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July 25, 1996

MARYANN E. McCANN, Plaintiff, against GREGORY D. SOMOZA and MIGUEL G. SOMOZA, Defendants.

The opinion of the court was delivered by: CHIN


 In this diversity action arising out of an automobile accident that occurred in Connecticut, plaintiff Maryann E. McCann ("McCann" or "plaintiff") moves for an order declaring that the threshold contained in Connecticut's no-fault statute governs her right to seek recovery for non-economic losses, such as pain and suffering. Defendants Gregory D. Somoza and Miguel G. Somoza (together, the "Somozas" or "defendants") cross-move for a declaration that New York law governs this issue. For the reasons set forth below, I hold that the law of Connecticut governs plaintiff's ability to recover for non-economic losses.


 On August 23, 1992, while travelling on Interstate 95 in Connecticut, the car in which plaintiff was riding was allegedly struck from behind by a car driven by defendant Gregory Somoza. McCann and Gregory Somoza were both in Connecticut on pleasure trips. The car driven by Gregory Somoza was owned by defendant Miguel Somoza and was registered in the State of New York. At the time of the accident, plaintiff was domiciled in New Jersey and both defendants were domiciled in New York.

 McCann sustained injuries in the accident and incurred medical expenses, which were paid by her no-fault insurance carrier. *fn1" She commenced this action in the District of New Jersey in July 1994; the action was transferred to this Court in December 1994.


 The parties disagree as to which state's no-fault insurance law should be applied to determine whether plaintiff can recover non-economic damages for the pain and suffering she allegedly sustained as a result of the accident. Plaintiff argues that the law of Connecticut, the locus of the accident, should govern this issue. In the alternative, plaintiff argues that, if Connecticut law is not applied, New Jersey law should govern, as she is domiciled in New Jersey. Defendants argue that the law of their domicile, New York, should govern their liability for plaintiff's non-economic losses.

 A. The Conflicting No-Fault Statutes

 Under the no-fault statute in effect in Connecticut at the time of the accident, a plaintiff could recover non-economic damages caused by a motor vehicle accident only if the plaintiff had suffered specified injuries or incurred medical expenses over $ 400. See Conn. Gen. Stat. §§ 38a-368(a), 38a-363(b)(1) (1992). *fn2" New York's no-fault law provides that plaintiffs can only recover non-economic damages when they suffer "serious injury," as defined in the statute. See N.Y. Ins. Law §§ 5104(a), 5102(d) (McKinney 1985). *fn3" Although the parties do not dispute that McCann has incurred medical expenses in excess of $ 400, the parties disagree as to whether plaintiff has suffered a "serious injury." Thus, if plaintiff has not suffered a "serious injury," as defined in the New York statute, she would recover for her non-economic losses if Connecticut law is applied, but not if New York law is applied. Hence, a potential conflict of laws is presented.

 A third option is to apply New Jersey law. The applicable New Jersey no-fault statute contains a threshold requirement similar to that contained in the New York statute, but it appears that plaintiff would be able to sue for non-economic damages in this case because in her insurance policy she selected an option that permits claimants to sue for pain and suffering without meeting the threshold requirements imposed by the New Jersey statute. See N.J. Rev. Stat. § 39:6A-8 (1990) (permitting election of "zero threshold" option).

 B. New York's Choice-of-Law Rules

 A federal court sitting in diversity is to apply the choice-of-law rules of the forum state, in this case New York. See Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496, 61 S. Ct. 1020, 1021, 85 L. Ed. 1477 (1941); AroChem Int'l, Inc. v. Buirkle, 968 F.2d 266, 269-70 (2d Cir. 1992); see also Barkanic v. General Admin. of Civil Aviation of the People's Republic of China, 923 F.2d 957, 960 (2d Cir. 1991) (federal courts are required to apply state choice-of-law rules where state's substantive law governs under Erie doctrine).

 In the tort context, New York applies an "interest analysis to determine which of two competing jurisdictions has the greater interest in having its law applied in the litigation." Padula v. Lilarn Properties Corp., 84 N.Y.2d 519, 620 N.Y.S.2d 310, 311, 644 N.E.2d 1001 (N.Y. 1994); see Babcock v. Jackson, 12 N.Y.2d 473, 240 N.Y.S.2d 743, 749, 191 N.E.2d 279 (N.Y. 1963) (rejecting automatic application of lex loci delicti, the law of the place where the tort occurred, for an approach that gives "controlling effect to the law of the jurisdiction which, because of its relationship or contact with the occurrence or the parties, has the greatest concern with the specific issue raised in the litigation"). Interest analysis requires the court to determine whether ...

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