The opinion of the court was delivered by: BROTMAN
This wrongful death and survival action arises out of the drownings of two men off the coast of New Jersey in April of 1971. Plaintiffs are the general administratrices and administratrices ad prosequendum of the estates of Herbert Colley and John D. Williams. Defendants are Harvey Cedars Marina, from whom the decedents rented the fiberglass boat in which they were riding, White's Shipbottom Marina, from whom Harvey bought the boat, and Viking Boat Company, the manufacturer of the boat. Plaintiffs' decedents were Pennsylvania residents and the estates are being administered in that state. Harvey Cedars Marina and White's Shipbottom Marina are incorporated in the State of New Jersey. Viking is an Indiana corporation licensed to do business in New Jersey. Jurisdiction is based on diversity of citizenship, 28 U.S.C. 1332 (1970).
The issue before the court involves conflict of laws. Plaintiffs have moved for a determination that Pennsylvania law should be applied in calculating the amount of damages recoverable in a survival action.
All parties agree on the substantive law of each state. Under the New Jersey Survival Act, N.J.S.A. 2A:15-3, the damages recoverable are essentially for pain and suffering between the time of injury and death. See Foster v. Maldonado, 315 F. Supp. 1179, 1180 (D.N.J.), appeal denied, 433 F.2d 348 (3rd Cir. 1970). Pennsylvania, however, allows recovery for pain and suffering plus loss based on the earning capacity of the decedent. 20 P.S. §§ 320.601-603.
A federal court sitting in diversity must apply the choice of law rules of the forum. Klaxon Co. v. Stentor Electric Manufacturing Co., 313 U.S. 487, 496, 61 S. Ct. 1020, 85 L. Ed. 1477 (1941). The motion therefore must be decided in conformity with the choice of law theory adopted by the New Jersey courts.
New Jersey has adopted a governmental interest analysis approach to choice of law. Mellk v. Sarahson, 49 N.J. 226, 229 A.2d 625 (1967). In that case, the New Jersey Supreme Court refused to apply mechanically the lex loci delicti in a negligence action arising out of an automobile accident that occurred in Ohio. At issue was the standard of care to be applied when a driver is sued by a guest-passenger. Under Ohio law, a host-driver is not liable except upon a showing of willful or wanton misconduct. In New Jersey, however, a guest can recover against the host upon evidence of ordinary negligence. Both plaintiff and defendant in Mellk were from New Jersey. The court examined the purposes behind the Ohio law and found that they would not be furthered because plaintiff was not from Ohio nor were the Ohio courts involved. Thus New Jersey law was applied. See 49 N.J. at 230-31, 234-35, 229 A.2d at 627, 629-30. This same rationale was used in Pfau v. Trent Aluminum Co., 55 N.J. 511, 263 A.2d 129 (1970) and Rose v. Port of New York Authority, 61 N.J. 129, 293 A.2d 371 (1972).
In reviewing the New Jersey cases in this area, the Third Circuit proposed the following two-step analysis:
The court determines first the governmental policies evidenced by the laws of each related jurisdiction and second the factual contacts between the parties and each related jurisdiction. A state is deemed interested only where application of its law to the facts in issue will foster that state's policy. Henry v. Richardson-Merrell, Inc., 508 F.2d 28, 32 (3rd Cir. 1975) (footnote omitted).
At the heart of interest analysis is the realization that often the interest of only one state will be furthered by application of its law on a particular issue. This presents a "false" conflict and a court should apply the law of the only interested jurisdiction.
Such was the analysis applied in Foster, supra. On identical facts, the court found that Pennsylvania was the only interested jurisdiction and that its law should be applied. We take a different view of the matter and hold that New Jersey would apply its own law to these circumstances.
The legislatures of New Jersey and Pennsylvania have made different judgments on the measure of damages in a survival action. Pennsylvania has determined that compensation to decedents' estates is of primary importance. Because plaintiffs administer Pennsylvania estates, the interest of Pennsylvania would be furthered by application of its law on this issue. Pennsylvania therefore is an interested jurisdiction.
The New Jersey legislature, on the other hand, has adopted a law that gives very limited benefits to decedents' estates. The protection of defendants from large recoveries has taken priority. New Jersey is not interested in protecting all defendants but only its own residents. Because both Harvey Cedars and White's Shipbottom are New Jersey corporations and because Viking Boat Co. does business in New Jersey, the interest of that state would be furthered by application of its law in this case. New Jersey is also an interested jurisdiction.
Kilberg v. Northeast Airlines, Inc., 9 N.Y.2d 34, 211 N.Y.S.2d 133, 172 N.E.2d 526 (1961), presented a similar fact pattern except that the forum had the more generous measure of damages. Kilberg, a resident of New York purchased a ticket from Northeast Airlines for a flight from New York to Nantucket, Massachusetts. He died when the plane crashed at Nantucket. The administrator of Kilberg's estate brought a wrongful death action in New York against Northeast Airlines, a Massachusetts corporation. New York allowed unlimited damages; whereas, Massachusetts had a $15,000 maximum recovery. Although the rationale used by the New York court to justify application of New York law
is not relevant here, the decision was the subject of much academic discussion. Brainerd Currie, the most influential advocate of governmental interest analysis, discussed the interest of Massachusetts in the Kilberg situation:
[The] Massachusetts policy of limiting liability for wrongful death is presumably to encourage socially useful enterprise by relieving entrepreneurs from what the legislature regards as an oppressive risk of liability. It is therefore appropriate, and necessary, to ask: What entrepreneurs? And the answer, surely is: those with whose welfare Massachusetts is concerned; namely, Massachusetts individuals, partnerships, trusts, corporations, and quite possibly foreign corporations doing business in Massachusetts.
. . . The conflict in Kilberg is simple and clear: Massachusetts has a policy of encouraging enterprise by relieving it of the risk of unlimited liability for death; it has an interest in the application of that policy in Kilberg because the defendant is a Massachusetts enterprise ...