Thomas v. Hanmer

• Decision Date: 04 June 1985
• Citation: 109 A.D.2d 80,489 N.Y.S.2d 802
• Parties: Lewis THOMAS and Anne D. Thomas, Respondents, v. Seward HANMER and Mary S. Hanmer, Appellants.
• Court: New York Supreme Court — Appellate Division

Page 802

489 N.Y.S.2d 802

109 A.D.2d 80

Lewis THOMAS and Anne D. Thomas, Respondents, v. Seward HANMER and Mary S. Hanmer, Appellants.

Supreme Court, Appellate Division Fourth Department.

June 4, 1985.

Gough, Skipworth, Summers, Eves & Trevett, Rochester (Thomas Lenweaver, Rochester, of counsel), for appellants.

Johnson, Mullan, Brundage & Keigher, P.C., Rochester (Samuel Brundage, Rochester, of counsel), for respondents.

Before CALLAHAN, J.P., and BOOMER, GREEN, O'DONNELL and PINE, JJ.

GREEN, Justice.

We must decide whether the availability of relief in this negligence action is governed by the law of the State of New York which permits a plaintiff to recover for pain and suffering for "serious injury" (Insurance Law § 5104), or by the law of the Province of Quebec, Canada which restricts recovery to economic loss (Quebec Rev.Stats. 1977, ch. 68; Automobile Insurance Act §§ 4, 44). Stated another way, should the parties be restricted to the traditional rule of lex loci delicti or the more just, fair and practical result that may be achieved by giving controlling effect to the law of the jurisdiction which has the greatest interest in the specific issues raised in this litigation? This requires us to apply the "center of gravity" or "grouping of contacts" test first adopted in tort cases in Babcock v. Jackson, 12 N.Y.2d 473, 240 N.Y.S.2d 743, 191 N.E.2d 279. We agree with Special Term that New York has the dominant contacts and superior interest for application of its law to the following uncomplicated and undisputed facts.

On October 12, 1979 plaintiff Anne D. Thomas drove her car from her residence in Fairport, New York to Pointe Claire, Quebec, Canada to deliver various items of personal property to her son, a student at McGill University. On the same day defendant Seward Hanmer, a resident of Massena, New York, was driving his wife's automobile to Montreal, Quebec, Canada to board a train destined for Florida. The Thomas vehicle was struck in the rear by the Hanmer vehicle as Mrs. Thomas was stopped at a controlled intersection in Pointe Claire. Both vehicles were insured and registered in New York State.

Plaintiffs thereafter commenced suit against defendants to recover for personal injuries, damage to their car and their son's property, and for damages suffered derivatively by Mr. Thomas. Plaintiffs selected Monroe County as the venue of the action based on their residence there. Defendants moved to dismiss the complaint on the ground that the law of Quebec, Canada barred the plaintiffs from recovering damages for pain and suffering resulting from injuries sustained in the automobile accident. Special Term denied the motion and we affirm.

At the time of the accident, the Automobile Insurance Law of Quebec provided for compensation to a non-resident victim but with the following limitations:

"... the pecuniary compensations or benefits provided for the compensation of such injury by the Workmen's Compensation Act ... or by the Crime Victims Compensation Act ... are in the place and stead of all rights, recourses, and rights of action of anyone by reason of such bodily injury and no action in that respect shall be admitted before any court of justice" (Quebec Rev.Stats 1977, ch. 68; Automobile Insurance Act § 4).

A victim of an automobile accident occurring in Quebec may not waive any of the rights provided by the Act (Quebec Rev.Stats. 1977, ch. 68; Automobile Insurance Act § 14). Under New York law, however, plaintiff is entitled to recover for pain and suffering provided she can establish that she suffered a "serious injury" (see Insurance Law § 5104). The question then is whether Quebec law or New York law applies.

In Babcock v. Jackson, 12 N.Y.2d 473, 240 N.Y.S.2d 743, 191 N.E.2d 279, supra, a New York guest passenger commenced suit against his New York host driver in New York Supreme Court to recover damages for personal injuries suffered in Ontario, Canada. The accident occurred while the parties (friends residing in Rochester, N.Y.) were in Ontario for a weekend vacation. The Ontario guest statute in effect at the time absolved the host-driver of all liability, while New York law treated the host-guest situation like any other motor vehicle negligence case. The Court of Appeals framed the issue carefully: "the law of the place of the tort invariably govern the availability of relief for the tort or shall the applicable choice of law rule also reflect a consideration of other factors which are relevant to the purposes served by the enforcement or denial of the remedy?" (emphasis in original) (12 N.Y.2d 473, supra, 477, 240 N.Y.S.2d 743, 191 N.E.2d 279). The court rejected the traditional lex loci delicti rule and held that in tort cases, as in contract cases, "fairness and 'the best practical result' ... may best be achieved by giving 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" (Babcock v. Jackson, supra, 482, 240 N.Y.S.2d 743, 191 N.E.2d 279). The Babcock court concluded that the concern of New York was unquestionably greater and more direct because New York was where both the host and guest resided, where the car was garaged, licensed and insured, and where the weekend journey began and was to end, but for the "purely adventitious circumstance" that the accident occurred in Ontario (Babcock v. Jackson, supra, 481, 240 N.Y.S.2d 743, 191 N.E.2d 279).

Turning to an examination of the relevant policies and interests of each jurisdiction, the Babcock court found no reason to depart from New York's policy of requiring a tort-feasor to compensate his guest for injuries caused by his negligence simply because an accident, solely affecting New York residents and arising out of the operation of a New York based automobile, happened beyond the state's borders. The court found that Ontario, in contrast, had no conceivable interest in denying such a remedy in a suit between New York litigants for injuries suffered in Ontario because of conduct tortious under Ontario Law. Since the apparent goal of Ontario's guest statute was to prevent fraudulent claims by passengers in collusion with drivers against Ontario insurance companies, the court reasoned that "New York defendants are imposed upon or their insurers defrauded by a New York plaintiff is scarcely a valid legislative concern of Ontario simply because the accident occurred there, any more so than if the accident had happened in some other jurisdiction" (Babcock v. Jackson, supra, p. 483, 240 N.Y.S.2d 743, 191 N.E.2d 279).

Defendants argue that the Babcock test does not compel the conclusion that New York law governs the instant case because in Babcock Ontario had a guest statute which New York did not, while here each jurisdiction has a no-fault law. Defendants submit that here New York has no interest paramount to that of Quebec and that Quebec has a significant interest in assuring that its laws of the road are obeyed. We are not persuaded by this argument.

The Babcock rationale, developed from the law of contracts (Auten v. Auten, 308 N.Y. 155, 124 N.E.2d 99), has not been confined to guest statute cases (Schultz v. Boy Scouts of America, Inc., 65 N.Y.2d 189, 199, 491 N.Y.S.2d 90, 480 N.E.2d 679 ). The main causes of dissatisfaction that led to overthrow of the lex loci delicti rule in Babcock were found no less compelling in other tort contexts. Indeed, shortly after Babcock, the "center of gravity" or "grouping of contacts" theory was applied to conflicts in tort cases concerning the measure of damages in wrongful death actions (Miller v. Miller, 22 N.Y.2d 12, 290 N.Y.S.2d 734, 237 N.E.2d 877), the availability of direct actions against liability insurers (Oltarsh v. Aetna Ins. Co., 15 N.Y.2d 111, 256 N.Y.S.2d 577, 204 N.E.2d 622) and the vicarious liability of an automobile owner for a driver's negligence (Farber v. Smolack, 20 N.Y.2d 198, 282 N.Y.S.2d 248, 229 N.E.2d 36; cf. Croft v. National Car Rental, 56 N.Y.2d 989, 453 N.Y.S.2d 631, 439 N.E.2d 346). The court specifically noted in Farber that it saw "no logical basis to distinguish" between the vicarious liability and host-guest issues (Farber v. Smolack, supra, 20 N.Y.2d at 204, 282 N.Y.S.2d 248, 229 N.E.2d 36).

In applying the Babcock test "it is necessary first to isolate the issue, next to identify the policies embraced in the laws in conflict, and finally to examine the contacts of the respective jurisdictions to ascertain which has a * * * superior interest in having its policy or law applied" (Tooker v. Lopez, 24 N.Y.2d 569, 574, 301 N.Y.S.2d 519, 249 N.E.2d 394 quoting from Dym v. Gordon, 16 N.Y.2d 120, 124, 262 N.Y.S.2d 463, 209 N.E.2d 792; Beasock v. Dioguardi, Inc., 100 A.D.2d 50, 52, 472 N.Y.S.2d 798). Here the specific issue involved is the right of plaintiff to recover for non-economic loss as a result of the serious injuries she allegedly suffered in an automobile accident in Quebec. ^* New York law permits such recovery if plaintiff can meet the threshold, an issue we are not concerned with on this pre-trial motion. Quebec prevents such recovery no matter how serious the injury. On the facts here presented, Quebec has no significant interest in denying plaintiff the right to recover damages for serious injuries.

Although the record does not...