Download this article as a PDF

Tort reform and a strong business lobby have created laws that put justice out of reach for many plaintiffs in Louisiana. Nonetheless, creative trial lawyers may be able to use Louisiana's conflicts provisions to "import" better law from foreign jurisdictions. This seminar seeks to outline aspects of Louisiana's choice-of-law provisions which might be considered and used by trial lawyers to their clients' advantage.

CLAIMS FOR PUNITIVE DAMAGES

Louisiana Civil Code Articles 3545 and 3546 govern the availability of punitive damages in potential choice-of-law situations.¹ Article 3545 will generally prevail in product liability cases, while 3546 will generally apply to other tort cases.²

The underlying premise of Article 3546 is that punitive damages are not intended for the protection of the plaintiff, (who has been compensated for his or her loss through ordinary damages), but rather, to "punish" the individual tortfeasor, and to deter him and other potential tortfeasors in the future.3 Accordingly, Article 3546 focuses on: (i) the state of tortfeasor's domicile, and (ii) the state of the tortfeasor's conduct, as well as (iii) the state of injury.

The state of the tortfeasor's domicile must have a say in whether the tortfeasor is to be punished or protected (and, if so, to what degree), and also on whether similarly situated potential tortfeasors should be deterred. The state of the tortfeasor's conduct has the equally obvious right and interest in regulating (policing, punishing, deterring, or encouraging) conduct within its borders. Finally, as the state that bears many of the consequences of such conduct, the state where the injury occurred has a legitimate claim to determine the legal consequences of such conduct.⁴

Punitive damages are therefore authorized if punitive damages would be available under the law of at least two out of three states: (a) the state of tortfeasor's domicile; (b) the state of the tortfeasor's conduct; and/or, (c) and the state of injury.

While the first two of these contacts would seem to most frequently satisfied in a product liability case – which is generally governed by a different analysis, discussed infra – there are several instances where conduct occurring in another state by an out-of-state resident might cause harm in Louisiana.

For example: a trucking case against a California trucking company that encourages drivers, from its offices in San Jose, to drive at excessive speeds, during early morning hours, while doctoring log books to mask the fact that the driver is working over hours and not making required stops. Or a chemical company domiciled in Illinois, that supplies under-trained workers at a coowned Louisiana chemical plant, and, from the home office outside of Chicago, wantonly and willfully orders its workers to continue running a failing system above capacity.

The discovery in such a case should likely be focused on corporate, out-of-state conduct, practices, directives, decisions, and/or policies, which have a causal connection to the damages ultimately sustained. Then amend the petition to allege liability for punitive damages under the law of defendant's state. By that time, hopefully, there will be enough evidence to create a genuine issue of material fact for summary judgment purposes.

With respect to the underlying policy considerations, the following excerpt from a brief submitted by LTLA as amicus curiae in the case of Bulot v. Intracoastal Tubular,⁵ involving the application of former Louisiana Civil Code Article 2315.3 where exposure to Technologically Enhanced Radioactive Material ("TERM") occurred prior to the repeal of the statute, might be somewhat instructive:

The Defendants' Domicile and Place of Conduct are Important to Both Choice-of-Law Issues and Due Process Considerations

The purpose of the Ex Post Facto Clause is to ensure that individuals have "fair warning" about the effects of criminal laws and to prevent "vindictive" or other arbitrary legislation. Landgraf v. USI Film Products, 511 U.S. 244, 266-267, 114 S.Ct. 1483, 1498, 128 L.Ed.2d 229 (1994); Weaver v. Graham, 450 U.S. 24, 28-29, 101 S.Ct. 960, 963-964, 67 L.Ed.2d 17 (1981). In discussing the source and the nature of the protection, the Court refers to basic "considerations of fairness" that parties have the opportunity to conform their conduct to the law and the "fair notice" afforded by the Due Process Clause. Landgraf, 511 U.S. at 265-266, 114 S.Ct. at 1497.

Because punitive damages are intended to deter and to punish misconduct, the defendant's domicile and place of conduct are the primary considerations. LA. CIV. CODE ART. 3546;⁶ RESTATEMENT (SECOND) CONFLICTS, §145.⁷ See also: LA. CIV. CODE ART. 3543.⁸ See, for example: Ardoyno v. Kyzar, 426 F.Supp. 78 (E.D.La. 1976) (imposing punitive damages under Mississippi law on a Mississippi defendant for conduct in Mississippi that caused injury in Louisiana to a Louisiana domiciliary).

As noted by the Fourth Circuit in Anderson, punitive damages are not "new legal consequences to past conduct" as contemplated by Article 6 of the Louisiana Civil Code, as "they were available in most other states including the domiciles of all the defendants." Anderson v. Avondale, No. 2000-0775 (La. App. 4th Cir. 9/6/00) p.4, 2000 La. App. LEXIS 2523, at *6 [769 So.2d at 655-656].⁹ And, as noted by the Civil Code Revision Commentators, "there is nothing unfair about subjecting a tortfeasor to the law of the state in which he acted." REVISION COMMENT (f), La. C.C. art. 3543 (1991).

Choice-of-Law Principles Support the Imposition of Punitive Damages Under These Circumstances

As noted supra, with respect to punitive damages, the defendant's domicile and the place of conduct are of primary concern. LA. CIV. CODE ART. 3546; RESTATEMENT (SECOND) CONFLICTS, §145; LA. CIV. CODE ART. 3543; Ardoyno v. Kyzar, 426 F.Supp. 78 (E.D.La. 1976) (imposing punitive damages under Mississippi law on a Mississippi defendant for conduct in Mississippi that caused injury in Louisiana to a Louisiana domiciliary). While Civil Code Article 3545, governing product liability causes of action, provides that Louisiana product liability law should generally be applied to cases in which the injury is suffered in Louisiana by a Louisiana domiciliary, punitive damages may nevertheless be appropriate with respect to other causes of action, such as negligence or intentional torts. SYMEONIDES, Louisiana Conflicts Law: Two Surprises, 54 La.L.Rev. 497, 518 n.94 (1994); citing, Jefferson Parish Hosp. Dist. No. 2 v. W.R. Grace, No. 92-0891, 1992 U.S. Dist. LEXIS 7792, at *8 n.3 (E.D.La. June 30, 1992). In addition, where it is clearly evident that the policies of another state would be more seriously impaired by the mechanical application of Article 3545, the law of the other state shall apply. LA. CIV. CODE ART. 3547; SYMEONIDES, Louisiana Conflicts Law, 54 LA.L.REV. at 518-519 (noting that an amendment to prohibit an award of punitive damages in all products liability cases was rejected by the Legislature and explaining that the term "exceptional" as used in Article 3547 is not confined to extraordinary or statistically rare cases, but "might be any case in which most reasonable people would agree that the policies of one state will be significantly more impaired than those of the state whose law is designated applicable by Articles 3543-3546").

As stated by the court in Jefferson Parish Hospital District:

California [the state of manufacture] has an interest in preventing manufacturers within its boundaries from placing defective products in the stream of commerce. California's punitive damage law, if applied in this case, would serve to deter a California manufacturer such as Kaiser from placing defective wiring into the stream of commerce.

Jefferson Parish Hosp. Dist. No. 2 v. W.R. Grace, No. 92-0891, 1992 U.S. Dist. LEXIS 7792, at *5 (E.D.La. June 30, 1992); quoting, Pittman v. Kaiser Aluminum & Chemical, 559 So.2d 879, 883 (La. App. 4th Cir. 1990), writ denied, 563 So.2d 885 (La. 1990). As noted by Professor Symeonides, this is a good articulation of the governmental interests at stake, as "for matters of conduct and safety in general and for punitive damages in particular, the domicile of the plaintiff is not a relevant factor." SYMEONIDES, Louisiana Conflicts Law, 54 LA.L.REV. at 521; citing, LA. CIV. CODE ARTS. 3543, 10See also: SYMEONIDES, 66 Tul.L.Rev. at 705 and 736. 11Anderson v. Avondale Indu stries, No. 00-2799 (La. 10/16/01), 798 So.2d 93, 102 n.10. 12Anderson, 798 So.2d at 102 n.10 (emphasis supplied). 13REVISION COMMENT (a), La. C.C. art. 3545 (1991) 3546.¹⁰

Unfortunately, the argument made in Bulot was subsequently rejected – at least in part – by the Louisiana Supreme Court, reversing the Fourth Circuit's decision in Anderson v. Avondale:

Plaintiffs also argue, and the court of appeal agreed, that former La. C.C. art. 2315 does not attach "new legal consequences to past conduct" as envisioned by Article 6 because punitive damages were available in Louisiana for "a number of torts at the time of Mr. Anderson's exposures..." and they "were also available in most other states including the domiciles of all the defendants in the instant case." We reject this argument.¹¹

It is perhaps significant that in Anderson – unlike Bulot – none of the exposure occurred during the effective period of Article 2315.3. It is also important to note that the Supreme Court, in Anderson, made it clear that it was not deciding whether the punitive damage law of another state would apply.

Plaintiffs have asserted a cause of action under former La. C.C. art. 2315.3, and the sole issue before us is whether former La. C.C. art. 2315.3 applies to the facts of this case, not whether some other states' law applies under the conflict of law provisions...¹²

Perhaps an Amended Petition specifically alleging application of the punitive damage law of another state – preferably with particularly egregious facts and a strong evidentiary record documenting out-of-state conduct – would compel the Supreme Court to confront this issue, and, hopefully, to apply Articles 3543, 3546, and/or 3547, to a case involving wanton, willful, or reckless conduct by an out-of-state resident in a foreign state.

PUNITIVE DAMAGES IN PRODUCT LIABILITY CASES

Louisiana Civil Code Article 3545 applies to conflicts involving delictual and quasi-delictual product liability claims. This article applies to any injury sustained by a person or his property, regardless of ownership, and regardless of whether he or she was using the product at the time of injury. It also covers the liability of any person, including retailers, wholesale distributer, and other non-producers.¹³ Article 3545 does not examine the same state contacts as Article 3546, nor is 3545 focused on the tortfeasor. Instead, the Article requires that Louisiana law be applied to any cause of action in which: (I) Louisiana is the place of the injury and is either (a) the place of the victim's domicile, (b) the place of acquisition of the product, or (c) the place of manufacture of the product; and (II) where Louisiana is the place of the victim's domicile, and is the place of either (a) the acquisition or (b) manufacture of the product, or both. Further, Article 3545, (unlike Article 3564, for example), does not automatically authorize application of another state's law when 3545's rules do not apply. In such cases, or where it was not foreseeable that a defendant's product would be available in Louisiana, the court must then look to the general provisions of Articles 3515 and 3542-3548 in order to determine which law is applicable to the product liability claims.

Distinction Between "Product Liability" and Liability for "Fraud"

When a product liability suit also involves an element of fraud, and an out-of-state defendant would be subject to punitive damages for the fraudulent conduct in the state where its principal place of business is located, the plaintiff might be able to draw a distinction between fraud in the failure-to-warn "product liability" context, and fraud arising from "a more general obligation – the duty not to deceive."¹⁴

Louisiana Civil Code Article 3515, as well as the entire structure of conflict provisions, indicates that a choice-of-law analysis may be separated by "issues" – i.e. such that, while the product liability cause of action might be subject to Louisiana law, under Article 3545, a statutory consumer fraud act or common law fraud cause of action, including the right to claim punitive damages, might be subject to the law of another state, pursuant to Articles 3542, 3543, and 3546.

The argument that a consumer fraud act or common law fraud claim is not "liability for injury caused by a product" under Article 3545 is supported by the cases indicating that redhibition claims for economic loss survive the "exclusive remedy" provisions of the LPLA.¹⁵

"Exceptional" Cases

Only a handful of post-revision cases specifically address the interpretation of Article 3545 in relation to Article 3546 and the application of punitive damages. They tend to involve asbestos containing products manufactured outside of Louisiana causing injury to Louisiana workers from long-term exposure. In two of these cases, the U.S. District Court for the Eastern District determined that Louisiana law governed, and denied punitive damages.16 The court discussed Article 3545 in each case and applied it straightforwardly. Of note, however, was the court's consideration of Article 3547, which provides:

The law applicable under Articles 3543-3546 shall not apply if, from the totality of the circumstances of an exceptional case, it is clearly evident that under the principles of Article 3542, that the policies of another state would be more seriously impaired if its law were not applied to the particular issue. In such event, the law of the other state shall apply.

Neither of the U.S. District Court asbestos cases found exceptional circumstances warranting application of the "escape mechanism" of 3547. Interestingly, however, Professor Symeonides criticizes the Jefferson court's analysis of a previous law review article in which Professor Symeonides himself indicated that the insertion by the Law Institute of the words "exceptional case" and "clearly evident" in Article 3547 would not end up swallowing Articles 3543-3546.¹⁷ Symeonides notes that his previous law review article also indicated that "exceptional" need not "be confined to extraordinary or statistically rare cases."¹⁸ Professor Symeonides goes on to further question the District Courts' analyses in the asbestos cases, and concludes that application of Article 3547 is a matter of judicial determination.

PRESCRIPTION AND PEREMPTION

The Louisiana choice-of-law rules on prescription embrace the traditional lex fori approach, and favor maintenance of an action which is timely filed in Louisiana, according to Louisiana's established prescriptive and peremptive periods.19 This is true, even where the substantive law of another state applies – unless: (i) it would be barred in the state whose law is applicable to the merits; and maintenance of the action in this state is not warranted by: (ii) the policies of this state and its relationship to the parties or the dispute, nor (iii) by any compelling considerations of remedial justice. "The very fact that all three hurdles must be overcome before this exception is utilized indicates that this exception is not expected to be applied often."²⁰

In Marchesani v. Pellerin-Milnor, for example, Plaintiff, a Tennessee resident, was severely injured in the State of Tennessee when an industrial washing machine exploded, resulting in horrible burns to Mr. Marchesani over 90% of his body. The machine had been manufactured by a Louisiana corporation in 1984. Plaintiff filed suit in the Eastern District of Louisiana, alleging that the machine was defective. The District Court dismissed the suit, applying Tennessee's ten-year statute of repose on product liability claims. Marchesani appealed to the U.S. Fifth Circuit, claiming that the District Court should have applied Louisiana's choice-of-law provisions relating to prescription and preemption. Defendant maintained that Tennessee's statute of repose was "substantive" and therefore took precedence over Louisiana's "procedural" rules of prescription. The U.S. Fifth Circuit initially certified the choice-of-law question to the Louisiana Supreme Court,²¹ but the Court declined to address the certified question.²² Left to its own devices, the Fifth Circuit first determined that the cause of action was governed by the substantive law of Tennessee. The court, however, concluded that the Louisiana Civil Code Article 3549 nevertheless applied. The court found that the manufacturer could not demonstrate that the policies of deterrence, compensation and predictability did not warrant the maintenance of the action. In addition, because the plaintiff did not sit on his rights nor engage in egregious "forum shopping", the defendant had not demonstrated that "compelling considerations of remedial justice" did not warrant maintenance of the suit. The District Court's dismissal of the lawsuit was therefore reversed and the case was remanded for proceedings on the merits.²³

At the same time, Louisiana Civil Code Article 3549 also allows for the possibility that a suit which has prescribed under Louisiana law might be timely, where: (i) it would not be barred in the state whose law would be applicable to the merits; and (ii) maintenance of the action in Louisiana is warranted by compelling considerations of remedial justice.

Since the enactment of Article 3549, a number of cases have examined the "compelling considerations of remedial justice" exception, and, unfortunately, have almost uniformly refused to allow the suit to be maintained.²⁴ In one rare case, Smith v. Odeco, the court found that Louisiana was the only forum in which suit could be maintained because it was the only forum in which jurisdiction could be obtained over all the defendants. The court in Smith also noted that the plaintiff was blameless, in that he filed suit within the state where the cause of action arose timely.²⁵

It appears that, in order to "borrow" the statute of limitations of another forum, the Plaintiff will have to show that: (i) he or she did not "sit on his or her rights" and was free from fault in not bringing the case sooner; and, (ii) the presence of "extraordinary" circumstances, such as the unavailability of another forum.²⁶

JOINT AND SEVERAL LIABILITY

Issues pertaining to "loss distribution and financial protection" (as between the plaintiff and the defendant) are governed by Louisiana Civil Code Article 3544. While there are several different considerations, the Article generally calls for the application of the law of the state where the injury occurred.

Where a Louisiana lawsuit, therefore, is based on an injury that occurred in a state that still recognizes joint and several liability, an out-of-state plaintiff might be able to invoke that state's law, despite the amendments to Civil Code Articles 2323-2324, (and Louisiana Code of Civil Procedure Article 1812).

INDEPENDENT CONTRACTORS, STATUTORY EMPLOYERS, AND RESPONDEAT SUPERIOR

In some cases, damages will be caused in Louisiana by workers who are either hired in other states, or who work for out-of-state companies pursuant to various joint-venture, supply, or other agreements or contracts that either contain choice-of-law provisions, and/or were confected in another state.

In general, where the parties have included a choice-of-law provision in a contract, it will be enforced.²⁷ Otherwise, the court looks to such factors as: (a) the place of negotiation and formation of the contract, (b) the place where the contract is to be performed, (c) the location of the object of the contract, (d) the domicile of the parties, and, (e) the nature, type, and purpose of the contract.²⁸

Where an employment contract or other agreement which includes or defines the scope of work performed by the plaintiff, a defendant, or some other relevant party, is subject to the law of another state, the substantive law of that state might be used to bolster a claim that someone is, or is not, a borrowed servant, independent contractor, statutory employer, or "servant" within the meaning of Louisiana Civil Code Article 2320.²⁹

THE DIRECT ACTION STATUTE

The ability to name a liability insurer as a defendant is one situation where attorneys will generally want Louisiana law – i.e. the Louisiana Direct Action Statute – to apply. First, it is important to note that the provisions of Louisiana Revised Statute 22:655 are incorporated into the substance of every insurance contract (to which the statute is applicable) as a matter of "substantive" – not "procedural" – law; the statute, accordingly, can be applied in Federal Court actions under the Erie doctrine, as well as proceedings that are brought in other states.³⁰ The statute applies where: (a) the injury occurs in the State of Louisiana, or (b) the policy is issued and delivered in the State of Louisiana.³¹

Endnotes

1. SYMEONIDES, Louisiana's New Law of Choice of Law for Tort Conflicts: An Exegesis, 66 Tul.L.Rev. 677, 758 (1992).

2. SEE REVISION COMMENT (a), La. C.C. Art. 3546 (1991).

3. SYMEONIDES, 66 Tul.L.Rev. at 736.

4. SYMEONIDES, 66 T ul.L.Rev. at 737. See also: LA. CIV. CODE ART. 3543.

5. See Bulot v. Intracoastal Tubular, No. 98-2105 (La. App. 4th Cir. 2/24/99), 730 So.2d 1012, writ granted, No. 00-2161 (La. 11/13/00), 773 So.2d 152, writ recalled as improvidently granted, No. 00-2161 (La. 2/9/01), 778 So.2d 583.

6. SEE REVISION COMMENT (b), La. C.C. art. 3546 (1991) (Because punitive damages "have more to do with the tortfeasor than the victim, this Article focuses on the three potentially different places that bear a relation to the tortfeasor", while "the domicile of the victim is not a pertinent factor"); REVISION COMMENT (d), La. C.C. art. 3546 (1991) ("Subparagraph (1) [of Article 3546] authorizes the awarding of punitive damages if such damages are imposed by the law of the place where the conduct that caused the injury occurred and by the law of the state where the person who caused the injury was domiciled. For rationale and supporting authority, see Ardoyno v. Kyzar, 426 F.Supp. 78 (E.D.La. 1976); Symeonides, 'Choice of Law for Torts'", [38 Am.J.Comp.L. 431] 463-464; Kozyris & Symeonides, 'Choice of Law in the American Courts in 1989: An Overview' 38 Am.J.Comp.L. 601, 615 (1990)").

7. "When the primary purpose of the tort rule involved is to deter or punish misconduct, the place where the conduct occurred has peculiar significance." RESTATEMENT (SECOND) CONFLICTS, §145 cmt. e. See also: RESTATEMENT (SECOND) CONFLICTS, §145 cmt. b ("the protection of the justified expectation of the parties, which is of extreme importance in such fields as contracts, property, wills and trusts, is of lesser importance in the field of torts. This is because persons who cause injury on nonprivileged occasions.... have few, if any, justified expectations in the area of choice of law to protect, and as to them justified expectations can play little or no part in a choice of law question"); RESTATEMENT (SECOND) CONFLICTS, §145 cmt. c ("if the primary purpose of the tort rule involved is to deter or punish misconduct... the state where the conduct took place may be the state of dom inant interest and thus that of the most significant relationship").

8. "When the law of the state of conduct provides for a higher standard of conduct than does the law of the state of injury, the application of the law of the state of conduct may be justified bo th in terms of the interest of the two states and from the perspective of the individuals involved. In terms of the interests of the two states, applying the law of the state of conduct when that state imposes the higher standard promotes the policy of that state in policing conduct and preserving safety within its borders.... The effectiveness of the conduct-regulating law o f the state of conduct would be seriously impaired if exceptions to it were made for out-of-state injuries. Such exceptions are not warranted by the fact that the state of injury happens to allow a lower standard of conduct, since such a lower standard is designed to protect conduct within, not without, that state. Finally, from the perspective of the individuals involved, there is no thing unfair about subjecting a tortfeasor to the law of the state in which he acted." REVISION COMMENT (f), La. C.C. art. 3543 (1991).

9. Note - The Fourth Circuit's decision in Anderson was subsequently reversed by the Louisiana Supreme Court; see discussion infra.

10. See also: SYMEONIDES, 66 Tul.L.Rev. at 705 and 736.

11. Anderson v. Avondale Industries, No. 00-2799 (La. 10/16/01), 798 So.2d 93, 102 n.10.

12. Anderson, 798 So.2d at 102 n.10 (emphasis supplied).

13. REVISION COMMENT (a), La. C.C. art. 3545 (1991)

14. Cipollone v. Liggett Group, 505 U.S. 504, 528-529, 112 S.Ct. 2608, 2623-2624, 120 L.Ed.2d 407 (1992).

15. See, for example: Morris v. USAA, 756 So.2d 549, 561-562 (La. App. 2nd Cir. 2000); Draten v. Winn Dixie, No. 94-0767 (La. App. 1st Cir. 3/3/95), 652 So.2d 675, 678; Monk v. Scott, 619 So.2d 890, 893 (La. App. 3rd Cir. 1993); Jefferson v. Lead Indus. Ass'n., 106 F.3d 1245, 1251 (5th Cir. 1997).

16. See Jefferson Parish Hospital Service Dist. #2 v. W.R. Grace & Co., No. 92-0891, 1992 U.S. Dist. LEXIS 9962 (E.D. La. June 30, 1992), and Orleans Parish School Board v. United States Gypsum Co., No. 89-0070, 1993 U.S. Dist. LEXIS 7792 (E.D. La. June 7, 1993)

17. SYMEONIDES, Louisiana Conflicts Law: Two "Surprises", 54 La.L.Rev. 497, 517 (1994).

18. Id.

19. LA. CIV. CODE ART. 3549. See also: Taylor v. Liberty Mutual Insurance Company, 579 So.2d 443, 446 (La. 1991); Crase v. Astroworld, Inc., 941 F.2d 2 65, 266 (5th Cir. 1991); Rohde v. Southeastern Drilling Co., 667 F.2d 1215, 1219 (5th Cir. 1982); Santos v. Sacks, 697 F.Supp. 275, 284 (E.D .La. 1988). See also, generally: Sun Oil v. Wortman, 486 U.S. 717, 722, 108 S.Ct. 2117, 2121, 100 L.Ed.2d 743 (1988); Klaxon v. Stentor Electric, 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941); Trizec Properties v. United States Mineral Products, 974 F.2d 602, 604 (5th Cir. 1992).

20. REVISION COMMENT (g), La. C.C. art. 3549 (1991).

21. Marchesani v. Pellerin-Milnor, 248 F.3d 423 (5th Cir. 2001).

22. No. 2001-CQ-1169 (La. 6/29/01).

23. Marchesani v. Pellerin-M ilnor, 269 F.3d 481 (5th Cir. 2001). See also: Louisiana Land & Exploration Co. v. Enserch Corp., No. 92-02057, 1992 U.S. Dist. LEXIS 15710, *4 (E.D. La. Sept. 28, 1992) (Despite Texas law barring suit, Louisiana's policies and relationship to plaintiff warrant allowing the action to proceed under Louisiana's longer prescription).

24. See, for example: Seagrave v. Delta Airlines, Inc., 848 F.Supp. 82, 85 (E.D. La. 1994) (Costs and inconvenience of having to file suit in Virginia after plaintiff moved to Louisiana do not constitute "compelling consideration" sufficient to fulfill exception of Art. 3549); Skyrme v. Diamond Offshore (U.S.A.), Inc., N. 94-1110, 1994 U.S Dist. LEXIS 8950 (E.D. La. June 30, 1994) (Brazilian resident's desire to litigate in Louisiana is a choice, not a matter of necessity constituting "compelling consideration"); Amaro v. Marriott Residence Inn, No. 94-3465, 1995 U.S. Dist. LEXIS 2556 (E.D. La. March 1, 1995) (no "compelling consideration"); In re: Ford Motor Co. Vehicle Paint Litigation, MDL No. 1063, 1996 U.S. Dist. LEX IS 11063 (E.D .La. July 30, 1996), mot. recon. denied, 1996 U.S. Dist. LEXIS 17136 (E.D.La. Nov. 13, 1996) (class action case's forum was a matter of choice, not necessity).

25. Smith v. Odeco (UK) Inc., 615 So.2d 407, 408-410 (La. App. 4th Cir. 1993).

26. REVISION COMMENT (f), La. C.C. art. 3549 (1991) ("The examples given by the Restatement are pertinent to the application o f this provision and illustrate its exceptional character. These examples refer to cases where 'through no fault of the plaintiff an alternative forum is not available as, for example, where jurisdiction could not be obtained over the defendant in any state other than the forum or where for some reason a judgment obtained in the other state having jurisdiction would be unenforceable in other states.... also situations where suit in the alternative forum, although not impossible would be extremely inconvenient for the parties'"); citing, RESTATEMENT (SECOND) CONFLICTS OF LAWS, §142 (1986).

27. LA. CIV. CODE ART. 3540 ("All other issues [i.e. other than issues of capacity (C.C. 3539) and form (C.C. 3538)] are governed by the law expressly chosen or clearly relied upon by the parties, except to the extent that law contravenes the public policy of the state whose law would otherwise be applicable").

28. LA. CIV. CODE ART. 3537. See also: LA. CIV. CODE ART. 3515.

29. See, for example: LA. REV. STATS. 23:1061(A)(2) and 1061(A)(3) ("statutory employer" defense exists only where specifically provided in a contract between the principal and a third party or in a contract between the principal and the worker's immediate employer); LA. REV. STAT. 23:1035.1 (the payment or award of benefits under another state's Workers' Compensation Act shall not prevent an injured worker from claiming benefits, subject to a credit, under the Louisiana Act, where the employment is "principally localized" in Louisiana, or the worker is "working under a contract for hire made in this state"). Note - A worker who is domiciled in Louisiana can sign a formal election of Louisiana Workers' Compensation benefits as his "exclusive state workers' compensation remedy." LA. REV. STAT. 23:1035.1(4). For cases regarding choice-of-law in the workers' compensation and/or "statutory employer" context, see, for example: Kennington v. H. Blume Johnson, Inc., 638 So.2d 1066, 1067 (La. 1994) ("statutory employer" defense is not applicable to an injury in Texas, absent a showing that employment was principally localized in La. or plaintiff was working under contract for hire made in La.); Wade v. Consolidated Freight, No. 99-497 (La. App. 5th Cir. 11/10/99), 749 So.2d 706 (plaintiff was not precluded from claiming benefits under La. Workers' Compensation Act, even though he had already received benefits under Texas law); Offord v. Border to Border, No. 2000-1201 (La. App. 3rd C ir. 2/7/01), 779 So.2d 1090 (La. Commission had jurisdiction over claim for out-of-state injury where employee was recruited and filled out application in La.); Robinson v. Simmons, No. 98-1936 (La. App. 4th Cir. 11/18/98), 725 So.2d 27 (La. OWC had jurisdiction over death of worker in Illinois, where employment was "principally localized" in La.); Harvey v. BE&K Construction, No. 30,825 (La. App. 2nd Cir. 8/19/98), 716 So.2d 514 (claimant could make La. claim for benefits arising out of injury in Va., where worker was employed under contract for hire made in La.); Wayne v. Olinkraft, 293 So.2d 896, 897 (La. App. 2nd Cir. 1974) (widow who had asserted claim for benefits under La. Act could not assert tort claim under Arkansas law).

30. See, for example: Zimmerman v. International Companies & Consulting, 107 F.3d 344 (5th Cir. 1997); In re Combustion, 960 F.Supp. 1056 (W.D.La. 1997); Hertz Corp. v. Piccolo, 453 So.2d 12 (Fla. 1984).

31. LA. REV. STATS. 22:655(A) and 655(B)(2). Some examples of cases involving choice-of-law issues relating to application of the Direct Action Statute include: In re Combustion, 960 F.Supp. 1056 (W.D.La. 1997) (direct action applied for pollution damage in Louisiana, even though named insured was a parent corporation domiciled in another state); Schexnider v. McDermott, 688 F.Supp. 234 (W.D.La. 1988) (direct action was available when there was "constructive delivery" of policy in Louisiana, even though policy was delivered to the office of a subsidiary in Texas – in an apparent attempt to avoid the statute); Cook v. Herring, 521 So.2d 807 (La. App. 2nd Cir. 1988), writ denied, 523 So.2d 1322 (La. 1988) (direct action statute did not apply to policy prepared in Louisiana, where the policy was delivered to a M ississippi resident, and accident occurred in Mississippi); Signal Oil & Gas v. Barge W-701, 654 F.2d 1164 (5th Cir. 1981) (direct action not available where worker was injured in Gulf of Mexico and insurance policy was written in London and delivered to corporate headquarters in Texas); Hebert v. Aetna, 400 So.2d 695 (La. App. 1st Cir. 1981) (arbitrary and capricious failure to provide maintenance and cure occurred in Louisiana, where claim was denied); Michel v. Bahn, 207 So.2d 150 (La. App. 4th Cir. 1968) (direct action available where accident occurred out-of-state, but defendant was resident of Louisiana).