On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket Nos. L-2278-05, L-5729-05, and L-7350-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
APPROVED FOR PUBLICATION June 9, 2008
Before Judges Stern, Collester and C.L. Miniman.
Clarendon National Insurance Company ("Clarendon") appeals from a judgment of February 2, 2007, resulting from three orders in these consolidated matters. The orders struck Clarendon's defense that Pedro Gil failed to cooperate with Clarendon's investigation of his Personal Injury Protection ("PIP") claim; concluded (pursuant to New York law) that Clarendon "is obliged to pay North Jersey Neurosurgical Associates billing to the extent that monies remain with the applicable PIP policy and endorsements," and provided that (pursuant to New Jersey law) Clarendon is "obliged to pay North Jersey Neurosurgical Associates' attorney's fees and costs," and to pay interest "in accordance with New York law." The court awarded $4,556.25 for counsel fees and $200 in costs to Gil's attorney, and $8,200 for counsel fees and $777 in costs to the attorney for North Jersey Neurosurgical Associates ("North Jersey"). The Law Division also denied Clarendon's motion to dismiss on grounds of forum non conveniens and because of Gil's failure to attend independent medical examinations (IMEs).
Clarendon contends that "conflict of law principles dictate that when a New Jersey resident is injured in a New York accident, New Jersey law should be applied in determining the injured party's eligibility for PIP coverage." It also contends that "if New York law is to be applied, this matter should be dismissed for forum non conveniens and then should be transferred to the appropriate forum in New York," that Gil's right to recover PIP from Clarendon is "subject to his failure to attend independent medical examinations" and that any "award of attorney's fees and interest should  be subject to the limitations imposed under New York law."
The dispute is essentially between Clarendon, seeking the application of New York law, and State Farm, seeking application of New Jersey law, in this subrogation action.*fn1 Gil, a New Jersey resident, was injured in New York as a passenger in a car registered and insured by Clarendon in New York. As a passenger, he was entitled to PIP coverage under New York law, but as a resident of his brother's household in New Jersey, he was also insured under a State Farm policy issued to his brother in New Jersey. Under New Jersey law, he was entitled to PIP benefits thereunder. The accident occurred in Queens in May 2003. The Clarendon policy provided $50,000 in PIP benefits while the State Farm policy provided $250,000 in such benefits.*fn2
Accordingly, the parties agree there is a conflict between New York law, which requires PIP coverage under the policy issued to the host vehicle, and New Jersey law pursuant to which PIP benefits are paid under the insured's "no-fault" policy provisions. The parties dispute the law to be applied with respect to the PIP coverage.
Choice-of-law determinations are reviewed as matters of law, and we must review the trial court's determination "de novo, with no deference to the trial court's views." Arias v. Figueroa, 395 N.J. Super. 623, 627 (App. Div.), certif. denied, 193 N.J. 223 (2007). We apply New Jersey choice-of-law principles in deciding the governing law, Rowe v. Hoffman-La Roche, Inc., 189 N.J. 615, 621 (2007); Erny v. Estate of Merola, 171 N.J. 86, 94 (2002); Moper Transp., Inc. v. Norbet Trucking Corp., 399 N.J. Super. 146, 153 (App. Div. 2008), and employ a "'government interest' analysis . . . designed to result in application of the law of the state with the most significant interest in resolving the issue presented." Arias, supra, 395 N.J. Super. at 627. It is also settled that choice-of-law determinations must be made on an "issue by issue" basis, in which each issue is analyzed separately, and different issues in the same litigation may be governed by the law of different states. Rowe, supra, 189 N.J. at 621; Erny, supra, 171 N.J. at 94-95; Moper, supra, 399 N.J. Super. at 153-54.
The first prong in this analysis requires determining whether an actual conflict of law exists. Rowe, supra, 189 N.J. at 621; Fu v. Fu, 160 N.J. 108, 118 (1999); Moper, supra, 399 N.J. Super. at 153. As already noted, New Jersey law provides that an automobile insurance policy shall be the primary source of PIP "no-fault" benefits for a resident relative of the insured who is not a named insured on another policy. Specifically, N.J.S.A. 39:6A-4.2 provides:
[T]he personal injury protection coverage of the named insured shall be the primary coverage for the named insured and any resident relative in the named insured's household who is not a named insured under an automobile insurance policy of his own. No person shall recover personal injury protection benefits under more than one automobile insurance policy for injuries sustained in any one accident.
See also Craig & Pomeroy, New Jersey Auto Insurance Law § 6:2-2 (Gann 2008). In contrast, it is uncontested that New York law provides that a claimant shall seek "no-fault" benefits from the insurance policy of the host vehicle:
[A]n applicant who is an operator or occupant of an insured motor vehicle, or any other person, not occupying another motor vehicle or a motorcycle, who sustains a personal injury arising out of the use or operation in New York State of such motor vehicle, shall institute the claim against the insurer of such ...