This appeal involves an interplay between the New Jersey interspousal immunity doctrine and principles of conflicts of law.
Plaintiff Alger Zweifel, a passenger in an automobile owned and operated by her husband, defendant William W. Zweifel, sustained injuries in a collision on Route 206 in Burlington County with an automobile driven by defendant Morgan and owned by defendant Justice. Mrs. Zweifel brought an action against her husband, Morgan and Justice to recover for her injuries.
Both Zweifels were residents of Pennsylvania, Morgan a resident of Florida. Although it is not clear from the record, it suggests that Justice was a resident of this State since the amended complaint was served on a member of his household in a trailer park in Pittsgrove.
As a Pennsylvania resident, defendant-husband William Zweifel claimed interspousal immunity based on a Pennsylvania statute, 48 P.S. , § 111. Summary judgment was entered dismissing the action as to him. Plaintiff Alger Zweifel appeals.
At the outset we note that since the action continues against the other parties the order appealed from is interlocutory and this court would ordinarily not entertain the appeal without application for leave to appeal. R. 2:2-4; Yuhas v. Mudge , 129 N.J. Super. 207, 209 (App. Div. 1974). However, since no motion was made to dismiss the
appeal and because of the impact of the summary judgment on the litigation, we grant leave to appeal nunc pro tunc. R. 2:4-4(b)(2).
Despite New Jersey's abrogation of the interspousal immunity doctrine in automobile cases (Immer v. Risko , 56 N.J. 482 (1970)), Pennsylvania has a paramount interest vis-a-vis its married domiciliaries with respect to the applicability of laws concerning disabilities to sue and immunities from suit arising from the family relationship. Restatement, Conflict of Laws 2d, § 169 at 506-507 (1971); Koplik v. C.P. Trucking Corp. , 27 N.J. 1, 11-12 (1958). Additionally, if defendant Zweifel garaged his car in Pennsylvania, it seems probable he obtained insurance which was doubtless written with the laws of Pennsylvania primarily in view. The application of the New Jersey law would expose his insurer to a greater risk than it might reasonably have expected, given the Pennsylvania local law. Johnson v. Johnson , 107 N.H. 30, 216 A.2d 781, 782-783 (Sup. Ct. 1966).
With the possible exception of defendant Justice, New Jersey has no real interest in the controversy: (1) the other parties involved in the accident were residents of foreign jurisdictions and had no relationship to New Jersey, and (2) there were no New Jersey residents affected by the accident who had interests to be protected by the laws of this State. Indeed, the happening of the accident in this State was merely "adventitious." See Mellk v. Sarahson , 49 N.J. 226 (1967); Maffatone v. Woodson , 99 N.J. Super. 559 (App. Div. 1968), certif. den. 51 N.J. 577 (1968).
We note that the summary judgment was granted against defendant Zweifel alone and that defendant Justice is not a party to the appeal. Moreover, it is not clear from the record whether Justice had notice of the motion for summary judgment. Thus it might not be necessary to consider the further question whether New Jersey may have an interest in protecting Justice's possible right of contribution against defendant Zweifel. However, since Justice remains a party
to the action it may well be argued that any such right of contribution he had was jeopardized by defendant's motion for summary judgment inasmuch as plaintiff's complaint was dismissed as to defendant Zweifel. See Purcell v. Kapelski , 444 F.2d 380, 383 (3 Cir. ...