Report No. 193
He finally sums up:
"It is noteworthy that among the major developments in US Conflict of Laws in 1997 was the abandonment by three US State Supreme Courts(those in Michigan, Rhode Island and West Virginia) of the traditional position that statutes of limitation are procedural. Six other States (Arkansas, Colarado, Montana, North Dakota, Oregon and Washington) have enacted the Uniform Conflict of LawsLimitation Act. Eight other States have done so by other legislation or judicial decisions in recent years".
In other words, 17 States had, by 1999, distanced themselves from treating limitation laws as procedural. The judgments of the State Supreme Courts referred to by Prof. Tetley in the above passage are Sutherland v. Kennington Truck Service Ltd, 562 N.W. 2d 466 (Mich, 1997); McKinney v. Fairchild International Inc, 487 S.E. 2d 913)(West Va); Cribb v. Augustin, 696 A 2d 285 (Rh I.1997). The last 'eight other States' referred to by him are Arizona, California, Florida, Idaho, Louisiana, Massachusetts, Nebraska and New Jersey. (quoting the article of S. Symeonides 'Choice of Law in American Courts in 1997, 46 AmJ. Comp. L 234, at pp.272-273).
That brings us to the Uniform Conflict of Laws Limitation Act, 1982 evolved by the National Conference of Commissioners on Uniform State Laws in preparing the Uniform Conflict of Laws-Limitation Act which has been enacted in several States in US. In their prefatory Note, they said:
"Traditionally, statutes of limitations have been characterized as 'procedural' laws, for conflict of laws purposes, so that the limitation periods prescribed by the forum states' laws were applied. This result was reached despite its substantive effect of determining which party won the law-suit. Forum shopping by delay-prone plaintiffs, or by their attorneys, with suits filed in States with long limitation periods, inevitably occurred.
One consequence was that the Courts developed some rather inexact 'exceptions' to the 'general rule'. These included one that treated as 'substantive' any limitation period that was "built into" the very statute, such as a Wrongful Death Act, that created the cause of action sued on; another called the 'specificity test' that treated a limitations statute as 'substantive' if it was directed specifically to the (See Grenmen, States of Limitations and the Conflict of Laws, Modern analysis. 1980 Ariz St LJ 1).
Another consequence was that about three-fourths of the States enacted so-called "borrowing statutes" which followed no regular pattern but required application of a limitation period other than the forum states' if some stated aspect of the cause of action occurred in or was connected with another state. These borrowing statutes are often difficult to interpret and apply. They have been the source of considerable judicial confusion."
The Uniform Conflict of Laws Limitation Act, 1982 as drafted provided definitions in section 1 while section 2 dealt with 'conflict of laws; limitation of periods' and read as follows:
"Section 2: (a) Except as provided by section 4, if a claim is substantively based:
(1) upon the law of one other state, the limitation period of that state applies; or
(2) upon the law of more than one state, the limitation period of one of those states chosen by the law of conflicts of laws of this State, applies.
(b) The limitation period of this State applies to all other claims."
Section 3 dealt with other rules applicable to computation of Limitation Period and read as under:
"Section 3: If the statute of limitations of another state applies to the assertion of a claim in this State, the other States' relevant statutes and other rules of law governing tolling and accrual apply in computing the limitation period, but its statutes and other rules of law governing conflict of laws do not apply."
Section 4 referred to 'unfairness' and reads as follows:
"Section4: If the Court determines that the limitation period of another State applicable under sections 2 and 3 is substantially different from the limitation period of this State and has not afforded a fair opportunity to sue upon, or imposes an unfair burden in defending against, the claim, the limitation period of the State applies."
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