Case Information
*1 Opinions of the United 2006 Decisions States Court of Appeals
for the Third Circuit 12-18-2006
Lebegern v. Forman
Precedential or Non-Precedential: Precedential
Docket No. 05-1992
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PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT No. 05-1992 JEAN L. LEBEGERN, Administratrix Ad Prosequendum and Administratrix for the Estate of Daniel L. Carson, Deceased;
JANET GOLONKA; INSURANCE COMPANY v.
GLENN FORMAN, INDIVIDUALLY and t/a FORMAN'S AUTO BODY a/k/a FOREMAN'S AUTO, a/k/a FORMAN'S
COLLISION CENTER a/k/a FORMAN'S SERVICE CENTER; STEPHEN J. CRACKER; MICHAEL J. WEISS, an Adult Individual, Individually and t/a MIKE'S TRUCK CENTER AND GOOD TIME CYCLES; KENNETH W. ALBERT, t/a GOOD TIME CYCLES Jean L. Lebegern, Appellant On Appeal from the United States District Court for the District of New Jersey (D.C. No. 02-cv-05598) District Judge: Honorable Jerome B. Simandle *3 Argued on January 12, 2006 Before: FUENTES, ROSENN* and ROTH**, Circuit Judges .
(Opinion Filed: December 18, 2006) Michael T. Sellers, Esquire (Argued)
Marc I. Rickles, Esquire
Kardos, Rickles, Sellers & Hand
626 South State Street
Newtown, PA 18940
Counsel for Appellant
Ian M. Sirota, Esquire (Argued)
Margolis Edelstein
216 Haddon Avenue
*This case was submitted to the panel of Judges Roth, Fuentes and Rosenn. Judge Rosenn died after submission, but before the filing of the opinion. The decision is filed by a quorum of the panel. 28 U.S.C.§46(d).
**Judge Roth assumed senior status on May 31, 2006.
P.O. Box 92222
Westmont, NJ 08108
Counsel for Appellees Glen Forman, Forman’s Auto Body, a/k/a Forman’s Auto, a/k/a Forman’s Collision Center a/k/a Forman’s Service Center Bonnie L. Laube, Esquire (Argued)
Greenblatt & Laube, Esquire
200 North 8 th Street
P.O. Box 883
Vineland, NJ 08362
Thomas M. Marrone, Esquire
Feldman, Shepherd, Wohlgelernter
Tanner & Weinstock
1845 Walnut Street, 25 th Floor
Philadelphia, PA 19103
Counsel for Appellee Stephen J. Cracker
Gary A. DeVito, Esquire
Zarwin, Baum, DeVito, Kaplan, Schaer & Toddy 1515 Market Street, Suite 700
Philadelphia, PA 19102
Counsel for Amicus-Curia *5
OPINION ROTH , Circuit Judge
We granted an interlocutory appeal to resolve a choice of law issue under New Jersey choice of law principles. We must determine whether the measure of damages in a survival action on behalf of a Pennsylvania decedent, arising from a motor vehicle accident in New Jersey allegedly caused by the negligence of a New Jersey driver, is governed by New Jersey or Pennsylvania law. The District Court concluded that New Jersey law governed but stayed the case pending an interlocutory appeal. We will affirm the District Court’s application of New Jersey law and will remand this case for further proceedings consistent with this opinion.
I. Factual Background and Procedural History
On September 16, 2001, Daniel L. Carson was driving his vehicle on Route 30, White Horse Pike, in Mullica Township, New Jersey. Carson was accompanied by his fiancee, Janet Golanka. Carson and Golanka lived in Bucks County, Pennsylvania, and drove to New Jersey for a shopping trip. During their journey, a vehicle driven by Stephen J.
Cracker crossed the center line and hit the vehicle driven by Carson. Carson was killed and Golonka sustained serious injuries.
Jean L. Lebegern is Carson’s mother and the personal representative of his estate. She brought survival and wrongful death actions in federal district court in New Jersey against Cracker, Glenn Forman, Michael Weiss, Kenneth Albert, and Good Time Cycles. Forman is a licensed New Jersey car dealer alleged to have been the owner of the vehicle operated by Cracker. Forman purchased the vehicle from Weiss, who was purportedly acting at the behest of Albert and/or Good Times Cycles. All of the defendants were residents of New Jersey at the time of the accident.
Count II of Lebegern’s Amended Complaint is a claim under the Pennsylvania Survival Act. Cracker filed a motion to dismiss Count II on the ground that the New Jersey Survival Act, not the Pennsylvania Survival Act, applies here. Lebegern filed a cross motion for summary judgment asking the District Court to find that Pennsylvania law governs the survival claim.
The District Court granted Cracker’s motion to dismiss, finding that New Jersey law does apply. [1]
The reason for the dispute over choice of law is that the
New Jersey Survival Act allows recovery only for the
decedent’s pain and suffering, while the Pennsylvania Survival
Act also provides for recovery of net earning capacity. Compare
*7
N.J. S TAT . A NN . § 2A:15-3 with 20 P A . C ONS . S TAT . A NN . §
3371 and 42 P A . C ONS . S TAT . A NN . § 8302; Skoda v. W. Penn
[2]
Power Co.,
II. Jurisdiction and Standard of Review
Lebegern filed her Petition for Leave to Appeal from an Interlocutory Order on February 3, 2005, pursuant to 28 U.S.C.
§ 1292(b). On March 23, 2005, we granted leave to appeal.
The District Court had diversity jurisdiction under 28
U.S.C. § 1332. We have jurisdiction under 28 U.S.C. §
1292(a)(1). United States v. Acorn Tech. Fund, L.P., 429 F.3d
438, 442 (3d Cir. 2005), and exercise plenary review over a
district court’s choice of law determination. Petrella v. Kashlan,
Berg Chilling Sys., Inc. v. Hull Corp.,
III. Discussion
*8
A. General Choice of Law Principles in New Jersey
New Jersey has a flexible governmental-interest approach
to resolving choice of law questions that “requires application
of the law of the state with the greatest interest in resolving the
particular issue . . ..” Gantes v. Kason Corp.,
1986). The Restatement (Second) of Conflict of Laws, which the New Jersey Supreme Court has cited as guiding the choice of law determination, uses an issue-by-issue approach. Erny v.
Estate of Merola, 792 A.2d 1208, 1213 (N.J. 2002) (citing Restatement (Second) of Conflict of Laws § 145(1) (1971)).
Damages issues are included in the issue-specific analysis, and the law that applies is based on the state with the dominant policy interest. Id. To apply the governmental-interest analysis, it is necessary to analyze the purposes underlying the competing state laws. Id. at 1214 (citing Restatement (Second) of Conflict of Laws § 6). There is a presumption that the law of the situs state applies. When another state has the more significant interest and the policies of the situs state will not be frustrated by the application of foreign law, however, the presumption can be overcome. Id. at 1216.
The governmental-interest test consists of two prongs.
First, we must determine whether there is an actual conflict.
Gantes,
New Jersey has articulated five broad factors to aid courts
in applying the governmental-interest test. Erny,
In addition to these general considerations, four contacts are most relevant to the governmental-interest test in cases based on an alleged tort: (1) the place where the injury occurred, (2) the place where the conduct causing the injury occurred, (3) the domicile, residence, nationality, place of incorporation, and place of business of the parties, and (4) the place where the relationship, if any, between the parties is centered. Fu, 733 A.2d at 1142 (citing Restatement (Second) of Conflict of Laws *10 § 145(2)).
In personal injury cases, the place of the injury is important, and when both the conduct and the injury occur in the same place, that jurisdiction’s law generally will apply except in those rare instances where another jurisdiction has a demonstrably dominant interest and no policy of the situs state is frustrated by application of the sister state’s policy.
Erny, 792 A.2d at 1217-18 (citing Restatement (Second) of Conflict of Laws § 145 cmt. e; § 146 cmts. c and d).
B. Applying New Jersey’s Choice of Law Principles 1. Actual Conflict
Under New Jersey choice of law principles, we must first establish whether there is an actual conflict. We agree with the District Court that there is. The New Jersey Survival Act would allow Lebegern to recover only for Carson’s pain and suffering from the time of alleged negligence until death. N.J. S TAT .
A NN . § 2A:15-3.
[3]
Pollock v. Barrickman,
S TAT . A NN . 8302;
[5]
Skoda,
Our review of the jurisprudence in this area has uncovered a misconception by some courts of the proper way to conduct an analysis of whether there is an actual conflict of law under this two pronged approach. What some courts have described as a “false conflict” is the result of a policy analysis In those actions based upon the wrongful act, neglect, or default of another, where death resulted from injuries for which the deceased would have had a cause of action if he had lived, the executor or administrator may recover all reasonable funeral and burial expenses in addition to the damages accrued during the lifetime of the deceased.
[4] 20 P A . C ONS . S TAT . A NN . § 3371 provides: “All causes of actions or proceedings shall survive as provided by [42 P A .
C ONS . S TAT . A NN . § 8302] (relating to survival action).” [5] 42 P A . C ONS . S TAT . A NN . § 8302 provides: “All causes of action or proceedings, real or personal, shall survive the death of the plaintiff or of the defendant, or the death of one or more joint plaintiffs or defendants.”
to determine which state has the more significant interest in applying its law, which preceeds the examination of whether there is an actual conflict in the application of the laws. The better approach is to determine whether there is a conflict by examining the substance of the laws before assessing whether the states’ interests are actually furthered by application of the potentially applicable doctrines. “[T]he initial step in choice-of- law questions is a determination of whether there is a distinction in the laws of particular jurisdictions.” Grossman v. Club Med Sales, Inc., 640 A.2d 1194, 1197-98 (N.J. Super. 1994) (emphasis added). The competing states’ interests in the application of their laws are not assessed until after the basic conflict question is answered. Id. at 1198 (citing Veazey, 510 A.2d at 1189-90).
In Grossman, the New Jersey Superior Court reversed a trial court’s choice of law determination after the Superior Court concluded that there was no conflict between the laws of the potentially interested jurisdictions. Id. The court conducted its analysis by examining the substance of the potentially applicable laws to assess whether they mandated different outcomes. Id. at 1197-98. Similarly, first in Gantes and later in Erny, the New Jersey Supreme Court looked first to the substance of potentially applicable laws to conclude that actual conflict existed. In Gantes, the question was whether the Georgia or New Jersey statute of limitations law should apply.
The district courts in our Circuit are split in their
determination of the choice of law issue in survival actions, as
we have here. An examination of case law indicates, however,
that the significant factor in the disagreement is the point in the
analysis at which the court considers whether or not there is a
conflict in the states’ interests. The cases, which have
considered the second prong of the New Jersey test (the state
interest) before the first (the existence of an actual conflict in the
application of the laws) have found at the outset no conflict of
state interests. On this basis, they have applied the Pennsylvania
Survival Act. In Pollock,
As the above discussion of New Jersey precedent shows,
*14
this formulation is technically inaccurate. While the District
Court in Pollock was certainly within its purview to reach the
issue of state interest, the determination of whether or not there
is a conflict of states’ interests is properly understood as being
a second-prong issue. Grossman,
Foster v. Maldonado ,
On the other hand, the district courts to hold that New
Jersey law applied found a conflict in the respective Survival
Acts and then a conflict in state interests. Capone v. Nadig, 963
F. Supp. 409, 412-13 (D.N.J. 1997); Amoroso v. Burdette
Tomlin Mem’l. Hosp.,
1987) (applying Pennsylvania choice of law rules to hold that
New Jersey’s Survival Act applied in case involving an accident
in New Jersey with New Jersey resident defendants and a
Pennsylvania resident decedent); Colley v. Harvey Ceders
Marina,
Because New Jersey and Pennsylvania survival laws
differ on the scope of damages, there is a true conflict between
the laws of each potentially interested jurisdiction. This,
however, is only the first prong of the inquiry. It triggers the
second part of the governmental-interest test, the determination
of the policies underlying each state’s laws and whether those
policies are implicated by applying the relevant state’s law to
*15
the particular issue. Erny,
2. Resolving the Conflict: Finding the More Interested State
Determining which state has the greater interest involves looking at each state’s contacts to the litigation and assessing the policies behind each state’s law. Id. at 1216. To facilitate this analysis, we can summarize the most relevant contacts as follows:
(1) Place where the injury occurred: New Jersey (2) Place where the conduct causing the injury occurred: New Jersey
(3) Domicile and residence of the parties: (a) Plaintiff: Pennsylvania (b) Defendants: New Jersey As mentioned above, when both the place of injury and the conduct causing the injury are the same, the general approach is to apply the law of the jurisdiction where the injury occurred.
Id. at 1217-18 (citing Restatement (Second) of Conflict of Laws § 145 cmt. e; § 146 cmts. c and d).
Having identified the most relevant contacts, it is necessary to determine which state has the most significant relationship to the occurrence and parties. Id. at 1218.
*16
Evaluating the competing interests of the states is the most
important aspect of the analysis used in determining the
jurisdiction with the most significant relationship. Id. at 1217.
Pennsylvania has a strong and clear interest in providing full
recovery in survival actions. The Pennsylvania Supreme Court
has said that, when it is the domicile of the decedent and his
family, the state is “vitally concerned with the administration of
[the] decedent’s estate and the well-being of the surviving
dependents to the extent of granting full recovery, including
expected earnings.” Griffith v. United Air Lines, Inc., 203 A.2d
796, 807 (Pa. 1964). The federal courts faced with choice of
law issues in this context have all recognized Pennsylvania’s
important interest in securing an adequate recovery. E.g.,
Amoroso,
The majority of federal courts to address the issue have
held that New Jersey also has an interest in applying its Survival
Act under these circumstances because it would limit New
Jersey defendants’ exposure to damage awards. E.g., Capone,
To the extent that the purposes behind the New Jersey Survival Act have been discussed, it appears that the Act was part of a comprehensive scheme of recovery to work in concert with the Wrongful Death Act to ensure proper redress by next of kin and the estate of the deceased following a tort leading to death. See Smith v. Whitaker, 734 A.2d 243, 249-50 (N.J.
1999). However, the interests of defendants appear also to be a
concern of the New Jersey Legislature because the Survival Act
was structured to avoid allowing multiple recoveries for the
same loss. Alfone,
Pennsylvania, on one hand, has expressed a strong
interest in affording recovery to plaintiffs in Survival Act cases
*18
involving a Pennsylvania decedent. New Jersey, on the other
hand, has an interest in protecting both New Jersey plaintiffs
and
New Jersey defendants by applying its Survival Act in the
context of the broader New Jersey remedial scheme. See Smith,
In weighing the interests, our holding in Broome v. Antlers’ Hunting Club, 595 F.2d 921 (3d Cir. 1979), is informative. In that case, an executor of a New York decedent who died in Pennsylvania sought the application of the Pennsylvania Survival Statute in a case against a Pennsylvania defendant. We applied Pennsylvania’s choice of law rules and held that Pennsylvania law, rather than New York law, applied.
We considered the respective interests of the states and
concluded that “New York’s interest in applying its law of
*19
damages to its resident who chose to vacation in Pennsylvania
would weigh lightly on the qualitative scale compared with
Pennsylvania’s policy of compensating tort victims when that
state is the place of the tortious impact.” Id. at 925. Because
New Jersey and Pennsylvania have similar choice of law tests,
Cannon ,
When each state is interested in the application of its laws
and the application of the foreign state’s law would frustrate the
purposes of the forum state, the presumption is to apply the law
of the forum. Erny,
at 957 (“The law of the forum should be applied even though a foreign state also has an interest in the application of its contrary policy.”) (footnote omitted). For example, in Petrella, we held that New Jersey’s wrongful death law applied rather than Florida’s law in a case involving the death of a Florida resident allegedly caused by New Jersey resident doctors practicing in New Jersey. 826 F.2d 1343. We noted that Florida was interested because the plaintiff was from that state, and “thus Florida obviously has a legitimate interest in the quantum of damages for his death being fixed under Florida law.” Id. With respect to New Jersey, the forum state, it was interested because the alleged tort took place in New Jersey and was allegedly committed by New Jersey residents. Id. After noting that both states were interested, we concluded that “New Jersey’s interest in this case is no less than Florida’s and the judge correctly held that its law of damages should be applied.” Id.
*20 Other choice of law norms also counsel in favor of applying New Jersey law in this case. When a person chooses to travel across state lines, he should expect the laws of the place in which he is located to govern his transactions. “By entering the state . . . the visitor has exposed himself to the risks of the territory and should not expect to subject persons living there to a financial hazard that their law had not created.” Colley , 422 F. Supp. at 957 (citing D.F. Cavers, The Choice-of-Law Process 146-47 (1965)). For this reason, the place of injury takes on special significance “where, as here, the place where the injury occurred was not fortuitous . . ..” Blakesley v. Wolford, 789 F.2d 236, 243 (3d Cir. 1986). In this case, Carson and Golonka’s trip to New Jersey was part of a planned shopping excursion and, thus, it cannot be considered a fortuity that they found themselves on New Jersey’s roadways. In light of the fact that both New Jersey and Pennsylvania are interested, and the fact that general notions of comity militate toward applying the law of the state where the accident occurred when the defendants are residents of that state, we hold that a New Jersey court would apply New Jersey law in this case.
Lebegern, however, focuses on the decision in Pollock,
where the District Court stated “this court believes that, when
enacting the statute, the New Jersey Legislature was principally,
if not solely, concerned with the plight of the decedent and his
estate, not with the defendant tort-feasor.”
The court concluded, based on legislative history and common law principles, that the New Jersey Survival Act was simply the closing a loophole to prevent duplicative recovery. Id. at 881.
Because the Death Act of 1848 allowed next of kin to recover
for lost future wages, the court concluded that the Legislature
*21
“did not believe it was fair or necessary to also allow this
recovery to the estate . . ..” Id.; Contrary to the conclusion
drawn in Pollock , however, we believe the desire to close a
loophole in damages does express an interest in protecting
defendants. Indeed, it is anomalous to speak of an intent to
structure damages and conclude that defendants, who are to pay
the awards, were not on the mind of the legislature. Petrella,
Taking up this language from Pollock, Lebegern argues that a review of the legislative history of the New Jersey Survival Act does not show an intent to protect the interests of New Jersey defendants. Lebegern also points to the statute’s original placement in a body of legislation titled “An Act Concerning Executors and the Administration of Estates.” She further argues that there are no New Jersey cases construing the Survival Act as intending to protect defendants.
With respect to the latter argument, a state’s interest in the application of its laws can be expressed in ways other than a definitive ruling by a state court concerning the policies behind the legislation. A state’s interest cannot depend on the fortuity of appropriate legal action necessary to establish the pertinent jurisprudence. Moreover, while the statute’s title or placement in a particular portion of a state code might provide some evidence of legislative intent, Holy Trinity Church v.
United States,
Lebegern is correct that there is a paucity of legislative
history supporting the theory that the New Jersey Legislature
was concerned with resident defendants in passing the Survival
Act. She is also correct that legislative history can be a factor in
making a choice of law policy analysis. See Erny,
V. Conclusion
The majority of the district courts in this Circuit have
held that New Jersey law applies under the circumstances
presented in this case. Capone , 963 F. Supp. at 412-13;
Amoroso,
While it is true that the legislative history surrounding the adoption of New Jersey’s Survival Act is vague about the purposes of the law, it is appropriate to grant a state legislature the benefit of the presumption that its laws are passed with the purpose of benefitting the parties that obviously benefit. In additional, the limited caselaw discussing the purposes of the Survival and Wrongful Death Acts in New Jersey indicates that these acts were designed to operate in tandem to produce one comprehensive recovery scheme. While Pennsylvania is understandably interested in applying its liberal recovery rules to a Pennsylvania plaintiff, it cannot expect to impose a liability scheme onto an unwitting state that has confronted the issue and reached a different balance in its legislative response. While the facts of this case are undeniably tragic, the District Court properly concluded that New Jersey law applies even though it will affect the amount of available damages. Accordingly, we will affirm the order of the District Court, applying New Jersey law, and we will remand this case for further proceedings consistent with this opinion.
Notes
[1] Cracker argues that in granting the motion to dismiss the
District Court did not hold that New Jersey law applied but
rather that Pennsylvania law did not apply. Contrary to
Cracker’s assertion, the District Court flatly stated that “the New
Jersey Survival Act will apply herein.” Lebegern v. Forman,
[2] Under New Jersey law, the net lost earnings of the decedent, which the decedent’s family might reasonably have expected to receive, are recoverable under the New Jersey Wrongful Death Act, N.J. S TAT . A NN . § 2A:31-1 et seq .
[3] New Jersey’s Survival Act states: Executors and administrators may have an action for any trespass done to the person or property, real or personal, of their testator or intestate against the trespasser, and recover their damages as their testator or intestate would have had if he was living.
[6] New Jersey’s Wrongful Death Act, N.J. S TAT . A NN . §
2A:31-1 et seq., seeks to compensate survivors “for the
pecuniary loss [they] suffer as a result of the death of the
decedent.” Capone, 963 F. Supp. at 414 (quoting Lovely v.
Rahway Hosp.,