Opinion
DOCKET NO. A-4776-11T1
07-16-2013
MICHAEL SYTSMA, Plaintiff-Appellant, v. JOHN SERIGNESE, Defendant-Respondent.
Dennis G. Polizzi argued the cause for appellant (Weiner & Mazzei, attorneys; Mr. Polizzi, of counsel and on the brief). Seth D. Griep argued the cause for respondent (Harwood Lloyd, attorneys; Russell A. Pepe, of counsel and on the brief; Mr. Griep, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Messano and Kennedy.
On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-2661-10.
Dennis G. Polizzi argued the cause for appellant (Weiner & Mazzei, attorneys; Mr. Polizzi, of counsel and on the brief).
Seth D. Griep argued the cause for respondent (Harwood Lloyd, attorneys; Russell A. Pepe, of counsel and on the brief; Mr. Griep, on the brief). PER CURIAM
Plaintiff appeals from an order of the Law Division declaring that his personal injury claim arising from an automobile accident on September 13, 2009, is subject to the limitation on lawsuit option (the so-called "verbal threshold") under N.J.S.A. 39:6A-8(a), and -8.1(a). Plaintiff argues on appeal that at the time of the accident, he was living in New York, did not own a motor vehicle, and was not living with his parents who had elected a verbal threshold. We affirm.
Plaintiff's complaint was later dismissed on summary judgment because plaintiff's injuries failed to meet the requirements of the statute. Plaintiff does not challenge this determination on appeal.
The facts which follow are uncontested, and neither party argues on appeal that that the motion judge erred by failing to require an evidential hearing to determine the "totality of the circumstances" pertaining to the issue on appeal. Cf. Sjoberg v. Rutgers Cas. Ins. Co., 260 N.J. Super. 159, 164-65 (App. Div. 1992).
Plaintiff was twenty-two years of age and had graduated from Vanderbilt University in 2009. He lived with his parents in Wyckoff, and found a job in New York City following graduation. On August 26, 2009, plaintiff entered into a short-term lease for an apartment in Manhattan and moved there with a friend on the same date. The lease term expired on September 30, 2009, and plaintiff knew he had to vacate the apartment on that date. Plaintiff "did not know where [he] was going to move to" after the lease expired. Plaintiff nonetheless entered into the lease because he "work[ed] in Manhattan."
Plaintiff did not own a motor vehicle of any type, but conceded his parents in Wyckoff owned automobiles which were covered by an insurance policy subject to a verbal threshold.
On September 13, 2009, while walking through the parking lot at the "Meadowlands Sports Complex" to attend a professional football game, plaintiff was struck in the left leg by an automobile driven by defendant. Responding to questions from law enforcement officers at the scene, plaintiff gave his parents' address in Wyckoff and was transported by ambulance to Meadowlands Hospital, where he again gave his parents' address, and was treated and released. He later consulted with an orthopedist, and was diagnosed with a fracture. He was given a leg cast and attended physical therapy for a month.
Plaintiff's medical expenses were paid through the personal injury protection (PIP) benefits provided by his parents' automobile insurance policy. Neither party to this appeal has provided a copy of the PIP application, but both parties concede that plaintiff's expenses were paid through the parents' automobile insurance policy, and that the policy was subject to the verbal threshold.
PIP benefits, including medical expense coverage, are payable when the named insured or "members of his immediate family residing in his household" sustain bodily injury as a result of an accident caused by an automobile. N.J.S.A. 39:6A-4.
Plaintiff later filed a complaint against defendant in the Law Division, seeking compensation for "permanent injuries" and "pain and suffering" he claimed to have endured as a consequence of the accident. Following the conclusion of discovery, defendant moved for an order declaring plaintiff to be subject to the verbal threshold. The motion was granted and plaintiff later sought reconsideration, supported by a certification in which he stated that he used his parents' Wyckoff address as a "stable mailing address." In addition, he stated that because he would have had to move by September 30, and did not know where he would be living after that, "keeping my parents' address in Wyckoff seemed like a good idea." He added that he gave the Wyckoff address to both the responding law enforcement officers and the hospital, to insure his receipt of information and bills pertaining to the accident, or "if anyone needed to get in touch with me."
The motion for reconsideration was denied and this appeal followed. Plaintiff argues on appeal that he "did not reside with his parents" at the time of the accident and therefore should not be subject to the verbal threshold in their automobile insurance policy.
N.J.S.A. 39:6A-8.1(a) provides, in pertinent part, that the tort option elected "shall apply to the named insured and any immediate family member residing in the named insured's household." The phrase "immediate family member" includes a child of the named insured "residing in the named insured's household" who is not a named insured under another insurance policy. N.J.S.A. 39:6A-8(b) provides that persons not required to maintain PIP coverage, and who are not an "immediate family member" of a named insured in an automobile insurance policy, are not subject to the verbal threshold.
Whether one may be considered to be a resident of a particular household is an issue that has been raised in various contexts and is particularly fact-sensitive. See Hardwicke v. Am. Boychoir Sch., 188 N.J. 69, 93 (2006); Gibson v. Callaghan, 158 N.J. 662, 672 (1999). At times, the claimant seeks a finding of residency to obtain coverage rather than a finding that he was not a resident, as in this case. In Gibson, the Supreme Court held that the term "household" in the homeowners policy was ambiguous and would be interpreted to provide liability coverage for the named insured's grandson and his wife, who were living in her home as caretakers although the insured herself was living elsewhere. Id. at 677. The Court also said that residency in a household frequently depends on a showing of a substantially integrated family relationship. Id. at 672-73.
In Mazzilli v. Accident & Cas. Ins. Co. of Winterthur, 35 N.J. 1, 15 (1961), the Supreme Court held that a wife who was living in a separate residence from husband was nevertheless a member of the household and covered by his homeowners policy. The Court explained:
Household is not a word of art. Its meaning is not confined within certain commonly known and universally accepted limits. True, it is frequently used to designate persons related by marriage or blood, who dwell together as a family under a single roof. But it has been said also that members of a family need not in all cases reside under a common roof in order to be deemed a part of the household.
[Id. at 8. (citations omitted)]
But see Fireman's Fund of N.J. v. Caldwell, 270 N.J. Super. 157, 167-68 (Law Div. 1993) (summary judgment denied to insurance carrier where one sister paid rent to other and there was a factual issue as to whether they lived as an integrated family).
We found an integrated family relationship in Arents v. General Accident Insurance Co., 280 N.J. Super. 423, 429 (App. Div. 1995), where an adult son lived five days a week in New York City but stayed at his parents' New Jersey home two nights a week and kept and insured his cars in New Jersey. We held that the son was a resident of his parents' home in New Jersey as well as his own residence in New York and that the underinsured motorist coverage of the son's auto policy covered injuries to his father when driving the son's car. Id. at 429-30.
Similarly, in Ohio Casualty Insurance Co. v. Estate of Wittkopp, 326 N.J. Super. 407, 413-14 (App. Div. 1999), we held that a teenage girl killed in a motor vehicle accident had two residences, those of both divorced parents, and consequently, the underinsured motorist coverage of each parent's auto policy was liable to provide coverage. That decision followed Miller v. United States Fidelity and Guaranty Co., 127 N.J. Super. 37, 44-45 (App. Div. 1974), which held that a child was a resident of both of his divorced parents' homes and thus damages caused by the child were covered by the liability provisions of both parents' homeowners policies.
The same concept of dual residency applies to children of divorce who are seeking to avoid the terms of an insurance policy rather than obtain coverage. In Roman v. Correa, 352 N.J. Super. 124, 125-26 (App. Div. 2002), we held that selection of the lawsuit threshold in the divorced father's auto policy applied to his daughters' claims for personal injury damages although the mother had primary custody and was not subject to the lawsuit threshold.
These cases illustrate very clearly that the phrase "residing in the . . . household" cannot be limited "as always to mean, regardless of the facts and circumstances, a collective body of persons who live in one house." Mazzilli, supra, 35 N.J. at 14. The courts have been consistent, however, in holding that the terms "resident" and "household" apply to a variety of living circumstances and that insured persons can have more than one residence and be members of more than one household. No court has held that a person must intend to stay permanently in a particular living accommodation to be considered a resident or a member of that household.
Applying these principles to the case before us, we conclude that plaintiff should be considered a resident of his parents' household for the purpose of application of the tort option in their automobile insurance policy. Plaintiff himself deemed it appropriate and prudent to identify his address as that of his parents' Wyckoff home to both law enforcement and the hospital. Application was made to his parents' automobile insurance carrier for PIP benefits, and he succeeded in obtaining such coverage. PIP coverage, as noted earlier, is available only to the named insured and "members of his immediate family residing in his household." N.J.S.A. 39:6A-4.
Neither party has raised the issue of whether plaintiff, by having accepted the PIP benefits available under his parents' automobile insurance policy, is thereby estopped from contesting the application of that policy's tort option. Consequently, the motion court did not consider the issue, and neither shall we. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234-235 (1973) ("It is a well-settled principle that our appellate courts will decline to consider questions or issues not properly presented to the trial court when an opportunity for such a presentation is available 'unless the questions so raised on appeal go to the jurisdiction of the trial court or concern matters of great public interest.'") (quoting Reynolds Offset Co., Inc. v. Summer, 58 N.J. Super. 542, 548 (App. Div. 1959), certif. denied, 31 N.J. 554 (1960)).
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In addition, plaintiff explained that he wanted to "keep [his] parents' address" in order to be certain that he received important information and bills, and to insure that he could be contacted when necessary. Also, plaintiff's move to Manhattan for a few weeks prior to the accident was by no means assuredly permanent. The lease ended on September 30 and plaintiff, at the time of the accident, was uncertain where he would wind up next. His expressed intent to seek continued lodging in New York City is but a single factor for consideration and cannot alone control the result here. See Gibson, supra, 158 N.J. at 675.
Weighing all the facts of this appeal, and given plaintiff's receipt of PIP benefits from his parents' insurance carrier, the conclusion is inescapable that plaintiff was a resident of his parents' household for the purpose of applying the tort option in their automobile insurance policy to his claims against defendant.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION