Zurzola v. General Motors Corp.

503 F.2d 403

• Court: Court of Appeals for the Third Circuit
• Decided: September 17, 1974
• Docket: Nos. 73-1959, 73-1983 and 73-1960
• Status: Published

Opinions

OPINION OF THE COURT

BIGGS, Circuit Judge.

Rose Zurzola and Matthew Zurzola, husband and wife, residents and citizens of New Jersey, on May 26, 1969, motored to visit relatives in Philadelphia. They became involved in an accident with another automobile at the intersection of Roosevelt Boulevard and Harbi-son Avenue, in Philadelphia. The driver of the other vehicle was Mutchnick, a resident of Pennsylvania. His automobile was owned by and leased to him by the DeVille Leasing Corporation, a Pennsylvania corporation, and had been manufactured by General Motors Corporation, a Delaware corporation. Two suits based on diversity were filed. The first was brought by Rose Zurzola and Matthew Zurzola, husband and wife, and Matthew Zurzola in his own right, vs. General Motors Corporation, No. 70-308 in the district court, at our Nos. 73-1959 and 73-1983. General Motors was accused of having equipped the car with inferior safety glass. General Motors moved to join Mutchnick and DeVille Leasing Corporation as third party defendants and to sever and join Matthew Zurzola as a third party defendant. These motions were granted. The second suit at No. 70-310 in the district court and at our No. 73-1960, was brought by Rose Zurzola, and Rose Zur-zola and Matthew Zurzola, husband and wife, and Matthew Zurzola in his own right, vs. Jack Mutchnick and DeVille Leasing Corporation, alleging negligence on the part of Mutchnick in operating an automobile owned by DeVille while acting as agent of DeVille. The defendants moved to sever Matthew Zurzola and join him as a third party defendant and a severance order was entered. The third party complaint alleges negligence on the part of Matthew Zurzola. The learned district judge entered an order granting Matthew Zurzola’s motion to dismiss him as a third party defendant, in both actions, on the ground of inter-spousal immunity. General Motors and Mutchnick have appealed, having procured adequate Rule 54(b), 28 U.S.C. orders.

In limine we are faced with a complex conflict of laws issue. The district court, 341 F.Supp. 767 (E.D.Pa.1972), concluded: “Presently before this Court are motions of Matthew Zurzola to dismiss him as a third-party defendant on the premise that he is immune from contribution even if a jury finds that negligence on his part caused the injuries to his wife. For the reasons set forth below, we will grant those motions.”

Since the jurisdiction of the district court is based on diversity of citizenship, we apply the conflicts of law rules of Pennsylvania. Klaxon Co. v. Stentor Electrical Mfg. Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941). In Griffith v. United Airlines, Inc., 416 Pa. 1, 203 A.2d 796 (1964), the Pennsylvania Supreme Court held that a court must examine the various contacts that each state has with the matter in controversy to ascertain the state that has the greater interest in the issue and the law of the state most interested should be applied to resolve any dispute.

The district court in the instant case went on to say, 341 F.Supp. at 769: “Applying this test, it is our considered judgment that New Jersey has the most significant interest in the issue of in-traspousal contribution. Matthew and Rose Zurzola were domiciliaries of New Jersey at the time of this accident. Since New Jersey is the state which has the basic responsibility for regulating the incidents of the marital relationship, it follows that any effect which this litigation might have on the domestic relations of these parties is a primary concern to New Jersey.

“On the other hand, Pennsylvania has an important interest in assuring its citizens safe travel on the state’s highways. To the extent that the threat of liability deters carelessness, Pennsylvania arguably has an interest in intraspousal contribution. But resort to New Jersey law in this case should not significantly reduce any deterrence sought by Pennsylvania since the negligent spouse remains liable to third persons beyond the family relationship. Consequently, we are convinced that Pennsylvania would apply New Jersey law to the issue of intra-spousal contribution.

“In fact, the Pennsylvania Supreme Court’s holding in McSwain v. McSwain [420 Pa. 86, 215 A.2d 677 (1966)] mandates this conclusion. That case involved an automobile accident in Colorado involving married residents of Pennsylvania. Mrs. McSwain sued her husband in Pennsylvania under the Colorado Death Act alleging that the accident and death of their child were caused by his negligence. Under Colorado law, a wife could sue her husband directly in tort, whereas, Pennsylvania law barred direct intraspousal tort actions. The lower court held that Pennsylvania law applied and therefore, Mrs. McSwain was barred from suing. The Supreme Court affirmed and stated that: ‘Our conclusion to look to the law of Pennsylvania on the issue of intramarital immunity rests . . . upon a determination that the circumstances of the instant case do not warrant the interjection of Colorado law into what is essentially a Pennsylvania family controversy.’ Id. 97, 215 A.2d [677] 683.

“Turning to New Jersey law, we find that in all instances intraspousal contribution was forbidden at the time of this accident. See e. g., Kennedy v. Camp, 14 N.J. 390, 102 A.2d 595 (1953).

“On July 10, 1970, however, the New Jersey Supreme Court changed the common law to permit such contribution in tort actions. See Immer v. Risko, 56 N. J. 482, 267 A.2d 481 (1970). Defendant Mutchnick argues that this opinion should apply retroactively to permit contribution in this case. Although retroactive application in the Immer case has great appeal, the New Jersey Supreme Court expressly held in Darrow v. Hanover Township, 58 N.J. 410, 278 A.2d 200 (1971), that the Immer decision had prospective application only. Since we are bound to follow New Jersey law and this accident occurred more than a year prior to the Immer opinion, we conclude that Matthew Zurzola enjoys immunity from contribution.

“Even if we were to consider this case under Pennsylvania law, the result would not change. Although the defendants assert that Pennsylvania law permits joinder of a spouse as a third-party defendant for purposes of contribution, the recent Supreme Court case of Falco v. Pados [, 444 Pa. 372], 282 A.2d 351 (1971), expressly held otherwise. Compare Ondovchik v. Ondovchik, 411 Pa. 643, 192 A.2d 389 (1963). Consequently, we must hold that Matthew Zurzola is immune from liability in this suit.”

Only one question is presented here for decision, i. e., should the law of New Jersey or that of Pennsylvania be applied to determine the liability of Matthew Zurzola. As we have said, we must apply the conflict of laws principles of the forum, Pennsylvania. Klaxon Co., supra. The Pennsylvania Supreme Court has held that a court should examine the various contacts that it and any other State has in respect to the controversy to determine what State has the greater interest in the issue. In short, we look to the interests of the States, not to those of individual parties.

Significant contacts seem to lie in the law of both States. As to Pennsylvania, we note the following: (a) The accident occurred in Pennsylvania; (b) the case is being tried in a Pennsylvania court; (c) the defendants and, correspondingly, their insurers may be financially injured by the failure to apply Pennsylvania law; (d) all the defendants have ample Pennsylvania connections; and (e) the safety of the highways of Pennsylvania will be heightened by imposing liability for careless driving whether or not the driver is being sued by or is suing a spouse. New Jersey also has its interests (a) to protect its insurers from losses and (b) to preserve family harmony.

In McSwain v. McSwain, 420 Pa. at 91-97, 215 A.2d at 680-683, where there was a conflict between the law of Pennsylvania and the law of Colorado, Mr. Justice Roberts, speaking for the court, said: “Given the conflict between the law of Colorado, the situs of the accident, and the law of Pennsylvania on the effect of the marital relationship of the parties on appellant’s right to prosecute the instant suit, we are thus confronted with the question of whether the circumstances of the case warranted the application of the Pennsylvania rule.

“Although rendered prior to the decision in Griffith v. United Airlines, Inc., 416 Pa. 1, 203 A.2d 796 (1964), in which this Court rejected the rule of lex loci delicti, the trial court’s decision to look beyond the situs of the accident to apply the Pennsylvania rule of interspousal immunity was not without precedent. Even at the height of its acceptance, similar departures from the dictates of lex loci delicti were made by courts confronted with a conflict as to the effect of the marital relationship on the right of the parties to sue inter se. Following the precedent established in Emery v. Emery, 45 Cal.2d 421, 289 P.2d 218 (1955), an early decision departing from the usual resort to lex loci delicti, a number of courts began to apply the law of the marital domicile to determine the issue. By characterizing the effect of the marital relationship on the rights of the parties as an aspect of family or domestic relations, rather than tort law, many courts which otherwise adhered to the rule of lex loci delicti isolated the issue for treatment under a different choice of law rule. In this manner, some of the rigidity which lex loci delic-ti introduced into the solution of choice of law problems was partially alleviated.

“It was in part a recognition of the considerations which prompted such departures and their applicability to the entire spectrum of choice of law problems which led to the growing dissatisfaction with the rule of lex loci delicti. Time found the rule increasingly criticized as a mechanical methodology, predicated on the out-moded ‘vested rights’ theory, and emphasizing certainty and predictability at the expense of other, frequently more relevant considerations. See Griffith v. United Airlines, Inc., 416 Pa. 1, 12-13, 203 A.2d 796, 801 (1964). In a series of significant decisions, a number of jurisdictions abandoned ‘vested rights’ and its embodiment in the rule of lex loci delicti. Recognizing that the state of the situs of the ‘tort’ may not necessarily have a sufficient interest in the issue in dispute to warrant the interjection of its policies into the litigation, these courts embarked upon a new approach to the solution of choice of law problems which replaced the a priori assumptions of lex loci delicti with an analysis of the interests of the various states factually involved in the matter in dispute.

“In Griffith, supra, we sought to make clear that our decision to adopt this approach was dictated by an appreciation of our federal system, the frequently varying policies of its member states, and the increasing mobility of our society. With our citizens and institutions exposed to the varying policies of different states, frequently unequal in their claims to priority, the premise of lex loci delicti that a single spatial fact is an adequate guide to the solution of choice of law problems is no longer acceptable.

“Whether the policies of one state rather than another should be furthered in the event of conflict can only be determined within the matrix of specific litigation. What should be sought is an analysis of the extent to which one state rather than another has demonstrated, by reason of its policies and their connection and relevance to the matter in dispute, a priority of interest in the application of its rule of law. See Griffith v. United Airlines, Inc., 416 Pa. 1, 15, 21-22, 203 A.2d 796, 802, 805, 806 (1964); cf. Bernkrant v. Fowler, 55 Cal.2d 588, 12 Cal.Rptr. 266, 360 P.2d 906 (1961); Babcock v. Jackson, 12 N.Y.2d 473, 240 N.Y.S.2d 743, 191 N.E.2d 279 (1963).

“Under the circumstances of the instant case, such analysis leads us to conclude that the court below did not err in the application of Pennsylvania law to preclude the claim here sought to be asserted.

“We are led to this conclusion by an examination of the respective interests of Colorado and Pennsylvania in the effect to be given the marital relationship on appellant’s right to proceed against her husband. Pennsylvania, by its rule prohibiting such suits, has expressed an interest in foreclosing litigation as an avenue for engendering friction between spouses. See, e. g., Johnson v. Peoples First National Bank & Trust Co., 394 Pa. 116, 145 A.2d 716 (1958); Parks v. Parks, 390 Pa. 287, 135 A.2d 65 (1957); Kaczorowski v. Kalkosinski, 321 Pa. 438, 184 A. 663 (1936). Colorado, on the other hand, by its rule permitting such suits, has expressed an interest in providing redress for the injured spouse even if obtained at the expense of marital harmony.

“Presumably, Colorado has made its determination to permit such suits with its own domiciliaries primarily in mind. In the instant case, however, we deal with a'suit between Pennsylvania domi-ciliaries. Any effect which this litigation may have on the marital relations of the parties is a matter of concern primarily to Pennsylvania, the state which has the basic ‘responsibility for establishing and regulating the incidents of the * * * relationship’ of the parties. Emery v. Emery, 45 Cal.2d 421, 428, 289 P.2d 218, 223 (1955.) ¹ And, although Colorado, as the state of both the conduct and injury could assert an interest in this litigation in order to further the deterrence of negligent conduct on its highways and to secure, in the event of insurance, a fund for the payment of local creditors, those interests would not be disserved by the application of the Pennsylvania rule of inter-spousal immunity in the instant case.

“Unlike resort to a standard of care less rigorous than that demanded by Colorado of those who use its highways, resort to the law of Pennsylvania to bar the instant suit would have no adverse effect on any deterrence sought by Colorado through the use of tort liability. Since negligent operation of a motor vehicle invariably involves some hazard to persons beyond the family relationship, potential liability still remains to deter unreasonable conduct on the part of those able to insulate themselves from intrafamily suit.

“Moreover, with regard to Colorado’s interest in securing a fund for the payment of local medical creditors, that interest would not be adversely affected under the facts of the instant case. Since the accident resulted in near immediate death, significant debts are not likely to have been incurred in Colorado.

“Our conclusion to look to the law of Pennsylvania on the issue of intramari-tal immunity rests, not upon a fixed and invariable rule of characterization, such as would dictate resort to the law of the marital domicile in all such cases, but upon a determination that the circumstances of the instant case do not warrant the interjection of Colorado law into what is essentially a Pennsylvania family controversy. The mere fact that the accident occurred in Colorado, absent the expression of a significant interest on the part of that state, does not justify our refusal to give effect to the public policy of this Commonwealth, as embodied in the Act of 1893, that suits of the instant sort not be permitted. The desirability or wisdom of that policy has, since the enactment of the Act, been a matter of legislative determination. Our conclusion here merely recognizes and gives effect to that legislative mandate.” (Footnotes omitted.)

We think the language quoted from Mr. Justice Roberts’ opinion suggests, if it does not compel, the conclusion that Pennsylvania courts would look to the law of the domicile of the parties to determine the interests of that state in respect to spousal relations. In the case at bar the domicile is New Jersey.

It is not necessary to decide any issue of Pennsylvania law for we have decided that the law of New Jersey is applicable. If we apply that law, we must reach the conclusion that the immunity of Matthew Zurzola from suit is operative. New Jersey has a statute somewhat similar to that of Pennsylvania. It is as follows: N.J.S.A. 37:2-5: “Right of husband and wife to contract with or sue each other — Nothing in this chapter contained shall enable a husband or wife to contract with or to sue each other, except as heretofore, and except as authorized by this chapter.” ² At the time of this accident, the law of New Jersey would not have permitted the joinder for in Kennedy v. Camp, 14 N.J. 390, 102 A.2d 595 (1954), the Supreme Court of New Jersey held that a tortfeasor may not have contribution from a joint participant in the tortious act or omission for the injurious consequences to the wife of the joint participant. In Immer v. Risko, 56 N.J. 482, 267 A.2d 481 (1970), the Supreme Court of New Jersey abrogated the doctrine of inter-spousal immunity in automobile negligence cases. Justice Proctor took the position that the statute embodied the common law and, therefore, the Supreme Court of New Jersey was entitled to reinterpret it as indicated.³’⁴

In Darrow v. Hanover Township, 58 N.J. 410, 411, 278 A.2d 200, 201 (1971), Justice Proctor stated: “Prior to Immer the immunity rule barred negligence actions between spouses. Orr v. Orr, 36 N.J. 236, 176 A.2d 241 (1961); Koplik v. C. P. Trucking Corp., 27 N.J. 1, 141 A.2d 34 (1958); Kennedy v. Camp, 14 N.J. 390, 102 A.2d 595 (1954). Although we applied the new rule permitting such suits to the parties in Immer, we purposely left open the question of whether it should be fully retrospective. The issue was neither briefed nor argued, and it was our belief that the question should not be resolved until it could be considered in a full, adversary hearing. See Note, ‘Prospective Overruling and Retroactive Application in the Federal Courts,’ 71 Yale L.J. 907, 951 (1962). Accordingly, after we certified the present case we gave notice to the bar that interested parties might apply to us for certification or to submit briefs and appear as amici curiae. 94 N.J.L.J. 169 (March 11, 1971); 94 N.J.L.J. 204 (March 18, 1971). Although no other cases were certified, numerous parties submitted briefs and appeared at the argument before us as amici curiae.” The conclusion of the Supreme Court of New Jersey was that the Immer change was not to be applied retroactively.⁵

The New Jersey Supreme Court, in Darrow, treats the date of the accident as critical and the fact that the law is changed while the ease or the appeal is pending is not considered to permit the application of the new rule. In short, the accident must occur after July 10, 1970, the date Immer was decided, in order for its principle to be applied. Here the accident took place before the Immer decision. This concludes our inquiry. It follows that Matthew Zurzola is immune from liability in these suits.

The judgment of the district court will be affirmed.

1 . Emphasis added.

2 . We note that, inexplicably, none oí the parties have made reference to this statute in tlieir arguments or in their briefs in this court. We would have thought that this statute would have merited at least passing mention.

3 . Justices Francis, Hall and Haneman dissenting.

4 . Justice Proctor stated: “The meaning of this [statutory] provision lias been the subject of numerous decisions. See Koplik v. C. P. Trucking Corp., supra, 27 N.J. at 4-7, 141 A.2d 34, and cases cited therein. In Kennedy v. Camp, [14 N.J. 390, 102 A.2d 595 (1954),] this Court held that the above provision did not alter the common law unity of interests of the spouses and hence a husband would not be liable to his wife for injuries caused by his negligent driving of an automobile. Id, 14 N.J. at 397, 102 A.2d 595. Kennedy did not hold that the provision required application of the immunity doctrine but merely that the common law continued unchanged. This reasoning was in accord with earlier cases which held that that provision did not disturb the common law. Hudson v. Gas Consumers’ Assn., 123 N.J.L. 252, 253, 8 A.2d 337 (E. & A.1939); Freitag v. Bersano, 123 N.J.Eq. 515, 516, 198 A. 845 (Ch.1938); Drum v. Drum, 69 N.J.L. 557, 558, 55 A. 86 (Sup.Ct.1903). In Koplik, supra, however, this Court held in a four to three decision that ‘the common law interspousal negligence tort immunity has been perpetuated [by N.J.S.A. 37:2 — 5], and that it lias been made a part of our statutory law as well.’ 27 N.J. at 6, 141 A.2d at 37. Writing for the minority, Justice Jacobs strongly objected to this construction of the statute and expressed his opinion that there was nothing in the provision which either expressly or impliedly incorporated the common law immunity doctrine into the statutory law of the State. In his view the provision merely left the common law ‘intact with its inherent capacity for later judicial alteration.’ Id. at 18-19, 141 A.2d at 44.

“Three years later, in Long v. Landy, 35 N.J. 44, 171 A.2d 1 (1961) * * * we held that the common law immunity doctrine was not rigidly incorporated into our statutory law; immunity should apply only where the reasons for its existence continue. * * * In other words, the statute did not incorporate immunity, but rather the common law with its inherent capacity for change.” 56 N.J. at 486-487, 267 A.2d at 483.

5 . See also Currier, Time and Change in Judge-Made Law: Prospective Overruling, 51 Va.L.Rev. 201 (1965).