HAN HUNG LUONG v. FRANK T. GEORGE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

HAN HUNG LUONG,

Plaintiff-Appellant,

v.

FRANK T. GEORGE,

Defendant-Respondent,

and

ALEXIS GEORGE, CHRISTIE CLARK,

HONDA LEASE TRUST,

Defendants.

________________________________________

December 22, 2014

Argued September 3, 2014 Decided

Before Judges Messano and Rothstadt.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County,

Docket No. L-4710-11.

Michael B. Fusco argued the cause for appellant (Levinson Axelrod, attorneys;

Mr. Fusco, on the brief).

C. Robert Luthman argued the cause for

respondents (Hoagland, Longo, Moran, Dunst & Doukas, LLP, attorneys; Mr. Luthman, on the brief).

PER CURIAM

Plaintiff Han Hung Luong appeals from the Law Division's June 7, 2013, order granting defendant Frank T. George partial summary judgment and holding plaintiff's claim for personal injuries, sustained in an auto accident, was subject to the limitation-on-lawsuit (verbal) threshold as defined in N.J.S.A. 39:6A-8(a), based on the court's application of the Deemer Statute, N.J.S.A. 17:28-1.4, to plaintiff's claim for non-economic losses.1 On appeal, he argued the court erroneously applied the Statute because defendant "failed to establish that plaintiff's Canadian insurance company was affiliated with an insurance company authorized to do business in New Jersey." He also claimed the court "abused its discretion in considering documents that were not produced prior to the discovery end date in granting the defendant's motion for summary judgment."

We have considered these arguments in light of the record and we affirm. Contrary to plaintiff's argument, the record contained sufficient evidence to support the court's finding plaintiff's insurance company was affiliated with an insurance company conducting business in New Jersey, triggering the application of the Deemer Statute.2

At the time of the parties' auto accident in Bellmawr, plaintiff was a Canadian citizen. He drove a car registered in his name which was insured by AXA Insurance (Canada).

Plaintiff filed his complaint in 2011 and defendant filed an answer.3 In 2012, the parties filed separate motions for partial summary judgment. The court granted plaintiff's motion finding defendant "one hundred per cent (100%) negligent for the . . . accident . . . ." It entered another order denying without prejudice defendant's motion seeking to apply the Deemer Statute and the limitation-on-lawsuit (verbal) threshold to plaintiff's claims. Citing to our decision in Cupido v. Perez, 415 N.J. Super. 587 (App. Div.), cert. denied, 205 N.J. 16 (2010), the judge wrote on his order defendant needed "a witness to either certify [b]usiness records [and]/or provide proof that the . . . [case] falls [within] the purview of the Deemer Statute." The judge also questioned "what is the status of plaintiff's PIP coverage?" and noted "in Cupido movant [submitted] an affidavit from a representative of the Dept. of Banking [and] Insurance [(DOBI)]."

Later, on March 8, 2013, defendant supplemented his answers to plaintiff's interrogatories with various documents. These amendments were served more than a year after defendant's original answers and after the action's February 27, 2013, discovery end date. In defendant's attorney's March 8, 2013, letter to plaintiff's counsel, the attorney certified, pursuant to Rule 4:17-7, that the information being provided was not "reasonably available or discoverable" before the discovery end date. Plaintiff never filed a motion challenging that statement.4

Defendant's amended response contained a copy of a March 7, 2013, letter from the a New Jersey Deputy Attorney General (DAG) assigned to DOBI, which was written in response to defendant's counsel's inquiry as to "whether AXA Insurance Company was authorized to transact or write automobile insurance in the State of New Jersey in 2009." In response to the inquiry, the DAG enclosed a certification from Kwame Asare, an examiner in the Office of Solvency Regulation within the Department, attesting to the fact that AXA was, and is, authorized to transact automobile insurance in New Jersey continually from May 1, 2006, to the present. The certification only referred to "AXA Insurance Company . . . a New York domiciled insurance company incorporated on November 23, 1980." It made no mention of AXA Canada. It did have attached to it copies of certificates of authority issued by the state to "AXA Insurance Company of New York, New York" for each year between 2006 and 2012.

After serving plaintiff's counsel with defendant's amendments, his attorney filed a new motion for partial summary judgment seeking the same relief as requested in defendant's earlier motion. In addition to supporting the motion with the recently served Asare certification and the attached certificates of authority, defendant included a copy of AXA Group's 2009 Annual Report and other documents. The report contained a list of AXA's "principal subsidiaries" which included "AXA Canada Inc." The report also identified both "AXA Financial, Inc. (United States)" and "AXA Insurance (Canada)" under the section entitled "corporate governance." Defendant also provided the company's 2011 Annual Report, which informed readers that AXA Group completed the sale of "its Canadian operations" to another company. Neither annual report made reference to "AXA Insurance of New York, New York."

In opposition to defendant's motion, plaintiff's counsel filed a certification which informed the court the discovery end date had passed and the parties participated in an arbitration prior to defendant amending his answers to plaintiff's discovery demands, which included the Asare certification. The court considered the parties positions and counsel's oral argument on June 7, 2013, and entered its order granting defendant's motion.

The matter was subsequently tried before a jury. After the jury returned "a verdict of No Cause of Action," the court entered an order on September 26, 2013, dismissing plaintiff's complaint with prejudice. Plaintiff filed a motion for a new trial which the court denied. This appeal followed.

In our review of a trial court's grant or denial of a request for summary judgment, we employ the same standards used by the motion judge under Rule 4:46-2(c). Davis v. Brickman Landscaping, Ltd., 219 N.J. 395, 405 (2014). First, we determine whether the moving party has demonstrated there were no genuine disputes as to material facts, and then we decide whether the motion judge's application of the law was correct. Atl. Mut. Ins. Co. v. Hillside Bottling Co., 387 N.J. Super. 224, 230-31 (App. Div.), certif. denied, 189 N.J. 104 (2006). In so doing, we view the evidence in the light most favorable to the non-moving party. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995).

"[A] court should deny a summary judgment motion only where the party opposing the motion has come forward with evidence that creates a 'genuine issue as to any material fact challenged.'" Id. at 529 (quoting R. 4:46-2(c)). Factual disputes that are merely "'immaterial or of an insubstantial nature'" do not preclude the entry of summary judgment. Ibid. (quoting Judson v. Peoples Bank & Trust Co., 17 N.J. 67, 75 (1954)). A "judgment or order [granting the motion] shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c).

Also, we accord no deference to the motion judge's conclusions on issues of law. Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 382-83 (2010). Where a motion raises "mixed questions of law and fact" we defer to the motion judge's findings which are supported by the record, but review de novo the judge's application of legal principals to those findings. See State v. Harris, 181 N.J. 391, 416 (2004). In this case the application of the Deemer Statute involves both a question of law and fact. We therefore defer to the motion court's findings of fact which are supported by the record and which are not in dispute and review de novo the application of the Statute to those facts.

As we did in Cupido, supra,

[w]e begin our analysis by quoting [from] the Deemer [S]tatute

Any insurer authorized to transact or transacting automobile or motor vehicle insurance business in this State, or controlling or controlled by, or under common control by, or with, an insurer authorized to transact or transacting insurance business in this State, which sells a policy providing automobile or motor vehicle liability insurance coverage, or any similar coverage, in any other state or in any province of Canada, shall include in each policy coverage to satisfy at least the personal injury protection benefits coverage pursuant to [N.J.S.A. 39:6A-4] or [N.J.S.A. 17:28-1.3] for any New Jersey resident who is not required to maintain personal injury protection coverage pursuant to [N.J.S.A. 39:6A-4] or [N.J.S.A. 39:6A-3.1] and who is not otherwise eligible for such benefits, whenever the automobile or motor vehicle insured under the policy is used or operated in this State. In addition, any insurer authorized to transact or transacting automobile or motor vehicle insurance business in this State, or controlling or controlled by, or under common control by, or with, an insurer authorized to transact or transacting automobile or motor vehicle insurance business in this State, which sells a policy providing automobile or motor vehicle liability insurance coverage, or any similar coverage, in any other state or in any province of Canada, shall include in each policy coverage to satisfy at least the liability insurance requirements of [N.J.S.A. 39:6B-1] or [N.J.S.A. 39:6A-3], the uninsured motorist insurance requirements of [N.J.S.A. 17:28-1.1], and personal injury protection benefits coverage pursuant to [N.J.S.A. 39:6A-4] or [N.J.S.A. 17:28-1.3], whenever the automobile or motor vehicle insured under the policy is used or operated in this State.

Any liability insurance policy subject to this section shall be construed as providing the coverage required herein, and any named insured, and any immediate family member as defined in [N.J.S.A. 39:6A-8.1], under that policy, shall be subject to the tort option specified in [N.J.S.A. 39:6A-8(a)].

. . . .

[N.J.S.A. 17:28-1.4.]

[415 N.J. Super. at 592 (alterations in original).]

"[T]he 'Deemer Statute'--provides benefits and burdens to out-of-state drivers insured by companies authorized to do business in New Jersey. On the one hand, such out-of-state drivers, like New Jersey policyholders, receive [personal injury protection (PIP)] benefits on a no-fault basis under N.J.S.A. 39:6A-4; on the other hand, they are subject to the limitation-on-lawsuit threshold, as defined in N.J.S.A. 39:6A-8(a)."5 Zabilowicz, supra, 200 N.J. at 510. "[T]he Deemer Statute furnishes the covered out-of-state driver with New Jersey's statutory no-fault PIP and other benefits and, in exchange, deems that driver to have selected the limitation-on-lawsuit option of N.J.S.A. 39:6A-8(a)." Id. at 514. The limitation-on-lawsuit threshold is imposed on non-residents who are injured in New Jersey and insured by carriers authorized to transact insurance business in this State and is deemed to apply "even if a plaintiff has selected, and paid for, full tort coverage in his out-of-state insurance policy." Id. at 515.

We therefore agree with the motion judge's determination that, pursuant to the Deemer Statute, if AXA Insurance (Canada) was authorized to transact automobile or motor vehicle insurance business in this State, or was controlled "by, or under common control by, or with, an insurer authorized to transact . . . insurance business in this State," N.J.S.A. 17:28-1.4, plaintiff's claim was subject to a limitation-on-lawsuit threshold by virtue of the Deemer Statute. We are satisfied from our review of the motion record there was sufficient credible evidence to support the motion judge's finding AXA Insurance (Canada) was, at the time, controlled by AXA Group, a company that was authorized to sell automobile insurance in New Jersey through its subsidiary, AXA Insurance.

The evidence supporting the relationship between AXA Canada and AXA Insurance Company was set forth in the Asare cortication and AXA Group's annual reports, albeit the information was not precise. Both submissions were properly considered by the motion judge as admissible hearsay in support of the motion. N.J.R.E. 803(c)(6), (8) and (17). Also, plaintiff did not offer any evidence to rebut the logical inference the documents raised as to the plaintiff's insurance company being related to the entity authorized to do business in New Jersey. Instead, plaintiff challenged the court's consideration of the evidence based on defendant supplying it after the discovery end date.

We are not persuaded by plaintiff's argument because he failed to file a motion challenging the late service of the information as required by Rule 4:17-7. ("Any challenge to the certification of due diligence will be deemed waived unless brought by way of motion on notice filed and served within 20 days after service of the amendment. Objections made thereafter shall not be entertained by the court."). Also, the information supplied by defendant related to plaintiff's insurance carrier. The information was readily available to plaintiff as much as it was to defendant and therefore was not uniquely known or controlled by defendant. R. 4:18-1(a)(1).

Affirmed.

1 Plaintiff is not appealing from the court's final order of September 26, 2013, dismissing his complaint after a jury found his injuries did not vault the lawsuit threshold.

2 As the Court explained in Zabilowicz v. Kelsey, 200 N.J. 507, 510 n.2 (2009),

[it] apparently acquired its name as the Deemer Statute because it "deems" New Jersey insurance coverage and tort limitations to apply to out-of-state policies. Cf. Whitaker v. DeVilla, 147 N.J. 341, 344 (1997); see also Gov't Employees Ins. Co. v. Allstate Ins. Co., 358 N.J. Super. 555, 560 (App. Div. 2003) ("[F]rom this consequence, the law acquired the name by which it is commonly known, the [D]eemer [S]tatute."); Lusby v. Hitchner, 273 N.J. Super. 578, 583-84 (App. Div. 1994) ("[T]he statute eponymously 'deems' that the policy includes the required coverage.").

3 We refer to plaintiff only in the singular recognizing, however, plaintiff's wife filed a separate complaint. On January 20, 2012, the Law Division consolidated the two actions. Both plaintiff and his wife named defendant's wife as a defendant because she owned the car defendant drove at the time of the accident. Ultimately, the plaintiff's claims were tried as to the defendant only although the court never entered a formal order dismissing plaintiff's claim's against defendant's wife.

4 See R. 4:17-7. Also, plaintiff amended his answers to interrogatories on three occasions after the discovery end date using the same procedure as employed by defendant. Defendant also never challenged those amendments.

5 As the Supreme Court noted,

[The] "verbal" threshold is used as a shorthand term to describe the limitation-on-lawsuit threshold. The modern "limitation on lawsuit" threshold was adopted as part of the 1998 Automobile Insurance Cost Reduction Act (AICRA). L. 1998, c. 21, 11. It replaced the older "verbal" threshold, which required a plaintiff to show that her injuries met one of nine statutory categories and that she had suffered a serious life impact. See generally DiProspero, supra, 183 N.J. at 485-89 (discussing development of tort limitations in New Jersey automobile insurance law).

[Zabilowicz, supra, 200 N.J. at 512 n.4.]