| Butler v Stagecoach Group, PLC |
| 2010 NY Slip Op 03615 [72 AD3d 1581] |
| April 30, 2010 |
| Appellate Division, Fourth Department |
| Traci Butler, Appellant, v Stagecoach Group, PLC, et al.,Respondents, et al., Defendants. (Appeal No. 1.) |
—[*1] Hiscock & Barclay, LLP, Rochester (Anthony J. Piazza of counsel), fordefendants-respondents.
Appeal from an order of the Supreme Court, Livingston County (Thomas M. Van Strydonck,J.), entered March 24, 2009 in a personal injury action. The order granted the motion ofdefendants Stagecoach Group, PLC, Coach USA, Inc., individually and doing business as CoachCanada, Inc., Trentway-Wagar, Inc., Erie Coach Lines Company, and Ryan A. Comfort anddetermined that the law of Ontario, Canada concerning noneconomic damages applies to thisaction.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: These 12 consolidated appeals concern four separate but related actionsseeking damages for injuries and/or wrongful death resulting from the collision of atractor-trailer parked on the shoulder of Route 390 and a chartered bus transporting a youngwomen's hockey team from Ontario, Canada. The bus was leased by defendant Erie Coach LinesCompany (Erie Coach Lines) from defendant Trentway-Wagar, Inc. (Trentway-Wagar), and wasoperated by defendant Ryan A. Comfort (collectively, bus defendants).
Plaintiffs contend that Supreme Court erred in granting the motion of defendant CoachCanada, Inc. in appeal No. 12 and the motions of defendants Stagecoach Group, PLC and CoachUSA, Inc., individually and doing business as Coach Canada, Inc., in appeal Nos. 7 through 9(collectively, parent corporation defendants), seeking summary judgment dismissing therespective complaints against them. We note at the outset, in the interest of judicial economy,that those appeals taken by plaintiffs are moot in light of a settlement agreement between theparties entered into after the notices of appeal were filed. We may take judicial notice of eventsthat occur after a notice of appeal is filed that render an appeal [*2]moot (seegenerally Matter of Giovanni K., 62 AD3d 1242 [2009], lv denied 12 NY3d 715[2009]). Pursuant to the terms of that agreement, the liability of the bus defendants for theaccident was 90% and the liability of the defendants associated with the tractor-trailer (truckdefendants) was 10%, while no liability was apportioned to the parent corporation defendants.We therefore dismiss appeal Nos. 7 through 9 and appeal No. 12 as moot.
In any event, plaintiffs' contention with respect to those appeals is without merit. Plaintiffscontend that they raised an issue of fact whether the parent corporation defendants exercisedcomplete control over the bus defendants sufficient to pierce the corporate veil (see Matter ofMorris v New York State Dept. of Taxation & Fin., 82 NY2d 135, 140-142 [1993]), orwhether the bus defendants merely acted as the agent of the parent corporation defendants inarranging the charter trip that is the subject of the actions (see Hallock v State of NewYork, 64 NY2d 224, 231 [1984]). We reject that contention. Indeed, plaintiffs submitted thedeposition testimony of the president of Trentway-Wagar setting forth the corporaterelationships between the bus defendants and the parent corporation defendants and establishingthat the trip was arranged by Trentway-Wagar and Erie Coach Lines, without any participationon the part of the parent corporation defendants. The fact that Trentway-Wagar owns the tradename "Coach Canada," which was displayed on the bus involved in this matter, does not compela different result.
We reject the further contention of plaintiffs in appeal Nos. 1 through 6 and appeal Nos. 10and 11 that the court erred in determining that the law of Ontario, Canada concerningnoneconomic damages is applicable. As a preliminary matter, we conclude that the court did notabuse its discretion by taking judicial notice of Ontario law regarding noneconomic damagesdespite the failure of defendants to raise the applicability of the law as an affirmative defense andto provide the substance of the law in their pleadings in accordance with CPLR 3016 (e). Weagree with the Third Department that, because CPLR 4511 (b) permits the court to take judicialnotice of the laws of foreign countries that are presented "prior to the presentation of anyevidence at the trial," the court is not barred from doing so based on a party's failure to complywith the requirement in 3016 (e) that the substance of such laws shall be set forth in the pleading(see Burns v Young, 239 AD2d 727, 728 [1997]; cf. Bank of N.Y. v Norilsk Nickel, 14 AD3d 140, 148-149 [2004],appeal dismissed 4 NY3d 843 [2005], lv dismissed 4 NY3d 846 [2005]).
We reject plaintiffs' further contention in appeal Nos. 1 through 6 and appeal Nos. 10 and 11that Ontario law limiting noneconomic damages is procedural rather than substantive in nature,and thus that New York law should apply. It is well established that the measure of damages issubstantive (see Davenport v Webb, 11 NY2d 392, 393 [1962]), and we thus concludethat the court properly applied a conflict of laws analysis with respect to the law applicable to theissue of noneconomic damages. It is undisputed that there is an actual conflict of law issueinasmuch as Ontario law limits recovery for pain and suffering, while New York law does not(see generally Matter of Allstate Ins. Co. [Stolarz—New Jersey Mfrs. Ins. Co.], 81NY2d 219, 223 [1993]). The plaintiffs seek the application of New York law to the noneconomicdamages, and the bus defendants and the truck defendants seek the application of Ontario law tothose damages.
"In resolving this choice of law issue, the preferred analytical tool in tort cases is to applyinterest analysis . . . Under that analysis, the law of the jurisdiction having thegreatest interest in the litigation will be applied and . . . the facts or contacts whichobtain significance in defining State interests are those which relate to the purpose of theparticular law in conflict" (Dorsey v Yantambwe, 276 AD2d 108, 110 [2000], lvdenied 96 NY2d 712 [2001] [internal quotation marks omitted]). Where, as here, theconflicting laws are loss-allocating, we apply the rules set forth by the Court of Appeals inNeumeier v Kuehner (31 NY2d 121, 128 [1972]; see Cooney v Osgood Mach., 81NY2d 66, 73-74 [1993]). The first [*3]Neumeier ruleprovides that, if the parties to the lawsuit share a common domicile, as do plaintiffs and the busdefendants, the law of their domicile applies (see Cooney, 81 NY2d at 74; Schultz vBoy Scouts of Am., 65 NY2d 189, 199-200 [1985]). Where, however, the parties aredomiciled in different jurisdictions, as are plaintiffs and the truck defendants, the law of the siteof the tort shall apply unless "it can be shown that displacing that normally applicable rule willadvance the relevant substantive law purposes without impairing the smooth working of themulti-state system or producing great uncertainty for litigants" (Neumeier, 31 NY2d at128).
With respect to plaintiffs and the bus defendants, we conclude that the firstNeumeier rule shall apply (see Schultz, 65 NY2d at 201; Dorsey, 276AD2d at 111). As the Court of Appeals explained, by applying the law of the parties' commondomicile, the risk of forum shopping is reduced; the charge that the "forum-locus is biased infavor of its own laws and in favor of rules permitting recovery" is rebutted; and "the concepts ofmutuality and reciprocity support consistent application of the common-domicile law"(Schultz, 65 NY2d at 201). Moreover, "[t]he domiciliary jurisdiction, which has weighedthe competing considerations underlying the loss allocation rule at issue, has the greater 'interestin enforcing the decisions of both parties to accept both the benefits and the burdens ofidentifying with that jurisdiction and to submit themselves to its authority' " (Cooney, 81NY2d at 73). Indeed, the Supreme Court of Canada determined in a trilogy of cases that suchawards are not compensatory in nature, and that it is appropriate to limit damages fornonpecuniary losses because of the social impact of very large awards (see Andrews v Grand& Toy Alberta Ltd., [1978] 2 SCR 229; Thornton v Prince George School Dist. No.57, [1978] 2 SCR 267; Arnold v Teno, [1978] 2 SCR 287).
With respect to the truck defendants, the third Neumeier rule applies inasmuch as theparties are domiciled in Ontario, Canada and Pennsylvania. As noted above, no party seeks tohave Pennsylvania law applied to this issue. We reject plaintiffs' contention that New York lawshould apply under this rule because it is the site of the tort, and because both plaintiffs and thetruck defendants purposely traveled to New York for recreational and business purposes,respectively. Rather, we conclude that the exception to the general rule that the law of the forumwherein the tort occurred should apply because, under the circumstances presented here,"displacing that normally applicable rule will advance the relevant substantive law purposeswithout impairing the smooth working of the multi-state system or producing great uncertaintyfor litigants" (Neumeier, 31 NY2d at 128). We conclude that, while applying Ontariolaw "may not affirmatively advance the substantive law purposes of New York, it will notfrustrate those interests because New York has no significant interest in applying its own law tothis dispute" (Schultz, 65 NY2d at 201). Furthermore, because the parties have stipulatedthat the truck defendants are only 10% liable for the accident, those defendants may pay more fornonpecuniary damages if New York law is applied to them, than the bus defendants, who are90% liable, would pay because the damages are capped by Ontario law. Thus, we conclude thatapplying New York law would "produc[e] great uncertainty for [the] litigants"(Neumeier, 31 NY2d at 128; see Dorsey, 276 AD2d at 111).
Finally, we conclude that plaintiffs failed to meet the "heavy burden" of establishing that theapplication of Ontario law violates the public policy of New York (Schultz, 65 NY2d at202). The Court of Appeals stated that "resort to the public policy exception should be reservedfor those foreign laws that are truly obnoxious" (Cooney, 81 NY2d at 79), and that is notthe case here. Even assuming, arguendo, that the Ontario law limiting damages violates thepublic policy of this State, we nevertheless conclude that plaintiffs failed to "establish that thereare enough important contacts between the parties, the occurrence and the New York forum toimplicate our public policy and thus preclude enforcement of the foreign law" (Schultz,65 NY2d at 202). As in Schultz, plaintiffs traveled to New York for a brief time forrecreational purposes, and such limited contact is not sufficient to implicate the public [*4]policy of New York with respect to noneconomic damages (seeid. at 201-202). Contrary to plaintiffs' contention, Kilberg v Northeast Airlines (9NY2d 34 [1961]) does not compel a different result. In Kilberg, the Court of Appealsrefused to apply Massachusetts law limiting pecuniary damages in a wrongful death action to thedamages resulting from the death of a New York resident, who purchased a plane ticket in NewYork and flew from New York to Massachusetts, where the plane crashed. The Court concludedthere were sufficient contacts to invoke the public policy of New York, and that to apply thelimitation on damages with respect to its own citizen would violate the public policy of this State(see id. at 40). Present—Scudder, P.J., Martoche, Green and Gorski, JJ.