United States District Court, S.D. New York
December 28, 2005.
CYNTHIA A. SMOLENSKY and MICHAEL J. SMOLENSKY, Plaintiffs,
IRIS N. ROSA, Defendant.
The opinion of the court was delivered by: DOUGLAS EATON, Magistrate Judge
OPINION AND ORDER
On July 4, 2003, a car accident occurred at the intersection of
Roberts Street and Lloyd Street in Nanty Glo, Pennsylvania. (The
town's home page on the Internet informs me that its name came
from the Welsh words "nant-y-glo," meaning valley of coal.) The
defendant was driving her own car registered in New York; she is
domiciled in Manhattan. The main plaintiff was a front-seat
passenger in a car registered in New Jersey to its owner/driver;
the driver, the main plaintiff and her husband are all domiciled
in New Jersey.
The defense alleges that the main plaintiff was not wearing her
seat belt. Pennsylvania, New York and New Jersey each require
that a front-seat passenger must wear a seat belt. 75
Pa.Con.Stat.Ann. § 4581(a); N.Y. Vehicle & Traffic Law § 1229-c;
N.J. Stat.Ann. § 39:3-76.2. Nevertheless, Pennsylvania law says
that evidence of a person's failure to wear a seat belt is
inadmissible in any civil action. 75 Pa.Con.Stat.Ann. § 4581(e).
New York law and New Jersey law are to the contrary. New York law
says (with my emphasis):
8. 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 into evidence in
mitigation of damages provided the party introducing
said evidence has pleaded such non-compliance as an
affirmative defense. [In the case at bar, defendant
has so pleaded.]
N.Y. Vehicle & Traffic Law § 1229-c(8). New Jersey law is
essentially the same, although it phrases the rationale as
comparative negligence rather than as mitigation of damages.
Waterson v. General Motors Corp., 111 N.J. 238
, 544 A.2d 357
On November 23, 2005, defendant served a motion in limine
asking me to rule that New York's seat-belt defense will apply in
the case at bar. Plaintiffs oppose, and ask me to rule that
Pennsylvania's law will apply on this issue.
Since our Court's jurisdiction is based on the parties'
diversity of citizenship, they recognize that I must decide this
motion pursuant to the choice-of-law rules of the forum state,
namely New York. Klaxon Co. v. Stentor Elec. Mfg. Co.,
313 U.S. 487 (1941). Judge Buchwald has recently summarized New York's
choice-of-law rules as follows:
. . . In general, New York applies an interest
analysis to choice of law issues, applying the law of
the jurisdiction whose "relationship or contact with
the occurrence or the parties has the greatest
contact with the specific issue raised in the
litigation." To aid in this determination, "New York
courts have recognized a conceptual distinction
between conduct-regulation and loss-allocating
laws." . . .
For laws governing conduct, New York courts generally
apply the law of the state where the accident
occurred. However, for loss-allocation rules, "the
interest of the locus jurisdiction in having its
loss-allocation rule applied is deemed to be
Lindsay v. Toyota Motor Sales, U.S.A., Inc., 2005 WL 2030311,
*2-3 (S.D.N.Y. Aug. 22, 2005) (citations omitted).
Point I of plaintiffs' brief argues that Pennsylvania's "seat
belt law" is a "conduct-regulating" law. This is too simplistic.
Pennsylvania's seat-belt statute contains two pertinent
provisions. Subsection "a" requires that a front-seat passenger
must wear a seat belt; this provision is clearly
"conduct-regulating." Subsection "e" says that failure to use a
seat belt cannot be used as evidence in a civil lawsuit. North
Carolina has a statute with the same two provisions, and Judge
Platt analyzed it in a case remarkably similar to ours:
. . . [T]o the extent the seat belt issue involves
the regulation of conduct, there is no conflict
because New York, New Jersey and North Carolina all require front seat passengers to
wear an available seat belt. North Carolina's
prohibition on admitting evidence of a plaintiff's
failure to wear a seat belt does not regulate conduct
since it does not purport to limit the scope of
permissible conduct in North Carolina. . . .
The availability of a complete or partial defense to
liability based upon the victim's [non-] use of a
seat belt is a loss allocation rule. . . .
Diehl v. Ogorewac, 836 F.Supp. 88, 92 (E.D.N.Y. 1993)
Conflicts between the loss-allocating rules of different
jurisdictions are analyzed in New York under the general
framework of three rules set forth more than 30 years ago in
Neumeier v. Kuehener, 31 N.Y.2d 121, 128, 355 N.Y.S.2d 64, 70
(N.Y.Ct.App. 1972). In 1993, the same court wrote: "Although
drafted in terms of guest statutes drivers and passengers
these [three Neumeier] rules could, in appropriate cases, apply
as well to other loss allocation conflicts." Cooney v. Osgood
Machinery, Inc., 81 N.Y.2d 66, 73, 595 N.Y.S.2d 919, 923
(N.Y.Ct.App. 1993). This language suggests that, when dealing with a
loss allocation that is not an allocation between a driver and
her passenger, one should not read the three Neumeier rules
woodenly, but instead with appropriate elaboration based on their
underlying rationale. Judge Platt did that in Diehl:
. . . Although Neumeier [Rule] 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. . . . [New York
and New Jersey] share a common perspective on this
issue of law, [and hence] neither [party] can
complain that this Court subjects them to the
standard of care commensurate with the law of their
Diehl, 836 F.Supp. at 93. In other words, since New York law
and New Jersey law are in harmony, there is no need to look for
another state's law to serve as a "tie breaker" on an issue of
loss allocation. Accord: Tkaczevski v. Ryder Truck Rental,
Inc., 22 F.Supp.2d 169, 173-74 (S.D.N.Y. 1998) (Sand, J.).
Hence, it is unnecessary to proceed to Neumeier Rule Three. Assuming arguendo that it is necessary, Rule Three uses the
rule of the state where the accident occurred unless it can be
shown that displacing that state's rule "will advance the
relevant substantive law purposes without impairing the smooth
working of the multi-state system or producing great uncertainty
for litigants." Neumeier, 31 N.Y.2d at 128, 355 N.Y.S.2d at 70.
Since no party resides in Pennsylvania, "that state will be
neither benefitted nor burdened by the outcome of this case."
Diehl, 836 F.Supp. at 93. New Jersey "has a direct stake in the
resolution of this issue because it directly impacts the recovery
of a [New Jersey] plaintiff," ibid, yet New Jersey has chosen
to limit that recovery. New York, which has made the same choice,
also has a stake, because it regulated the rates and the coverage
of the insurance policy that was issued to defendant. N.Y.
Insurance Law §§ 2301 et seq. In these circumstances, I find
that the New York courts would conclude that application of New
York's seat-belt statute "will advance the relevant substantive
law purposes." The next part of Rule Three asks whether such
application will "impair the smooth working of the multi-state
system or produc[e] great uncertainty for litigants." To answer
this question, the Second Circuit has considered what would
happen if the lawsuit were filed in the state where the accident
occurred. Sheldon v. PHH Corp., 135 F.3d 848
, 854 (2d Cir.
1998). If the case at bar had been filed in Pennsylvania, that
state's choice-of-law rules would most likely have displaced its
own loss-allocation rules. In Budget Rent-A-Car System, Inc. v.
Chappell, 407 F.3d 166
, 177 n. 9 (3d Cir. 2005), cert. denied,
126 S.Ct. 567 (Oct. 31, 2005), the Third Circuit applied
Pennsylvania's choice-of-law rules and wrote:
. . . But for the chance occurrence of the accident
in Pennsylvania, there is no connection between the
Commonwealth and the parties. Pennsylvania has no
interest in securing a recovery for Chappell nor in
limiting Budget's liability.
In short, Pennsylvania's choice-of-law analysis would agree with
Judge Platt's analysis in Diehl. My legal research uncovered
Marks v. Abrams, 1994 WL 144358 (E.D.Pa. Apr. 19, 1994), which
gave a New Jersey plaintiff the benefit of Pennsylvania's lenient
seat-belt rule. in view of the Third Circuit's recent decision in
Budget, I think Marks was simplistic in saying that New
Jersey's only interest was "a strong interest in protecting the
compensation rights of its citizens." In the contrary, New Jersey
has an interest in limiting the compensation rights of its
citizens who fail to obey seat-belt laws. In any event, the
defendants in Marks were Pennsylvania citizens; they had little reason to complain, for it is their own state that expresses an
interest in not limiting the liability of drivers whose
negligence causes an accident, even if plaintiff's injury is
aggravated by her failure to wear a seat belt. The case at bar is
different because the defendant is a citizen of New York, which
expresses a contrary view.
Plaintiffs' brief to me attempts to distinguish Diehl because
Judge Platt mentioned, as an additional rationale, that "Diehl's
car was registered and insured to Diehl in New York" and hence
"the real parties in interest . . . are the Diehls and their New
York insurance company." 836 F.Supp. at 93. In the case at bar,
it is undisputed that defendant's car was registered and insured
to her in New York, and that the rates and coverage of her policy
were regulated by New York's Insurance Law. Nevertheless,
plaintiffs' brief seizes on the fact that this insurance company
happens to be incorporated and headquartered in Maryland, which
has a seat-belt law identical to Pennsylvania's. I find that
Maryland's connection with this case is unimportant. In choosing
a loss-allocation rule, the insurer's "domicile" is insignificant
when compared with the fact that its relevant insurance policy
was regulated by the State of New York.
Finally, plaintiffs attempt to bind defendant and her insurer
to a tentative statement of law made by their attorney on July
14, 2005. The circumstances were as follows. On June 28, 2005,
plaintiffs filed their complaint and it was originally assigned
to Judge Marrero. On July 7, before any answer was due, Judge
Marrero sua sponte directed plaintiffs to show cause "why this
matter should not be transferred to the Middle District of
Pennsylvania." (Actually, Nanty Glo is in the Western District.)
Due to an error in the Clerk's Office, plaintiffs did not learn
of this order. Defendant's counsel discovered it when he saw the
complaint and looked into the electronic docket sheet; on July
14, he sent Judge Marrero a two-page letter (now Exh. A to Pls.
Mem.), which said in part:
We are the attorneys who were retained this week [the
week of July 11] to defend Iris N. Rosa. . . .
Based on the very preliminary information we have
received in regard to this lawsuit, we believe that
the following factors are relevant as to venue for
this action. . . .
Our office also believes that, under New York's
choice of law rules, Pennsylvania law would apply to
most of the issues involved in this action. Pennsylvania law would apply to any conduct relating
issues as that is the site of the occurrence[,] and
Pennsylvania law would apply to any loss-allocating
issues under the third test of the Neumeier
Rules. . . .
Defense counsel had been retained for no more than three days,
and he was responding quickly to Judge Marrero's question. He
overlooked one aspect: if New York law and New Jersey law were in
harmony on any particular loss-allocating issue, then
Pennsylvania law would not apply. As to one such issue, it turns
out that New York law and New Jersey law both say that failure to
wear a seat belt is admissible at trial. Defense counsel pointed
this out at my conference on October 20; his modification of his
July 14 statement did not cause any unfair prejudice to
plaintiffs. I decline to rule that the July 14 statement is
binding on defendant.
For the reasons stated above, I grant defendant's motion in
limine (Docket Item #16). New York's seat-belt defense will
apply in the case at bar.
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