Summary
refusing to apply Ontario guest statute against New York plaintiff even though she was staying at her relatives' home in Canada and trip began and was to end there
Summary of this case from O'Connor v. Lee-Hy Paving Corp.Opinion
Argued September 19, 1966
Decided October 20, 1966
Appeal from the Appellate Division of the Supreme Court in the Fourth Judicial Department, THOMAS J. O'DONNELL, J.
Sherwood E. Freed for appellant.
Stephen R. Cochrane for respondents.
The question of law is: should there be applied to this personal injury negligence suit the law of the place of the wrong, which would be Ontario's "guest statute" (Ontario Rev. Stat. 1960, ch. 172, § 105, subd. 2) or should the applicable law be held to be that of New York State? As explained in Babcock v. Jackson ( 12 N.Y.2d 473), the Ontario act immunizes an automobile owner or driver as against liability for personal injury to or death of his passenger, while New York's substantive law contains no bar to such liabilities. Our immediate problem is to assign this present case to the categories covered by Babcock-Jackson where New York law was used, or to those situations governed by Dym v. Gordon ( 16 N.Y.2d 120). In both Babcock-Jackson and Dym-Gordon, the accident occurred outside New York State, the injured guest and the driver were both New Yorkers, and the automobile was licensed, usually garaged and presumably insured in New York State.
The principal fact differences between Babcock and Dym ( supra) were these: the Babcock week-end automobile trip began in this State and but for the accident would have ended here, whereas Mrs. Dym was a guest in Mr. Gordon's car on a short ride between two places in Colorado with no prior arrangement therefor having been made in New York. In the Dym case both parties, though domiciled in New York, were temporary residents (summer students at a university) of Colorado, and had arrived in Colorado at different times.
With the Babcock and Dym facts ( supra) as background, we examine the factual situation in this lawsuit. Plaintiff Macey is a sister of defendant-driver Rita Rozbicki and sister-in-law of defendant-owner Vincent Rozbicki. All three lived in Buffalo but the Rozbickis had a summer residence at Waverly Beach, Ontario, just across the Niagara River from Buffalo. In late June, 1962, plaintiff went from Buffalo to the summer place to stay with her relatives for about 10 days. A week later, riding as a passenger in the Rozbicki automobile, she was injured in a collision in a Canadian village near the Waverly Beach house. The parties had intended to drive on a Canadian highway to Niagara Falls, Ontario, and to return to Waverly Beach. Defendants' answer pleaded the Ontario guest statute as a complete defense, which plaintiff moved to dismiss for insufficiency. Defendants countered with a motion for summary judgment. Special Term, concluding that Babcock-Jackson ( supra) did not control, gave judgment for defendants. The Appellate Division affirmed. We agree with the dissenting Justices at the Appellate Division that New York law is to be applied in this case.
The Babcock rule ( supra) is that in such conflict situations controlling effect is to be given "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" ( 12 N.Y.2d, p. 481). The Babcock facts which pursuant to this rule dictated that New York law be used were that the parties were New Yorkers, that the car was garaged, licensed and insured in this State and that the journey began and ended in New York. In the present case the relationship of two sisters living permanently in New York was not affected or changed by their temporary meeting together in Canada for a short visit there, especially since the arrangements for that visit had undoubtedly been made in New York State. Every fact in this case was New York related, save only the not particularly significant one that the particular trip on the day of the accident was between two points in Canada. The important "contacts" here were all with New York State, not Ontario.
The Dym decision ( supra), as the majority Dym opinion clearly states, "represents no departure from the rule announced in Babcock; merely an example of its application" ( 16 N.Y.2d, p. 128). The notable differences between the Babcock situation and that in Dym was that in the latter the parties had separately gone to Colorado for a comparatively long stay, that there had been no arrangement made in New York for their meeting in Colorado, but merely a chance encounter in Colorado and a casual invitation to Mrs. Dym to ride in Gordon's car to a place where they were both going. The principal situs of the relationship was in Colorado.
The order appealed from should be reversed, with costs in all courts, defendants' motion denied and plaintiff's motion to strike the defense granted.
I concur for reversal, but on entirely different grounds from those stated by the Chief Judge.
Rita and Vincent Rozbicki, the defendants in this action, are New York domiciliaries residing in the City of Buffalo. They own and maintain a summer home at Waverly Beach, in the Province of Ontario, Canada.
The Rozbickis had moved into their Ontario home on the 15th day of May in the summer of 1962. On the 29th day of June, the plaintiff, Jean Macey, a sister of the defendant, Rita Rozbicki, came to the defendants' home in Ontario for at least a 10-day visit. On the date of the accident, July 6, the plaintiff and the defendant Rita Rozbicki left the Rozbicki home in Waverly Beach and drove to Fort Erie, Ontario, to attend Mass. After Mass. and while the defendant was driving the automobile, owned by her husband, it became involved in a collision with another vehicle owned and operated by a Canadian. The plaintiff who was seriously injured in the collision returned to her home in New York and thereafter commenced an action against the defendants asserting that the accident occurred as a result of the negligent operation of the Rozbicki vehicle.
The automobile was insured in New York and hence the defendant Rozbicki paid for and received coverage for any liability resulting from the negligent operation of his automobile.
The Legislature sometime ago enacted a compulsory insurance law. The purpose of that enactment is outlined in section 310 of the Vehicle and Traffic Law which states that: "The legislature is concerned over the rising toll of motor vehicle accidents and the suffering and loss thereby inflicted. The legislature determines that it is a matter of grave concern that motorists shall be financially able to respond in damages for their negligent acts, so that innocent victims of motor vehicle accidents may be recompensed for the injury and financial loss inflicted upon them." Neither this declaration of policy nor the standard required provisions for an auto liability insurance policy make any distinction between guests, pedestrians or other injured parties. Nor is there any provision indicating that the legislative concern extended only to those injured within the political lines that separate New York from her sister States and the Canadian Provinces. (Insurance Law, § 167, subd. 2.) Indeed, section 311 (subd. 4) of the Vehicle and Traffic Law provides that every automobile liability insurance policy issued under the compulsory insurance act shall provide insurance "against loss from the liability imposed by law for damages * * * arising out of the ownership, maintenance, use, or operation of [said] motor vehicle * * * within the state of New York, or elsewhere in the United States in North America or the Dominion of Canada".
Keeping in mind this strong and unequivocal declaration of public policy, we must decide whether any reason in law, logic or policy exists for denying this injured New York resident recovery against this negligent tort-feasor.
The defendants urge us, as they have successfully urged the two courts below, to disregard the mandate of our Legislature and deny recovery because the Province of Ontario where the accident occurred proscribes all tort actions by a guest-passenger against a host-driver. Although we specifically rejected this argument in Babcock v. Jackson ( 12 N.Y.2d 473), the defendant asserts that that case is not controlling here because "the relationship of guest and host was created in Canada * * * because the parties were remaining in Canada [for more than a week end] * * * [and] the accident with the other car was in Canada". These distinguishing factors are presumably of such import, the defendants tell us, that it is our duty to ignore New York law.
In Babcock v. Jackson ( supra) we refused to apply the Ontario guest statute where both parties were residents of New York and the automobile was insured here. The parties had been on a week-end trip through the Province when the automobile in which they were traveling crashed into a stone wall. We found that the purpose of the Ontario statute was to protect Ontario insurers from fraudulent claims by guests against hosts which in turn resulted in increased premium rates to purchasers of insurance in Ontario. However, since the car was insured in New York by a New York insurer and since the parties were both New York residents and the suit had been commenced in our courts it became obvious that Ontario had no real interest in the application of its law. And we, therefore, found no sound reason for ignoring the mandate of the supreme law and policy-making body of this State.
In determining which law should govern cases involving the guest statute of a foreign jurisdiction and whether a particular State has an interest in the application of its law it seems to me to be of no more than minor significance where the guest-host relationship arose, where the trip was to begin and end, and how short the visit of the parties was in the place where the accident occurred. Neither of these factors has any relation whatever to the New York policy of affording recovery to injured residents of this State or for that matter to the policies of other jurisdictions in denying a remedy.
The only facts having any significant bearing on the applicable choice of law in guest statute cases are the residence of the parties and the place in which the automobile is insured and registered. As we noted in Babcock, only these facts have any relation to the policies sought to be vindicated by the ostensibly conflicting laws. And here as in Babcock neither the policies of New York nor Ontario will be furthered by denying recovery. Indeed in applying New York law and allowing this cause of action both New York's and Ontario's policies are furthered. Ontario, as any jurisdiction in which a person is injured, has a definite interest in affording the injured person a remedy so that those of its residents who rendered aid and assistance will ultimately be recompensed. (See Kopp v. Rechtzigel, 141 N.W.2d 526, 528 [Minn.]; Watson v. Employers Liab. Corp., 348 U.S. 66, 72; Oltarsh v. Aetna Ins. Co., 15 N.Y.2d 111, 117.) While in cases involving suits by injured passengers against the owners of the automobiles Ontario has decided to give priority to the protection of another class of its citizens — insurers and the purchasers of insurance — where neither of these beneficiaries are involved, there is no longer any interest in denying recovery.
Unfortunately the answer to the problem presented by this case does not seem to be as clear as it should be. Both lower courts that have passed on the question have held Ontario law to be applicable and the decision of this court is not unanimous. The reason for this confusion and dissent appears to be our recent decision in Dym v. Gordon ( 16 N.Y.2d 120) in which we refused to apply New York law in a guest statute case. The facts in that case closely parallel those in the case at bar.
In the Dym case the plaintiff and defendant were both New York residents taking summer session courses at the University of Colorado at Boulder. They had arrived at separate times, traveling by separate means of transportation. The defendant apparently offered the plaintiff a lift in his automobile, which was insured in New York and which he had taken with him to Colorado. During the drive a collision occurred with another vehicle, injuring the plaintiff guest. Obviously the guest-host relationship began in Colorado and the trip was to begin and end there. This, of course, was merely incidental to their presence in Colorado.
Up to this point the facts in Dym v. Gordon are almost identical with those in the case at bar. There are really only two facts which appear to distinguish this case from Dym v. Gordon.
In Dym, "At the time of leaving New York there had been no arrangement between defendant and plaintiff to meet in Colorado and no plan or intention on the part of either that the plaintiff would ride in the defendant's automobile at any time." ( 16 N.Y. 2 d, p. 123.) I frankly fail to see the effect this should have in determining what interest either New York or the foreign jurisdiction has in the outcome of the litigation. Indeed it appears that the court in Dym was of the same opinion because we wrote that the result would have been the same "if the parties had planned, while still in New York, to go to Colorado for a year's study and, while there, engage in skiing at Aspen; the fact that they had planned the trip here would not justify the application of New York law if an accident occurred involving people in another car while traveling from Boulder to Aspen some months later." ( 16 N.Y.2d, p. 125; emphasis added.)
The second distinguishing fact appears to be that, in Dym, the parties were going to spend six weeks in Colorado taking courses at the University of Colorado. In the case at bar the defendants were going to spend at least three months in Ontario where they owned a summer home. At least as to the defendants then it may be said that their residential nexus with Ontario was greater than that of the defendant in Dym. On the other hand, the plaintiff in the case at bar was only going to spend 10 days in Ontario. Here the majority, contrary to its decision in Dym, holds New York law applicable. Is this difference of 32 days going to determine whether the laws and policies of this State will be given effect? If this is the meaning of the decision then I cannot agree. I am of the opinion that the interest a particular jurisdiction has in the application of its law should and can only be determined by an examination of the facts of the case in light of the relevant policy considerations. (See Currie, Comments on Babcock v. Jackson, 63 Col. L. Rev. 1212, 1235.) In guest statute cases, where the parties are New York residents and the automobile is insured under the laws of this State, the length of the visit to the jurisdiction in which the accident occurred is of little relevance. Counting days and examining calendars has no relationship to the making of a choice of law. Even if a cut-off date were picked, the result would be no more than another version of the arbitrary rule of lex loci delicti with an equally unsupportable basis.
In Dym v. Gordon great emphasis appeared to be placed upon the intent of the parties as to which law would govern their rights. Thus it was written "it is neither the physical situs where the relationship was created nor the time of its creation which is controlling but rather these factors in conjunction with the general intent of the parties as inferred from their actions." ( 16 N.Y.2d, p. 125.) If this is the thrust of the Dym decision, it seems to me that we are engaging in an absolute fiction for no apparent reason. The parties did not here, or in Babcock or Dym, have any intent as to what law would govern their rights in some future litigation arising out of an accident.
If the court finds it necessary to employ such a method of reasoning as the constructive intent of the parties in making a choice of applicable law then I would suggest that there are contacts far more significant than those stressed by the court in Dym. I believe that it is fair to infer that the owner of the vehicle, in purchasing a New York insurance policy which provided for the specific liability here incurred, "intended to protect his passenger against negligent injury, as well as to secure indemnity for liability, in whatever state an accident might occur." ( Kopp v. Rechtzigel, supra.) I would venture to suggest that this is the only inference that can be drawn from the acts of the parties.
If anything the defendants in this case, the sister and brother-in-law of the plaintiff, would probably wish the plaintiff to recover, since the recovery will be paid by the insurer. It was no doubt the concern of the Ontario legislature that the defendants would be so interested in seeing to it that the plaintiff, in most cases a friend or relative, recovered that they would conspire to defraud the insurer. It was for this reason that the guest statute was enacted.
I would further suggest that if the court wishes to indulge in fictions as to the intent of the parties we might look to the intent of the real party in interest, the insurer, and not the Rozbickis. Any recovery here would be paid by the insurer, who has calculated the premium and issued the policy in accordance with New York law. And, as noted earlier, that law provides for recovery by a guest regardless of where the accident takes place. To deny recovery under such circumstances would give New York insurance companies the benefit of laws which were not enacted for their protection and which they did not anticipate in issuing the policy.
Having said all this and being of the opinion that this case and Dym v. Gordon are indistinguishable and that Dym v. Gordon and Babcock v. Jackson are irreconcilable (see dissenting opinion of FULD, J., in Dym v. Gordon, 16 N.Y.2d, p. 129) I reach the inevitable conclusion that we should no longer follow the decision in Dym v. Gordon.
In addition the Dym decision appears to conflict with the rationale of our decision in Long v. Pan Amer. Airways ( 16 N.Y.2d 337, 341). That case involved a wrongful death claim and we refused to apply the law of the place of the tort primarily on the ground that the jurisdiction in which the deceased and the beneficiaries of his estate resided had the greatest interest in affording a recovery. In light of our decision in the Long case as well as in Kilberg v. Northeast Airlines ( 9 N.Y.2d 34), I cannot imagine a New York court recognizing the defense of a foreign guest statute in a wrongful death action. It would seem rather "peculiar, however, to refuse to apply the foreign guest statute when the action is for wrongful death on the grounds that the action is brought [primarily] for the benefit of the family [of the deceased who reside in this State], and apply the statute when the guest may be alive and crippled and his family is in just as great a need of being recompensed for the negligent acts of the defendant." (See 32 Brooklyn L. Rev. 143, 158.)
Our decision in Dym has engendered a considerable amount of law review commentary. (See, e.g., 51 Cornell L.Q. 779; 54 Calif. L. Rev. 1301; 34 Fordham L. Rev. 711; 18 Stan. L. Rev. 699; 40 St. John's L. Rev. 266; 65 Col. L. Rev. 1448.)
I am well aware of the fact that in so doing we will be breaking the frequently invoked mandate of stare decisis. I feel, however, that such action is justified here. It can hardly be argued that either of the parties to this action acted in reliance on our decision in Dym v. Gordon. Indeed the events occasioning this lawsuit took place even prior to our decision in Babcock v. Jackson. Moreover, I believe an attempt to distinguish this case from Dym v. Gordon will have the effect of confusing the choice of law process even more than it already appears to be.
In breaking away from the traditional vested rights rule, we formulated, in Babcock v. Jackson, a new approach to the choice of law. Because of the nature of the problem and the development of the law at the time, the rule of that case may not have been as clear as many would have liked. (See Leflar, Comments on Babcock v. Jackson, 63 Col. L. Rev. 1212, 1251.) In Dym v. Gordon, we had an opportunity to apply the rule of the Babcock case and I believe that we erred in the manner in which that rule was applied.
I feel that in limiting Dym before it becomes encrusted in our law we would be furthering the policy of this State and the interests of justice. As Mr. Justice BRANDEIS once wrote: "Such limitation of principles previously announced, and such express disapproval of dicta, are often necessary. It is an unavoidable incident of the search by courts of last resort for the true rule. The process of inclusion and exclusion, so often applied in developing a rule, cannot end with its first enunciation. The rule as announced must be deemed tentative. For the many and varying facts to which it is applied cannot be foreseen. Modification implies growth. It is the life of the law." ( Washington v. Dawson Co., 264 U.S. 219, 236 [dissenting opn.].)
Judges FULD, BURKE, SCILEPPI and BERGAN concur with Chief Judge DESMOND; Judge KEATING concurs in a separate opinion; Judge VAN VOORHIS dissents and votes to affirm.
Order reversed, with costs in all courts, and matter remitted to Special Term for further proceedings in accordance with the opinion herein.