial District Court, the court

failed to embrace the concept of depecage.'^' The underlying actions in
Northwest Pipe arose from an accident that occurred on a highway in San
Bernardino County, California, when three concrete pipes weighing several tons
fell off a Northwest Pipe Company truck and struck several vehicles. Six
individuals were killed: two Nevada residents, and four California residents.'"
Northwest Pipe Company was an Oregon corporation doing business throughout
the United States.'" Suit was brought in Nevada, and Nevada's choice-of-law
rule found in Motenko v. MGMDistributor Inc. was used.'^"^ Motenko held that
the law of the forum should apply unless two or more of the four factors

enumerated in the Restatement section 145 show that another state has an
overwhelming interest in the litigation. '^^ The court in Northwest Pipe was
deeply divided, with two justices concurring in part and dissenting in part, and

two justices dissenting. '^^ The majority opinion held that Nevada law should be
applied to all plaintiffs; however, the dissenters comprised a majority as to the

California plaintiffs and held that California law should be applied to those

cases. '^^ Surprisingly, none ofthejustices in A^or//zw^5/P//?^ even mentioned the

possibility of applying depecage; yet in a sense this is what the court did in

applying the law of California to the California plaintiffs. True depecage in this

case would have looked something like this: 1 ) as to issues of liability, California

of-law rule.

1 59. Hubbard Mfg. Co. v. Greeson, 5 1 5 N.E.2d 1 07 1 , 1 074 (Ind. 1 987).

160. Id.\ Restatement (Second) of Conflict of Laws: The General Principle § 145

(1971).

161. See Northwest Pipe Co. v. Eighth Judicial Dist. Court, 42 P.3d 244, 245-46 (Nev. 2002).

. 162. Id.dXlAS.

163. Id.

164. ld.\ Motenko v. MGM Distrib. Inc., 921 P.2d 933 (Nev. 1996).
165. Motenko, 92\?.Id diX 91,5.

166. yVor^/zw5//'/peCo.,42P.3dat246, 249.

167. /^. at 246, 248.



2003] DEPECAGE 325

or Oregon law would apply; 2) as to issues of compensatory damages for the
Nevada residents, Nevada law would apply; 3) as to issues of compensatory
damages for the California residents, California law would apply. Although
Northwest Pipe does not go into details about the possible conflicts existing

between California and Nevada law, simply from a state interest stand point,
depecage is a logical solution to the court's divided dilemma.

The Seventh Circuit recently ignored an opportunity to apply the doctrine of
depecage \nlnre Bridgestone/Firestone, Inc}^^ In In re Bridgestone/Firestone,

the court was concerned with the issue of whether a class action certified by the
District Court for the Southern District of Indiana met the commonality and

superiority requirements ofFederal Rules ofCivil Procedure 23(a), (b)(3). '^^ As
a part of its analysis, the court had to struggle with the choice-of-law issue

because no class action is proper unless all litigants are governed by the same
legal rules. '^° Using Indiana's choice-of-law rule, the district court held that

Indiana would look to the headquarters of the defendants, because that is where
the products were designed and where the important decisions about disclosures

and sales were made.'^' This ruling meant that all claims by the Ford Explorer

class would be resolved under Michigan law (Ford Headquarters) and all claims

by the tire class would be resolved under Tennessee law (Firestone

Headquarters).'^^ Thus, appropriate uniform law would serve to satisfy the

commonality requirement.

Nevertheless, the Seventh Circuit reversed the district court's ruling and held

that a certifiable class did not exist because the proper choice-of-law analysis

would require the court to apply fifty different state laws to the issues
presented.

'^^
Thus, no commonality existed.'^"* In so holding, the court stated

that "[i]t follows that Indiana's choice-of-law rule selects the [fifty] states and

multiple territories where the buyers live, and not the place of the sellers'

headquarters, for these suits."
'^^

The court hinted that there may be a better way
to approach the problem presented in In re Bridgestone/Firestone but failed to

elaborate upon their thinking. '^^ The court concluded that they were bound by
what they interpreted as Indiana's lex loci delicti rule.'^^ Put in simple terms, the
Seventh Circuit failed to recognize that Indiana's choice-of-law rule, specifically

Allen V. Great American Reserve Insurance, Co., may well call for the use of
depecage.

168. In re Bridgestone/Firestone, Inc., 288 F.3d 1012 (7th Cir. 2002), cert, denied, 123 S. Ct.

870 (2003).

169. /c/. at 1015.

170. Id.

171. Id.

172. Id.

173. /^. at 1016, 1018.

174. Id

175. Mat 1018.
176. Id at 1019-20.

177. /^. at 1016.



326 INDIANA LAW REVIEW [Vol. 37:303

In so doing, the Seventh Circuit missed a perfect opportunity to promote
efficient litigation, while still respecting state sovereignty. If the In re

Bridgestone/Firestone court was truly interested in fairly compensating the
injured plaintiffs, then a proper result could have been reached by applying the
law of Tennessee to issues of liability against Firestone, the law of Michigan to
issues of liability against Ford, and the law of each injured parties' domicile for
determining the measure of damages.

This is precisely the approach the district court took in Simon v. Philip
Morris Inc}^^ In Simon, the plaintiffs' core theory sounded in fraudulent

concealment by the tobacco industry, and consisted of a nationwide class
implicating the interests of all fifty states' laws. Some of those laws conflicted
with New York's laws (Philip Morris Headquarters).'^^ However, rather than
applying the law of the state where the plaintiff resided or had purchased the
majority of his or her cigarettes, the court applied the law ofNew York to issues
of liability and punitive damages. '^^ The court reasoned that a number of critical
meetings oftobacco representatives necessary to orchestrate the scheme allegedly

occurred in New York, and at least two of the companies, Lorillard and Philip
Morris, Inc., had their principle places ofbusiness in New York. '^' However, the
court did not end its analysis there; it applied depecage to separate issues of

liability and damages. In so deciding the court stated that:

In this action, state interests of states other than New York will be less
implicated in any conflict since the court envisions transferring

individual compensatory questions to each plaintiffs home district.
Through the use of depecage, each claimant will rely upon his or her
own state law with regard to critical individual recovery issues.'^^

The court went on to add that "[w]hile New York has a paramount interest in
punishing and deterring misconduct in New York, other states have a concurrent
interest in ensuring that their own citizens receive individual relief in line with
their own compensatory schemes.'"^^

In re Bridgestone/Firestone is analogous to Simon in many respects. Both
cases proposed theories of fraud, both involved a single principal place of

business where most of the fraudulent conduct occurred, and both involved the

purchase ofa nationwide product. In Simon, as the place where a plaintiffbought

his or her cigarettes bore little significance to the litigation, so too does the place

where a plaintiff bought his or her tire or vehicle control all issues in

178. Simon v. Philip Morris, Inc., 124 F. Supp. 2d 46, 71-77 (E.D.N.Y. 2000); Elizabeth J.

Cabraser, UnfinishedBusiness: Reaching the Due Process Limits ofPunitive Damages in Tobacco

Litigation Through Unitary Classwide Adjudication, 36 WAKE FOREST L. Rev. 979, 1012-13

(2001).

179. ^/wow, 124 F. Supp. 2d at 71.

180. Id. a.i 72.

181. Id.

182. /^. at74.

183. Id. ax 76.



2003] DEPECAGE 327

Bridgestone/Firestone. The only possible difference between these two
situations which may prevent a court from applying depecage is that in In re
Bridgestone/Firestone, the plaintiffs were trying to avoid the return of their

individual cases to the originating court.'*"* If, after a determination on liability

or punitive damages is reached as a certified class, the individual cases are not

returned for the calculation of damages under the law of each plaintiffs'

domicile, then splitting issues of liability and compensatory damages would be

pointless.

With these examples of courts fumbling with the doctrine of depecage, a

clear analysis of the rationale supporting depecage is needed. Those courts that

are teetering on the edge of modern conflicts thinking should openly embrace
depecage for the following reasons.

V. Depecage: A Needed Tool for Effective Choice-of-Law Analysis

The rationale for the "center of gravity" or "grouping of contacts" doctrine
adopted by the Bahcock court, accommodating competing state interests in tort
cases with multi-state contacts, centers onjustice, fairness, and achieving the best

practical result. The best practical result is reached "by giving controlling effect
to the law ofthejurisdiction which, because of its relationship or contact with the

occurrence or the parties, has the greatest concern with the specific issue raised

in the litigation."'*^

A. A Logical Basisfor Depecage

The merit behind the separation of issues is that it gives to the place having
the most interest in the problem paramount control over the legal issues arising

out of a particular factual context, and thereby allows the forum to apply the

policy of the jurisdiction most intimately concerned with the outcome of the

litigation.'*^

State rules of law are promulgated for a reason. They embody social,
economic, or administrative policies which can be discovered through the

ordinary way courts interpret and construct laws.'*^ The rule ofvested rights and
lex loci delicti are void of this process for which courts were designed. Under
the archaic vested rights doctrine, courts apply a law whose underlying policy
would not be furthered by its application. In truly perverse fashion, this doctrine
could even operate to suppress the interest of one state without advancing the

interests of the other.'** The doctrine of depecage, on the other hand, purports
that because every rule of law may have a different purpose they must be
construed separately. Depecage breaks down choice-of-law problems into

184. See In re Bridgestone/Firestone, Inc., 288 F.3d 1012, 1015 (7th Cir. 2002).

185. Simon, 124 F. Supp. 2dat55;Babcockv. Jackson, 191 N.E.2d 279, 281-82 (N.Y. 1963).

186. Babcock, 191 N.E.2d at 283.

187. Southerland, ^M^ra note 23, at 479.

188. Id.



328 INDIANA LAW REVIEW [Vol. 37:303

smaller groups to facilitate more adequate analysis of underlying policies. '^^

Depecage provides the means to solve complex choice-of-law problems
which may be impossible or at least extremely difficult to solve under a
traditional choice-of-law framework. Splitting the choice-of-law process into as

many choices of law as there are conflicting rules has the advantage of reducing
the number ofseemingly unsolvable conflicts which exist between two bodies of
state law taken as a whole. '^° Depecage seeks to apply to each issue the rule of
the state with the greatest concern in the determination of that issue. Depecage
also serves to effectuate the purpose of each of the rules applied without

disappointing party expectations.'^'

B. Flaws in the Counter Movement 5 Approach to
Choice-of-law and Depecage

The counterrevolution to modem choice of law, which seeks to return to a
form of vested rights analysis, has failed to see the importance of differing state
laws and how depecage minimizes true conflicts. '^^ Those who still believe in
vested rights and lex loci have stated that the Supreme Court should intervene,

and still others have gone a step farther stating that Congress should enact

arbitrary rules on how to decide state conflicts of law issues. '^^

The first flaw in this reasoning is that it seeks uniformity and predictability
in choice-of-law analysis at any cost; the cost of which is too high.'^"*

Unpredictability leads to real benefits from diversity and innovation among state
law.'^^ "[Sjtate innovation is no judicial myth. When Wyoming became a State
in 1 890, it was the only State permitting women to vote. That novel idea did not
bear national fruit for another thirty years. Wisconsin pioneered unemployment

insurance, while Massachusetts initiated minimum wage laws for women and
minors." '^^ Americans and our legal system have learned to live with a certain

amount of unpredictability in the application of law. Uniformity through federal
legislation, pertaining to choice of law, would cost citizens the ability to govern,

allowing them only to administer their local problems.
'^^

189. Wilde, 5M/7ra note 120, at 345.

190. /^. at 346.

191 . Willis L. M. Reese, Depecage: A Common Phenomenon in Choice ofLaw, 73 COLUM.

L.Rev. 58, 60(1973).

1 92. Symposium, Choice ofLaw: How It Ought to Be, A Roundtable Discussion, 48 MERCER

L. Rev. 639, 705 (Winter 1996) (speaking against congress becoming involved in state choice-of-

law analysis).

193. /(i. at 703-04.

1 94. Id. at 705; see Roosevelt, supra note 1 25; see also Reavley & Wesevich, supra note 141,
at 2-8.

195. Symposium, ^Mpro note 192, at 705.

196. Fed. Energy Regulatory Comm'n v. Mississippi, 456 U.S. 742, 788-89 (1982)

(O'Connor, J., concurring in part and dissenting in part) (footnotes omitted).

197. /c^. at 789.



2003] DEPECAGE 329

Secondly, even those who want federal control over state choice-of-law
analysis admit that such control should only be exerted where a true conflict

existsJ ^* Professor David Currie stated that he "would like to see Congress enact

some rules, and . . . would be happy to have them be perfectly arbitrary—place
of the wrong, if you will—but only once you conclude that there is a true
conflict.'"^^ Some type of choice-of-law analysis must still be in place to
determine what is a true conflict. Thus, the ability of depecage to isolate true

conflicts between differing state's laws is still useful.

The reasoning that depecage distorts state legislative intent by picking and
choosing only certain laws out of a broader area of law also contains certain

flaws.^^^ In Detroit Metro, defendant, McDonnell Douglas, argued that the
alleged misconduct did not occur in California where the aircraft was partially
manufactured and designed, because the three allegedly defective component
parts at issue were respectively and individually designed and manufactured in

Massachusetts, Missouri, and Arizona.^^' Thus, McDonnell Douglas urged the

court to use three different state laws as to plaintiffs' design defect claims. The
Detroit Metro court, however, stated that

to pare the Plaintiffs' design defect claims into subcategories and

thereby conduct a separate choice of law analysis for each component,

which has been alleged to be defective, would complicate and obfuscate

the complex choice of law issues in this case and would require the jury

to apply various and, possibly different, product liability standards in the

same case dependent upon the particular component at issue.^°^

Detroit Metro is an example ofa court's recognition ofwhere to draw the line on
issue splitting. Inherent in the Detroit Metro court's self restraint is the notion

that issue splitting can only go so far before the true meaning of a body of law is

lost. As such, the court in Detroit Metro realized that applying three different
product liability standards to the same case would have the potential to distort
state interests.^^^ Therefore, although there is a valid concern regarding

depecage' s ability to distort legislative intent, courts are able to draw the line in
the sand when it comes to issue splitting, and thereby thwart any danger of
contorting state interests.

Even if critics of depecage lack confidence in a court's ability to exercise
self-restraint and to avoid distorting legislative intent, the use of depecage may
be justified by choice-of-law rules that mandate such distortion.^^'^ "When a
choice-of-law rule calls for application of a given rule [depecage], that rule

198. Symposium, supra note 192, at 704.

199. Id. Professor David Currie is the son of famed choice-of-law scholar Brainerd Currie.

See id. at 639-40.

200. See Allen & O'Hara, supra note 130; O'Hara & Ribstein, supra note 130.
20 1 . Detroit Metro, 750 F. Supp. 793, 799 n. 1 2 (E.D. Mich. 1 989).

202. Id.

203. Id.

204. Reese, 5MpA-a note 191, at 74.



330 INDIANA LAW REVIEW [Vol. 37:303

should usually be applied even at the risk of distortion. To do otherwise would
deprive the rule of certainty of application, which is a vital attribute of a rule of

law."2«'

Claims that depecage is merely an escape device that courts can use to favor

one party over another also fall short.'^°^ When the Supreme Court has spoken on
choice of law, it has clearly stated that there are certain restrictions prohibiting

arbitrary and unfair decisions on applicable law.^°^ Looking to the Constitution,

the Court stated that "for a State's substantive law to be selected in a

constitutionally permissible manner, that State must have a significant contact or

significant aggregation ofcontacts, creating state interests, such that choice of its

law is neither arbitrary nor fundamentally unfair."^^^ Courts are not free to pick

and choose state law for the benefit ofone party over another without justifying

such a result within the bounds of state contacts and interests. Thus, the danger

of depecage being used as an arbitrary and inequitable tool by courts is no more

likely to occur than any other constitutionally prohibited legal doctrine.^^^

Finally, depecage has been criticized for its inability to resolve true conflicts

(where more than one state has an interest in seeing its law applied).^'^ However,

depecage does not purport to be a uniform solution to true conflicts of law. The
value of depecage is its ability to enable courts to target their consideration of

interests and policies more precisely.^''

C Depecage: A Solutionfor a Legal Impossibility
Depecage is essential for several reasons, but most importantly, there may be

some unique situations where its use is imperative. Schalliolv. Fare provides the
perfect example ofthe necessity ofdepecage by demonstrating a situation where

failing to apply depecage leaves a court with a legal impossibility.^'^ Further

analysis of Schalliol may allow courts to rethink the importance of depecage in
our legal system.

Schalliol involves a plane crash and the subsequent deaths ofthe pilot, John

Fare, Sr., and three passengers. Dennis Schalliol and B. Kenin Hart were

passengers on the plane, whose personal representatives oftheir estates brought

205. Id.

206. See Gaston, supra noie \3S.

207. PhillipsPetroleumCo.v.Shutts, 472 U.S. 797, 818-19(1985).

208. Id. at 818 (quoting Allstate Ins. Co. v. Hague, 449 U.S. 302, 312-13 (1981)).

209. The real threat ofarbitrary and unfair application ofstate law exists in a single designated

jurisdiction rule whereby state interests are disregarded and parties either are overcompensated or

under compensated. See Robert A. Sedler & Aaron D. Twerski, The Case Against All
EncompassingFederal Moss Tort Litigation: Sacrifice Without Gain, 73 Marq. L. Rev. 76, 87-90

(1989).

210. 5ee Roosevelt 125, at 2463. ' ^ ^

211. Peterson, i-Mpra note 7.

212. See Schalliol v. Fare, 206 F. Supp. 2d 689 (E.D. Pa. 2002); see also Simon v. United

States, 341 F.3d 193 (3d Cir. 2003).



2003] DEPECAGE 331

legal actions. The estates claimed negligence on the part ofFAA(United States)
air traffic controllers in Indianapolis, and FAA(United States) offices in
Washington, D.C. Mary Schalliol, widow ofDennis and personal representative
of his estate also brought negligence claims against the pilot John Fare, Sr., and

the owner and operator ofthe aircraft, Hart Delaware Corporation.^'^ As to those
claims against the United States, the United States filed a motion for

determination ofchoice of law claiming that under the Federal Tort Claims Act,

28 U.S.C. §§ 1346(b), 2671, the law of Indiana applied to all aspects of those

actions brought by plaintiffs against the United States.^ '"* The Eastern District
Court of Pennsylvania ruled in favor of the United States' motion stating "that

Indiana substantive law applies to all claims pled against the United States under

the FTCA."^'^ However, the court certified its ruling for immediate appeal to the

Third Circuit Court of Appeals pursuant to 28 U.S.C. § 1292(b).2'^

Schalliol presents numerous contacts with multiple states. While in flight,

Pilot Fare contacted an air traffic controller at the Indianapolis Air Route Traffic

Control Center, who cleared him for landing via the Simplified Directional
Facility approach at Runway 4 (SDF 4) at the Somerset, Kentucky airport. Pilot
Fare also possessed an Instrument Approach Procedure (lAP) for the SDF 4,
which was published by the United States, in Washington, D.C, and contained
information stating that the approach was in service. However, the navigational
facility supporting the SDF approach was out of service indefinitely.^'^ Due to
a combination of these factors the pilot flew into a radio tower striking the

aircraft's right wing and hitting the ground several hundred feet beyond the
tower.^'^ At the time of the accident, the domiciles of the majority of the

Schalliol plaintiffs were Pennsylvania. Mary and Dennis Schalliol, and Ken
Hart, were residents ofPennsylvania, while John Fare, Sr., whose son John Fare,
Jr. filed a cross-claim against the United States, resided in New Jersey.^ '^

In their various claims against the United States, plaintiffs contended that the

publication ofthe lAP was negligent. All parties agreed that any such negligence
occurred in Washington, D.C. Plaintiffs also alleged that the air traffic

controllers were negligent, and all parties agreed that any such negligence ofthe

controllers, including any failure to monitorthe aircraft or to supervise personnel,

occurred in Indiana.^^^ Finally, all parties agreed that any negligence of Pilot

Fare occurred in Ohio and Kentucky.
^^'

One ofthe reasons Schalliol presents such a complex choice-of-law problem
is because all parties agreed that, as to claims against Fare and Hart Delaware,

213. /^. at 691-93.

214. Id.

215. Mat 691.
216. Id.

217. Id at 691-92.

218. Id.

219. /^. at 700.

220. Id. ax 692.

221. Id.



332 INDIANA LAW REVIEW [Vol. 37:303

Pennsylvania law applies.^^^ The reason being that Hart Delaware, the owner and
operator of the plane, along with its sole employee, pilot Fare, have their

principal place of business in Philadelphia, Pennsylvania/^^ This problem is

further complicated by the fact that in claims against Hart Delaware and John

Fare, Sr., a jury is the trier of fact, where as to claims against the United States,
the judge is the trier of fact.^^"*

With all ofthese multiple parties, contacts and interests, Schalliol appears to
be a perfect candidate for applying depecage. Why then did the district court
decline to apply the principles of depecage to Schallioll The court, using
Indiana's choice-of-law rule, agreed with the United States that Indiana courts,

having never before explicitly applied depecage, would not apply depecage in the

case at bar, and declined to infer a significant choice-of-law principle into

Indiana law.^^^

Indiana evaluated the Restatement (Second) of Conflicts section 145 under

Hubbard Manufacturing Co. v. Greeson}^^ Hubbard is the seminal choice-of-
law case in Indiana. In Hubbard, Indiana adopted the factors enumerated in

section 145, but arguably never specifically endorsed or applied the concept of

depecage.^^^ Nowhere in Hubbard dots the court use the term depecage, nor did
the court expressly separate out legal issues such as liability and damages.

^^^

Hubbard \n\o\\Qd thejob-related death ofan employee in Illinois who was using
a lift manufactured in Indiana.^^^ Despite the fact that injury took place in

Illinois, the court applied Indiana law. However, in so doing, the court applied

Indiana law to damages as well as liability, even though Illinois was the site of
the job-related death and of the job itself, as well as the provider of workmen's

compensation to the survivors.
^^*^

The HubbardtQSt begins with the presumption that the substantive law ofthe
place where the tort or place of injury occurred governs the case.^^' However,

if the place ofthe tort bears little connection to the legal action, Indiana follows

the most significant relationship test based on the Restatement section 145.^^^

The factors for this significant relationship test include: 1) the place where the

conduct causing the injury occurred; 2) the residence and place of incorporation

222. Appellant's Briefat 3, ^c/za/Z/o/ (No. 02-3996).

223. ^cW/Zo/, 206 F.Supp. 2d at 701 n.34.

224. 28 U.S.C. § 2402 (2002) ("[A]ny action against the United States under section 1346

shall be tried by the court without a jury . . . .").

225. Schalliol, 206 F. Supp. 2d at 700. See also Simon v. United States, 341 F.3d 193, 205

(3d Cir. 2003) (certifying questions for the Indiana Supreme Court to answer concerning the

clarification of Indiana's choice-of-law rule).

226. Hubbard Mfg. Co., Inc. v. Greeson, 515 N.E.2d 1071, 1073-74 (Ind. 1987).

227. See generally id. (failing to mention the possibilities for issue splitting).

228. Id.

229. Id.

230. Id.

231. Mat 1073.
232. Id. at 1074.



2003] DEPECAGE 333

and place of business of the parties; and 3) the place where the relationship

between the parties is centered.
^^^

In applying Hubbard to Schalliol, the court decided that Indiana law must
apply to all aspects of plaintiffs' claims against the United States for the

negligent actions of their air traffic controllers sitting in Indianapolis.^^"* The
court reasoned that the place ofthe accident, Kentucky, bore little connection to

the legal action concerning plaintiffs' claims against the United States' air traffic

controllers.^^^ Turning to the "place where the conduct causing the injury

occurred," the court decided that the negligent actions of the air traffic

controllers in Indiana most directly affected the aircraft's approach and

subsequent destruction. ^^^ The court then admitted that the domiciles of the
majority of the decedents were in Pennsylvania, but refused to apply

Pennsylvania law to compensatory damages.
^^^

However, on appeal the Third Circuit found that ''Hubbardgi\Qs no guidance

as to which factor is most important or how to 'break a tie,' so any decision by
this court on which substantive law Indiana would apply would be little more
than a guess."^^^ In applying the Hubbard factors, the appellate court determined
that "the first points to Indiana, the second to Pennsylvania, and the third is

indeterminate."^^^ The appellate court, therefore, certified questions for the
Indiana Supreme Court to answer concerning the clarification of Indiana's
choice-of-law rule.^"*^

Schalliol presents a situation where depecage must be applied to reach a

logical solution. Without its application the result creates a legal impossibility.

Indiana law cannot apply to all aspects ofthe plaintiffs claims against the United

States because to allow it would create an irreconcilable conflict, with the entry

ofa final judgment. All parties, including the United States, agreed that in Mary
Schalliol' s case, on behalf of her deceased husband, the law of Indiana applies,

while against Fare and Hart Delaware, the law of Pennsylvania applies.^"*' As a
result of this agreement, it will be necessary to instruct a jury on the measure of

damages in Pennsylvania, as well as an instruction on who, under Pennsylvania
law, may recover for the wrongful death ofDennis Schalliol. Similarly, the jury
will need to know how to apportion those damages to the different parties. In
regards to Fare/Hart, thejury would use Pennsylvania's law ofcomparative fault

coupled with joint and several liability.^"*^

At the same time that the jury is deciding Schalliol's claims against Fare and

233. See RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 145(2) (1971).

234. Schalliol, 206 F. Supp. 2ci at 700.

235. Id.

236. Id.

237. Id.

238. Simon v. United States, 341 F.3d 193, 205 (3d Cir. 2003).

239. Id

240. Id

241. See supra noXt 222.

242. See 42 Pa. CONST. STAT. ANN. §§ 8322, 8324 (2002).



334 INDIANA LAW REVIEW [Vol. 37:303

Hart Delaware, thejudge as the trier offact^'*^ will consider Indiana's laws for the

measure ofdamages, who may recover, and the apportionment ofsuch damages.
The judge will use Indiana's rule of comparative fault (with nojoint and several
liability).^'^'^ Even though the jury is only determining the liability of Fare and
Hart Delaware, their decision under Pennsylvania law as to what percentage Fare

and Hart are at fault will automatically determine the fault of the United States.

For example, if the jury finds Fare/Hart ten percent at fault, the fault of the

United States is then ninety percent. This is due to the fact that there is no

question of contributory negligence on the part of Dennis Schalliol, an innocent

passenger. The total fault between the defendants must equal 100%.
Without the use of depecage, an irreconcilable conflict exists between

Pennsylvania and Indiana law as to whether the adult, independent children of

Dennis Schalliol may recover damages. Under Pennsylvania law, adult
independent children may recover,^"*^ while under Indiana's wrongful death act,
only dependent children may recover.^"*^ Thus, the problem of applying Indiana
law as to all issues surround the United States and Pennsylvania law as to all

issues surrounding Hart Delaware and the Fare Estate is two tiered. First,

Pennsylvania permits joint and several liability while Indiana does not.^"*^

Secondly, Pennsylvania permits different elements of damages and allows

different people to recover than is allowed under Indiana law.^"*^

If the district court's ruling in Schalliol is followed, applying Indiana law to

all issues against the United States, then there is a possibility for plaintiff

Schalliol to either be over or under compensated.^"*^ Assume that under
Pennsylvania law, the jury returns a $5 million verdict broken down as follows:
$4 million to Mary Schalliol; $1 million awarded to decedent Dennis Schalliol's
adult independent children; and fault allocation of ninety percent to the United

States and ten percent to Fare/Hart Delaware.

If the judge adopts the jury's findings concerning damages and fault

apportionment, overcompensation occurs when the award to the adult
independent children of Dennis Schalliol is taken into consideration. In the

hypothetical, Dennis Schalliol's children are entitled to receive $1 million under

243. See 28 U.S.C. § 2402 (2002); Hamm v. Nastka Barriers, Inc., 166 F.R.D. 1, 2 (D.C.
1996).

244. IND. CODE §§ 34-51-2-8, 34-51-2-12 (2002).

245. 42 Pa. Const. Stat. Ann. § 8301 (2002); Burchfield v. M.H.M. P'ship, 43 Pa. D. &
C.4th 533, 542-43 (C.P. 1999).

246. iND. CODE §34-23-1-1 (2002).

247. Compare 42 Pa. CONST. STAT. ANN. §§ 8322, 8324 (2002), with iND. CODE §§ 34-5 1 -2-

8,34-51-2-12(2002).

248. Compare 42 PA. CONST. STAT. ANN. § 8301 (2002); Burchfield, 43 Pa. D. & C.4th at
542-43, with iND. CODE § 34-23-1-1 (2002).

249. Similar problems exist between Pennsylvania's allowance ofan award for conscious pain

and suffering and pre-impact fear, and Indiana's bar ofsuch awards. Compare iND. CODE § 34-9-3-

4 and Estate of Sears v. Griffin, 771 N.E.2d 1136, 1138 (Ind. 2002), with Williams v. S.E. Pa.

Transp. Auth., 741 A.2d 848, 859 (1999).



2003] DEPECAGE 335

Pennsylvania law, but not under Indiana law. Therefore, the children would not

be able to recover any of their award from the United States. Nevertheless,

because Pennsylvania allows joint and several liability,^^^ the Schalliol children

would still be able to collect the full $1 million from Fare/Hart Delaware. Thus,
if under Pennsylvania law, the Schalliol children collect the full $1 million from

Fare/Hart, the total award jumps to $5.5 million ($1 million to Schalliol children
awarded by jury plus $4.5 million to Mary Schalliol awarded by judge), while
both the judge and jury found the total award to be only $5 million.

One possible solution to this conundrum is for the judge to only award
Fare/Hart Delaware's portion ofdamages as determined by thejury. Thus, under

the hypothetical posed above, the most that the Schalliol children could receive

from Fare/Hart Delaware is $500,000 (ten percent of $5 million). This would

solve the problem of the excessive total award as it would equal $5 million

($500,000 plus $4.5 million). However, now there exists a problem of under
compensation. The jury awarded the Schalliol children $1 million, but they are
only able to collect halfofthat amount. The Schalliol children should be able to
recover their award of $1 million from either joint tortfeasor, the United States

or Fare/Hart Delaware. The essence of joint and several liability is that a
plaintiff is allowed to obtain all or part of a judgment from any defendant.

^^'

Therefore, Pennsylvania requires that plaintiffs be allowed to collect any and/or

all damages from anyjoint tortfeasor. Applyingjoint and several liability to less

than all defendants severely undermines Pennsylvania's laws and interests and

significantly burdens either the plaintiffor thosejoint tortfeasors who are subject
to joint and several liability.

What then is the solution to such irreconcilable conflict between two states
laws? Depecage is the answer. Instead of applying Indiana law to all issues

regarding Schalliol' s claims against the United States, the court should have

separated out three issues: 1) negligence; 2) joint and several liability; and 3)
compensatory damages. Under a Restatement section 145 analysis, Indiana's

elements of negligence should apply to the United States since Indiana is where

the most direct cause of the aircraft's fatal crash occurred. As to issues of
compensatory damages, the law ofthe decedent's domicile, Pennsylvania, should

govern. The issue ofjoint and several liability is a bit trickier. Joint and several

liability is a common law negligence principle; however, it has a direct
correlation to the apportionment of damages.

Indiana has an interest in applying its law to protect those doing business

within its borders from the daunting concept ofjoint and several liability, while

Pennsylvania has an interest in seeing its residents fully compensated. The
question is which state's law should yield? Several arguments could be made
about whose law should apply to this issue. Some ofthose arguments include: 1

)

apply Indiana law to the issue ofjoint and several liability because the court is

using Indiana's choice-of-law rule; 2) apply Pennsylvania law because the

250. 42 Pa. Const. Stat. Ann. §§ 8322, 8324 (2002).

251. ^e^L.B.FosterCo. V.Charles Caracciolo Steel & Metal Yard, Inc., 777 A.2d 1090, 1095
(Pa. Super. 2001).



336 INDIANA LAW REVIEW [Vol. 37:303

forum's law should prevail in a true conflict; 3) apply Pennsylvania law because

Indiana's interest in seeing its law apply to a federal entity operating within its

boarders is not as strong as the Pennsylvania's interest in seeing its law applied

to its residents. To argue within the rules, any one of these arguments may be
offered by the parties, but there is an argument to be made which does not fall
within the normal interest analysis framework. For the law to function,

Pennsylvania law must apply to the United States on the issue ofjoint and several

liability. If it does not apply, then the court is faced with the irreconcilable

conflict posed above.

This functional analysis has been used sparsely by other courts^^^ and should

be given consideration in the unique situation presented in SchalUoL Such a test

should consist of factors such as ensuring "certainty, predictability and

uniformity of result" and "ease of application of law to be applied . . . ."^" A
functional analysis ofthe law may in some instances "break the tie" between two
states' equal interests in seeing their own law applied. In Schalliol, for the court
to be able to enter a fmal judgment that fairly compensates parties and respects
state interests, Pennsylvania law must be applied to the issue ofjoint and several

liability.

Regardless ofthe approach used in deciding which state's law to apply when
a true conflict exists, depecage is still an essential element. Depecage serves to

minimize true conflicts by separating out and focusing in on only those issues

where a true conflict exists. In examining Schalliol, it would be easy to say that

a true conflict exists between the law of Indiana and Pennsylvania. However, a

true conflict does not exist between every aspect of Indiana and Pennsylvania

law. Depecage dissects state law to determine exactly where the true conflict

exists.

Depecage may serve its purpose of limiting the number of true conflicts
between state laws in many different settings. Although courts justify their use
of depecage as a means of best respecting the interests of all states in the
resolution of a multi-state controversy, permitting them to give effect to the

interests of more than one state in each case, depecage does not necessarily have
to coincide with interest analysis.^^"* Depecage can be more than just a part of
interest analysis because its true utility lies in its ability to lessen conflicts

through separating out issues. So long as a court has not adopted a uniform rule

that the law of the state where the tort occurred governs or that the law of the

forum must govern, depecage is adaptable to any choice-of-law analysis.

Depecage is most often applied in complex situations, but arguably should

be used in simple cases as well. Whether for ordinary or complex cases, the

choice-of-law rules used to define substantive rights should be the same.^^^ For

example, depecage may be applied in marriage and divorce recognition. It is
realistic to construct a coherent approach to choice of law in the area of validity

252. Clawans v. United States, 75 F. Supp. 2d 368, 375 (D. NJ. 1999).

253. Id.

254. Reavley & Wesevich, 5Mpra note 141, at 50 n.l84.
255. Larry Kramer, Choice ofLaw in Complex Litigation, 71 N.Y.U. L. Rev. 547, 549 (1996).



2003] DEPECAGE 337

ofmarriage through depecage, splitting the traditional category into smaller units,

each restricted to genuinely related issues. "It has been propounded that for each

delineated category there needs to be a separate connecting factor designed to

make a policy-based link between all the related issues in the category and the
abstractly defined state whose law is to apply."^^^

Cases do not have to fall into the typical complex fact pattern for depecage

to be applied. In Ruiz v. Blentech Cor/?., the court applied depecage to a situation

where only two states and two parties were involved.^^^ The plaintiff, a citizen
of Illinois, suffered an injury in his home state from an allegedly defective
product manufactured in California by a California corporation. The
manufacturer had dissolved, but another California corporation followed in its

footsteps by purchasing its principal assets and continuing its business. The
plaintiff sought recovery under a successor corporation theory, with Illinois and

California differing on the rules for determining when one corporation is
responsible, as a successor, for the tort liabilities of its predecessors. The court
used depecage to separate the issues of successor liability and tort liability and

ruled that California law would apply to the issue ofcorporate successor liability

while Illinois law would govern the actual tort.^^^

A broader use of depecage with adequate recognition for the legal analysis
being performed would help to clear up the feared complexity that depecage

brings to the table. As a result, courts might realize the benefits that come from
embracing complexity through the use of depecage.

Conclusion

An incredible shift in choice-of-law analysis has taken place over the past
one-hundred years. Many great legal minds have tried to develop a conflicts of
law theory that avoids the arbitrary nature of lex loci delicti when choosing
whose law to apply. In foregoing lex loci delicti and its process void ofany legal
analysis, courts have opened themselves up to complexity. Counting contacts,

considering governmental interests, and determining reasonable expectations call

for complicated legal analysis by courts. While at first glance, it appears that

depecage adds to the complexity, in reality depecage allows courts to limit the

number of true conflicts among two differing bodies of law. Instead of laying a
blanket over a multi-faceted choice-of-law problem, depecage dissects the

problem eliminating issues presenting false conflicts and leaving only those

issues where true conflicts exist. Thus, justice, fairness, and efficiency in

achieving the best practical result are attained.

Depecage is not only a helpful tool in choice-of-law analysis, it may be an
essential tool to resolving what seems to be a legal impossibility. Although

256. Alan Reed, Essential Validity of Marriage: The Application of Interest Analysis and

Depecage to Anglo-American Choice ofLaw Rules, 20 N.Y.L. SCH. J. Int'l& COMP. L. 387, 423-

24 (2000).

257. Ruiz V. Blentech Corp., 89 F.3d 320, 325-26 (7th Cir. 1996).

258. Id.



338 INDIANA LAW REVIEW [Vol. 37:303

consisting of many different parts, our legal system is designed to function as a
whole. When bodies of law conflict in such a way as to threaten this
functionality, a solution must be found. Through the separation of legal issues,

depecage allows entirely different bodies of law to function while still honoring

the interests of each.



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