Professor Franks
Final Examination, Summer 2001
1. Carefully analyze the facts and grasp the issues in each question before beginning to write. Spend time reading the question slowly and carefully.
2. State the issues and answers to each question concisely. Lengthy answers are not necessary.
3. Do not repeat questions in your answers. Write neatly and legibly on only one side of each page.
4. Number your answers to correspond with the question, e.g., "II-A-2."
5. If you feel it necessary to assume additional facts in any of the questions, give the facts that must be added and state why.
6. Do not write in the margin of the book.
7. All major questions are equally weighted unless otherwise indicated. Subparts are approximately equal but may be weighted slightly differently according to the number of issues involved in that subpart.
8. Write your personal identification number and the name and section number of the course on which you are being examined on the cover of each examination book.
9. If you use more than one book, indicate "Book One," "Book Two" and so forth on the cover of each book and write your PIN and the name and section number of the course on the cover of each examination book.
10. A GOOD ANSWER IS NOT NECESSARILY A LONG ANSWER.
You have graduated from Southern University Law Center and opened a law practice here. One Baton Rouge summer evening you are barbecuing some burgers with your neighbor, Joe Stewart. His 20-foot sailboat is parked in his carport, and you notice some obvious repair work recently done on it. He proceeds to tell you about it:
"A couple years ago, in July 1999, we went to Wisconsin on vacation, just to get away from the heat. I hitched the boat trailer to my Cadillac, and away we went. On our way back home, as we neared the town of Manitowoc, Wisconsin, a car ran a stop sign and slammed into the side of my boat. The accident occurred on July 10, 1999. Fortunately, no one was injured. Unfortunately, I had forgotten to insure the boat trailer, and my marine insurance only covers my boat while in the water. So neither the boat nor the trailer was insured. The damage cost me $6,000.00 to repair."
As you continue talking with your neighbor, you learn that the car that ran the stop sign was being driven by one Philip Smithers, a successful physician in Southaven, Mississippi. He had flown into Wisconsin that day to attend a conference of plastic surgeons, and had rented the car he was driving from Hertz. The Hertz car carried a policy of liability insurance issued by Globe Insurance Company. Dr. Smithers had a valid Mississippi drivers' license, and there was nothing about his demeanor to suggest to the car rental clerk that he would not drive prudently.
Your neighbor Mr. Stewart tells you he was unsuccessful in negotiating any settlement with Hertz or Globe. "They dragged their feet on my claim for over a year, and now they're telling me it's too late to file. They know full well that Dr. Smithers is totally at fault. But they also know it isn't worth my time and trouble to go to Wisconsin to try a case worth only $6,000.00. When I told them I'd sue, they laughed and called my bluff. They said to go ahead and sue."
"Can you help me on this?"
Your legal and factual research reveals the following:
(a) Under the Louisiana cases of Dixie Drive It Yourself System v. American Beverage Co., 242 La. 471, 137 So.2d 298 (1962), and Martin v. Brown, 240 La. 674, 124 So.2d 904 (1960), a bailor is not liable for the torts of his bailee unless negligent entrustment can be shown.
(b) Under the Mississippi case of McConnell v. Eubanks, 193 So.2d 425 (Miss. 1966), a bailor is not liable for the torts of his bailee unless negligent entrustment can be shown.
(c) Under the Wisconsin case of Adams v. Quality Service Laundry, 253 Wis. 334, 34 N.W.2d 148 (1948), a bailor is liable for the torts of his bailee when the bailee uses the vehicle with the bailor's permission.
(d) Wisconsin Statutes Annotated § 893.52 provides that the statute of limitations for negligent torts is six years.
(e) Annotated Code of Mississippi § 15-1-49 provides that the statute of limitations for negligent torts is three years.
(f) Louisiana Revised Statutes 22:655 (B) provides in pertinent part:
The injured person or his or her survivors . . . shall have a right of direct action against the insurer within the terms and limits of the policy; and, such action may be brought against the insurer alone, or against both the insured and insurer jointly and in solido, in the parish in which the accident or injury occurred or in the parish in which an action could be brought against either the insured or the insurer under the general rules of venue prescribed by Code of Civil Procedure Art. 42 only.
This right of direct action shall exist whether or not the policy of insurance sued upon was written or delivered in the state of Louisiana and whether or not such policy contains a provision forbidding such direct action, provided the accident or injury occurred within the state of Louisiana.
(g) Wisconsin Statutes Annotated § 632.24 provides in pertinent part:
Any bond or policy of insurance covering liability to others for negligence makes the insurer liable, up to the amounts stated in the bond or policy, to the persons entitled to recover against the insured for the death of any peson or for injury to persons or property, irrespective of whether the liability is presently established or is contingent and to become fixed or certain by final judgment against the insured.
(h) Hertz Corporation is licensed to do business in Louisiana, Mississippi, Wisconsin, 47 other states, and all U.S. territories.
(i) Globe Insurance is licensed to do business in Louisiana, Mississippi, Wisconsin, 47 other states, and all U.S. territories.
(j) Southaven, Mississippi, in DeSoto County, is 370 miles north of Baton Rouge and only five or six miles south of Memphis, Tennessee. Manitowoc, Wisconsin, in Manitowoc County, is 1,083 miles north of Baton Rouge.
(k) Dr. Smithers is happily back home in Mississippi, performing nose jobs at $6,000.00 a crack.
You are thinking of filing suit in the City Court of the City of Baton Rouge for $6,000.00. Please answer each of the following:
I-A. Does that court have jurisdiction as to defendant Smithers? Why or why not? How would you serve Dr. Smithers?
I-B. Does that court have jurisdiction as to defendant Hertz? Why or why not? How would you serve Hertz?
I-C. Does that court have jurisdiction as to defendant Globe Insurance? Why or why not? How would you serve Globe?
I-D. What substantive law would the court apply to the accident? Would Hertz be liable under that law? Would Globe be liable?
I-E. Does the Louisiana direct action statute have any impact on this case? If so, discuss its impact.
I-F. What is your best recommendation to your client, Mr. Stewart? Why? If he follows your recommendation, over which defendants will he obtain jurisdiction? Against which defendants will he obtain judgment? What will be the result of the case?
I-G. Please address any other glaring issues that you see.
Please answer the following specific questions:
II-A. Please discuss the difference between:
1. jurisdiction in personam,2. jurisdiction in rem, and
3. jurisdiction quasi in rem.
II-B. Please list (without explanation or discussion) the various ways a court may obtain jurisdiction in personam over a party.
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