The court expressed its belief in that order that Massachusetts law governs this action. Id. (citing O'Connor v. O'Connor, 201 Conn. 632, 519 A.2d 13, 22-26 (1986); Thomas v. Hanmer, 109 A.D.2d 80, 489 N.Y.S.2d 802, 803-07 (1985)). As explained at the hearing on June 7, 1990, the court has decided to reaffirm that belief and to conclude that plaintiffs' recovery under the Act does not preclude them from maintaining the instant action.

As with other no-fault systems, the Quebec Automobile Insurance Act seeks to expedite compensation to victims of automobile accidents, reduce the amount of tort litigation in Quebec courts, and guarantee relatively low automobile insurance rates. O'Connell Tenser, supra, at 927; see also Thomas v. Hanmer, 489 N.Y.S.2d 802, 805 (App.Div. 1985). Vermont, in contrast to Quebec, retains a traditional tort system of recovery for automobile accidents.

See Donnelly v. Bauer, 453 Pa.Super. 396, 683 A.2d 1242, 1244 (1996), alloc. granted, 548 Pa. 627, 693 A.2d 967 (1997); Thomas v. Hanmer, 109 A.D.2d 80, 489 N.Y.S.2d 802, 805 (1985). At first blush, then, it would seem that the two statutes present no conflict. The difficulty arises, however, because the New York statute applies to cases dealing with "personal injuries arising out of negligence in the use or operation of a motor vehicle in this state."

Choice of law must not be rendered a matter of happenstance, in which the respective interests of the parties and the concerned jurisdictions receive only coincidental consideration. Numerous jurisdictions have declined to apply the law of the place of injury in similar circumstances. See Fabricius v. Horgen, 257 Iowa 268, 132 N.W.2d 410 (1965); Thomas v. Hanmer, 109 App. Div.2d 80, 489 N.Y.S.2d 802 (1985); Wilcox v. Wilcox, supra. Applying the same rationale, the United States District Court for the District of Connecticut has refused to adhere to the lex loci doctrine in a case where the plaintiffs, Connecticut residents, were killed in an airplane crash in West Virginia.

automobile accident may recover damages for noneconomic loss ( see Insurance Law § 5104[a]) and that the owner of a vehicle used or operated in New York that was the cause of the plaintiff's injuries is vicariously liable for such damages ( see Vehicle and Traffic Law § 388). Under New Jersey law, noneconomic loss may be recovered in circumstances similar, although not identical, to those in which such damages may be recovered in New York ( see NJ Stat Ann § 39:6A-8; DiProspero v. Penn, 183 NJ 477, 481, 488-489, 874 A2d 1039, 1041-1042, 1046), but the vehicle owner is vicariously liable only if the driver was the employee or agent of the owner ( see Haggerty v. Cedeno, 279 NJ Super 607, 609, 653 A2d 1166, 1167). The Quebec Automobile Insurance Act provides for vicarious liability of the vehicle owner ( see RSQ, ch A-25, § 108), but does not permit recovery of noneconomic damages ( see RSQ, ch A-25, § 83.57; Bodea v. TransNat Express, 286 AD2d 5, 8; LaForge v. Normandin, 158 AD2d 990; Thomas v. Hanmer, 109 AD2d 80, 81; Jean v. Francois, 168 Misc 2d 48, 49-50). In order to resolve this issue, we must first address the domiciles of the parties and the scope of New York's vicarious liability law and then balance the parties' contacts with Quebec, New York, and New Jersey and the respective interests of those jurisdictions in the application of their law to this controversy.

Finally, the court did not conduct a Neumeier analysis in Thomas v. Hanmer. See generally Thomas v. Hanmer, 489 N.Y.S.2d 802 (N.Y.App.Div. 4th Dept. 1985).

In a cursory opinion, the O'Malley court held that section 5104 could potentially apply to accidents occurring outside New York, notwithstanding its explicit language to the contrary. It did so ostensibly on the basis of another New York decision from an intermediate appellate court, Thomas v. Hanmer, 109 A.D.2d 80, 489 N.Y.S.2d 802 (1985), which held, in the context of choice of law, that a prohibition on recovery of non-economic loss under Canadian law was not applicable in a suit between New York citizens pending in a New York court, even though the accident had occurred in Quebec. But the Thomas court determined only that New York law applied, and had no occasion to determine whether section 5104's damage limitation applied to accidents outside New York.

See Traveler's Indem. Co. v. Lake, 594 A.2d 38 (Del. 1991);O'Connor v. O'Connor, 519 A.2d 13 (Conn. 1986); Thomas v. Hanmer, 489 N.Y.S.2d 802 (N.Y. 1985); Miller v. White, 702 A.2d 392 (Vt. 1997). In Traveler's, the insured was injured in a motor vehicle accident in Quebec, Canada. The insured would have recovered less than $30,000 if the court applied Quebec tort law whereas he was entitled to recover up to $300,000 under Delaware tort law.

In those cases, however, the fact patterns were quite different and the contacts with New York were significantly greater. See Qualls v. Budget Rent-A-Car NYRAC, Inc., 855 F. Supp. 625 (S.D.N.Y. 1994) (defendants were New York residents and automobile was rented in New York from New York rental company); Thomas v. Hanmer, 109 A.D.2d 80, 489 N.Y.S.2d 802 (4th Dep't 1985) (plaintiff and defendant were New York domiciliaries and both automobiles were registered and insured in New York); Tooker v. Lopez, 24 N.Y.2d 569, 301 N.Y.S.2d 519, 249 N.E.2d 394 (1969) (plaintiff and defendant were New York residents and car was registered and insured in New York); Farber v. Smolack, 20 N.Y.2d 198, 282 N YS.2d 248, 229 N.E.2d 36 (1967) (all parties involved in accident were New York domiciliaries and automobile was registered in New York). Plaintiff also cites Miller v. Miller, 22 N.Y.2d 12, 290 N.Y.S.2d 734, 237 N.E.2d 877 (1968), in which plaintiff was a New York resident and defendants were Maine residents who moved to New York after the accident. However, the continuing validity of Miller's choice of law analysis has been called into question by the landmark Neumeier decision.

¶ 69. Gillette and Ostlund rely on four cases that support the conclusion we reach: Travelers Indem. Co. v. Lake, 594 A.2d 38 (Del. 1991); O'Connor v. O'Connor, 519 A.2d 13 (Conn. 1986); Thomas v. Hanmer, 109 A.D.2d 80 (N.Y. 1985); and Miller v. White, 702 A.2d 392 (Vt. 1997). ¶ 70. First, these cases support our interpretation of the policy that the phrase "damages for bodily injury an insured is legally entitled to collect from the owner or driver of an underinsured motor vehicle" requires us to apply Wisconsin tort choice of law rules to determine whether damages claimed by an insured from an insurance company are available in a tort cause of action against an underinsured motorist.