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DIEHL v. OGOREWAC

October 20, 1993

ALMA DIEHL, as executrix of the goods, chattels and credits of WILLIAM DIEHL, deceased, and ALMA DIEHL, individually, Plaintiff,
v.
FRANK OGOREWAC, Defendant.



The opinion of the court was delivered by: THOMAS C. PLATT

 PLATT, Chief Judge

 Background

 Plaintiff Alma Diehl and decedent William Diehl set out from their Long Island, New York home on October 12, 1989 bound for Orlando, Florida. The couple picked up defendant Frank Ogorewac and his wife Lina, Alma Diehl's sister, at their Lakewood, New Jersey home and headed south on Interstate 95 in a 1989 Plymouth Voyager van purchased, registered, and insured in New York State by decedent William Diehl. In the early morning hours of October 13, 1989, the party stopped at a Virginia gas station just north of the North Carolina border at which point defendant Ogorewac assumed control of the vehicle. The group continued their journey down Interstate 95 with Defendant Ogorewac driving, William Diehl in the passenger seat, and Alma Diehl and Lina Ogorewac in the rear seat.

 Shortly after entering North Carolina, a deer crossed the path of the vehicle. Defendant Ogorewac swerved to avoid the animal, causing the vehicle to veer off the road and overturn on the median. Ogorewac and his wife suffered minor injuries. Alma Diehl sustained broken ribs, a fractured scapula and other minor injuries. William Diehl was ejected from the vehicle during roll-over, causing severe injuries and massive head trauma. Mr. Diehl was pronounced dead at the scene at approximately 4:45 a.m.

 Plaintiff Alma Diehl filed suit in this Court on behalf of herself individually and as executrix of her husband's estate based upon this Court's diversity jurisdiction. Defendant answered with an affirmative defense to liability for some or all of the injuries to William Diehl due to his failure to wear a seat belt. Ogorewac now seeks to add a second affirmative defense based upon Alma Diehl's failure to wear a safety belt. Plaintiff opposes defendant's efforts to amend the answer and seeks to strike the first affirmative defense as being improper under North Carolina law. See N.C. Gen. Stat. § 20-135.2A(d) (Michie 1990) (evidence of failure to wear seat belt inadmissible in negligence suit).

 Discussion

 The present cross-motions require this Court to determine which state substantive law will provide the rules of decision in this dispute. A choice of law issue arises when the allegedly illicit conduct or the parties themselves have sufficient contacts with two or more states having contradictory laws such that several states could constitutionally apply their laws to the dispute. See Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 86 L. Ed. 2d 628, 105 S. Ct. 2965 (1985); Cooney v. Osgood Machinery, Inc., 81 N.Y.2d 66, 70-71, 595 N.Y.S.2d 919, 612 N.E.2d 277 (1993). When such a conflict arises, a federal court sitting in diversity must ascertain the appropriate law by applying the conflicts of law principles of the forum state. See Klaxon v. Stentor, 313 U.S. 487, 496-97, 85 L. Ed. 1477, 61 S. Ct. 1020 (1941); Reeves v. American Broadcasting Co., Inc., 719 F.2d 602, 605 (2d Cir. 1983). The parties are in substantial agreement that the seat belt defense is available under the laws of New York and New Jersey but not in North Carolina. Compare Spier v. Barker, 35 N.Y.2d 444, 363 N.Y.S.2d 916, 323 N.E.2d 164 (1974) and Waterson v. General Motors Corp., 111 N.J. 238, 544 A.2d 357 (1988) with Miller v. Miller, 273 N.C. 228, 160 S.E.2d 65 (N.C. 1968). Our analysis of this choice of law issue under New York law is guided by the basic principles set forth by the decisional law of the New York Court of Appeals. Under New York choice of law rules, the substantive law of New York must control in this action.

 I. Constitutional Constraints On Choice of Law

 This Court may constitutionally apply the substantive law of North Carolina, New Jersey or New York to this dispute. A court may apply the law of any state wherein the defendant is subject to in personam jurisdiction provided that state has a sufficient interest in the dispute such that application of its law does not offend the Due Process Clause or the Full Faith and Credit Clause of the United States Constitution. Allstate Ins. Co. v. Hague, 449 U.S. 302, 320 & n.3, 66 L. Ed. 2d 521, 101 S. Ct. 633 (1981) (Stevens, J., concurring). All three states may properly exert personal jurisdiction over defendant Ogorewac. *fn1" Moreover, a particular state's law may be applied to a dispute consistent with the Due Process Clause and the Full Faith and Credit Clause where that state has "significant contacts or a significant aggregation of contacts creating state's interest such that choice of its law is neither arbitrary nor fundamentally unfair." Allstate, 449 U.S. at 313. These "modest restrictions" are easily met where a significant portion of the acts or omissions took place within or by a domiciliary of a state. Shutts, 472 U.S. at 818-19. Since Ogorewac is a domiciliary of New Jersey and both New York and North Carolina have ample contacts with the persons and events of this controversy, this Court may constitutionally choose any of the three states' substantive law.

 II. New York Choice of Law Rules

 Conflicts of law in tort issues under New York law are resolved under the governmental interests doctrine the Court of Appeals formally adopted in Neumeier v. Kuehner, 31 N.Y.2d 121, 286 N.E.2d 454, 335 N.Y.S.2d 64 (1972). Under this doctrine, the state having the greatest interest in fostering its domestic policies with respect to the conflict will supply the governing law. Cooney v. Osgood Machinery, Inc., 81 N.Y.2d 66, 72, 595 N.Y.S.2d 919, 612 N.E.2d 277 (1993). New York courts have consistently held that conduct regulating rules of the jurisdiction where the tortious act occurred must be applied because that state has the "predominant, if not exclusive, concern" with the disposition of that issue. Babcock v. Jackson, 12 N.Y.2d 473, 483, 240 N.Y.S.2d 743, 191 N.E.2d 279 (1963). However, where the conflict involves the allocation of losses between the parties, the rules are necessarily less precise. In Neumeier, the ...


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