JENNIFER R. YARBROUGH OLIUS v. VLADIMIR SHEYNZON

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5138-07T35138-07T3

JENNIFER R. YARBROUGH OLIUS,

Plaintiff-Appellant,

and

ANTOINE OLIUS,

Plaintiff,

v.

VLADIMIR SHEYNZON,

Defendant-Respondent.

_____________________________________________

 

Argued March 4, 2009 - Decided

Before Judges Fisher and C.L. Miniman.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket No. L-1509-07.

James Hely argued the cause for appellant (Weiseman Hely DiGioia, attorneys; Mr. Hely, on the brief).

Jeanne O. Marino argued the cause for respondent (Harwood Lloyd, attorneys; Russell A. Pepe, of counsel; Cynthia Molkenthin Lay, on the brief).

PER CURIAM

Plaintiff commenced this action to recover damages for personal injuries resulting from an auto accident on February 27, 2007. Defendant moved for summary judgment because, on March 21, 2007, plaintiff's insurer, NJ Cure, retroactively rescinded plaintiff's automobile insurance policy. NJ Cure took that action because plaintiff failed to advise in renewing the policy that she had married in 2004 and thus added a person to her household. The trial judge granted defendant's motion because N.J.S.A. 39:6A-4.5(a) bars personal injury claims brought by an uninsured vehicle owner.

Plaintiff makes two arguments in seeking reversal of summary judgment. She first argues that NJ Cure's actions were unjustified or at least there were questions of fact as to whether her omission constituted a material misrepresentation. Plaintiff also argues that her health insurer, which has paid all her medical expenses resulting from the accident, has provided the functional equivalent of the coverage required by the No Fault Act, N.J.S.A. 39:6A-1 to -35. We reject both these arguments and affirm.

Plaintiff's first argument is misplaced. Plaintiff chose to forego an action against NJ Cure for restoration of the insurance policy. Had she filed such an action, plaintiff could have litigated the materiality of her omission in the renewal processes that preceded the accident. Plaintiff had the opportunity to seek declaratory relief against NJ Cure for a considerable period of time.

This action is not the appropriate forum for determining whether NJ Cure's decision to retroactively rescind the policy was appropriate. NJ Cure has not been made a party to this action and plaintiff's contention that the policy was improperly rescinded has never been pleaded here or anywhere else. The simple question presented by defendant's motion for summary judgment was whether plaintiff had in place, at the time of the accident, the auto insurance coverage required by the No Fault Act; the simple, indisputable answer was that -- because of NJ Cure's unimpeached retroactive rescission -- she did not. Plaintiff's claim that NJ Cure wrongfully terminated her policy is a phantom that has no bearing on the issues presented here; plaintiff has long had the ability but has deliberately chosen not to commence a suit challenging the legitimacy of NJ Cure's actions. The trial judge correctly viewed as irrelevant plaintiff's arguments on this point and properly recognized that it was undisputed, for purposes of this suit, that plaintiff did not have the coverage required by the No Fault Act at the time of the accident in question.

Plaintiff's second argument is that her lack of the insurance coverage required by the No Fault Act is irrelevant and should not bar her suit for damages because her health insurance carrier has paid all her medical expenses and that the coverage she did not have, but should have had, would not have been triggered because, she alleges, she was not at fault and no claim had been made against her. This contention misconstrues what the Legislature has attempted to accomplish through the enactment and repeated amendment of the No Fault Act.

N.J.S.A. 39:6A-3 requires that all owners of motor vehicles registered in this State are required to maintain minimum amounts of insurance coverage for bodily injury, death and property damage caused by their vehicles; N.J.S.A. 39:6A-4 requires that each policy must contain a package of personal injury protection benefits. These requirements are not governed by hindsight; they do not turn on whether a particular accident invokes the insurer's obligation to pay. It could not have been the Legislature's intent to require mandatory insurance coverage for all, but then to excuse the breach of that requirement whenever a vehicle owner's failure to maintain that insurance ultimately has no financial consequence. The Legislature clearly intended that the duty to secure and maintain insurance coverage commences with ownership of a motor vehicle.

There is no question that the mandatory coverage aspects of the No Fault Act were intended to insure that "accident victims are not without the means to recover financially for their injuries from a judgment-proof tortfeasor." Caviglia v. Royal Tours of America, 178 N.J. 460, 466 (2004). Assuming that plaintiff was not at fault and that no other person involved in the accident was injured or sought relief, it may be true that the circumstances here have not created the potential for a judgment-proof tortfeasor. Nevertheless, to accept plaintiff's narrow view of N.J.S.A. 39:6A-4.5(a) is to ignore another salutary goal of the No Fault Act that would not be vindicated if we were to adopt her position.

In Caviglia, the Court noted the high number of uninsured drivers in this State, and the Legislature's continuous efforts to reduce that number through its imposition of mandatory insurance coverage and its creation of serious consequences for the failure to comply. 178 N.J. at 477. In that way, the Legislature created "a very powerful incentive" on vehicle owners to maintain insurance. Id. at 471. Indeed, the Legislature has imposed penal consequences for the failure to maintain auto insurance coverage, N.J.S.A. 39:6B-2; that an uninsured owner is not at fault in an accident is no defense to such a charge, Caviglia, supra, 178 N.J. at 464.

We reject the argument that the prohibition on an uninsured owner's right to seek personal injury damages should be alleviated when the statutorily required insurance coverage, which the owner failed to maintain, would not have been triggered with regard to a particular auto accident. The Legislature's chief goal of compelling all vehicle owners to maintain auto insurance coverage would be confounded by the creation of the exception urged here by plaintiff, particularly an exception that turns on circumstances not known until after the auto accident in question.

Affirmed.

Had plaintiff commenced such an action against NJ Cure, the trial judge would have undoubtedly -- and correctly -- continued the return date of defendant's summary judgment motion until that issue could be resolved. The record on appeal indicates that there was considerable discussion of this on the original return date; it appears that the judge adjourned the motion in order to provide that opportunity. On the adjourned return date, the circumstances remained unchanged and the judge ruled on its merits.

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A-5138-07T3

March 30, 2009