JEAN L. LEBEGERN, Administratrix Ad Prosequendum v. Glenn Forman, Individually

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 05-1992
JEAN L. LEBEGERN, Administratrix Ad Prosequendum and
Administratrix for the Estate of Daniel L. Carson, Deceased;
JANET GOLONKA; INSURANCE COMPANY
v.
GLENN FORMAN, INDIVIDUALLY and t/a FORMAN'S
AUTO BODY a/k/a FOREMAN'S AUTO, a/k/a FORMAN'S
COLLISION CENTER a/k/a FORMAN'S SERVICE
CENTER; STEPHEN J. CRACKER; MICHAEL J. WEISS,
an Adult Individual, Individually and t/a MIKE'S TRUCK
CENTER AND GOOD TIME CYCLES; KENNETH W.
ALBERT, t/a GOOD TIME CYCLES
Jean L. Lebegern,
Appellant
On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 02-cv-05598)
District Judge: Honorable Jerome B. Simandle

-- 1 of 22 --

2
Argued on January 12, 2006
Before: FUENTES, ROSENN* and ROTH**, Circuit Judges.
(Opinion Filed: December 18, 2006)
Michael T. Sellers, Esquire (Argued)
Marc I. Rickles, Esquire
Kardos, Rickles, Sellers & Hand
626 South State Street
Newtown, PA 18940
Counsel for Appellant
Ian M. Sirota, Esquire (Argued)
Margolis Edelstein
216 Haddon Avenue
*This case was submitted to the panel of Judges Roth,
Fuentes and Rosenn. Judge Rosenn died after submission, but
before the filing of the opinion. The decision is filed by a
quorum of the panel. 28 U.S.C.§46(d).
**Judge Roth assumed senior status on May 31, 2006.

-- 2 of 22 --

3
P.O. Box 92222
Westmont, NJ 08108
Counsel for Appellees Glen Forman,
Forman’s Auto Body, a/k/a Forman’s
Auto, a/k/a Forman’s Collision Center
a/k/a Forman’s Service Center
Bonnie L. Laube, Esquire (Argued)
Greenblatt & Laube, Esquire
200 North 8 th Street
P.O. Box 883
Vineland, NJ 08362
Thomas M. Marrone, Esquire
Feldman, Shepherd, Wohlgelernter
Tanner & Weinstock
1845 Walnut Street, 25th Floor
Philadelphia, PA 19103
Counsel for Appellee Stephen J. Cracker
Gary A. DeVito, Esquire
Zarwin, Baum, DeVito, Kaplan, Schaer & Toddy
1515 Market Street, Suite 700
Philadelphia, PA 19102
Counsel for Amicus-Curia

-- 3 of 22 --

4
OPINION
ROTH, Circuit Judge
We granted an interlocutory appeal to resolve a choice of
law issue under New Jersey choice of law principles. We must
determine whether the measure of damages in a survival action
on behalf of a Pennsylvania decedent, arising from a motor
vehicle accident in New Jersey allegedly caused by the
negligence of a New Jersey driver, is governed by New Jersey
or Pennsylvania law. The District Court concluded that New
Jersey law governed but stayed the case pending an
interlocutory appeal. We will affirm the District Court’s
application of New Jersey law and will remand this case for
further proceedings consistent with this opinion.
I. Factual Background and Procedural History
On September 16, 2001, Daniel L. Carson was driving
his vehicle on Route 30, White Horse Pike, in Mullica
Township, New Jersey. Carson was accompanied by his
fiancee, Janet Golanka. Carson and Golanka lived in Bucks
County, Pennsylvania, and drove to New Jersey for a shopping
trip. During their journey, a vehicle driven by Stephen J.
Cracker crossed the center line and hit the vehicle driven by
Carson. Carson was killed and Golonka sustained serious
injuries.

-- 4 of 22 --

1 Cracker argues that in granting the motion to dismiss the
District Court did not hold that New Jersey law applied but
rather that Pennsylvania law did not apply. Contrary to
Cracker’s assertion, the District Court flatly stated that “the New
Jersey Survival Act will apply herein.” Lebegern v. Forman,
339 F. Supp. 2d 613, 622 (D.N.J. 2004).
5
Jean L. Lebegern is Carson’s mother and the personal
representative of his estate. She brought survival and wrongful
death actions in federal district court in New Jersey against
Cracker, Glenn Forman, Michael Weiss, Kenneth Albert, and
Good Time Cycles. Forman is a licensed New Jersey car dealer
alleged to have been the owner of the vehicle operated by
Cracker. Forman purchased the vehicle from Weiss, who was
purportedly acting at the behest of Albert and/or Good Times
Cycles. All of the defendants were residents of New Jersey at
the time of the accident.
Count II of Lebegern’s Amended Complaint is a claim
under the Pennsylvania Survival Act. Cracker filed a motion to
dismiss Count II on the ground that the New Jersey Survival
Act, not the Pennsylvania Survival Act, applies here. Lebegern
filed a cross motion for summary judgment asking the District
Court to find that Pennsylvania law governs the survival claim.
The District Court granted Cracker’s motion to dismiss, finding
that New Jersey law does apply. 1
The reason for the dispute over choice of law is that the
New Jersey Survival Act allows recovery only for the
decedent’s pain and suffering, while the Pennsylvania Survival
Act also provides for recovery of net earning capacity. Compare

-- 5 of 22 --

2Under New Jersey law, the net lost earnings of the decedent,
which the decedent’s family might reasonably have expected to
receive, are recoverable under the New Jersey Wrongful Death
Act, N.J. S TAT . A NN . § 2A:31-1 et seq.
6
N.J. S TAT . A NN . § 2A:15-3 with 20 PA . CONS. STAT . A NN . §
3371 and 42 PA . CONS. STAT . A NN . § 8302; Skoda v. W. Penn
Power Co., 191 A.2d 822, 829 (Pa. 1963). 2
II. Jurisdiction and Standard of Review
Lebegern filed her Petition for Leave to Appeal from an
Interlocutory Order on February 3, 2005, pursuant to 28 U.S.C.
§ 1292(b). On March 23, 2005, we granted leave to appeal.
The District Court had diversity jurisdiction under 28
U.S.C. § 1332. We have jurisdiction under 28 U.S.C. §
1292(a)(1). United States v. Acorn Tech. Fund, L.P., 429 F.3d
438, 442 (3d Cir. 2005), and exercise plenary review over a
district court’s choice of law determination. Petrella v. Kashlan,
826 F.2d 1340, 1343 (3d Cir. 1987). As this was a diversity
case filed in New Jersey, New Jersey choice of law rules govern.
Berg Chilling Sys., Inc. v. Hull Corp., 435 F.3d 455, 462 (3d
Cir. 2006) (citing Klaxon Co. v. Stentor Elec. Mfg. Co., 313
U.S. 487, 496 (1941)).
III. Discussion

-- 6 of 22 --

7
A. General Choice of Law Principles in New Jersey
New Jersey has a flexible governmental-interest approach
to resolving choice of law questions that “requires application
of the law of the state with the greatest interest in resolving the
particular issue . . ..” Gantes v. Kason Corp., 679 A.2d 106,
109 (N.J. 1996); Veazey v. Doremus, 510 A.2d 1187, 1189 (N.J.
1986). The Restatement (Second) of Conflict of Laws, which
the New Jersey Supreme Court has cited as guiding the choice
of law determination, uses an issue-by-issue approach. Erny v.
Estate of Merola, 792 A.2d 1208, 1213 (N.J. 2002) (citing
Restatement (Second) of Conflict of Laws § 145(1) (1971)).
Damages issues are included in the issue-specific analysis, and
the law that applies is based on the state with the dominant
policy interest. Id. To apply the governmental-interest analysis,
it is necessary to analyze the purposes underlying the competing
state laws. Id. at 1214 (citing Restatement (Second) of Conflict
of Laws § 6). There is a presumption that the law of the situs
state applies. When another state has the more significant
interest and the policies of the situs state will not be frustrated
by the application of foreign law, however, the presumption can
be overcome. Id. at 1216.
The governmental-interest test consists of two prongs.
First, we must determine whether there is an actual conflict.
Gantes, 679 A.2d at 109. If there is not an actual conflict, the
inquiry is over and, because New Jersey would apply its own
law in such a case, a federal court sitting in diversity must do the
same. See Curtis T. Bedwell & Sons, Inc. v. Geppert Bros.,
Inc., 655 A.2d 483, 484-85 (N.J. Super. 1995) (explaining “false
conflict” situation) (citing Gilbert Spruance v. Pa. Mfrs. Ass’n

-- 7 of 22 --

8
Ins. Co., 629 A.2d 885 (N.J. 1993)). The second prong of the
governmental-interest test requires us to assess the interests each
state has in applying its own law and determine which state has
the most significant relationship to the parties and the event. Fu
v. Fu, 733 A.2d 1133, 1138 (N.J. 1999). To effectuate this
analysis, we “identify the governmental policies underlying the
law of each state and how those policies are affected by each
state’s contacts to the litigation and the parties.” Veazey, 510
A.2d at 1189 (citing Henry v. Richardson-Merrell, Inc., 508
F.2d 28, 32 (3d Cir. 1975)). If the state’s concerns with the
litigation and the parties are not directed at the policies involved
in the case before the court, the state has no interest in applying
its law. Id. at 1190.
New Jersey has articulated five broad factors to aid courts
in applying the governmental-interest test. Erny, 792 A.2d at
1217. They include (1) interstate comity, (2) the interests of the
parties, (3) the interests underlying the substantive body of law,
(4) the interests of judicial administration, and (5) the competing
interests of the states. Fu, 733 A.2d at 1140-41 (citing
Restatement (Second) of Conflict of Laws § 145 cmt. b). The
fifth factor is the most important. Erny, 792 A.2d at 1217.
In addition to these general considerations, four contacts
are most relevant to the governmental-interest test in cases based
on an alleged tort: (1) the place where the injury occurred, (2)
the place where the conduct causing the injury occurred, (3) the
domicile, residence, nationality, place of incorporation, and
place of business of the parties, and (4) the place where the
relationship, if any, between the parties is centered. Fu, 733
A.2d at 1142 (citing Restatement (Second) of Conflict of Laws

-- 8 of 22 --

3New Jersey’s Survival Act states:
Executors and administrators may have an action
for any trespass done to the person or property,
real or personal, of their testator or intestate
against the trespasser, and recover their damages
as their testator or intestate would have had if he
was living.
9
§ 145(2)).
In personal injury cases, the place of the injury is
important, and when both the conduct and the injury
occur in the same place, that jurisdiction’s law generally
will apply except in those rare instances where another
jurisdiction has a demonstrably dominant interest and no
policy of the situs state is frustrated by application of the
sister state’s policy.
Erny, 792 A.2d at 1217-18 (citing Restatement (Second) of
Conflict of Laws § 145 cmt. e; § 146 cmts. c and d).
B. Applying New Jersey’s Choice of Law Principles
1. Actual Conflict
Under New Jersey choice of law principles, we must first
establish whether there is an actual conflict. We agree with the
District Court that there is. The New Jersey Survival Act would
allow Lebegern to recover only for Carson’s pain and suffering
from the time of alleged negligence until death. N.J. STAT .
A NN . § 2A:15-3. 3 Pollock v. Barrickman, 610 F. Supp. 878, 879

-- 9 of 22 --

In those actions based upon the wrongful act,
neglect, or default of another, where death
resulted from injuries for which the deceased
would have had a cause of action if he had lived,
the executor or administrator may recover all
reasonable funeral and burial expenses in addition
to the damages accrued during the lifetime of the
deceased.
420 PA . CONS. STAT . A NN . § 3371 provides: “All causes of
actions or proceedings shall survive as provided by [42 PA .
CONS. STAT . A NN . § 8302] (relating to survival action).”
542 P A . C ONS . STAT . A NN . § 8302 provides: “All causes of
action or proceedings, real or personal, shall survive the death
of the plaintiff or of the defendant, or the death of one or more
joint plaintiffs or defendants.”
10
(D.N.J. 1985) (explaining how New Jersey courts have
construed the New Jersey Survival Act). In contrast,
Pennsylvania’s Survival Act permits the estate of the decedent
to recover prospective net earnings as well as damages for pain
and suffering. 20 PA . CONS. STAT . A NN . § 3371;4 42 PA . CONS.
STAT . A NN . 8302;5 Skoda, 191 A.2d at 829.
Our review of the jurisprudence in this area has
uncovered a misconception by some courts of the proper way to
conduct an analysis of whether there is an actual conflict of law
under this two pronged approach. What some courts have
described as a “false conflict” is the result of a policy analysis

-- 10 of 22 --

11
to determine which state has the more significant interest in
applying its law, which preceeds the examination of whether
there is an actual conflict in the application of the laws. The
better approach is to determine whether there is a conflict by
examining the substance of the laws before assessing whether
the states’ interests are actually furthered by application of the
potentially applicable doctrines. “[T]he initial step in choice-of-
law questions is a determination of whether there is a distinction
in the laws of particular jurisdictions.” Grossman v. Club Med
Sales, Inc., 640 A.2d 1194, 1197-98 (N.J. Super. 1994)
(emphasis added). The competing states’ interests in the
application of their laws are not assessed until after the basic
conflict question is answered. Id. at 1198 (citing Veazey, 510
A.2d at 1189-90).
In Grossman, the New Jersey Superior Court reversed a
trial court’s choice of law determination after the Superior Court
concluded that there was no conflict between the laws of the
potentially interested jurisdictions. Id. The court conducted its
analysis by examining the substance of the potentially
applicable laws to assess whether they mandated different
outcomes. Id. at 1197-98. Similarly, first in Gantes and later
in Erny, the New Jersey Supreme Court looked first to the
substance of potentially applicable laws to conclude that actual
conflict existed. In Gantes, the question was whether the
Georgia or New Jersey statute of limitations law should apply.
679 A.2d at 109. The court quicky disposed of the conflicts
prong of the governmental interest test by noting that there was
“an obvious and direct conflict between Georgia’s ten-year
statute of repose and New Jersey’s two-year statute of
limitations.” Id. The Erny court also concluded its conflicts

-- 11 of 22 --

12
analysis by a review of the substance of the laws. The court
found that an actual conflict existed between New Jersey and
New York joint and several liability laws after explaining how
applying one jurisdiction’s law over another’s would impact the
outcome. 792 A.2d at 1216. It was not until the second prong
of the governmental interest test – assessing the interests of each
jurisdiction – that the New Jersey Supreme Court entered into an
in-depth discussion of the impact of the respective states’
underlying policy goals and intent. Id. at 1217-19.
The district courts in our Circuit are split in their
determination of the choice of law issue in survival actions, as
we have here. An examination of case law indicates, however,
that the significant factor in the disagreement is the point in the
analysis at which the court considers whether or not there is a
conflict in the states’ interests. The cases, which have
considered the second prong of the New Jersey test (the state
interest) before the first (the existence of an actual conflict in the
application of the laws) have found at the outset no conflict of
state interests. On this basis, they have applied the Pennsylvania
Survival Act. In Pollock, 610 F. Supp. at 881, the court found
a “false conflict” because of the nature of the state interest;
Pennsylvania had a strong interest in the administration of its
decedents’ estates whereas New Jersey had no interest in the
administration of the estates of non-resident decedents. The
court stated “because we do not believe the Survival Act was
enacted with resident defendants in mind, but only in the
interests of resident decedents, we believe that the facts of this
case present a false conflict.” Id. at 881.
As the above discussion of New Jersey precedent shows,

-- 12 of 22 --

13
this formulation is technically inaccurate. While the District
Court in Pollock was certainly within its purview to reach the
issue of state interest, the determination of whether or not there
is a conflict of states’ interests is properly understood as being
a second-prong issue. Grossman, 640 A.2d at 1197-98. The
only other district court holding that Pennsylvania’s Survival
Act applied in this context also conducted an interests analysis.
Foster v. Maldonado, 315 F. Supp. 1179 (D.N.J. 1970); see also
Mathis v. Motley, 649 F. Supp. 38, 40 (D.N.J. 1986) (applying
Pennsylvania law to an accident in Florida between a New
Jersey defendant and a Pennsylvania plaintiff).
On the other hand, the district courts to hold that New
Jersey law applied found a conflict in the respective Survival
Acts and then a conflict in state interests. Capone v. Nadig, 963
F. Supp. 409, 412-13 (D.N.J. 1997); Amoroso v. Burdette
Tomlin Mem’l. Hosp., 901 F. Supp. 900, 902 (D.N.J. 1995);
Cannon v. Hilton Hotels Corp., 664 F. Supp. 199, 202 (E.D. Pa.
1987) (applying Pennsylvania choice of law rules to hold that
New Jersey’s Survival Act applied in case involving an accident
in New Jersey with New Jersey resident defendants and a
Pennsylvania resident decedent); Colley v. Harvey Ceders
Marina, 422 F. Supp. 953, 957 (D.N.J. 1976).
Because New Jersey and Pennsylvania survival laws
differ on the scope of damages, there is a true conflict between
the laws of each potentially interested jurisdiction. This,
however, is only the first prong of the inquiry. It triggers the
second part of the governmental-interest test, the determination
of the policies underlying each state’s laws and whether those
policies are implicated by applying the relevant state’s law to

-- 13 of 22 --

14
the particular issue. Erny, 792 A.2d at 1216-21.
2. Resolving the Conflict: Finding the More
Interested State
Determining which state has the greater interest involves
looking at each state’s contacts to the litigation and assessing the
policies behind each state’s law. Id. at 1216. To facilitate this
analysis, we can summarize the most relevant contacts as
follows:
(1) Place where the injury occurred: New Jersey
(2) Place where the conduct causing the injury
occurred: New Jersey
(3) Domicile and residence of the parties:
(a) Plaintiff: Pennsylvania
(b) Defendants: New Jersey
As mentioned above, when both the place of injury and the
conduct causing the injury are the same, the general approach is
to apply the law of the jurisdiction where the injury occurred.
Id. at 1217-18 (citing Restatement (Second) of Conflict of Laws
§ 145 cmt. e; § 146 cmts. c and d).
Having identified the most relevant contacts, it is
necessary to determine which state has the most significant
relationship to the occurrence and parties. Id. at 1218.

-- 14 of 22 --

15
Evaluating the competing interests of the states is the most
important aspect of the analysis used in determining the
jurisdiction with the most significant relationship. Id. at 1217.
Pennsylvania has a strong and clear interest in providing full
recovery in survival actions. The Pennsylvania Supreme Court
has said that, when it is the domicile of the decedent and his
family, the state is “vitally concerned with the administration of
[the] decedent’s estate and the well-being of the surviving
dependents to the extent of granting full recovery, including
expected earnings.” Griffith v. United Air Lines, Inc., 203 A.2d
796, 807 (Pa. 1964). The federal courts faced with choice of
law issues in this context have all recognized Pennsylvania’s
important interest in securing an adequate recovery. E.g.,
Amoroso, 901 F. Supp. at 905.
The majority of federal courts to address the issue have
held that New Jersey also has an interest in applying its Survival
Act under these circumstances because it would limit New
Jersey defendants’ exposure to damage awards. E.g., Capone,
963 F. Supp. at 413. (“I concur with the vast majority of cases
in finding that, the New Jersey Legislature, in providing for such
limited recovery under the Survival Act, ‘was expressing its
interest in protecting New Jersey defendants.’”) (quoting Mathis
v. Motley, 649 F. Supp. 38, 40 (D.N.J. 1986)). In discussing a
choice of law issue involving New Jersey’s Wrongful Death
statute, we stated that “[i]nasmuch as [the statute] sets forth the
type of damages that may be recovered in a wrongful death
action, it reflects the New Jersey Legislature’s determination
both of what is fair for a plaintiff to recover and a defendant to
pay in such a case.” Petrella, 826 F.2d at 1343. The principle,
observed in Petrella, that when a statute details the nature and

-- 15 of 22 --

6New Jersey’s Wrongful Death Act, N.J. STAT . A NN . §
2A:31-1 et seq., seeks to compensate survivors “for the
pecuniary loss [they] suffer as a result of the death of the
decedent.” Capone, 963 F. Supp. at 414 (quoting Lovely v.
Rahway Hosp., 548 A.2d 242, 244 (N.J. Super. 1988).
16
extent of damages recoverable in a wrongful death action, it
reflects the legislature’s concern for both plaintiffs and
defendants, applies here as well – even though this case is
addressed under the New Jersey Survival Act.
To the extent that the purposes behind the New Jersey
Survival Act have been discussed, it appears that the Act was
part of a comprehensive scheme of recovery to work in concert
with the Wrongful Death Act to ensure proper redress by next
of kin and the estate of the deceased following a tort leading to
death. See Smith v. Whitaker, 734 A.2d 243, 249-50 (N.J.
1999). However, the interests of defendants appear also to be a
concern of the New Jersey Legislature because the Survival Act
was structured to avoid allowing multiple recoveries for the
same loss. Alfone, 403 A.2d at 15. When a legislature creates
such a damages scheme, it is considering the interests of both
those who receive and those who pay. Thus, we conclude that
one of the purposes of the Survival Act was to protect
defendants. See Petrella, 826 F.2d 1343; Alfone v. Sarno, 403
A.2d 9, 15 (N.J. Super. 1979) (noting “strong policy against
recovery of duplicate damages” under New Jersey’s Wrongful
Death and Survival Acts).6
Pennsylvania, on one hand, has expressed a strong
interest in affording recovery to plaintiffs in Survival Act cases

-- 16 of 22 --

17
involving a Pennsylvania decedent. New Jersey, on the other
hand, has an interest in protecting both New Jersey plaintiffs
and New Jersey defendants by applying its Survival Act in the
context of the broader New Jersey remedial scheme. See Smith,
734 A.2d at 249-50. In this case, each state’s interests would be
furthered by application of its law because there is a
Pennsylvania decedent and New Jersey defendants. As
discussed, New Jersey permits plaintiffs to recover loss of
support (determined in part by expected earnings) in wrongful
death claims. Id. at 248 (“The amount of recovery is based upon
the contributions, reduced to monetary terms, which the
decedent might reasonably have been expected to make to his or
her survivors.”). Lost earnings, however, are not cognizable in
New Jersey Survival Act cases. Pollock, 610 F. Supp. at 881.
Pennsylvania, on the other hand, allows wrongful death claims
by parties other than the estate and permits the estate to recover
lost earnings for itself. Frey v. Pa. Elec. Co., 607 A.2d 796, 798
(Pa. Super. 1992). We are thus presented with a situation in
which both states’ policies would be furthered by the application
of their law and each state’s interests frustrated by the
application of the other state’s law.
In weighing the interests, our holding in Broome v.
Antlers’ Hunting Club, 595 F.2d 921 (3d Cir. 1979), is
informative. In that case, an executor of a New York decedent
who died in Pennsylvania sought the application of the
Pennsylvania Survival Statute in a case against a Pennsylvania
defendant. We applied Pennsylvania’s choice of law rules and
held that Pennsylvania law, rather than New York law, applied.
We considered the respective interests of the states and
concluded that “New York’s interest in applying its law of

-- 17 of 22 --

18
damages to its resident who chose to vacation in Pennsylvania
would weigh lightly on the qualitative scale compared with
Pennsylvania’s policy of compensating tort victims when that
state is the place of the tortious impact.” Id. at 925. Because
New Jersey and Pennsylvania have similar choice of law tests,
Cannon, 664 F. Supp. at 200-01 (citing Henry v. Richardson-
Merrell, Inc., 508 F.2d 28, 32 (3d Cir. 1975)), applying that
reasoning to this case counsels in favor of applying New Jersey
law here.
When each state is interested in the application of its laws
and the application of the foreign state’s law would frustrate the
purposes of the forum state, the presumption is to apply the law
of the forum. Erny, 792 A.2d at 1217-18; Colley, 422 F. Supp.
at 957 (“The law of the forum should be applied even though a
foreign state also has an interest in the application of its contrary
policy.”) (footnote omitted). For example, in Petrella, we held
that New Jersey’s wrongful death law applied rather than
Florida’s law in a case involving the death of a Florida resident
allegedly caused by New Jersey resident doctors practicing in
New Jersey. 826 F.2d 1343. We noted that Florida was
interested because the plaintiff was from that state, and “thus
Florida obviously has a legitimate interest in the quantum of
damages for his death being fixed under Florida law.” Id. With
respect to New Jersey, the forum state, it was interested because
the alleged tort took place in New Jersey and was allegedly
committed by New Jersey residents. Id. After noting that both
states were interested, we concluded that “New Jersey’s interest
in this case is no less than Florida’s and the judge correctly held
that its law of damages should be applied.” Id.

-- 18 of 22 --

19
Other choice of law norms also counsel in favor of
applying New Jersey law in this case. When a person chooses
to travel across state lines, he should expect the laws of the place
in which he is located to govern his transactions. “By entering
the state . . . the visitor has exposed himself to the risks of the
territory and should not expect to subject persons living there to
a financial hazard that their law had not created.” Colley, 422
F. Supp. at 957 (citing D.F. Cavers, The Choice-of-Law Process
146-47 (1965)). For this reason, the place of injury takes on
special significance “where, as here, the place where the injury
occurred was not fortuitous . . ..” Blakesley v. Wolford, 789
F.2d 236, 243 (3d Cir. 1986). In this case, Carson and
Golonka’s trip to New Jersey was part of a planned shopping
excursion and, thus, it cannot be considered a fortuity that they
found themselves on New Jersey’s roadways. In light of the fact
that both New Jersey and Pennsylvania are interested, and the
fact that general notions of comity militate toward applying the
law of the state where the accident occurred when the
defendants are residents of that state, we hold that a New Jersey
court would apply New Jersey law in this case.
Lebegern, however, focuses on the decision in Pollock,
where the District Court stated “this court believes that, when
enacting the statute, the New Jersey Legislature was principally,
if not solely, concerned with the plight of the decedent and his
estate, not with the defendant tort-feasor.” 610 F. Supp. at 880.
The court concluded, based on legislative history and common
law principles, that the New Jersey Survival Act was simply the
closing a loophole to prevent duplicative recovery. Id. at 881.
Because the Death Act of 1848 allowed next of kin to recover
for lost future wages, the court concluded that the Legislature

-- 19 of 22 --

20
“did not believe it was fair or necessary to also allow this
recovery to the estate . . ..” Id.; Contrary to the conclusion
drawn in Pollock, however, we believe the desire to close a
loophole in damages does express an interest in protecting
defendants. Indeed, it is anomalous to speak of an intent to
structure damages and conclude that defendants, who are to pay
the awards, were not on the mind of the legislature. Petrella,
826 F.2d at 1343.
Taking up this language from Pollock, Lebegern argues
that a review of the legislative history of the New Jersey
Survival Act does not show an intent to protect the interests of
New Jersey defendants. Lebegern also points to the statute’s
original placement in a body of legislation titled “An Act
Concerning Executors and the Administration of Estates.” She
further argues that there are no New Jersey cases construing the
Survival Act as intending to protect defendants.
With respect to the latter argument, a state’s interest in
the application of its laws can be expressed in ways other than
a definitive ruling by a state court concerning the policies
behind the legislation. A state’s interest cannot depend on the
fortuity of appropriate legal action necessary to establish the
pertinent jurisprudence. Moreover, while the statute’s title or
placement in a particular portion of a state code might provide
some evidence of legislative intent, Holy Trinity Church v.
United States, 143 U.S. 457, 462 (1892); State v. Hodde, 858
A.2d 1126, 1130 (N.J. 2004) (noting that title of statute is often
not instructive but indicating that there are exceptions), in this
case neither the title nor the placement militates toward a
finding that New Jersey intended to benefit either plaintiffs or

-- 20 of 22 --

21
defendants. The Survival Act concerned executors and
administration of estates and its placement in that statutory
section is not inconsistent with the interpretation we give it. At
any rate, neither a law’s title nor location in the code is
determinative for purposes of ascertaining the policies
underlying the law. Id.
Lebegern is correct that there is a paucity of legislative
history supporting the theory that the New Jersey Legislature
was concerned with resident defendants in passing the Survival
Act. She is also correct that legislative history can be a factor in
making a choice of law policy analysis. See Erny, 792 A.2d at
1219. The federal cases dealing with the New Jersey Survival
Act infer the Act’s purposes by making an assumption that the
Legislature’s limit on the scope of damages was intentional and
designed to benefit those who would naturally benefit. See e.g.,
Capone, 963 F. Supp. at 413. Although it certainly would be
easier to support the application of New Jersey law if there was
legislative history or caselaw from New Jersey clearly setting
forth the purposes of the Survival Act, we believe that in the
absence of such evidence of intent it is proper for a federal court
sitting in diversity to find the purposes behind legislation by
considering which entities or parties naturally benefit from a
legislative scheme. This is true not only because it is logical to
assume that a legislature is cognizant of the natural
consequences of its actions, see First Merchants Acceptance
Corp. v. J.C. Bradford & Co., 198 F.3d 394, 402 (3d Cir. 1999),
but also because legislative history from state legislatures is
often sparse. Murillo v. Bambrick, 681 F.2d 898, 908 n.20 (3d
Cir. 1982) (citing Craig v. Boren, 429 U.S. 190, 199 n.7 (1976)).

-- 21 of 22 --

22
V. Conclusion
The majority of the district courts in this Circuit have
held that New Jersey law applies under the circumstances
presented in this case. Capone, 963 F. Supp. at 412-13;
Amoroso, 901 F. Supp. at 902; Canon v. Hilton Hotels Corp.,
664 F. Supp. at 201-02; Colley, 422 F. Supp. at 957. We
conclude that this is the proper result because New Jersey has an
interest in defining recovery according to its statutory scheme.
While it is true that the legislative history surrounding the
adoption of New Jersey’s Survival Act is vague about the
purposes of the law, it is appropriate to grant a state legislature
the benefit of the presumption that its laws are passed with the
purpose of benefitting the parties that obviously benefit. In
additional, the limited caselaw discussing the purposes of the
Survival and Wrongful Death Acts in New Jersey indicates that
these acts were designed to operate in tandem to produce one
comprehensive recovery scheme. While Pennsylvania is
understandably interested in applying its liberal recovery rules
to a Pennsylvania plaintiff, it cannot expect to impose a liability
scheme onto an unwitting state that has confronted the issue and
reached a different balance in its legislative response. While the
facts of this case are undeniably tragic, the District Court
properly concluded that New Jersey law applies even though it
will affect the amount of available damages. Accordingly, we
will affirm the order of the District Court, applying New Jersey
law, and we will remand this case for further proceedings
consistent with this opinion.

-- 22 of 22 --