Vicki Pounders v. Enserch E&C Inc
306 P.3d 9
Ariz.2013Background
- Plaintiff/Pounders sues Enserch E&C, BW/IP, Riley Power for wrongful death from mesothelioma due to asbestos exposure at the Four Corners Plant in NM.
- Pounders worked in NM (1969–74, 1979–83); exposure occurred there; he later moved to AZ and was diagnosed in May 2008.
- Trial court apply NM statute of repose (N.M. § 37-1-27) to the wrongful death claim, leading to summary judgment for Enserch.
- Arizona Court of Appeals affirmed; the Arizona Supreme Court reviews choice-of-law for long-latency asbestos claims.
- Court adopts a §175/§6 choice-of-law framework under the Second Restatement, determining the place of injury is Arizona, but NM has the more significant relationship to the case.
- Court holds NM’s statute of repose applies to the wrongful death claim, and affirms on that basis, vacating some appellate determinations due to the new analysis.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Which state's law governs? | Place of injury is where injury manifests (Arizona). | Place of injury is where exposure occurred (New Mexico). | New Mexico substantive law applies. |
| What is the place of injury for a long-latency disease? | Injury occurred where disease manifests (Arizona). | Injury occurred where exposure happened (New Mexico). | Place of injury is where the last event necessary for liability occurs; for mesothelioma that is manifestation in Arizona. |
| How do §175 and §6 conflict-of-laws rules apply? | Place of injury has presumptive weight; other factors may shift. | New Mexico has stronger contacts and policy interests. | New Mexico has the dominant interest under §6 and §145, controlling. |
| Which state has the more significant relationship under §145(2)? | Arizona residency of victim and place of injury. | Conduct and NM intervention related to exposure occur in NM. | Second contact (conduct causing injury) given particular weight; NM more significant. |
| Does New Mexico's statute of repose apply to the wrongful death claim? | NM repose should not bar Arizona wrongful-death claims. | NM repose applies to non-resident defendants and injury arising in NM. | New Mexico's statute of repose applies; provides basis for affirming dismissal of the claim. |
Key Cases Cited
- Rice v. Dow Chemical Co., 875 P.2d 1213 (Wash. 1994) (injury location can be defendant- or exposure-centric in conflict of laws)
- Wyeth v. Rowatt, 244 P.3d 765 (Nev. 2010) (injury ascertainable location governs where the injury is first identifiable)
- Burns v. Jaquays Mining Corp., 156 Ariz. 375 (App. 1987) (asbestos exposure requires manifestation to support a claim)
- DeStories v. City of Phoenix, 154 Ariz. 604 (App. 1987) (necessity of a medically identifiable effect for asbestos claims)
- Garcia v. Gen. Motors Corp., 195 Ariz. 510 (App. 1999) (place-of-injury factors; heavy weight on last-event concept)
- Sosa v. Alvarez-Machain, 542 U.S. 692 (2004) (tort choice-of-law under most significant relationship framework)
- Jackson v. Chandler, 204 Ariz. 135 (2003) (Second Restatement § 145 analysis in torts)