Opinion
No. DBD CV08-5008938S
November 16, 2011
MEMORANDUM OF DECISION
This action comes before the court on the Motion of plaintiffs for Order. Specifically, plaintiffs seek the determination by the court of the substantive law to be applied at trial as to the plaintiffs' rights to recover damages as a result of an alleged auto accident. The motion is opposed only in the sense that defendant disagrees what the controlling law should be, but does not dispute the need for a determination, as the parties are otherwise ready for trial. Most of the facts underlying this action are not in dispute and can be briefly recited.
This is an action against Allstate for uninsured motorists coverage by two persons insured under a policy issued to Mr. and Ms. Ackerly. The claims arise in connection with an auto accident which occurred in Pleasantville, New York which is located in Westchester County, immediately adjacent to Fairfield County Connecticut. The accident occurred on December 25, 2005, when the vehicle in which plaintiffs were traveling slowed due to road conditions and was struck from the rear by another vehicle. Both plaintiffs were and are Connecticut residents, driving a car registered in Connecticut and insured by a policy issued in Connecticut and following Connecticut law as to the nature and scope of coverage. The vehicle which struck the plaintiffs was also registered in Connecticut, owned by a Connecticut resident and being driven by another Connecticut resident. Plaintiffs allege that the tortfeasor's vehicle was not insured.
For the purpose of this motion, the court will assume this fact. However, the residence of the other driver, Ms. Vallaro, is not entirely clear. By way of affidavit, that driver, Ms. Vallaro states she was residing in Connecticut at the time of the accident, though defendant points out that at the time of the accident, she presented a New York license to the responding officer. Subsequent to oral argument, defendant filed a Supplemental Memorandum with additional evidence that Ms. Vallaro may have been a New York resident.
Under the policy which is the basis for plaintiffs' claims, Allstate is liable to pay plaintiffs "those damages which [they] are legally entitled to recover from the owner or operator of an uninsured auto." The dispute presented by this motion is what law, New York or Connecticut, shall be used to determine the damages legally recoverable from the owner or operator of the uninsured auto. Defendant argues that under New York law the victim in an automobile accident has the right to receive basic reparations, especially payment for his or her medical expenses, up to $50,000, without regard to liability or fault, but may only recover thereafter upon showing "serious injury." Defendant's citation is to McKinney's Insurance Law, § 5102(d). Under Connecticut law, there are no "no fault" medical benefits and there is no limitation on the victim's right to recover damages for all bodily injuries from the tortfeasor. Thus, each party here advocates a different standard for the right to recover, which standard could control the instruction given to the jury and could greatly impact the outcome of the case.
Defendant's citation here is in fact only to the statutory definition of "serious injury." The citation offered does not support the broad statement of law made. In point of fact, the restricted right of recovery defendant advocates is expressed in McKinney's Insurance Law § 5104(a): "Notwithstanding any other law, in any action by or on behalf of a covered person against another covered person for personal injuries arising out of negligence in the use or operation of a motor vehicle in this state, there shall be no right of recovery for non-economic loss, except in the case of a serious injury or for basic economic loss." Neither party has to date addressed the other, more complex issues raised by this statute.
Connecticut's "No-Fault" system was in place prior to January 1, 1994, when it was repealed by Public Act 93-297 §§ 28, 29.
Conversely, the different standard might ultimately prove of little impact. E.g., in Count One of the Amended Complaint (doc. #108), Mr. Ackerly alleges "injuries of a serious, painful and permanent nature." Shannon Ackerly does not expressly allege whether her injuries are "serious."
Prior to the Connecticut Supreme Court's decision in O'Connor v. O'Connor, 201 Conn. 632 (1986), there would have been little to debate on this issue as Connecticut applied the doctrine of "lex loci delicti" to determine the nature and extent of tort liability and, hence, New York law would clearly control. Under the unusual fact pattern presented in O'Connor, a Connecticut passenger asserting a claim in Connecticut against the Connecticut driver from a single car accident on a short trip into Canada, the Supreme Court modified this rule of law, choosing instead to "incorporate the guidelines of the [Second] Restatement [of Conflict of Laws] as the governing principles for those cases in which applications of the lex loci doctrine would produce an arbitrary, irrational result." 201 Conn. at 650. After applying the relevant principles from the Restatement (2d) to the particular facts before it, the court in O'Connor chose to apply Connecticut law, which would allow suit for serious bodily injuries, over Quebec Province law, which provides government funded no-fault benefits to victims of bodily injuries, but barred recovery for all but the most severe of injuries. See, 201 Conn. at 635, notes 2, 3.
In Williams v. State Farm Mutual Ins. Co., 329 Conn. 359 (1994), the Connecticut Supreme Court revisited this topic under slightly different facts. First, Williams involved a claim directly against a carrier under an uninsured motorist clause. The accident had occurred in New York where a Connecticut plaintiff was injured by a negligent driver who had a California license and was driving a New York registered car with very limited insurance coverage. The Williams plaintiff claimed the trial court had improperly chosen New York law, applied New York's "serious injury" limitation and found plaintiff not entitled to recovery. Plaintiff argued the court should have applied Connecticut law under two separate theories, each of which has some parallel to this case. Ultimately, the Williams court affirmed the decision below and found New York law was correctly chosen.
In this case, the facts before the court do not fit exactly with those present in either O'Connor or Williams. Nonetheless, each side points to one of these two decisions and claims it controls the result the court should reach here. The court's reading of these decisions finds they can be read harmoniously and their teachings applied to reach a result which is consistent with both decisions.
First, plaintiff argues that the policy in question contains a choice of law provision specifying all issues with regard to the policy are to be resolved applying the law of Connecticut. There are two problems which prevent this from being dispositive of the issue before the court. First, immediately following that provision in the policy, there is another which notes that if the event which gives rise to the loss occurs outside this state, the law of that other state may apply "if the laws of that jurisdiction would apply in the absence of a contractual choice of law provision such as this." There is no dispute the event giving rise to this claim occurred in New York and hence, any blanket choice of law is obviated. The second impediment is that the dispute before this court does not truly relate to the policy in question. There is no dispute here as to the terms, conditions or effect of the policy. There is no dispute that under the policy, the defendant is obligated to "pay those damages which an insured is legally entitled to recover from the owner or operator of an uninsured auto . . . because of bodily injury sustained by an insured person." The only dispute is what law will be used to determine those damages to which the plaintiffs are legally entitled. Simply because the defendant's liability arises from the policy does not make the amount of the damages which will ultimately determine that liability an "issue with regard to the policy." Moreover, this argument was addressed in Williams and resolved. The Williams court found that uninsured motorist coverage "does not grant an injured party an enhanced right of recovery [but only what] would have been available had the tortfeasor maintained sufficient coverage." 229 Conn. at 366-67. Indeed, the Williams court found that regardless of whether the issue were considered a matter of contract, the issue before it would ultimately be resolved by reference to the law of New York. 229 Conn. at 369.
As to what state's law should be chosen to determine the tort liability of the responsible driver in this case, it first appears that the doctrine of lex loci delicti may not be entirely rejected in Connecticut.
The O'Connor court twice placed limits on the extent of its holding. First, it noted it was not deciding whether to "discard lex loci in all of its manifestations [but only] whether, in the circumstances of the present case, reason and justice require the relaxation of its stringent insistence on determining conflicts of laws solely by reference to the place where a tort occurred." 201 Conn. at 648. Second, its holding to adopt the Restatement guidelines was arguably limited only to those cases "in which the application of lex loci would produce an arbitrary, irrational result." 201 Conn. at 650.
Eight years later in Williams, the Connecticut Supreme Court noted this state's traditional adherence to lex loci in tort cases, citing, inter alia, O'Connor. 229 Conn. at 370. The Williams court described O'Connor as abandoning only "categorical allegiance" to lex loci in tort cases. 229 Conn. at 371. This court, following Williams, will consider the result under both the lex loci delicti doctrine and the Restatement.
Williams ultimately analyzed the choice of law issue both under lex loci and the Restatement and found both methods led to the choice of New York law. Thus the line of demarcation between use of these two doctrines was not clarified.
Applying the doctrine of lex loci delicti here yields a clear result. The accident occurred in New York and any damages were incurred in New York. Moreover, New York law will clearly control the substantive issues as to what conduct was or was not negligent. Indeed, at least two of the grounds alleged to constitute negligence are based on violations of New York statutes, which allegations are effectively denied by defendant, leaving the burden on plaintiffs to establish. To the extent lex loci remains the presumed controlling doctrine, it clearly calls for the choice of New York law. The issue would then be whether that application would lead to "an arbitrary, irrational result."
This court simply cannot find that under the facts before this court the choice of New York law leads to an arbitrary or irrational result. Under New York's scheme, an injured party's right to sue for injuries is somewhat restricted but that consequence is balanced by that same party's unquestioned right to medical benefits. This benefit is not to be undervalued. It frees an injured party to seek medical treatment without worry over the financial burden and when the treatment is needed most, not having to wait, sometimes years, before liability is resolved. This benefit is also one which defendant says was enjoyed, even sought, by plaintiffs here, a contention not challenged by plaintiffs. True, the statutory scheme in New York differs from that selected in Connecticut. Whether one state's approach is more favorable to any given injured party will depend on the particular facts of each accident, rather than the wisdom of that legislative selection. It would be the height of provincialism to presume that whenever the law of another state led to a result different than that of Connecticut's law, the result was necessarily arbitrary and irrational. Under that standard, this court cannot find the application of New York law leads to an irrational or arbitrary result.
Not only was the Quebec liability scheme rejected in O'Connor far more restrictive than that of New York, but the Connecticut scheme chosen in O'Connor, Connecticut's no-fault system then in place, appears virtually identical to that which would apply under New York law. See 201 Conn. at 634-35 n. 2.
The facts before this court are also very different than those before the court in O'Connor. There, two persons from Connecticut (who at the time of suit were married to each other, 201 Conn. 634, n. 1) were traveling together in a car registered in Connecticut and were involved in a one-car accident. Under these circumstances, both the driver and passenger are likely to have had expectations of liability and coverage which are more simple and straightforward than in a multi-car collision. Here, the fact that both plaintiffs and the driver of the other car were from Connecticut seems simply a statistical fluke.
Under the Restatement approach, this court is directed to Sections 6 and 145 of the Restatement (Second) of the Conflict of Laws. Williams, 229 Conn. at 369-70. Examination of the various factors set out therein leads the court to the same conclusion and selection of New York law. The factors set out in section 6(2), to be applied in the absence of a statutory directive, collectively point towards New York law. Subsections (a), the needs of the interstate system, (f) certainty, and (g) ease in determination and application, all support choice of New York law. When different cars and drivers are involved, having the basic rules which determine liability issues turn on the residence of the drivers adds a purely random element to an already complex situation. Subsections (b), (c) and (e), the policies of the respective states and the basic policy in this area of the law, are relatively neutral in impact. Both states' policies and the basic policy behind uninsured motorist coverage, seek to have accident victims fairly treated and the public protected from uninsured motorists. As discussed above, this court does not read the different approaches to accomplish these same goals as signifying any great difference in policy, just different ways to achieve identical goals. Neither state seems likely to contend it has any unique interest in these particular concerns.
Under section 145 of the Restatement, the contacts to be considered in applying the principles described in section six are as follows: (a), the place where the injury occurred, and (b) the place where the conduct causing the injury occurred. Both of these are clearly New York. Subsection c, the residence of the parties, would point to Connecticut, if we consider the other driver or car owner as the real party in interest. Finally, under (d), the only relationship between plaintiffs and the owner or driver of the other car is the collision, which occurred in New York. In short, the majority of these factors and certainly the strongest ones, all point to a choice of New York law.
In summary, this court finds that the choice of New York law to determine all issues as to liability, including the extent of bodily injuries to be compensable, is the best choice under either the lex loci delicti doctrine or the Restatement of Conflicts of the Law factors. This choice does not yield an arbitrary, irrational or unfair result and does not deviate from the legitimate expectations of the parties. Nor does this choice contravene any policies of the State of Connecticut.
Having chosen New York law as that to be followed, there remains an unresolved issue as foreshadowed in Footnote 2, supra. This issue is a simple one: Under New York law, when applied to the facts of this case, will the prohibition on non economic damages, other than in the case of serious injury, even apply? While the parties have seemed to assume this is the natural result of choosing New York law, that is not the court's reading of the law. It appears that under § 5104 the restriction does not apply when a tortfeasor is not a "covered person." Lang v. City of New York, 98 A.D.2d 792, 793 (2d Dept. 1983); Caruana v. Oswego County, 26 A.D.3d 857, 858 (4th Dept. 2006).
Whether or not the damages which plaintiffs are legally entitled to recover would be measured in a suit between "covered persons" will likely turn on whether the driver or owner of the vehicle striking plaintiffs' car fell within the definition of this term set out in § 5102(j). Based on the allegations to date, it would not appear either person would fit within the first two options (i.e., an injured pedestrian or the owner or operator of an insured vehicle). The final option, persons entitled to first-party benefits, also appears extremely problematical. See New York Insurance Law § 5103. While drivers of vehicles from outside New York which are covered by insurance are considered "covered," uninsured motorists simply do not come within the definition of a "covered person." Wilson v. E J Trucking Corp., 94 A.D. 666, 667, 462 N.Y.S.2d 660 (1st Dept. 1983) (driver of car registered in Connecticut without any automobile insurance did not qualify as a "covered person"). As noted above, if this is not a suit between "covered persons," the restriction on what bodily injuries are compensable will simply not apply.
The court notes that while this motion is predicated on the assumption that neither the driver nor the owner of the vehicle striking plaintiffs was insured, that allegation is not yet admitted. See Answer and Special Defenses to Amended Complaint, First Count, ¶ 14 (#109). The court is also mindful that while the parties have devoted great attention to the issue of choice of law, they do not appear to have addressed the issue of whether New York law, under these facts, will actually lead to the legal result they oppose or advocate, respectively. For both those reasons, the court will allow both sides to file supplemental briefs on two issues:
CT Page 23803
1.) Would the damages which plaintiffs are legally entitled to recover be determined in an action between "covered persons" as that phrase is used in New York Insurance Law § 5104?
2.) If the answer to question (1) is "No," do the damages which plaintiffs are legally entitled to recover from the owner or operator of the other vehicle differ under New York and Connecticut law?
Based on their analysis, each side shall simultaneously file proposed jury instructions related to this issue.
The parties are encouraged to direct the court's attention to, or to reach, any relevant factual stipulations relevant to this issue. The parties will file all supplemental briefs and papers within twenty-one (21) days of this decision. After that, the court will determine the proper legal standard to apply and the matter will proceed to trial.