Before Judges Baime, Eichen and Wecker.
The opinion of the court was delivered by: Eichen, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
On appeal from the Superior Court of New Jersey, Law Division, Morris County.
This appeal involves an automobile accident which occurred on Route 287 in Franklin Township on May 17, 1992, raising choice of law issues with respect to the application of New York and New Jersey's comparative negligence and joint and several liability laws.
On the day of the accident, Antoinette Merola had come to New Jersey to shop. *fn1 The accident occurred when a vehicle Antoinette Merola was driving crossed the median into on-coming traffic after defendant Roy Russo's vehicle came into her lane of travel. As a result, she lost control of her vehicle and collided with the vehicle in which plaintiff Christine M. Erny (plaintiff) was a passenger. *fn2 Plaintiff sustained serious injuries in the accident. Antoinette Merola (decedent) was killed.
Plaintiff is a resident of New Jersey. Russo, Milton Merola, decedent's husband, and decedent were New York residents at the time of the accident. The Merola and Russo vehicles were registered and insured in New York. Russo was operating a vehicle owned by his mother, Terry Russo, also a New York resident. He was a student at Leheigh University in Pennsylvania at the time of the accident and traveled through New Jersey to go from school to his home in Long Island. Decedent was operating a vehicle owned by her husband, Milton Merola.
At the time of the accident, defendant Russo was covered under an automobile liability policy with limits of $1.5 million, while Milton Merola had only $100,000/$300,000 liability coverage.
In December 1992, plaintiff filed a negligence action against the Estate of Antoinette Merola, Milton Merola (the Merola defendants), Russo, Matthew Erny, plaintiff's husband, a New Jersey construction company, and the State of New Jersey, among others. *fn3 In May 1993, after the New Jersey action was filed, the Merola defendants instituted a negligence/wrongful death action in the Supreme Court of New York against Russo and his mother. The action was later dismissed on the ground of comity because of the pendency of this action in New Jersey involving the same parties and claims. *fn4 Thereafter, the Merola defendants amended their cross-claim in the New Jersey action to assert similar claims for damages against Russo and his mother.
Subsequently, Judge David S. Cramp denied Mr. Merola's motion for summary judgment dismissing plaintiff's claims of vicarious liability against him as owner of the vehicle driven by decedent. *fn5
A trial on liability only was subsequently conducted before Judge Salem Vincent Ahto, and a jury. The jury returned a verdict in favor of plaintiff, *fn6 allocating liability 40% to defendant Russo and 60% to the Merola defendants. The order for judgment entered by Judge Ahto reflects the 60-40 allocation of fault and also provides the same allocation on the cross-claim filed by the Merola defendants against Russo, producing a no-cause verdict in favor of Russo.
After the verdict, on September 17, 1996, plaintiff and the Merola defendants filed motions seeking to have New York comparative negligence law apply. Noting that the issue had never been raised before the trial and that no one had objected to the jury charge based on New Jersey law, Judge Ahto denied the motions. Nonetheless, the judge considered the motions on the merits. First, he concluded that plaintiff and the Merola defendants had not waived their right to raise the choice of law issue because choice of law issues had been in the case from the outset as reflected by Judge Cramp's having considered the agency issue, *fn7 and the previous attempts by the Merola defendants to file an action in New York.
As between the Merola defendants and Russo, he noted that "a genuine conflict between the laws of New York and New Jersey [exists] on the question of comparative fault." He explained:
New York subscribes to a pure comparative negligence theory in which contributory negligence does not bar recovery, but the amount of damages otherwise recoverable is diminished in the proportion which culpable conduct attributable to the claimant bears to the culpable conduct which caused the damages. [See N.Y. CPLR 1411.]
By contrast, New Jersey has adopted a different approach, which although not absolutely barring recovery by a claimant who has been contributorily negligent, requires ... that it be established that the claimant's negligence was not greater than the negligence of the person against whom recovery is sought, or was not greater than the combined negligence of the persons against whom recovery is sought. Our statute is contained in Title 2A:15- 5.1. [See N.J.S.A. 2A:15-5.1.]
After pointing out the conflict, the judge then applied New Jersey's choice of law "flexible governmental interest analysis," identifying New Jersey's "legitimate interest in determining the standard of care to which all motorists upon its roads must adhere" as an important factor. The judge also remarked as to the "dominant," but not "predominant" interest that New Jersey has "in affording proper compensation to injured New Jersey residents." Relying on the Restatement (Second) of Conflict of Laws (1971) (Restatement) §§ 145 and 164(1), the judge observed that:
application of a test weighing respective governmental interests will usually result in a determination that the local law applicable to determine the preclusive effect of a plaintiff's contributory fault should be that of the state where the injury occurred.
He concluded that "New York's concern ... for its injured citizens ... cannot exempt [them] ... from New Jersey's ... law setting standards for local conduct," citing O'Connor v. Busch ...