Erwin v. Ford Motor Company, et. al.

Filing 81

MEMORANDUM OPINION re #60 . Signed by Judge Gerald A. McHugh on 3/1/18. (gvw)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE

DENNIS ERWIN, individually and as
Executor of the Estate of SUSAN ERWIN,
deceased,
Plaintiff,

:
:
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:
:
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v.
FORD MOTOR COMPANY and
ALBERT MCCLINTON, individually,
Defendants.

McHUGH, J.

Civil Action
No. 16-0874

MARCH 1, 2018
MEMORANDUM

This case arises out of a fatal accident in Florida, where a side airbag in a Ford Edge
being driven by Plaintiff Dennis Erwin’s wife failed to deploy, allegedly because of a defect in
design.
The case was removed from state court to a federal district court in Florida. That court
then reached a rather novel conclusion—that asserting specific jurisdiction over Defendant Ford
Motor Company in Florida would violate principles of due process, which resulted in transfer of
the case to Delaware. Venue here is a fait accompli, but a question remains as to what law
should govern. Plaintiff moves for application of Florida law on comparative negligence, a pure
standard that allows a plaintiff to recover even if her percentage share of liability exceeds 50
percent. Under Delaware’s choice of law rules, the law of the state where an injury occurs
presumptively applies. For a variety of reasons, prominent among them the fact that Plaintiff
and his wife regularly spent some of their winter months in Florida, Ford has failed to rebut that
presumption, with the result that Plaintiff’s motion will be granted.

1

I.

Relevant Facts
The accident occurred in March 2014, as the Erwins were traveling from Port Charlotte,

starting a journey back to their permanent residence in Ohio. Plaintiff’s decedent, Susan Erwin,
was driving the Ford and executing a U-turn when she was struck by an oncoming car. The
Erwins were Ohio citizens, but their visit to Florida was not a casual one. The record reflects
that over the winter, they spent several months in Florida as part of the population colloquially
known as “snowbirds,” as they had for 13 years before. The striking driver, Albert McClinton,
against whom Ford has asserted a cross-claim, was a Florida citizen at the time of the accident.
Mrs. Erwin had surgery in Florida for injuries sustained in the accident, but tragically died a
month later.
The Erwins acquired the car through what is best described as the stream of commerce.
Ford’s principal place of business is Michigan, where the design process occurred, but the
vehicle itself was fabricated in Ontario, Canada in 2009. Ford’s vehicles are sold by dealerships
all across the United States, with over a hundred of those dealerships in Florida alone. This
particular vehicle was sold to an independent dealership in Watsonville, California, and
thereafter purchased by a rental car company. That company then transferred ownership to a
Sidney, Ohio resident in April 2010, from whom the Erwins acquired it in July of that same year.
They registered it in Powell, Ohio, but regularly used the vehicle in Florida over the winter
months.
II.

Procedural History
Because I must consider the contacts and interests of various states in resolving the issue

before me, I feel constrained to comment upon how this action came onto the docket in
Delaware, particularly since Delaware’s choice of law rules in wrongful death and personal

2

injury cases favor application of the law where the injury occurred. Although I am bound by the
transfer, Erwin v. Ford Motor Company, 2016 WL 7655398 (M.D. Fla. 2016), the due process
analysis of the transferring court seems tenuous at best. To my knowledge, no court has ever
reached a similar result in a case involving a manufacturer with nationwide distribution, and the
cases upon which the decision rested presented far different facts.
The transferring court relied heavily upon Walden v. Fiore, 134 S. Ct. 1115, 1119–20
(2014), which held that a Nevada court could not assert personal jurisdiction over a Georgia
police officer merely because Nevada residents were the subject of the officer’s contributions to
a faulty affidavit, filed in Georgia. Given the facts in Walden, it is not easily or naturally
construed as discarding well-established principles of specific jurisdiction, because there simply
is no equivalence between a law enforcement officer acting within the confines of his local
jurisdiction, and a multinational corporation whose economic model is premised on the sale and
use of its vehicles in all fifty states.
The second case on which the transferring court relied, Oldfield v. Pueblo De Bahia
Lora, S.A., 558 F.3d 1210 (11th Cir. 2009), does not appear to depart from or question traditional
understandings of specific jurisdiction. There, an American who was injured while on a fishing
excursion in Costa Rica sought to bring suit in Florida against the foreign resort that had
organized the outing. The plaintiff had booked his stay at the resort through the internet, the
defendant had no physical presence in Florida, and its sole connection to the state was a single
promotional event unrelated to the plaintiff’s trip. Not surprisingly, the Eleventh Circuit found
insufficient contacts to support jurisdiction. Those facts certainly bear no resemblance to cases
involving a mass-produced product marketed in every state. Even where the Supreme Court has
taken steps to narrow the concept of specific jurisdiction, it has continued to recognize that a

3

plaintiff who brings suit in a state where he resides and has suffered injury stands on a different
footing than one unconnected to the forum. Thus, in rejecting specific jurisdiction in a suit
brought against a pharmaceutical company by out-of-state plaintiffs, the Court in Bristol-Myers
Squibb Co. v. Superior Court of California, San Francisco County, 137 S. Ct. 1773, 1782 (2017)
emphasized that “[the] relevant plaintiffs are not California residents and do not claim to have
suffered harm in that State.”
Ironically, in tort cases, Florida’s choice of law rules also presumptively favor applying
the law of the state where the injury occurred. Bishop v. Fla. Specialty Paint Co., 389 So. 2d
999, 1001 (Fla. 1980). In short, I find myself in the anomalous position of applying Delaware
choice of law principles, which coincidentally mirror those of Florida, to a case which arose in
Florida, which I am convinced was properly filed there in the first instance. It is against that
backdrop that I address the pending motion.
III.

Discussion
As a federal judge sitting in diversity in the state of Delaware, I must look to Delaware’s

rules governing choice of law to resolve the issue before me. 28 U.S.C. § 1631; Klaxon Co. v.
Stentor Elec. Mfg. Co., 313 U.S. 487, 496 (1941). As an initial matter, I agree that there is a
conflict between Florida law, for which Plaintiff advocates, and the law of other potentially
interested states. Delaware, Ohio, and Michigan all have a modified comparative fault rule that
would bar recovery unless Plaintiff could show that his deceased wife was less than 50 percent at
fault for her injuries; Florida’s pure comparative fault standard would not bar recovery. The
consequences of this difference are meaningful, but it is nonetheless a matter of degree.
Comparative negligence principles were adopted by courts and legislatures as a remedial
measure to ameliorate the harsh consequences of the common law principle of contributory

4

negligence. Dan B. Dobbs, Paul T. Hayden, & Ellen M. Bublick, The Law of Torts §§ 218, 220
(2d ed. 2011). Florida differs only in that it provides plaintiffs with a greater degree of relief.
The controlling case for purposes of my analysis is Bell Helicopter Textron, Incorporated
v. Arteaga, 113 A.3d 1045, 1052 (Del. 2015) [hereinafter Bell], which re-affirmed that Delaware
follows the Restatement (Second) of Conflict of Laws [hereinafter “Restatement (Second)”].
The relevant principles are set forth in a series of interlocking sections. Section 145 provides:
(1) The rights and liabilities of the parties with respect to an issue in tort are
determined by the local law of the state which, with respect to that issue, has the
most significant relationship to the occurrence and the parties under the principles
stated in § 6.
(2) Contacts to be taken into account in applying the principles of § 6 to determine the
law applicable to an issue include:
(a) the place where the injury occurred,
(b) the place where the conduct causing the injury occurred,
(c) the domicil, residence, nationality, place of incorporation and place of business
of the parties, and
(d) the place where the relationship, if any, between the parties is centered.
These contacts are to be evaluated according to their relative importance with respect to the
particular issue.
Section 146 supplements this general standard by further providing:
“In an action for a personal injury, the local law of the state where the injury occurred
determines the rights and liabilities of the parties, unless, with respect to the particular
issue, some other state has a more significant relationship under the principles stated in §
6 to the occurrence and the parties, in which event the local law of the other state will be
applied.”
Section 175 establishes the same rule for wrongful death cases.

5

In analyzing Section 145, the court in Bell cited S
n
S
,
n
Section 146 and observe that “the f
ed
first
contact is often ‘dete
s
erminative.’” 113 A.3d at 1053.1 An appreciatio of the fac in Bell is
”
a
n
on
cts
helpful to understand
o
ding the Cou
urt’s approac to the Res
ch
statement (Se
econd). The a helicop
ere,
pter
transport
ting mechani and techn
ics
nicians from Campeche to Veracruz Mexico—a Mexican
m
z,
all
citizens—
—crashed du to a defect strap fitt
ue
tive
ting. The he
elicopter was registered and used in
Mexico, and the strap was design and man
p
ned
nufactured in Texas by B
n
Bell. Id. Pla
aintiffs broug
ght
suit in De
elaware, where Bell, like Ford in thi case, had n direct ope
e
is
no
erations, but was merely
t
y
incorpora
ated. Id. at 1048. The Court held th Mexican law applied, noting that “Delaware has
1
C
hat
t
no public policy inter in this case, except to avoid con
c
rest
c
t
ntributing to forum-shopp
ping and
enmeshin itself in unrelated litig
ng
u
gation.” Id. at 1052.
I will proceed by first ad
ddressing the factors set f
e
forth in Sect
tion 145, and then separa
d
ately
consider the principle within Se
es
ection 6, view through the prism of Bell.
wed
h
A. The Erwi
A
ins’ Connec
ction to the Site of the A
Accident
The comment for Section 175 recogn that “w
T
ts
nize
when [the] co
onduct and in
njury occur i
in
different states . . . th local law of the state where the inj
he
o
w
njury occurre is most lik to be
ed
kely
w
cedent had a settled relat
tionship to th state, eith because he was
hat
her
applied when the dec
domiciled or resided there or bec
cause he did business the
ere.” Restat
tement (Seco
ond) § 145 cm f
mt.
is
l
tate
y
vely
(emphasi added). Put differently, the local law of the st of injury presumptiv applies if it
is not me
erely fortuito that the injury occurr there, wh
ous
i
red
hich means t there mu be
that
ust

1
 See also Bishop, 389 So. 2d at 100 (“The conf
01
flicts theory se out in the R
et
Restatement d
does not rejec the
ct
‘place of injury’ rule co
i
ompletely. The state wher the injury o
T
re
occurred wou under most circumstan
uld,
nces,
be the dec
cisive conside
eration in dete
ermining the applicable ch
a
hoice of law. Indeed, the ra
ationale for a strict
lex loci de
elicti rule is also reflected in the same Restatement’s [S]ection 6, where ‘certai
a
R
s
inty, predictab
bility
and unifor
rmity of resul and ‘ease in the determ
lt,’
mination and a
application of the law to be applied’ are cited
f
e
e
as major factors in dete
f
ermining the proper choice of law.”)
p
e

6

“significant contact with the site other than the [accident] itself.” Bell, 113 A.3d at 1053
(emphasis added).
Ford argues that the accident “could have occurred anywhere, anytime, including any
time during [d]ecedent’s trip back from Florida,” and that it ultimately occurred in Florida was
therefore fortuitous. Def.’s Resp. Br. 8–9, ECF No. 65. But that misses the point. As the Bell
Court pointed out, the focus of the inquiry is the significance of the victim’s other connections to
the location of the injury, not the likelihood of the injury occurring there relative to anywhere
else. See Bell, at 1053–54 (specifically explaining that the court below erred in focusing on
where the helicopter crashed, as opposed to the victims’ connections to that location). Similar to
the Bell plaintiffs who “lived and worked” where the vehicle crashed, the Erwins did not
“fortuitously happen” to be in Florida. Id., at 1054 (finding that it was not fortuitous that the
accident occurred in Mexico because the plaintiffs “lived and worked there”). It is significant
that they had lived there part of the winter before, as they had every year for the preceding
thirteen.
Ford overlooks the fact that Florida has a vital interest in the specific population
represented by the Erwins. Winter migration to Florida is a social phenomenon with which
many people are familiar. It has been studied in more formal terms by the Director of the
University of Florida’s Bureau of Economic and Business Research. Florida’s elderly
population fluctuates by nearly 20 percent over the course of a year with the winter arrival of
“snowbirds” embracing warmer weather. Stanley K. Smith & Mark House, Snowbirds,
Sunbirds, and Stayers: Seasonal Migration of the Elderly in Florida, The Journals of
Gerontology: Series B, Vol. 61, Issue 5, 1 September 2006, at S232, S238,
https://doi.org/10.1093/geronb/61.5.S232. Significantly, spending winters in Florida appears to

7

be a preli
iminary step to a perman move fo many sno wbirds, the study found. Id. Nearly one
p
nent
or
y
in four of the survey respondents
f
s—23 percen
nt—who had moved perm
d
manently to Florida betw
ween
2000 and 2003 repor that they had lived part of the ye in the Sun
d
rted
y
p
ear
unshine State before mov
e
ving
there yea
ar-round. Id. at S239. Fu
.
urthermore, 30 percent o snowbirds reported th it was “lik
of
s
hat
kely”
or “very likely” they would move to Florida permanently in the futur 2 Id. at S2
e
y
re.
236.
In Bell, the Court summa
n
arily rejected the idea tha Delaware had any inte
d
at
erest. The sa
ame
is true he
ere. Ohio arg
guably has an interest, because the E
a
b
Erwins’ perm
manent resid
dence was the
ere,
but that interest woul hardly ext
i
ld
tend to, let alone exceed the interest that Florida has in an
a
d,
t
a
accident occurring within its bord causing fatal injury to a winter resident of m
w
ders
g
y
many years.
B. The Place where the Tortious Conduct Occ
B
e
e
C
curred
Ford advance the propos
es
sition that Michigan has an interest b
M
because any tortious
—i.e.
quate design—
—occurred there. But th court in B was not p
t
he
Bell
persuaded to
o
conduct— inadeq
apply Texas law by the fact that the defective helicopter was both de
t
t
e
esigned and m
manufacture in
ed
F
,
ment
nd)
te
tious conduc
ct
Texas. Furthermore, the Restatem (Secon provides that the stat where tort
occurs is more likely to be the sta of most significant re
y
ate
s
elationship if the decede “resides, is
ent
usiness there or out “of a relationsh which is centered in the state wh
e,”
hip
s
here
domiciled, or does bu
the condu occurred or both. Restatement (Second) § 175 cmt. f. T is not t case here as
uct
d,”
R
t
That
the
e,
the Erwin have no connection to Michigan.
ns
c
o
Beyond that, Michigan’s only interest here would be protecti of a prom
B
d
ion
minent busin
ness
headquar
rtered within its boundar
n
ries. The Co in Bell c
ourt
cautioned ag
gainst recogn
nizing such a
an
interest:

2
Accordin to U.S. Ce
ng
ensus data, Florida remains a growth sta
s
ate. It grew a
approximately 17 percent in
y
n
population between 20 and 2010. Compare 20 Florida C
n
000
000
Census Data, U
United States Census Bure
s
eau,
https://tinyurl.com/y99
9xbshd with 2010 Florida Census Data, United States Census Bure
C
s
eau,
https://tinyurl.com/y73
379jnj. Its pop
pulation is pr
rojected to gro another 11 percent by 2
ow
2020. 2017
Florida Pr
rojection, Uni States Ce
ited
ensus Bureau, https://tinyu
,
url.com/yabon
n2hx.

8

“[F]ocusing on the site of manufacturing in determining the choice of law to apply has an
obvious downside: it encourages jurisdictions to change their laws to restrict remedies to
victims so as to attract manufacturers. That is, there might be a perverse incentive for
jurisdictions to restrict tort remedies if those jurisdictions can benefit from the jobs and
tax revenues that come from hosting manufacturing by helping manufacturers to
externalize the costs of injuries caused by their products to victims around the globe.
Thus, the trend has been instead to look to the place where the injury-causing product
was used.”
113 A.3d at 1054–55. The Bell Court specifically held that “the jurisdiction where the product is
marketed has a greater interest than a jurisdiction where a product is manufactured, developed,
and tested.” Id. at 1055. Separately, it noted that Bell, like Ford, “does business around the
world, and the safety of its products affect[s] people in numerous jurisdictions.” Id. at 1056.
Ford relies on Dale v. Ala Acquisitions I, Incorporated, 434 F. Supp. 2d 423, 435 (S.D.
Miss. 2006) to argue that where the defendant is domiciled and the tortious conduct occurred
ought to be considered the state with the most significant relationship on the issue of
comparative fault. Def.’s Resp. Br. 6. But Dale was a case alleging fraud rather than personal
injury, and the Restatement (Second) creates special rules for both personal injury and death
cases favoring the place of injury. See Restatement (Second) §§ 146, 175. And although fraud is
also a tort, and the Dale Court applied Section 145, a critical basis for its holding was the fact
that the injury did not take place in any one state. Id. at 435 (citing Restatement (Second) § 145
cmt. e, which states, “The location of the injury is less important where the injury did not occur
‘in a single, clearly ascertainable, state.’”).

9

To summarize, in a produ liability case where th
T
uct
c
here is globa distributio the site o
al
on,
of
manufact
ture cannot be the contro
b
olling factor under Bell. And once a
again, even i Ohio is deemed
if
to have an interest, it would not outweigh Flo
a
t
o
orida’s, and it is difficult to see how any interest of
t
w
t
Ohio is frustrated if the estate of one of its de
fr
t
eceased citiz
zens benefits from a mor forgiving
s
re
standard of comparat negligen in a suit against a for
tive
nce
reign corpor
ration.
C. Domicile, Residence, Place of In
C
ncorporation
Bell makes cl that alth
B
lear
hough Delaw might be Defendant place of in
ware
e
t’s
ncorporation it
n,
has no in
nterest in a ca such as this. Bell als makes cle that in th case of a m
ase
t
so
ear
he
mass-produc
ced
product with national distribution the state where the ma
w
n,
w
anufacturer i headquartered cannot
is
assert a dominant int
d
terest when the effects of any produc defect are felt elsewhe
t
f
ct
ere. Technic
cally
speaking Ohio was the Erwins’ domicile, an Florida th winter re
g,
t
d
nd
heir
esidence, but in a case w
t
where
the accid occurred in Florida, it cannot be said that Oh
dent
d
e
hio’s interes would pred
st
dominate ov
ver
that of Fl
lorida’s, part
ticularly whe the legal standard at issue is mor protective of the right of
ere
l
re
e
ts
Ohio’s ci
itizens.
In that regard Ford’s reliance upon Sinnott v. Tho
n
d,
S
ompson, 32 A.3d 351, 357 (Del. 201 is
11)
misplaced. Sinnott in
nvolved a claim brought against a D
t
Delaware citiz in a Delaware court as a
zen
result of a drunk driv
ving incident while he was attending college in N
t
g
North Caroli
ina. The
nt
s
nd
was
d
d
e
defendan driver was licensed in Delaware an the car w registered and insured there. The
plaintiff, a classmate from New York, was a passenger aw
Y
ware of the driver’s into
oxication. Th
he
defense sought to inv
s
voke the law of North Ca
w
arolina, whic recognize contributo negligen as
ch
ed
ory
nce
a comple bar. The Delaware Supreme Cou concluded that Delaw had the predominan
ete
urt
d
ware
nt
interest in applying it law to a ca brought against a De
n
ts
ase
elaware driv in a Delaw court.
ver
ware
More imp
portantly, ho
owever, it de
eclined to ap
pply North C
Carolina law because “De
elaware law

10

reflects a strong publ policy against contrib
lic
butory neglig
gence as a co
omplete bar to recovery in
negligenc actions.” 32 A.3d at 357. As not above, O
ce
ted
Ohio (along w Michiga and
with
an
Delaware has the sa public po
e)
ame
olicy against contributor negligenc serving as a complete bar
t
ry
ce
s
that Flori has. The Florida stan
ida
e
ndard is not repugnant to the public policy of an of the oth
o
ny
her
potentially interested states; the sole differen is a matte of degree. And it can
d
s
nce
er
.
nnot be said t
that
any inter of Ohio is frustrated by applicati of Florid more for
rest
i
ion
da’s
rgiving stand
dard where n
no
Ohio citizen is penali
ized by its ap
pplication. Furthermore to the exte that Ford has asserted a
F
e,
ent
d
d
m
he
river, he too was a Florid citizen at the time of the accident
da
t.
crossclaim against th striking dr
D. The Place of Any Re
D
e
elationship between the Parties
b
e
Ford argues th it has no relationship with the Er
hat
o
p
rwins, becau they purc
use
chased the
vehicle from a previo owner, with the resu that this fa
fr
ous
w
ult
actor should play no role in the analy
d
e
ysis.
I agree th it has littl weight, bu once again Bell cuts a
hat
le
ut
n
against Ford’ position. There, the C
’s
Court
rejected an argument that the par
a
t
rties’ relation
nship centere upon Tex where th helicopter was
ed
xas,
he
r
manufact
tured, becau until the crash the pla
use
c
aintiffs them
mselves had n direct inte
no
eraction with
h
Bell. It concluded th in the abs
c
hat
sence of a pr relations
rior
ship, the only possibly re
y
elevant
relationsh was that created by the accident itself, with t result tha it necessar centered
hip
t
the
at
rily
d
upon the location wh the injur was suffer
here
ry
red. 113 A.2 at 1056–
2d,
–57. There i a discernib
is
ble
t
ng
nvolving mobile product travelling to multiple l
ts
locations,
logic to this reasonin in cases in
because the product’s features an design ele
t
nd
ements accom
mpany the p
product wher
rever it goes. In
factual te
erms, it is the failure of the product that then lead to direct i
e
t
t
ds
interaction b
between the
parties co
oncerned. So, to the extent that this factor has an relevance it too wou favor
any
e,
uld
applicatio of Florida law.
on
a

11

E. Section 6 Principles
E
The principle of Section 6 are interw
T
es
woven with t analysis s forth abo and stric
the
set
ove,
ctly
speaking need no sep
g
parate discus
ssion. But th parties ha addressed them, and specific
he
ave
d
considera
ation of each will help underscore th basis for t decision I reach.
h
u
he
the
1) The ne
eeds of the interstate and internation systems
d
nal
Ford does not directly arg that appl
t
gue
lying Florida law would contravene the needs of the
a
d
f
interstate and interna
e
ational system but argu that becau three of the potentia interested
ms,
ues
use
ally
states tak the same approach to comparative negligence there is som benefit to applying th
ke
a
e
e,
me
o
hat
approach as a govern
h
ning consens
sus. Def.’s Resp. Br. 11, ECF No. 64 The com
R
,
4.
mmentary to t
the
Restatem (Second that Ford cites does no support its position: i refers to st
ment
d)
c
ot
s
it
tates adoptin the
ng
same cho of law principles, no the same principles of substantive law. In fac Ford’s
oice
p
ot
p
f
e
ct,
suggested approach of simply ad
d
o
dopting the majority view from poten
m
w
ntially intere
ested states is
antithetic to the typ of precise, issue-based analysis th Restateme (Second) embodies.
cal
pe
d
he
ent
)
2) The re
elevant polic of the fo
cies
orum
Bell makes it unambiguou clear th Delaware has no inter in this case, 113 A.3 at
B
usly
hat
e
rest
3d
1058, and it should be emphasize that it was decided aft Sinnott, t case on w
d
b
ed
fter
the
which Ford
principal relies. In
lly
ndeed, Bell ci Sinnott, so the Cour was plainly aware that it was draw
ites
rt
y
t
wing a
distinctio between cases involvi nationall distributed products a compared to cases
on
c
ing
ly
d
as
involving individual citizens of Delaware.
g
D
3) Releva policies and interest of the othe interested states
ant
ts
er
d
These issues were compre
T
w
ehensively addressed in sections A t
a
through D of this
f
Memorandum
M
m.

12

4) The protection of justified expectations
Like Captain Renault at Rick’s Café in Casablanca, Ford professes to be shocked that
Florida law might apply to an accident in Florida involving one of its vehicles. Any such
surprise is difficult to support. Ford has stipulated that it currently has relationships with 122
Ford dealerships in Florida. The legal formalities of how Ford structures its business are
irrelevant, because it is self-evident that sales revenue from the nation’s fourth largest state plays
a critical role in Ford’s economic success.3 Although the dealers are independently-owned and
operated, Ford has contractual relationships with them that allow for the distribution of its
vehicles in Florida, and regularly ships its vehicles and replacement parts into the state. Those
agreements include Sales and Service Agreements, under which Ford reimburses those
dealerships for performing warranty service. Needless to say, Ford routinely taps the
marketplace in Florida with its advertising and website. All of these activities should support an
expectation that Florida law would govern a dispute arising in Florida.
5) The basic policies underlying tort law
Every tort rule is “designed both to deter other wrongdoers and to compensate the injured
person.” Restatement (Second) § 145 cmt. c. As previously noted, Florida’s rule of pure
comparative negligence differs from other potentially interested states as a matter of degree in
that it maximizes compensation by allowing recovery even if a plaintiff’s share exceeds 50
percent. It is nonetheless consistent with the basic policies of tort law. But as to this specific
issue, separate and apart from compensation, Florida’s interest in deterring distribution of
defective products is also addressed by the measure of damages to which Ford is exposed if in

3
As just one example, Ford F Series pick-up trucks remain the best-selling vehicle in their class
nationally, and they represent the top selling pick-up truck in Florida. Mark Williams, Top Selling Pickup
Trucks by State, PickupTrucks.com (Sept. 20, 2017), http://news.pickuptrucks.com/2017/09/top-sellingpickup-trucks-by-state.html.

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fact it is liable. Under Florida’s rule, a defendant remains fully accountable, in that it does not
escape its own percentage share of responsibility even where the plaintiff was more
blameworthy. Citing Sinnott, Ford argues that Florida’ ability to enforce traffic laws is sufficient
to serve its deterrent interest, but that ignores the obvious: the claim against Ford is one for
product liability, so Florida’s rules of the road have no applicability to its conduct. According to
comment h to Section 6, where there are “minor differences” between the potentially applicable
rules, “there is good reason for the court to apply the local law of that state which will best
achieve the basic policy or policies underlying the particular field of law.” Given the nature of
this case, Florida’s deterrent interest is best served by application of its own law.
6) Certainty, predictability, and uniformity of result
Somewhat ironically, Ford argues that plaintiffs will be encouraged to engage in forum
shopping if Florida law applies. This contention can only be described as frivolous. There is
nothing irregular about a plaintiff bringing a lawsuit in Florida state court following a Florida
accident against a nationwide manufacturer whose product allegedly failed to perform. A
Florida court would undoubtedly have applied Florida law. See Bishop, 389 So. 2d at 1001.
Plaintiff, having been deprived of his chosen forum because of the transferring court’s novel
approach to specific jurisdiction, not surprisingly argues that this change of venue should not
result in a change to the governing legal standard. In my view, given the principles of the
Restatement (Second), failure to apply Florida law on the facts of this case would actually serve
to create uncertainty and unpredictability in the law.
7) Ease in determination and application of the law to be applied
Ford argues that because the laws of Ohio, Michigan and the Delaware are identical, “it
would be simple and easy to apply Delaware’s own law.” Suffice it to say I do not understand

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what point Ford is attempting to make. The difference between Florida’s rule of pure
comparative negligence and the modified standard of other potentially interested states is
elemental. A first-year law student could readily apply either rule, and by way of reference,
Florida mirrors the standard set forth in the Federal Employers Liability Act, a statute federal
judges routinely apply. This factor simply is not an issue.
IV.

Conclusion
In the final analysis, what seems most “fortuitous” is not the site of the accident in

Florida, but rather the fact that this case is pending in the District of Delaware. Bell provides
clear guidance for the resolution of this motion. Ford has not overcome the presumption that the
law of the site of the accident should apply, and accordingly, Plaintiff’s motion to apply Florida
law on comparative negligence will be granted.

/s/ Gerald Austin McHugh
United States District Judge

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