Opinion
DOCKET NO. A-4197-14T3
01-05-2017
ALMA GUERRERO, Plaintiff-Appellant, v. HELEN COLLEEN MOORE and UNIVERSITY OF NOTRE DAME, Defendants-Respondents, and ENTERPRISE HOLDING, INC., d/b/a NATIONAL CAR RENTAL, Defendants.
Stephen M. Tatonetti argued the cause for appellant (DuBois, Sheehan, Hamilton, Levin & Weissman, L.L.C., attorneys; David M. Weissman, on the briefs). Michael G. B. David argued the cause for respondents (Law Offices of William E. Staehle, attorneys; Mr. David, Terence J. Lynch and Laurie M. Lewis, on the briefs).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3. Before Judges Hoffman, O'Connor and Whipple. On appeal from Superior Court of New Jersey, Law Division, Camden County, Docket No. L-1897-13. Stephen M. Tatonetti argued the cause for appellant (DuBois, Sheehan, Hamilton, Levin & Weissman, L.L.C., attorneys; David M. Weissman, on the briefs). Michael G. B. David argued the cause for respondents (Law Offices of William E. Staehle, attorneys; Mr. David, Terence J. Lynch and Laurie M. Lewis, on the briefs). PER CURIAM
Plaintiff, Alma Guerrero, appeals from a May 8, 2015 order granting summary judgment for defendants. We affirm.
On May 18, 2011, plaintiff was driving her vehicle when involved in a collision with Colleen Moore's vehicle in Camden. Moore, a resident of Indiana, had leased a rental car from Enterprise Holding, Inc., d/b/a National Car Rental, Inc. (Enterprise), and at the time of the accident was acting within the scope of her employment for the University of Notre Dame (University). Plaintiff sustained back injuries as a result of the accident. On May 2, 2013, plaintiff filed a complaint seeking damages under theories of joint and several liability, against Moore, the University, and Enterprise.
Enterprise was ultimately dismissed from the case.
Plaintiff had immigrated to the United States in 2004, and the vehicle she was driving at the time of the accident was titled and registered in her name at an address in Philadelphia, Pennsylvania. The vehicle was insured in Pennsylvania, under a policy held by plaintiff's boyfriend at the same address. The policy did not provide New Jersey mandated Personal Injury Protection (PIP) benefits, pursuant to N.J.S.A. 39:6A-1 to -35, providing only $5000 in medical expenses coverage, the policy limit. Plaintiff asserted she resided in Pennsylvania with her boyfriend before moving in with her brother in Camden. Since January 2008, plaintiff was using her brother's address in Camden as her address to file her tax returns and Employment Eligibility Verification form. Plaintiff testified at her deposition that she used her brother's address because she was planning to move to her brother's address when he moved to Mexico. Despite having used a New Jersey address for employment purposes, plaintiff testified in her deposition she only moved in with her brother in New Jersey six months prior to the accident. Plaintiff later certified she resided in Camden for only three to four months prior to the accident.
Despite living in Camden in the months prior to the accident, plaintiff's vehicle remained titled and registered in her name at her Philadelphia address. Plaintiff testified at her deposition that while her boyfriend helped her purchase the vehicle, she was the primary driver and it was kept at her home in Camden. Plaintiff certified she believed her boyfriend changed the address of the policy when he moved in with her in New Jersey.
Defendants moved for summary judgment on May 8, 2015. The trial judge opined, based upon his personal knowledge, many people in Camden County register their cars in Pennsylvania because the insurance premiums are substantially lower. The judge further found, based upon plaintiff's continued insurance in Pennsylvania after the accident, plaintiff knew she was insuring her car in Pennsylvania while maintaining a New Jersey residence. The trial judge found plaintiff's suit must be dismissed pursuant to N.J.S.A. 39:6A-4.5 for "failure to maintain the required medical expense coverage." This appeal followed.
When reviewing a trial court's grant of summary judgment, we are "bound by the same standard as the trial court under Rule 4:46-2(c)." State v. Perini Corp., 221 N.J. 412, 425 (2015) (citations omitted). We "consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Ibid. (quoting Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995)). "To the extent that the grant or denial of summary judgment is based on an issue of law, we owe no deference to an interpretation of law that flows from established facts." Ibid. (citing Town of Kearny v. Brandt, 214 N.J. 76, 92 (2013)).
Plaintiff argues the trial court erred in granting summary judgment for defendants because she had car insurance, albeit insured in Pennsylvania, and therefore, she should not be considered "uninsured" under N.J.S.A. 39:6A-4.5(a). We disagree. Because plaintiff's Pennsylvania insurance did not have the PIP coverage as required under New Jersey law, and plaintiff admitted she lived in New Jersey for at least three to four months prior to the accident, the trial court properly granted defendants' motion for summary judgment.
All cars that are either registered or principally garaged in New Jersey must "maintain minimum amounts of standard, basic, or special liability insurance coverage for bodily injury, death, and property damage caused by the vehicles." N.J.S.A. 39:6B-1.
New Jersey drivers electing a basic automobile insurance policy must choose a policy with PIP coverage up to $15,000 per person, per accident. N.J.S.A. 39:6A-3.1. Low income individuals, who are either eligible or enrolled in Medicaid, may purchase a special automobile insurance policy that allows emergency PIP coverage, provided these policies are approved by the Commissioner of Banking and Insurance. N.J.S.A. 39:6A-3.3. However, standard automobile insurance policies must contain PIP coverage not to exceed $250,000 per person, per accident. N.J.S.A. 39:6A-4. Additionally, the statute at N.J.S.A. 39:6A-4.5(a) places a bar on the ability to sue if a New Jersey resident is not in compliance with N.J.S.A. 39:6A-3.1, N.J.S.A. 39:6A-3.3, or N.J.S.A. 39:6A-4. This gives uninsured drivers a strong incentive to be compliant with the compulsory insurance laws: either "obtain automobile liability insurance coverage or lose the right to maintain a suit for both economic and noneconomic injuries." Caviglia v. Royal Tours Am., 178 N.J. 460, 471 (2004).
At the time of the accident, plaintiff did not have an insurance policy that complied with either N.J.S.A. 39:6A-3.1 or N.J.S.A. 39:6A-4; therefore, plaintiff is barred from suit under N.J.S.A. 39:6A-4.5(a). Although plaintiff's car was insured by Infinity in Pennsylvania, this included PIP coverage of only $5,000. This amount is $10,000 less than what is required under N.J.S.A. 39:6A-3.1 and $245,000 less than what is required under N.J.S.A. 39:6A-4. Plaintiff was not entitled to special automobile insurance under N.J.S.A. 39:6A-3.3, because plaintiff was not eligible for Medicaid. Because plaintiff's insurance policy did not meet the requirements of N.J.S.A. 39:6A-1 to -35, plaintiff was culpably uninsured in New Jersey.
Plaintiff argues the special automobile insurance policy provided for in N.J.S.A. 39:6A-3.3 was designed to allow drivers who have limited financial resources to have limited automobile insurance coverage, and argues she fits well within that category of persons the statute was designed to protect. We disagree. N.J.S.A. 39:6A-3.3 specifically makes clear the program is only available for those eligible or enrolled in Medicaid, which plaintiff was not. --------
Plaintiff argues there is a genuine dispute of fact whether her car was principally garaged in New Jersey. We disagree. "Principally garaged" is not defined by the statute, but this court has construed the term to mean "the physical location where an automobile is primarily or chiefly kept or where it is kept most of the time." Chalef v. Ryerson, 277 N.J. Super. 22, 27 (App. Div. 1994). The physical location where the car is kept is the "pivotal factor" in determining where a car is principally garaged. Id. at 28.
Plaintiff began using her brother's Camden address for work purposes as early as 2008, despite certifying she only lived in Camden three to four months prior to the accident. At her deposition, plaintiff testified she was the only one who drove the car, and it was kept at her home in Camden. Based upon the car's title and registration being in plaintiff's name, there is no question plaintiff was the registered owner of the vehicle. Because the vehicle was physically located in New Jersey and driven solely between her Camden address and her place of employment in New Jersey, plaintiff's car was physically garaged in New Jersey; therefore, New Jersey insurance was required. Plaintiff argues the trial judge improperly based his ruling on his general personal observations some New Jersey residents "gam[e]" the insurance system by insuring their vehicles in states having lower premiums. While the trial judge expressed personal observations on the record, which were unnecessary and better left unuttered. The trial judge granted the motion for summary judgment based upon facts in the record regarding plaintiff's failure to comply with mandatory insurance requirements and the bar imposed by N.J.S.A. 39:6A-4.5.
We reject plaintiff's argument the trial judge's interpretation of N.J.S.A. 39:6A-4.5 leads to a result where new residents in the State who fail to change their license, registration, and insurance by the sixty-first day after moving here would be left with no recourse if he or she were to be seriously injured in a car accident. That is not the issue in the present case. New Jersey law requires any person who becomes a resident of this State to obtain a New Jersey license and registration within sixty days of becoming a resident. N.J.S.A. 39:3-17.1(a) and (b). Plaintiff was not injured in this case on the sixty-first day of living in New Jersey. The record supports the finding she was a resident of New Jersey two to three months past the sixty-first day requirement of N.J.S.A. 39:3-17.1. Thus, she is subject to the laws of this state on insurance and registration.
Lastly, plaintiff argues out-of-state defendants, whose out-of-state insurance does not contain the required PIP coverage, should not benefit from the bar in N.J.S.A. 39:6A-4.5(a). Plaintiff cites Zabilowicz v. Kelsey, 200 N.J. 507 (2009) and argues out-of-state defendants who are not eligible to receive New Jersey PIP benefits cannot bind a plaintiff to the limitation-on-lawsuit threshold pursuant in N.J.S.A. 39:6A-8(a) and can therefore be sued for economic and non-economic damages. In Zabilowicz, the Supreme Court held an out-of-state defendant, whose out-of-state insurance did not contain New Jersey PIP benefits, does not bar an out-of-state plaintiff, whose out-of-state insurance did contain New Jersey PIP benefits, from suit pursuant to N.J.S.A. 39:6A-8(a). Zalbilowicz, supra, 200 N.J. at 519.
The Zabilowicz case is distinguishable from the present case in a number of ways. First, both plaintiff and defendant in Zabilowicz were out-of-state drivers, and the plaintiff in that case was covered with out-of-state insurance that contained the required New Jersey PIP coverage. Id. at 511. Plaintiff in the present case does not have out-of-state insurance containing the required New Jersey PIP coverage. The plaintiff in Zabilowicz was insured by an insurance company authorized to do business in New Jersey, id. at 511; plaintiff in the present case did not. Additionally, Zabilowicz dealt with the limitation-on-threshold requirement in N.J.S.A. 39:6A-8(a), while the present case deals with the bar to suit under N.J.S.A. 39:6A-4.5(a). While Indiana, defendant's home state, does not require the purchase of PIP coverage, plaintiff's suit is barred under N.J.S.A. 39:6A-4.5(a), as her out-of-state insurance did not have the required PIP coverage mandated by N.J.S.A. 39:6A-3.1 or N.J.S.A. 39:6A-4.
Both plaintiff and defense counsel have raised arguments regarding plaintiff's immigration status. These arguments are irrelevant and lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION