WENDY J. ANDERSEN & another [Note 1] vs. FRANCISCO G. LOPEZ & another. [Note 2]

MCHUGH, J. This is a negligence action brought in the Superior Court by Maine residents, Wendy and James Andersen, against Massachusetts residents, Francisco and Sandra Lopez, as a result of an accident that occurred on a ferry in New Brunswick, Canada. The plaintiffs commenced the action two years and nine months after the accident occurred, by which time the two-year New Brunswick statute of limitations for tort claims had

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expired. Asserting that the New Brunswick statute controlled, the defendants filed a motion for summary judgment seeking dismissal of the action. A judge of the Superior Court denied the motion. We affirm.

Background. Viewed in the light most favorable to the plaintiffs, Green v. Harvard Vanguard Med. Assocs., 79 Mass. App. Ct. 1, 2 (2011), the summary judgment record shows that the plaintiffs and defendants were in a group of motorcyclists who set out from Maine for Deer Island, New Brunswick. In the New Brunswick town of St. George, they drove their motorcycles onto a ferry that was to take them to the island. As they were parking in designated spaces on the ferry, the defendants' motorcycle fell against the plaintiffs', causing the injuries that led to the suit.

As noted, by the time the plaintiffs commenced this action, the two-year New Brunswick statute of limitations had expired. See New Brunswick Limitation of Actions Act, R.S.N.B. 1973, c. L-8, Part I, 5 (1). The defendants, who live in Massachusetts, bought their motorcycle here, and are insured by a Massachusetts insurer, [Note 3] raised expiration of the statute as an affirmative defense when they answered the complaint and, later, moved for summary judgment on the same basis. The plaintiffs countered by urging that the governing statute was not found in the laws of New Brunswick but instead in G. L. c. 260, § 2A, [Note 4] which gives a plaintiff three years to bring a tort claim. After hearing, a judge of the Superior Court agreed and denied the defendants' motion. The defendants applied for and received permission to take an interlocutory appeal, see G. L. c. 231, § 118, first par., and this appeal followed.

Discussion. We review summary judgment orders de novo to determine "whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been

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established and the moving party is entitled to a judgment as a matter of law." Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991). Here, the focus of our inquiry is on whether the Massachusetts statute of limitations is applicable, in which case the plaintiffs' action may proceed, or whether the New Brunswick statute applies and bars the claim because it was filed too late.

Massachusetts uses a "functional approach" to determine the applicable statute of limitations when Massachusetts is the forum State and the action has connections to other States. See New England Tel. & Tel. Co. v. Gourdeau Constr. Co., 419 Mass. 658, 660 (1995). See also Nierman v. Hyatt Corp., 441 Mass. 693, 695 (2004). This functional approach "responds to the interests of the parties, the States involved, and the interstate system as a whole." Reisch v. McGuigan, 745 F. Supp. 56, 59 (D. Mass. 1990), quoting from Bushkin Assocs. v. Raytheon Co., 393 Mass. 622, 631 (1985). See Nierman, supra at 695; Shamrock Realty Co. v. O'Brien, 72 Mass. App. Ct. 251, 255 (2008).

The functional approach is embodied in the Restatement (Second) of Conflict of Laws § 142 (Supp. 1989), as amended in 1988, which provides, in material part, that "[i]n general, unless the exceptional circumstances of the case make such a result unreasonable . . . [t]he forum will apply its own statute of limitations permitting the claim unless: (a) maintenance of the claim would serve no substantial interest of the forum; and (b) the claim would be barred under the statute of limitations of a state having a more significant relationship to the parties and the occurrence." [Note 5], [Note 6] In other words, Massachusetts will apply its own statute of limitations to allow the action to proceed unless

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some exceptional circumstances about the case make it unreasonable to do so or unless, after analyzing the interests of Massachusetts and New Brunswick, allowing the action to proceed would serve no substantial Massachusetts interest, and New Brunswick has a more significant relationship to the parties and the accident than does Massachusetts. In assessing those interests, we focus only on the interests that bear on the statute of limitations. See Kahn v. Royal Ins. Co., 429 Mass. 572, 574 (1999); Nierman, 441 Mass. at 696, quoting from Stanley v. CF-VH Assocs., 956 F. Supp. 55, 59 (D. Mass. 1997) (interests "are necessarily related and should be evaluated 'with some sensitivity' to one another").

Massachusetts has an interest in application of its own statute because the defendants are Massachusetts residents, made the trip on a vehicle they purchased in Massachusetts, and are insured by a Massachusetts insurer. Thus, their motorcycling activity and the protection they purchased to guard against financial losses that activity might cause are centered in Massachusetts. By enacting a three-year statute, the Legislature has determined that three years is an appropriate balance between the length of time its citizens should remain accountable for the consequences of their negligent conduct and the protection they need against "protracted exposure to liability." Nierman, supra at 698. See generally Cosme v. Whitin Mach. Works, Inc., 417 Mass. 643, 649 (1994); Dasha v. Adelman, 45 Mass. App. Ct. 418, 426-427 (1998). Cf. Nierman, supra at 697. Indeed, the Legislature's election not to protect its citizens by "borrowing" shorter limitations

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periods from other States when shorter periods are available, see G. L. c. 260, § 9; New England Tel. & Tel. Co. v. Gourdeau Constr. Co., 419 Mass. at 663, emphasizes the interest Massachusetts has in allowing the three-year period to run its course. [Note 7]

The interest just described, while significant, is likely insufficient to push aside all others that might be proffered in hypothetical cases. Here, though, no significant countervailing interest appears. To be sure, New Brunswick has an interest in ensuring compliance within its borders of the standards of behavior its tort law embodies and that interest may give New Brunswick an interest in the extraterritorial application of its tort law. But New Brunswick has no discernible interest in setting the time by which two nonresidents must resolve their disputes in foreign courts, even when those disputes concern the way the nonresidents interacted with each other while they were in New Brunswick. Particularly is that so when the record does not reveal any New Brunswick witnesses to the accident or any New Brunswick medical provider who rendered aid to the plaintiffs. Failure to apply the New Brunswick statute of limitations to this dispute, therefore, would not undermine the policies of a State "having a more significant relationship to the parties and the occurrence." Restatement (Second) of Conflict of Laws, supra at § 142.

Nierman, on which the defendants heavily rely, is not to the contrary. There, Massachusetts residents made a reservation through a local travel agent to stay at a Hyatt hotel in Dallas, where the plaintiff was injured by the negligence of a hotel employee. Hyatt, a Delaware corporation with a principal place of business in Chicago, owned at the time at least one hotel in Massachusetts. The plaintiffs commenced suit against Hyatt three years after the accident occurred. Hyatt defended by asserting that their claim was barred by a two-year Texas statute of limitations. The Supreme Judicial Court agreed. See Nierman, 441 Mass. at 697-698.

The critical distinction between this case and Nierman is that

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Hyatt, the nonresident defendant, owned and operated the Dallas hotel where the injury occurred. That hotel employed Texans, presumably including the employee whose negligent conduct caused the accident and for whose conduct Hyatt was vicariously liable. The plaintiffs had chosen to go to Dallas and to stay in Hyatt's hotel. The two-year statute represented a balance the Texas Legislature had struck between "the need of its citizens[, and those who operated businesses within its borders,] to redress injuries and their right to be protected from protracted exposure to liability." Id. at 698. Under those circumstances, the court said, although "Massachusetts has a general interest in having its residents compensated for personal injuries suffered in another State . . . [i]t cannot be said . . . that its interest in the timeliness of such an action is more compelling than that of Texas." Id. at 697.

Here, as stated, both parties had only a fleeting relationship with New Brunswick, and New Brunswick has no interest in determining the time by which they must begin resolving their differences in a Massachusetts court. As a result, no exceptional circumstances of this case make it unreasonable for the forum (Massachusetts) to apply its own statute of limitations permitting the claim the plaintiffs have brought. [Note 8]

Order denying motion for summary judgment affirmed.