are, almost exclusively, the parties' domiciles and the locus of the tort." Schultz v. Boy Scouts of America, Inc., 65 N.Y.2d 189, 197, 491 N.Y.S.2d 90, 480 N.E.2d 679 (1985). In Neumeier, the Court enunciated three rules of presumptive applicability in conflicts relating to loss allocating laws, two of which bear upon our resolution of the present conflict. Simply stated, the first Neumeier rule provides that where the plaintiff and defendant share a common domicile, that law should control irrespective of the locus of the tort. Neumeier, 31 N.Y.2d at 128 ["Neumeier One"]. However, where the parties are domiciled in different states, neither of which is the jurisdiction wherein the tort occurred, the third Neumeier rule provides that the law of the place of injury should normally control "but not if it can be shown that displacing that normally applicable rule will advance the relevant substantive law purposes without impairing the smooth working of the multi-state system or producing great uncertainty for litigants." Id. ["Neumeier Three"]. Applying these two rules to the present dispute, considerate of the policies to be advanced by each rule, reveals that New York is the proper choice of law.
The rationale underlying the first Neumeier rule counsels in favor of application of New York law. Although Neumeier One is facially inapplicable to the present dispute since the parties reside in different states, this Court finds their diversity to be of no moment where the substantive law of each domicile is harmonious. Neumeier recognized that the mutual decision to accept the benefits and burdens of one state's laws overcame any interest the locus jurisdiction had in dictating the allocation of risks between co-domicilliaries. Schultz, 65 N.Y.2d at 198. Equally important, however, was the fact that neither party could complain of upset expectations when the law of their common domicile was applied to the dispute. See Cooney, 81 N.Y.2d at 77; Allstate Ins. Co. v. Hague, 449 U.S. 302, 327, 66 L. Ed. 2d 521, 101 S. Ct. 633 (1981) (Stevens, J., concurring). Similarly, since parties to the present dispute have voluntarily aligned themselves with states that share a common perspective on this issue of law, neither can complain that this Court subjects them to the standard of care commensurate with the law of their respective domicile. Therefore, this Court finds that application of New York law in the present instance fully comports with the policies served by the first Neumeier rule.
A balancing of the respective state interests under the third Neumeier rule mandates displacement of North Carolina law in favor of New York law. Neumeier Three defaults to the lex loci delicti doctrine based upon the presupposition that "the interests of each State in enforcement of its law is roughly equal." Cooney, 81 N.Y.2d at 74. However, this premise fails when the states have disproportionate interests in the resolution of the issue. Schultz, 65 N.Y.2d at 201-02. In such a case, this Court should apply the law of state having the greatest policy interests at stake unless doing so will impair the smooth working of the multi-state system or produce great uncertainty for litigants. Neumeier, 31 N.Y.2d at 128.
New York has a clearly superior interest in the allocation of losses between the parties to the present dispute. Since neither party resides in North Carolina, that state will be neither benefitted nor burdened by the outcome of this case. New York, on the other hand, has a direct stake in the resolution of this issue because it directly impacts the recovery of a New York plaintiff. See Neumeier, 31 N.Y.2d at 125 (distinguishing past cases because they did not impact New York plaintiff). Furthermore, application of New York conflict of law rules requires "a recognition that the insurer, rather than the individually named defendant, is often the real party in interest." Schultz, 65 N.Y.2d at 197. Plaintiff William Diehl's car was registered and insured to Diehl in New York. Consequently, Ogorewac is merely a nominal defendant and the real parties in interest to the present litigation are the Diehls and their New York insurance company, at least to the extent of the policy's coverage.
No state may claim an interest superior to New York in regulating the amount of recovery a New York plaintiff may receive from a New York insurer. Hence, New York has the greatest interest in applying its laws to these facts.
Application of New York law to this dispute also fully comports with the reasonable expectations of the parties and will advance the interests of New York without impairing the "smooth working of the multi-state system." Neumeier, 31 N.Y.2d at 128. Holding the parties to a standard of care consistent with the law of their domicile fosters certainty and predictability in the law by ensuring that citizens are not subject to vacillating standards of care as they travel across jurisdictions with which they have "isolated and infrequent contacts." Schultz, 65 N.Y.2d at 201-202. Moreover, the multi-state system will be best served by applying the law of the forum when it is substantially identical to the domiciles of both plaintiffs and defendants. This element of the Neumeier test is chiefly concerned with forum shopping and local bias in favor of the domestic party. See Schultz, 65 N.Y.2d at 201. Forum shopping is simply not at issue where, as here, the plaintiff has chosen a forum with disadvantageous law. Further, since the laws of New York and New Jersey are the same, application of New York law evidences no bias in favor of any litigant. Therefore, under the third Neumeier rule, this Court must apply New York law.
III. Scope of New York's Seat Belt Defense
Defendant also seeks leave to amend his answer under Federal Rule of Civil Procedure 15 to add a second affirmative defense alleging that plaintiff Alma Diehl failed to wear her seat belt. Plaintiff opposes this amendment by arguing that New York law does not permit such a defense to be asserted against rear seat passengers. This contention is without merit and leave to amend is granted.
New York courts permit defendants in automobile accident cases to introduce evidence of plaintiff's failure to wear an available safety belt in mitigation of any damage award. Spier v. Barker, 35 N.Y.2d 444, 363 N.Y.S.2d 916, 323 N.E.2d 164 (1974). In Spier, the Court found that "nonuse of an available seatbelt, and expert testimony in regard thereto, is a factor which the jury may consider . . . in arriving at its determination as to whether the plaintiff has exercised due care." Id. at 449. On January 1, 1985, the New York Legislature enacted a statutory provision mandating that all front seat passengers wear their safety belt at all times or risk a minor civil fine. See N.Y. Veh. & Traf. Law § 1229-c (McKinney 1986). This provision specifically provided that "non-compliance with the provisions of this section shall not be admissible as evidence in any civil action in a court of law in regard to the issue of liability but may be introduced in mitigation of damages . . . ." Id. at § 1229-c(8) (emphasis added).
Plaintiff argues that this statute now defines the scope of the duty owed by plaintiff and, since the statute is plainly inapplicable to rear seat passengers, no evidence Alma Diehl's failure to wear a rear seat belt may be admitted. However, the statutory duty of front seat passengers to wear seat belts is not inconsistent with any pre-existing common law duty of rear seat passenger to wear a safety belt. The question is one of reasonable care under the circumstances and does not turn upon the position of the plaintiff in the vehicle or the existence of a statutory mandate. See Smith v. Goodyear Tire & Rubber Co., 600 F. Supp. 1561, 1564 (D.Vt. 1985). Since the New York Court of Appeals has found that a jury may properly consider a plaintiff's failure to use an available restraining device in awarding damages, the passage of a complimentary statute cannot be read to overrule pre-existing caselaw by silence. See Palmer v. Massachusetts, 308 U.S. 79, 85, 84 L. Ed. 93, 60 S. Ct. 34 (1939) (existing precedent may be overruled by statute only with unambiguous language). Whether being a back seat rather than a front seat passenger bears any relevance to this inquiry and the damages, if any, that Alma Diehl shall receive is a question for the jury and not this Court to decide. Therefore, defendant's request for leave to amend his answer is granted.
Thomas C. Platt
Chief Judge, U.S.D.C.
Dated: Uniondale, New York
October 20, 1993