Decided: January 7, 1983.
NATIONWIDE MUTUAL INSURANCE COMPANY, PLAINTIFF-RESPONDENT,
SHERRY K. PERLMAN,*FN1 DEFENDANT-APPELLANT
On appeal from Superior Court, Law Division, Mercer County.
Fritz, Joelson and Petrella. The opinion of the court was delivered by Joelson, J.A.D. Fritz, P.J.A.D. (concurring).
[187 NJSuper Page 500] The facts in this case on appeal are not in dispute. Defendant Sherry K. Perlman, who was a passenger in an automobile operated in New Jersey by her husband, Melvin B. Perlman, sustained injuries when the vehicle collided with a telephone
[187 NJSuper Page 501]
pole because Mr. Perlman fell asleep at the wheel. Mr. and Mrs. Perlman were residents of New Jersey. The vehicle which was involved in the accident was owned by Mrs. Perlman's father, Eddie Leon, but was used by Mr. and Mrs. Perlman with the consent of the owner. At the time of the accident the vehicle was insured by plaintiff insurance company under a nondealer's garage policy issued in New York to "Leon's Diagnostic Center, Inc., and/or Eddie Leon."
Following the accident Mrs. Perlman instituted action in New Jersey against Eddie Leon and Melvin B. Perlman for injuries sustained by her in the accident. Thereupon plaintiff insurance company filed a complaint for declaratory judgment seeking two declarations from the court: (1) that plaintiff is not obligated to provide coverage or a defense to defendant Melvin B. Perlman; (2) that New York law shall apply to all issues regarding interpretation of the automobile liability policy issued to Eddie Leon, t/a Leon's Diagnostic Center, Inc. Plaintiff then moved for summary judgment. In the order granting the motion, the trial judge further directed that "the law of the State of New York shall apply and govern regarding all issues of interpretation of the automobile policy in the pending litigation of Sherry K. Perlman v. Eddie Leon and Melvin B. Perlman, . . . ." This is Sherry K. Perlman's appeal from that order.*fn2 We reverse.
The underlying problem in this case is that New York by statute, N.Y. Insurance Law § 167, subd. 3 (Consol.1980), provides:
No policy or contract shall be deemed to insure against any liability of an insured because of death of or injuries to his or her spouse or because of injury to, or destruction of property of his or her spouse unless express provisions relating specifically thereto is included in the policy. This exclusion shall apply only where the injured spouse, to be entitled to recover, must prove the culpable conduct of the insured spouse.
[187 NJSuper Page 502]
On the other hand, New Jersey has abandoned the doctrine of interspousal immunity in motor vehicle accident cases. Immer v. Risko, 56 N.J. 482 (1970).
In Buzzone v. Hartford Acc. and Indem. Co., 23 N.J. 447 (1952), the court stated flatly that the rights and liabilities under an automobile liability policy "are to be determined by the law of the state where the contract was made." Id. at 452. However, the dogma of that statement has since been reconsidered and refined. Thus, in State Farm, etc., Ins. Co. v. Simmons' Estate, 84 N.J. 28, 36 (1980), the court pointed out that "[c]ases in this jurisdiction subsequent to Buzzone have not mechanically or inflexibly applied the lex loci contractus rule." On the contrary, said the court, "our courts have generally acknowledged, in the selection of state law, the relevance of respective state interests in the particular resolution of the controversy measured by several factors including the connection of the parties to the respective states, the nature of the pertinent events that have transpired within each state, and the character of each state's policy preferences relevant to the particular litigation." Ibid. The court then summed up with a recognition of the rule that the law of the place of contract ordinarily governs the choice of law, but added that this rule of law should not be applied "without a full comparison of the significant relationship of each state with the parties and the transaction." Id. at 37. It then called for an assessment which "should encompass an evaluation of important state contacts as well as a consideration of the state policies affected by, and governmental interest in, the outcome of the controversy." Ibid.
We are not without guidance or precedent as to cases involving interspousal immunity. Although these cases do not deal specifically with insurance coverage or interpretation, they contain language which we find useful in the resolution of these problems under the directions provided in State Farm, etc., Ins. Co. v. Simmons' Estate, supra.