domiciliaries. Moreover, Canadian law places significant limits a tortfeasor's potential liability for non-economic damages, whereas Connecticut law does not. The interests underlying Canada's law (protecting domiciliaries from excessive liability and maintaining affordability of insurance coverage) are not reconcilable with the interest underlying Connecticut's law (ensuring full compensation for domiciliaries who suffer tortious injury). As a result, "an appropriate method for choosing between the two must be found." Cooney, 81 N.Y.2d at 76, 595 N.Y.S.2d at 925, 612 N.E.2d at 283.
To this end, the Court turns to Neumeier v. Kuehner, 31 N.Y.2d 121, 335 N.Y.S.2d 64, 286 N.E.2d 454 (1972) (Fuld, C.J.), and its progeny. Although Neumeier was itself a guest-statute case, the Court of Appeals has applied the so-called "Neumeier rules" outside the guest-statute context, at least where the conflicting laws at issue "are loss allocating, not conduct regulating." See Cooney, 81 N.Y.2d at 73-78, 595 N.Y.S.2d at 924-26, 612 N.E.2d at 281-84 (applying Neumeier's second rule: "Contribution rules--as involved in the present case--are loss allocating, not conduct regulating."); Schultz, 65 N.Y.2d at 199-202, 491 N.Y.S.2d at 96-98, 480 N.E.2d at 685-87 (applying Neumeier's first and third rules: "The [charitable-immunity] rule in conflict is loss-allocating rather than conduct-regulating."); see also Barkanic v. General Administration of Civil Aviation of People's Republic of China, 923 F.2d 957, 961-63 (2d Cir. 1991) (Oakes, J.) (reasoning that Kilberg v. Northeast Airlines, Inc., 9 N.Y.2d 34, 211 N.Y.S.2d 133, 172 N.E.2d 526 (1961), and its progeny have been superseded by Schultz: "It appears to us that New York courts would now apply the Neumeier rules to all post-accident loss distribution rules.") (citations omitted). Here, the conflicting laws concern the limit, if any, on recovery of non-economic damages. These laws are plainly "loss allocating, not conduct regulating," for purposes of New York's choice-of-law rules. See, e.g., Barkanic, 923 F.2d at 963 ("Post-accident loss distribution rules . . . include rules that limit damages in wrongful death actions."). The Court therefore applies the Neumeier rules to resolve the conflict presented.
In particular, the "second Neumeier rule addresses 'true' conflicts, where the parties are domiciled in different States and the local law favors the respective domiciliary." Cooney, 81 N.Y.2d at 73, 595 N.Y.S.2d at 923, 612 N.E.2d at 281. The Millers and Bombardier are, of course, domiciled in different jurisdictions, and each jurisdiction's law favors its domiciliary. Neumeier's second rule therefore applies. "Under that rule, the place of injury governs," id., 81 N.Y.2d at 76, 595 N.Y.S.2d at 925, 612 N.E.2d at 283, "[a] primary reason [being] that [the] locus . . . is ordinarily . . . the place with which both parties have voluntarily associated themselves," id., 81 N.Y.2d at 77, 595 N.Y.S.2d at 925, 612 N.E.2d at 283. In this action, Canada is the place of injury and the place, as between Canada and Connecticut, with which both Mr. Miller and Bombardier have voluntarily associated themselves. The law of Canada therefore controls the extent of Bombardier's potential liability to Mr. Miller for noneconomic damages. See Barkanic, 923 F.2d at 961-63.
Moreover, although Ms. Miller did not voluntarily associate herself with Canada, this fact does not render Canadian law inapplicable to her loss of consortium claim against Bombardier. See Cooney, 81 N.Y.2d at 77, 595 N.Y.S.2d at 925, 612 N.E.2d at 283. Rather, the fact that Ms. Miller's claim arises out of Mr. Miller's injuries, which he suffered in Canada as a result of his voluntary association with Canada, provides ample reason to apply Canadian law to Ms. Miller's claim. See Barkanic, 923 F.2d at 961-63 (under second Neumeier rule, law of place where decedent died, not place where decedent or plaintiff was domiciled, applies to damage-limitation issue in wrongful death action); but cf. Scharfman v. National Jewish Hospital & Research Center, 122 A.D.2d 939, 506 N.Y.S.2d 90 (2d Dept. 1986) (applying law of plaintiff's domicile, although second Neumeier rule was applicable, because [unlike in this action] defendant had engaged in substantial business activities in plaintiff's domicile). The Court therefore concludes that Canadian law controls Bombardier's potential liability for non-economic damages to Ms. Miller, as well as to Mr. Miller.
New York "public policy" is not offended by this conclusion, under the circumstances of this case. "The public policy doctrine is an exception to implementing an otherwise applicable choice of law in which the forum refuses to apply a portion of foreign law because it is contrary or repugnant to its State's own public policy." Schultz, 65 N.Y.2d at 202, 491 N.Y.S.2d at 98, 480 N.E.2d at 687 (citation omitted). As is implicit in the foregoing definition:
the public policy exception should be considered only after the court has first determined, under choice of law principles, that the applicable substantive law is not the forum's law. . . . Moreover, the exception could apply only when New York's nexus with the case is substantial enough to threaten [New York's] public policy.
Cooney, 81 N.Y.2d at 78, 595 N.Y.S.2d at 926, 612 N.E.2d at 284 (emphasis added) (citation omitted). As explained above, New York's interest in the Millers' action against Bombardier is not even so substantial as to create an actual conflict between the respective laws of Canada and New York concerning the limits on recovery of non-economic damages. The Court therefore finds that New York's relationship to the parties and occurrences involved here is too attenuated "to implicate [New York's] public policy and call for its enforcement." Schultz, 65 N.Y.2d at 203, 491 N.Y.S.2d at 100, 480 N.E.2d at 689 (New York public policy against charitable immunity not implicated, where no party was New York domiciliary, even though tortious conduct occurred in New York) (citation omitted); see also Barkanic, 923 F.2d at 963-64 (New York public policy against damage limitations in wrongful death actions not implicated, where "there is no connection between the parties and the occurrence, on the one hand, and the state of New York, on the other") (emphasis in original); compare Mertz v. Mertz, 271 N.Y. 466, 470-75, 3 N.E.2d 597, 598-601 (1936) (New York public policy favoring spousal immunity precluded application of Connecticut law allowing spouses to sue one another, where both spouses were New York domiciliaries); Kilberg v. Northeast Airlines, Inc., 9 N.Y.2d 34, 39-42, 211 N.Y.S.2d 133, 135-38, 172 N.E.2d 526, 527-29 (1961) (New York public policy against damage limitations in wrongful death actions precluded application of Massachusetts wrongful-death damage limitation, where decedent was New York domiciliary and defendant carried on extensive operations in New York).
The Court therefore concludes that Canada's law, which significantly limits a tortfeasor's liability for non-economic damages, applies to the Millers' claims against Bombardier.
Bombardier's motion for partial summary judgment limiting its potential liability for non-economic damages to the amount available under Canadian law is HEREBY GRANTED. The parties to this action shall appear before this Court on February 17, 1995, at 11:30 AM, for a pre-trial conference in Courtroom 1106, United States Courthouse, 40 Centre Street, New York, New York.
New York, New York
January 12, 1995
Peter K. Leisure