Bader ex rel. Bader v. Purdom

PIERCE, Circuit Judge,

concurring:

I agree with the majority that the case before this court presents a “true conflict” between the law of New York and the law of Ontario, and that under the choice of law principles developed by the New York Court of Appeals this conflict should be resolved in favor of applying Ontario law. I write separately, however, because I disagree with the majority’s view that true conflicts are governed by the third rule set forth in Neumeier v. Kuehner, 31 N.Y.2d 121, 286 N.E.2d 454, 335 N.Y.S.2d 64 (1972). In conflicts terminology, the so-called “unprovided-for” or “no-interest” case arises when no state has a vital interest in having its own law apply. See, e.g., R. Cramton, D. Currie & H. Kay, Conflict of Laws 303-09 (3d ed. 1981). The third Neumeier rule applies to the unprovided-for case. See Korn, The Choice-of-Law Revolution: A Critique, 83 Colum.L.Rev. 772, 879 (1983) (third Neumeier rule governs unprovided-for cases, and certain types of true conflicts not governed by the second rule and not present in the instant case); Sedler, Interstate Accidents and the Unprovided for Case: Reflections on Neumeier v. Kuehner, 1 Hofstra L.Rev. 125, 136 (1973) (third Neumeier rule governs unprovided-for cases). See also Schultz v. Boy Scouts of America, 65 N.Y.2d 189, 201-02, 480 N.E.2d 679, 687, 491 N.Y.S.2d 90, 98 (1985) (applying third Neumeier rule to an unprovided-for case in which defendant’s domicile was Ohio, plaintiff’s domicile was New Jersey, and tort occurred in New York); Neumeier, 31 N.Y. 2d at 128-29, 286 N.E.2d at 458, 335 N.Y.S. 2d at 70 (applying third rule to an unprovided-for case). The second Neumeier rule, which governs true conflicts, applies by analogy to the case now before us, and compels us in the absence of “special circumstances to apply the law of the place of injury, Ontario. Since the result in the present case is the same, however, whether the second or third rule applies, I respectfully concur in the judgment.