SANTOS MERCEDES et al. v. CHRYSLER FINANCIAL CO., ET AL.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2114-04T22114-04T2

SANTOS MERCEDES and

LUCIA PENA,

Plaintiffs-Appellants,

v.

CHRYSLER FINANCIAL CO.,

ALEXANDER H. KALFAYAN,

SABRINA KALFAYAN,

Defendants-Respondents.

 
_____________________________________________

Submitted September 14, 2005 -- Decided

Before Judges Conley and Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, HUD-L-5129-03.

Tobin, Koster, Oleckna, Reitman, Greenstein & Konray, attorneys for appellants (Lawrence R. Pacifico, of counsel and on the brief).

Accardi & Mirda, attorneys for respondents (Cristina A. Mirda, of counsel and on the brief).

PER CURIAM

Plaintiff, Santos Mercedes, appeals a summary judgment granted defendants Alexander and Sabrina Kalfayan dismissing his automobile negligence complaint for failure to meet the verbal threshold provisions of N.J.S.A. 39:6A-8.1. There is no factual dispute that, if the verbal threshold requirements apply to plaintiff, they cannot be met. Plaintiff contends, however, that those requirements do not apply to him. We agree and reverse.

The facts are not complex. At the time of the accident, defendant Alexander Kalfayan made a left turn at the intersection of Route 5 and River Road in Edgewater, New Jersey. His vehicle collided with the vehicle plaintiff was operating on River Road. That vehicle was not owned by plaintiff. Indeed, he did not own any vehicle and had no automobile insurance of his own. He lived with his wife, Yojaia Pena, and his mother-in-law, Lucia Pena, in Lucia's home. Lucia owned a motor vehicle for which she had insurance. The insurance had the "Limitation of Lawsuit" option. Defendants argued that plaintiff was bound by Lucia's option.

The trial judge agreed reasoning that Yojaia was an insured under Lucia's policy and that "her spouse is certainly a member of her immediate family." In denying plaintiff's motion for reconsideration, the judge said "the son-in-law, who is a family member, he lives in the household, he is the husband -- he is the son-in-law of the [named] insured." The judge deemed that sufficient to compel compliance with the verbal threshold.

The governing statutory provisions are to the contrary. As we have said, the policy at issue is that of Lucia, plaintiff's mother-in-law. It is her election of the option that is at issue. In this respect, N.J.S.A. 39:6A-8.1(a) provides in pertinent part:

The tort option elected shall apply to the named insured and any immediate family member residing in the named insured's household. "Immediate family member" means the spouse of the named insured and any child of the named insured or spouse residing in the named insured's household, who is not a named insured under another automobile insurance policy.

[Emphasis added.]

The election, then, applies to the named insured, here Lucia, her spouse, if any, and their children. Simply put, plaintiff is not her child or her spouse's child. See Ibarra v. Vetrano, 302 N.J. Super. 578, 581 (App. Div. 1997). Relatives-in-law are not included in N.J.S.A. 39:6A-8.1's definition of "immediate family member." That the daughter is an insured under the policy is immaterial. The fact is, it is only Lucia who is the "named insured." Defendant's reliance upon Swyderski Prudential Commercial Ins. Co., 240 N.J. Super. 37 (App. Div. 1990), is misplaced. The definition of resident relative for PIP purposes pursuant to N.J.S.A. 39:6A-4.3 is distinct from the verbal threshold definition of "immediate family member" in N.J.S.A. 39:6A-8.1. Vamvakidis v. Peters, 327 N.J. Super. 287, 293-94 (App. Div. 2000).

We briefly comment on our recent decision in Stricklen v. Ferruggia, 379 N.J. Super. 296 (App. Div. 2005). We there held that the plaintiff driver, who was neither a named insured nor an immediate family member thereof and who had no automobile insurance of her own, nonetheless was bound by the named insured's tort option. We so concluded because, although not a named insured on the policy for the automobile, plaintiff was a co-owner of the vehicle. Thus, while clearly excluded from the statutory definition of "immediate family member," we rejected plaintiff's "strict nominalistic approach based on a strict reading of the express language of the verbal threshold statute" under those particular circumstances. Id. at 302. We observed:

The record supports a finding that plaintiff implicitly relied on her uncle, with whom she resided, to insure and maintain the compulsory insurance coverage on the vehicle they jointly owned and for which she was required to maintain such insurance. Thus, Evans not only procured insurance on the [vehicle] on his own behalf as mandated by our State's compulsory insurance statute, but also as an agent of his niece, co-owner of the vehicle. "An agency relationship is created when one party consents to have the other act on its behalf while retaining the right to control and direct such acts. . . . This relationship is not dependent upon the existence of an express agreement between the parties." Rodriguez v. Hudson County Collision Co., 296 N.J. Super. 213, 220 (App. Div. 1997) (internal citation omitted); see also Sears Mortgage Corp. v. Rose, 134 N.J. 326, 337 (1993). Accordingly, plaintiff should not be entitled to any greater rights than were paid for by the co-owner of her vehicle, who opted for a verbal tort threshold at a reduced premium.

[Id. at 305.]

Accord Martin v. Chhabra, 374 N.J. Super. 387, 391 (App. Div. 2005).

Unlike Stricklen and Martin, there is no issue of co-ownership/agency here. Neither is there any other circumstance that would warrant a deviation from the plain language of the statute. See Pinto v. N.J. Mfrs. Ins. Co., 183 N.J. 405 (2005); Murawski v. CNA Ins. Co., 183 N.J. 423 (2005).

 
Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.

Defendant Chrysler Financial Co. had previously obtained summary judgment. The dismissal of plaintiff's claims against it are not at issue here.

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A-2114-04T2

September 21, 2005