Erny v. Russo
| Decision Date | 17 July 2000 |
| Citation | 754 A.2d 606,333 N.J. Super. 88 |
| Parties | Christine M. ERNY, Plaintiff-Appellant, v. Roy RUSSO, Defendant-Respondent, and The Estate of Antoinette T. Merola, Milton Merola and Matthew Erny, Andrea D. Gambino, State of New Jersey and Anka Construction, Inc., Defendants. |
| Court | New Jersey Superior Court |
Anita Hotchkiss, Morristown, for plaintiff-appellant (Porzio, Bromberg & Newman, attorneys; Ms. Hotchkiss, of counsel and on the brief; Mary-Alice Barrett, also on the brief).
Edwin R. Matthews, Short Hills, for defendant-respondent (Edwin R. Matthews, attorney; Mr. Matthews, Robert J. Pansulla and Drew D. Krause, on the brief).
No brief was submitted on behalf of the Estate of Antoinette T. Merola and Milton Merola.
No other parties participated in the appeal.
Before Judges BAIME, EICHEN and WECKER.
The opinion of the court was delivered by EICHEN, J.A.D.
This appeal involves an automobile accident which occurred on Route 287 in Franklin Township on May 17, 1992, raising choice of law issues with respect to the application of New York and New Jersey's comparative negligence and joint and several liability laws. On the day of the accident, Antoinette Merola had come to New Jersey to shop.1 The accident occurred when a vehicle Antoinette Merola was driving crossed the median into on-coming traffic after defendant Roy Russo's vehicle came into her lane of travel. As a result, she lost control of her vehicle and collided with the vehicle in which plaintiff Christine M. Erny (plaintiff) was a passenger.2 Plaintiff sustained serious injuries in the accident. Antoinette Merola (decedent) was killed.
Plaintiff is a resident of New Jersey. Russo, Milton Merola, decedent's husband, and decedent were New York residents at the time of the accident. The Merola and Russo vehicles were registered and insured in New York. Russo was operating a vehicle owned by his mother, Terry Russo, also a New York resident. He was a student at Leheigh University in Pennsylvania at the time of the accident and traveled through New Jersey to go from school to his home in Long Island. Decedent was operating a vehicle owned by her husband, Milton Merola.
At the time of the accident, defendant Russo was covered under an automobile liability policy with limits of $1.5 million, while Milton Merola had only $100,000/ $300,000 liability coverage.
In December 1992, plaintiff filed a negligence action against the Estate of Antoinette Merola, Milton Merola (the Merola defendants), Russo, Matthew Erny, plaintiff's husband, a New Jersey construction company, and the State of New Jersey, among others.3 In May 1993, after the New Jersey action was filed, the Merola defendants instituted a negligence/wrongful death action in the Supreme Court of New York against Russo and his mother. The action was later dismissed on the ground of comity because of the pendency of this action in New Jersey involving the same parties and claims.4 Thereafter, the Merola defendants amended their crossclaim in the New Jersey action to assert similar claims for damages against Russo and his mother.
Subsequently, Judge David S. Cramp denied Mr. Merola's motion for summary judgment dismissing plaintiff's claims of vicarious liability against him as owner of the vehicle driven by decedent.5
A trial on liability only was subsequently conducted before Judge Salem Vincent Ahto, and a jury. The jury returned a verdict in favor of plaintiff,6 allocating liability 40% to defendant Russo and 60% to the Merola defendants. The order for judgment entered by Judge Ahto reflects the 60-40 allocation of fault and also provides the same allocation on the crossclaim filed by the Merola defendants against Russo, producing a no-cause verdict in favor of Russo.
After the verdict, on September 17, 1996, plaintiff and the Merola defendants filed motions seeking to have New York comparative negligence law apply. Noting that the issue had never been raised before the trial and that no one had objected to the jury charge based on New Jersey law, Judge Ahto denied the motions. Nonetheless, the judge considered the motions on the merits. First, he concluded that plaintiff and the Merola defendants had not waived their right to raise the choice of law issue because choice of law issues had been in the case from the outset as reflected by Judge Cramp's having considered the agency issue,7 and the previous attempts by the Merola defendants to file an action in New York.
As between the Merola defendants and Russo, he noted that "a genuine conflict between the laws of New York and New Jersey [exists] on the question of comparative fault." He explained:
After pointing out the conflict, the judge then applied New Jersey's choice of law "flexible governmental interest analysis," identifying New Jersey's "legitimate interest in determining the standard of care to which all motorists upon its roads must adhere" as an important factor. The judge also remarked as to the "dominant," but not "predominant" interest that New Jersey has "in affording proper compensation to injured New Jersey residents." Relying on the Restatement (Second) of Conflict of Laws (1971) (Restatement) §§ 145 and 164(1), the judge observed that:
application of a test weighing respective governmental interests will usually result in a determination that the local law applicable to determine the preclusive effect of a plaintiff's contributory fault should be that of the state where the injury occurred.
He concluded that "New York's concern... for its injured citizens ... cannot exempt [them] ... from New Jersey's ... law setting standards for local conduct," citing O'Connor v. Busch Gardens, 255 N.J.Super. 545, 549-51, 605 A.2d 773 (App. Div.1992).
Next, relying on Ostrowski v. Azzara, 111 N.J. 429, 443 n. 5, 545 A.2d 148 (1988), the judge further noted that "comparative negligence is generally viewed as a liability doctrine rather than a damages doctrine." He also found that because the decedent traveled to New Jersey at least two times a week, her presence in this state was not fortuitous. Therefore, he concluded that New Jersey comparative negligence law applied.
Thereafter, a trial to establish damages was conducted by Judge Cramp. A separate jury returned a verdict in favor of plaintiff in the sum of $650,000. The trial court molded the verdict based on the percentages of fault of the Merola defendants (60%) and Russo (40%), entering a judgment in favor of plaintiff in the amount of $390,000 against the Merola defendants and $260,000 against Russo.
After the verdict, plaintiff filed a postjudgment motion seeking a ruling that New York law applies to resolve the issue of joint and several liability. Judge Cramp denied the motion, concluding that because New Jersey law governed the comparative negligence issue, it also controlled the recovery of damages issue. He determined that the two concepts were "so intertwined" that "it would not be good policy to have one of those concepts decided under one state's law and the other under another state's law."
The effect of these choice of law rulings prevented the Merola defendants from proceeding with their cross-claim for damages against Russo,8 and limited plaintiff's right to recover damages from Russo to only 40% of the judgment because New Jersey does not permit a plaintiff to recover 100% of her damages from a defendant who is only 40% at fault.
Under New York's law of joint and several liability, a plaintiff can obtain 100% recovery of damages from a defendant regardless of that defendant's percentage of fault. See N.Y. CPLR § 1602(6). In contrast, under New Jersey law, existing at that time, a defendant can only be required to pay 100% of a judgment if the defendant is 60% or more responsible for the total damages. See N.J.S.A. 2A:15-5.3a.
Consequently, plaintiff urged the judge to apply New York law to the issue of recovery of damages so that she could recover her total damages from Russo who had a $1.5 million policy as compared to Mr. Merola's policy of $100,000/$300,000, even though Russo was found only 40% at fault.
Defendant Russo argues that plaintiff lacks standing to assert the Merola defendants' right to seek application of New York law to their cross-claim against Russo because her interest in the comparative negligence choice of law issue is too remote. Russo argues that even if the Merola defendants recovered a damage award from Russo on its cross-claim, there is no assurance that plaintiff would reap the benefit of those damages and, therefore, her interests are not sufficiently adverse to confer standing on her.
It is well settled that New Jersey has a more liberal standing rule than the federal courts. See Crescent Park Tenants Assoc. v. Realty Equities Corp., 58 N.J. 98, 107-08, 275 A.2d 433 (1971). In light of that principle, we have determined to review the merits of plaintiff's claims. Nonetheless, we would be remiss if we did not remark that plaintiff's standing to argue New York comparative negligence law as between the Merola defendants and Russo is tenuous in view of the inherent uncertainty of the...
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