Umbarger v. Bolby , 1986 Ind. App. LEXIS 2833 ( 1986 )

HOFFMAN, Judge.

Pursuant to Ind.Rules of Procedure, Appellate Rule 4(B)(6) plaintiff-appellant Debra Umbarger brings an interlocutory appeal based upon the trial court's ruling on the choice of law applicable to the present case. The trial court certified the question for review.

The facts relevant to the appeal disclose that Umbarger was a passenger in a car driven by defendant-appellee Timothy Bol-by. Bolby, Umbarger and a third person, who is not a party to the action, drove to Michigan from Indiana on April 9, 1982. During the return trip to Indiana, Bolby drove off of the road and into a tree. Um-barger, an Indiana resident, sued Bolby, also an Indiana resident, in an Indiana court for personal injuries sustained in the accident.

Umbarger urged the trial court to apply Michigan law to the case under the lex loci delicti conflict of laws rule, which looks to the law of the place of the injury. Bolby argued and the trial court adopted the position that the "most significiant relationship" test,¹ should govern the choice of law decision. It is this question which has been presented for review.

It is noteworthy that both parties and the trial court below have presented this Court with excellent discussions of the issue. . However, this Court's decision is dictated by its role as an intermediate appellate tribunal and the controlling precedent in Indiana.

Under the current state of Indiana law, it is clear that lex loci delicti is the rule which must be employed when determining the choice of substantive law in tort cases.

Wabash R. Co. v. Hassett (1908), 170 Ind. 370, 83 N.E. 705;

Hubbard Mfg. Co., Inc. v. Greeson (1986), Ind.App., 487 N.E.2d 825;

Snow v. Bayne (1983), Ind.App., 449 N.E.2d 296;

Maroon v. State, Dept. of Mental Health (1980), Ind.App., 411 N.E.2d 404.

In his concurring opinion in Maroon, supra, Judge Ratliff extolled the virtues of a significant relationship test. Because our Supreme Court has thus far wisely declined all invitations to adopt this rule, this Court is bound by lex loci delicti. Although its opponents argue that it is inflexible, lex loci delicti provides consistency and discourages forum shopping.

In its decision the trial court found that even if lex loci delicti was the proper rule to resolve the choice of law question, the public policy exception to the rule would be applicable in the present case. The court found that Indiana's guest statute, requiring willful or wanton conduct prior to recovery from a driver by a passenger, was based on public policy which should be preferred over Michigan's law which contained no such limitation.

As noted by the majority opinion in Maroon, supra, 411 N.E.2d at 411-412, the exception as announced in Wabash R., supra, is invoked when application of the laws of another state would be against good morals or natural justice, or prejudicial to the general interests of the citizens of this state. Given the recent amendment to Indiana's guest statute,² IND. CODE § 9-3-3-1, no longer requiring willful or wanton conduct unless the injured passenger is related to the driver or a hitchhiker; invocation of the public policy exception to lex loci delicti would not be warranted in the present case. Additionally, this Court in Maroon, supre, 411 N.E.2d at 412, specifically noted that the traditional application of the exception has been reserved for cases involving "inter alia, gambling contracts, lotteries, and marriages within prohibited limits of consanguinity." Therefore, the exception cannot be applied in the present case.

The cause is remanded to the trial court for further proceedings consistent with this opinion.

STATON, P.J., and GARRARD, J., concur.

1 . The rule is variously referred to as the "dominant contacts" rule and the "center of gravity" approach as well.

2 . Of course, the amended statute was enacted in 1984 after the occurrence in the present case and as such is only useful as an indication of Indiana's evolving public policy views.