Jimenez v. Martinez, No. 19-1-11 Bncv (Carroll, J., August 5, 2013)

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                                              VERMONT SUPERIOR COURT

SUPERIOR COURT                                                                                       CIVIL DIVISION
Bennington Unit                                                                                      Docket No. 19-1-11 Bncv


Jennifer Jimenez

Jerison Toribio, individually and in his
capacity as Administrator of the Estate of
Juana Jimenez

Jerison Toribio, individually and in his
Capacity as Administrator of the Estate of
Jasmil Almodovar a/k/a Jasmil Jimenez

Jerison Toribio, individually and in his
Capacity as Administrator of the Estate of
Cesar Diaz a/k/a Cesar Jimenez

Plaintiffs,

v.

Ana Maria Toribio, as Administrator of the
Estate of Robin C. Martinez, and John H.
Miller,

Defendants.


    ORDER ON PLAINTIFFS’ MOTION FOR PARITIAL SUMMARY JUDGMENT
  (MOTION # 8), DEFENDANT’S MOTION FOR PARITIAL SUMMARY JUDGMENT
    (MOTION # 9), AND DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
                             (MOTION # 11)

                                                        Factual Background

         Jimenez v. Martinez concerns a tractor-trailer accident that occurred along Route 7 in
Pittstown, New York On June 6, 2010, around 4:56 a.m., a collision occurred between tractor-
trailer and a Honda Pilot. Defendant, John Miller, drove the tractor-trailer and carried no
passengers. Robin Martinez drove the Honda and carried four passengers: Juana Jimenez, Jasmil
Jimenez, Cesar Jimenez, and Jennifer Jimenez. Miller and Jennifer survived; however, Martinez,
Jimenez, Jasmil, and Cesar all died in the collision.
        The collision occurred shortly after Martinez drifted into Miller’s lane (the westbound
lane). Shortly before the accident, Miller observed a car on the side of the road that looked like a
police cruiser. The parties dispute whether this observation distracted Miller. Approximately 770
feet before the collision, Martinez was in Miller’s lane. Miller took evasive action by turning into
the oncoming lane between 120 feet and 165 feet away from the collision. Martinez steered back
into his lane approximately 70 feet away from the collision. The near simultaneous movement
into the eastbound lane caused the accident.

        As background, a ten foot wide shoulder existed on Miller’s right at the time of the
accident. Professional drivers are trained to steer to the right when faced with an on coming
vehicle in their lane. The accident occurred where the speed limit changes between fifty-five
miles per hour and forty-five miles per hour. Miller traveled at approximately forty-one miles per
hour and Martinez traveled at approximately fifty-four miles per hour (nine miles an hour above
the speed limit). Miller was not under the influence of alcohol or drugs, he had rested, and he did
not use his cell phone immediately before the collision.

        All of the parties lived in Vermont. John Miller is a professional truck driver and lives in
Brattleboro, Vermont. Miller had a Vermont commercial driver’s license. The tractor-trailer was
registered in New Hampshire. Before the collision, John Miller drove westbound on Route 7 as
part of his employment with United Natural Foods. Plaintiffs drove eastbound on Route 7 to
return to Bennington from New York City. Martinez and the Plaintiffs all lived in Bennington,
Vermont before the collision. Martinez and Juana had a joint insurance policy with Progressive
to cover the Honda. Juana worked at Southwestern Vermont Healthcare, in Bennington, before
her death. Jasmil, Cesar, and Jennifer are all children of Juana. All three of the children were
enrolled in school in Bennington. Juana also had a fourth child, Jerison Toribio, who lived in
Manchester, Vermont at the time of the collision.

        The Plaintiffs also had connections to New York. Before the collision, the Plaintiffs were
driving back to Bennington from New York City. All three children involved in the collision
were born in New York City. During the time when Jasmil, Cesar, and Jennifer were born, Juana
was married to Omar Alexis Almodovar and the parties do not claim Robin Martinez was the
father. Juana and Almodovar were married in New York City. The funerals took place in New
York City and the Dominican Republic. Jennifer also filed for payment of medical expenses
under New York’s no fault insurance law. Plaintiffs were entitled to up to $5,000 in coverage for
medical payments under their Vermont policy and their payments totaled approximately $1,400.

                                       Procedural History

        On March 27, 2013, Plaintiffs filed for partial summary judgment (motion # 8). Plaintiffs
argued the Court must apply Vermont law to decide this case. On May 13, 2013, Miller filed a
cross-motion for partial summary judgment (motion # 9). Miller’s cross-motion for partial
summary judgment opposes Plaintiffs’ motion and argues the Court must apply New York law to
this case. On June 4, 2013, Plaintiffs replied to Miller’s cross-motion for partial summary
judgment (motion # 9). On June 20, 2013, Miller replied to Plaintiff’s opposition (motion # 9).
On June 7, Miller also moved for summary judgment (motion # 11). Applying New York law,
Miller argues he was not negligent because he took a reasonable course when faced with an

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emergency situation. On July 10, 2013, Plaintiffs opposed Miller’s motion for summary
judgment (motion # 11). Plaintiffs argue, even applying New York law, there are triable issues of
material facts on whether Miller was negligent.

                                        Standard of Review

       The Court grants summary judgment “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
V.R.C.P. 56(a). The Court makes all reasonable inferences and resolves all doubts in favor of the
non-moving party. Lamay v. State, 

, ¶ 6, 

.

                                             Discussion

   1. Conflict of Laws and the Most Significant Interest Test

        The first issue raised by these motions (motions # 8, 9) is which state’s laws govern. To
determine which state’s laws to apply, the Court must apply the most significant relationship test.
See Myers v. Langlois, 

(1998). Although this case presents facts that are favorable to
both sides, the Court will apply Vermont law because the parties are all from Vermont and
applying Vermont law would not substantially interfere with New York’s policies.

       The Vermont Supreme Court issued decisions that indicate when the trial court should
apply Vermont or Canadian law for cases that involve auto accidents either in Quebec or with
residents of Quebec. The Court first adopted the most significant relationship test in Amoit v.
Ames, 

, 292 (1997). Instead of using the older location based test (the lex loci), the
Court adopted the restatement’s significant relationship test. 

relationship test
is more appropriate because state and national boundaries are less significant now than in the
past and the relationship test allows judges to weigh the policies and values at stake. See 

Court remanded to the trial court to make fact findings on the relationship that existed.

        The Vermont Supreme Court first applied the most significant relationship test in Miller
v. White. See 

(1997). In Miller, both the plaintiff and the defendant were residents of
Vermont. 

They drove to Quebec, in a single car, to take advantage of the lower
drinking age. 

the bar, the defendant drove off of the road and injured the
plaintiff. 

The plaintiff filed suit in Vermont and requested the Court apply Vermont
law; the defendant requested the court apply Quebec law. 

applied the most significant relationship test and determined Vermont law
should apply. 

The court started its analysis by referring to the general principals of the
restatement’s view on conflict of laws. The court considered:

       (a) the needs of the interstate and international systems,
       (b) the relevant policies of the forum,
       (c) the relevant policies of other interested states and the relative interests of those
       states in the determination of the particular issue,
       (d) the protection of justified expectations,

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       (e) the basic policies underlying the particular field of law,
       (f) certainty, predictability and uniformity of result, and
       (g) ease in the determination and application of the law to be applied.

Restatement (Second) of Conflict of Laws, § 6; see 

. The court then
considered more specific factors that apply to tort cases. See 

. Under
the Restatement, courts should consider:

       (a) the place where the injury occurred,
       (b) the place where the conduct causing the injury occurred,
       (c) the domicile, residence, nationality, place of incorporation and place of
       business of the parties, and
       (d) the place where the relationship, if any, between the parties is centered. These
       contacts are to be evaluated according to their relative importance with respect to
       the particular issue.

Restatement (Second) of Conflict of Laws, § 145(2).

        The court applied these factors to resolve “the competing interests of the domicile of the
parties, Vermont, and the place of the accident, Quebec.” 

. Quebec applies a
pure no-fault system to automobile accidents. 

The purpose of the Quebec law is to
expedite payment to accident victims, reduce litigation, and reduce auto insurance costs. 

Quebec law also indicates accidents in Quebec between residents of the same foreign country
should generally be analyzed under the law of the foreign jurisdiction. 

In contrast,
Vermont “retains a traditional tort system of recovery for automobile accidents.” 

of Vermont’s system is to fully compensate victims of negligence. See 

determined Vermont law should apply because Vermont had the strongest
interest in this case. See 

Both parties were domiciled in Vermont. Vermont has an
interest in deterring risky behavior, such as driving to Vermont after drinking. See 

relationship of the parties was centered in Vermont. 

Finally, applying
Vermont law to this case would not jeopardize the Quebec system. See 

year, the court considered the mirror image to Miller. See 

, n. 2. In Myers, a group of Quebec residents drove to Vermont to play bingo. 

The driver made an allegedly improper left turn. 

was then struck by a Vermont
driver. 

the passengers died. 

the decedents incurred medical expenses
before the collision and their next of kin received coverage under Quebec’s law. 

        Again, the court applied the substantial relationship test to determine which jurisdiction’s
laws to apply. 

Miller, the court used the restatement factors and discussed the
differences between the Vermont and Quebec liability systems. See 

The court then
found that the parties’ residency and relationship was centered in Quebec. 

The Court
also noted this case concerned the allocation of loses rather than the regulation of conduct and
Quebec has a strong policy in favor of the allocating losses on a no-fault basis. See 

Therefore, the court applied Quebec law to the case. See 

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        In a fourth case, the court applied Vermont law to a crash involving Quebec residents
because their relationship centered in Connecticut. See Martineau v. Geurtin, 

, 419–
20, 422 (2000). The two parties involved in a single-car accident were both Canadian citizens
domiciled in Quebec. 

Both men worked in Connecticut, but did not live there year
round. 

both had families in Quebec. 

men set out from Quebec to drive
to Connecticut, but the defendant lost control of the vehicle in Vermont. 

applied the most significant relationship test, but noted “the law of the state
where the injury occurred is presumed to govern in wrongful death actions unless another state
has a more significant relationship to the parties…” 

The court then highlighted the
factual differences existed between Martineau and Miller and Myers. 

Most notably,
the parties had lived and worked in Connecticut for seven years, the car was registered and
insured in Connecticut, and the parties were on their way to Connecticut. 

Under
these circumstances, the court found the relationship centered in Connecticut. 

court noted Connecticut and Vermont shared similar traditional tort recovery system for
automobile accidents. 

Quebec’s interest in the case was not sufficiently strong to
override all of these other factors, and the court applied Vermont law. See 

       The Vermont Supreme Court also cited Jean v. Francois, a New York trial court case.
168 Misc.2d. 48 (N.Y. Sup. Ct. 1996); see 

. Jean involved an automobile
accident in New York where all of the parties involved were residents of Quebec. 168 Misc.2d.
at 48–49. Like Vermont, the New York court analyzed whether to apply New York or Quebec
law under a “greatest interest” standard. 

The court determined Quebec law should
apply because all of the parties were domiciled in Quebec and nothing in Quebec’s regulatory
scheme was obnoxious to the point where the New York court would set it aside. 

        The facts of the instant case are mixed, but generally favor applying Vermont law. All of
the parties were residents of Vermont at the time of the collision. Juana worked in Bennington
and the three children attended school in Bennington. Moreover, Plaintiffs’ vehicle was
registered and insured in Vermont. The parties did not plan to move to New York, even if the
Plaintiffs lived in New York in the past and had family in New York. Plaintiffs were also on
their way back to Vermont when the collision occurred. On the other hand, some of the facts
favor applying New York. The accident and the conduct that led the accident all occurred in New
York. Additionally, three of the Plaintiffs, the children, were born of a New York marriage.
Juana had been married in New York, although that marriage ended several years before the
accident. The Plaintiffs also had family in New York. Additionally, there was no prior
relationship between Plaintiffs and Miller, even if all of the parties resided in Vermont.

        The domicile of the parties overwhelms the facts connecting the parties to New York.
Miller and Myers indicate that where the parties are all domiciled in one jurisdiction, the Court
should generally apply the law of that jurisdiction. Martineau then shows the limits of this rule.
The Court does not need to apply the parties’ domicile where the accident occurred elsewhere
and the parties have a substantial connection to another jurisdiction, particularly if that
jurisdiction has laws similar to Vermont’s laws. In this case, the accident occurred elsewhere, but
the parties did not have a substantial connection to another jurisdiction. All of the parties

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involved were domiciled in Vermont and had substantial connections to Vermont. None of the
other evidence is enough to suggest New York has a more significant interest in this case.

         The Court must also consider the differences between New York and Vermont law. As
stated above, Vermont applies a traditional tort recovery system for recovery of damages in
automobile accidents. See 

. Conversely, New York has a limited no-fault
system. Under New York, parties involved in an injury may recover up to $50,000 in damages,
regardless of fault, for non-economic damages. See McKinney's Insurance Law §§ 5102 (a),
5103(a), 5104(a). The parties may only sue to receive more damages in a limited number of
exceptions. See McKinney's Insurance Law § 5104(a). One of the exceptions, which would be
satisfied in this case, occurs when the plaintiff suffers serious bodily injury or death. See 

the purpose of the New York law is to expedite recovery, reduce litigation, and reduce
insurance premiums. See Walton v. Lumbermens Mut. Casualty Co., 

, 1048
(N.Y. 1996). The law is more intended to allocate losses than to regulate behavior—driving in
the left lane is impermissible in New York and Vermont. See 

that relying on Miller and Myers oversimplifies the analysis because
they do not take into account differences between the New York and Quebec no fault laws.
Although there are real differences between the laws, as shown by the New York court’s analysis
in Jean, this is not the correct analogy. 

. The relevant comparison is not
between New York and Quebec but between Vermont and New York. Miller, Myers, and
Martineau are helpful to the extent New York and Quebec have similar laws.1 The most
important question is whether applying Vermont law would impair the policies of New York. In
this case, as in Miller, the policies of New York would not be impaired by applying Vermont
law. 

.

        Plaintiffs are entitled to partial summary judgment on the conflict of law issue because
there are no disputed, material facts that relate to this issue and they are entitled to judgment as a
matter of law. See V.R.C.P. 56(a). On the other hand, Defendant is not entitled to partial
summary judgment because he is not entitled to judgment as a matter of law. See 

        Miller also argues Plaintiffs waived their argument that Vermont law should apply by
accepting the benefits of New York’s no-fault policy to pay for their medical expenses. Miller
notes Plaintiffs were represented by counsel when they accepted the payments. Plaintiffs counter
they agreed to the hospitals submitting payments under New York scheme for administrative
convenience and they were entitled to those amounts under their Vermont contract. In support of
his argument, Miller cites two Vermont cases. See North v. Simonini, 

(1983);
Chimney Hill Owners’ Ass’n v. Antignani, 

(1978). Each of these cases discusses

1
  The analysis of competing interests between New York and Vermont is similar to the analysis between Vermont
and Quebec. New York law does not present the full no-fault coverage offered by Quebec. Nevertheless, the
structure and purpose of the New York is similar to that of Quebec, at least when compared to Vermont. New York
aims to accomplish many of the same goals as Quebec by allocating losses. New York’s no-fault law does not
regulate behavior in a manner that is inconsistent with Vermont law. Accordingly, applying Vermont law would not
contradict the policies of the Restatement.

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waiver generally in the context of a contract, but is not specific to a choice of law issue (much
less an insurance dispute between jurisdictions). North indicates a waiver can occur by a
“voluntary relinquishment of a known 

. Chimney Hill adds waiver may
occur by words or 

.

        In this case, Plaintiffs did not voluntarily relinquish a known right. Plaintiffs signed some
paper work that allowed the hospitals to get paid under the New York law. Plaintiffs were
entitled to coverage for these bills under their Vermont policy. No evidence suggests that
Plaintiffs intended to relinquish their right to have Vermont law apply, or even that they thought
of the choice of law issue as a known right. Therefore, Plaintiffs did not waive their right to
argue Vermont law applies. See Rappaport v. Estate of Banfield ex rel. Hoguet, 

, ¶
20, 

(declining to find waiver where the plaintiffs did not show the defendants
voluntarily relinquished a known right).

    3. The Emergency Doctrine (Motion # 11)

       Miller also moves for summary judgment on the theory that he was not negligent because
he made a reasonable response to an emergency situation, even if his response was not the best
response in hindsight. The issue is whether the emergency doctrine entitles Defendant to
summary judgment because he made a reasonable response to a cross-over situation. Defendant
cites many New York cases about the emergency doctrine and cross-over cases. As discussed
above, the Court will apply Vermont law to answer this question.

        An older Vermont case indicates whether Defendant was negligent under these
circumstances is a question of fact. See Frenier v. Brown, 

(1951); see also Rotman v.
Progressive Ins. Co., --- F.Supp.2d ---, No. 5:12-cv-67, 

, *14 (D.Vt. June 28,
2013) (quoting Frenier to explain the sudden emergency doctrine in Vermont). In Frenier, the
plaintiff observed the defendant traveling in the opposite direction in the wrong lane. 

The plaintiff turned to his left (into the defendant’s lane) at approximately the same time the
defendant turned to her right (into her lane). 

The vehicles collided. 

The
plaintiff sued the defendant for negligence, won at a jury trial, and the defendant moved for
directed verdict because she argued plaintiff committed contributory negligence. 

The
facts differ from this case in that the plaintiffs here travelled in the car that originally crossed the
center line, but the analysis for negligence is the same.

         The Vermont Supreme Court provided some helpful language on the standard of care in
this situation.

        One driving an automobile along a public highway who sees a car approaching on
        the wrong side of the road has, at the outset, a right to assume that the driver will
        observe the law of the road and seasonably move over to his right so as to pass
        without interference. He may proceed on this assumption until he sees or in the
        exercise of reasonable care ought to see that it is unwarranted. His care and
        diligence is to be measured in view of this assumption. But he cannot for that
        reason omit any care the law requires of him.



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        One who is put in a perilous position by the negligence of another cannot be
        regarded as guilty of contributory negligence if he takes such steps to protect
        himself as a reasonably prudent person might take, even though he might have
        avoided the injury by the use of better judgment and by taking another course than
        the one he adopted.

        We hold that, under the circumstances here shown, it cannot be said as a matter of
        law that the plaintiff was guilty of contributory negligence in turning to the left to
        avoid the threatened collision. The question is what would or might a prudent
        person do in the situation that confronted the plaintiff and that question was for
        the determination of the jury.

        Frenier indicates whether Defendant was negligent is a question of fact. See 

similar set of facts, although positions of the parties mirrored the instant case. See 

Frenier indicates that a motorist confronted with a sudden peril is not expected to
show the same degree of judgment as a person with time to think. See 

Nevertheless,
whether a motorist properly exercises his judgment in a crossover situation is a question of fact
for the jury. See 

Accordingly, the Court must deny Defendant’s motion for summary
judgment because there are disputed facts. See V.R.C.P. 56(a).

                                              ORDER

       The Court grants Plaintiff’s motion for partial summary judgment (Motion # 8). The
Court denies Defendant’s motion for partial summary judgment (Motion # 9). The Court denies
Defendant’s motion for summary judgment (Motion # 11).

Dated at Bennington, Vermont on August 5, 2013



                                                              Karen R. Carroll
                                                              Superior Court Judge




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