Legal Memorandum: Choice-of-law Determination

Issue: In what circumstances do Wisconsin’s common-law principles require the application of the law of another nation, such as Poland?

     Courts faced with a choice-of-law determination are sometimes influenced by equitable considerations.  One Wisconsin court explicitly discussed “fairness and equity” in deciding whether to apply the borrowing statute.  Ristow v. Threadneedle Ins. Co., 220 Wis. 644, 654, 583 N.W.2d 452, 455 (Ct. App. 1998). 

Choice-of-law determinations involving torts Wisconsin courts do not use the “groupings” approach, but a five-prong test.  The court must consider: 1) predictability of results; 2) maintenance of interstate and international order; 3) simplification of the judicial task; 4) advancement of the forum’s governmental interest; and 5) application of the better rule of law.  Heath v. Zellmer, 35 Wis. 2d 578, 596, 151 N.W.2d 664, 672 (1967).

The court said of its approach, “[n]or does it mean that foreign law will be applied even though the contacts with a foreign jurisdiction are quantitatively overwhelming.”  Rather, “if the foreign law is truly repugnant to Wisconsin policy, the effectuation of Wisconsin policy may be the most decisive element.” 35 Wis. at 593, 151 N.W.2d. at 670.  The court opted to apply Wisconsin law, principally because of the fourth and fifth factors cited above: “[t]he policy of our tort law is to provide compensation for persons who are injured by negligent conduct.  The application of Indiana law will defeat that purpose.”  35 Wis. at 600, 151 N.W.2d. at 674.

Another case, Schlussler v. American Family Mutual Insurance Co., 157 Wis. 2d 516, […]