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POLLOCK v. BARRICKMAN

June 4, 1985

WILLIAM POLLOCK and CATHERINE, h/w, and CATHERINE BAUER, Administratrix of the Estate of Harry E. Bauer, Dec'd., Plaintiffs,
v.
RICHARD D. BARRICKMAN and AUSTINO'S LIFT TRUCKS CO., INC., Defendants



The opinion of the court was delivered by: GERRY

 This is a diversity automobile accident case. The decedent, Harry Bauer, died in this accident, and his wife, Catherine Bauer, administratrix of his estate, is bringing these wrongful death and survival actions. The question is whether these actions should be governed by Pennsylvania or New Jersey law. The decedent was a citizen of Pennsylvania; the defendant Barrickman, whose car struck the decedent's, is a citizen of New Jersey, as is his employer, co-defendant Austino's Lift Trucks Co., Inc. The accident occurred in New Jersey.

 The parties agree that the wrongful death statutes of Pennsylvania and New Jersey are identical, and it therefore makes no difference which statute is applied. The real issue concerns the Survival Acts. The New Jersey courts have construed the New Jersey Act, N.J.S.A. 2A:15-3, to permit damages only for the decedent's pain and suffering between injury and death, as well as for any lost earnings between injury and death. Pennsylvania's Act permits these elements of damages but also permits recovery for decedent's prospective lost earning capacity.

 Predictably, the plaintiff therefore seeks to have Pennsylvania law applied, and defendant seeks to have New Jersey law applied.

 As a federal court sitting in diversity, this court must resolve this choice of law question applying the choice of law theory adopted by the New Jersey courts. Klaxon Co. v. Stentor Electric Mfg. Co., 313 U.S. 487, 85 L. Ed. 1477, 61 S. Ct. 1020 (1941).

 New Jersey, of course, has abandoned the old choice of law rule that the site of the accident provides the law of the case. This rule has been supplanted by a governmental interest analysis. Under this approach,

 
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 the 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 (3d Cir. 1975). Further, under this approach, the laws of different states may apply in the same case to different issues in the case. White v. Smith, 398 F. Supp. 130 (D. N.J. 1975). Undeniably, in the instant case, for example, New Jersey law will govern any consideration of negligence, based on the rules of the road. Id.

 In Foster v. Maldonado, 315 F. Supp. 1179 (D. N.J. 1970), a case involving identical facts to those here -- Pennsylvania plaintiff, New Jersey defendant, accident in New Jersey -- the court applied the Pennsylvania Survival Act. The Foster court believed that the case presented a false conflict. Pennsylvania, the court reasoned, had a strong interest in the administration of its decedents' estates, and New Jersey had no interest in the administration of the estates of non-resident decedents. Thus, the court concluded, Pennsylvania law should apply as Pennsylvania was the only interested jurisdiction.

 In Colley v. Harvey Cedars Marina, 422 F. Supp. 953 (D. N.J. 1976), the court was again faced with these identical facts. The Colley court, however, analyzed this case as a true conflict. Against Pennsylvania's interest in compensation to decedents' estates, the court purported to recognize New Jersey's interest, as reflected in its Survival Act, in protecting its resident defendants from large recoveries by estates. Thus, the Colley court concluded, each jurisdiction was interested in the application of its law.

 The Colley court adopted the approach of another scholar, D. F. Cavers, who argued that:

 
Where the liability laws of the state in which the defendant acted and caused an injury set a lower standard of . . . financial protection than do the laws of the home state of the person suffering the injury, the laws of the state of conduct and injury should ...

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