John G. Konkel, Charfoos, Christensen, Gilbert, Archer, Adrienne Southgate, Detroit, Mich., for plaintiff-appellant.

Grant J. Gruel, Cholette, Perkins & Buchanan, Edward Wells, Grand Rapids, Mich., for defendant-appellee.

Before EDWARDS, Chief Judge, PECK, Senior Circuit Judge, and CHURCHILL,* District Judge.

ORDER

There is before us an appellant's motion for clarification of our opinion of June 3, 1982, an appellant's petition for rehearing with supporting documents, and an appellee's brief in opposition to the petition for rehearing. We have examined these materials and hereby grant Appellant Bennett's timely petition for rehearing. For the following reasons, upon reconsideration, 679 F.2d 630, we again affirm the district court's judgment for defendant-appellee Enstrom.I.

Since this Court's original decision in this diversity case, the Supreme Court of Michigan has substantially changed the relevant law of that state by its decisions in Sexton v. Ryder Truck Rental, Inc. and Storie v. Southfield Leasing, Inc., 413 Mich. 406, 320 N.W.2d 843 (1982) (hereinafter, Sexton). The determinative issue in this case remains whether a Michigan court would apply Michigan substantive law, the lex fori, to Bennett's action. Bennett's petition for rehearing relies on Sexton in arguing that Michigan would now apply its own law. We reaffirm our earlier holding that Bennett's cause would be decided by a Michigan court according to New Zealand substantive law, the lex loci delicti, which would bar the action, and we note that this holding is not attacked in Bennett's petition for rehearing.

The effect of the Sexton decision on the disposition of this case is not easily summarized. Sexton produced two "majority" decisions, with one justice joining in two opinions. Justice Williams' opinion established two rules:

(1) "(W)here Michigan residents or corporations doing business in Michigan are involved in accidents in another state and appear as plaintiffs and defendants in Michigan courts, the courts will apply the lex fori, not the lex loci delicti..., without reference to any particular state policy." Sexton, 320 N.W.2d at 854, Williams, J. (Emphasis added).

(2) Michigan's owners' liability statutes, including the aircraft owner's statute, MCLA § 259.180a, will be given "uniform application to residents traveling outside of Michigan as well as (to) persons within our state." Id. at 856. The rationale for this rule is that these statutory causes of action are founded not on any conduct of the parties outside of Michigan "but on the relationship between Michigan owners and Michigan operators." Id. (Emphasis added).

Neither of these holdings avails the plaintiff, who is not a Michigan resident.

Justice Kavanagh's second "majority" opinion held that the place of the wrong is no longer a "fact controlling or even of great significance" to choice-of-law questions, since the state clearly has the "power" to regulate the extraterritorial consequences of the intrastate status of ownership. Although Justice Kavanagh's opinion could be read as requiring application of the Michigan owners' liability statutes to all Michigan vehicle and aircraft owners,1 the more natural and less radical reading of Justice Kavanagh's opinion is that given by Justice Levin, who concurred in Justice Kavanagh's opinion and wrote separately:

Justice Kavanagh's opinion would hold that in a tort action commenced in Michigan, the domestic law of this state shall govern absent a reason for applying the law of another state and that the place of the wrong is not a reason for not applying Michigan domestic law. 320 N.W.2d at 857, Levin, J.