DURWIN MOSES v. CHRISTOPHER J. WEGFAHRT

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

DURWIN MOSES,

Plaintiff-Appellant,

v.

CHRISTOPHER J. WEGFAHRT

AND MARK WEGFAHRT,

Defendants-Respondents.

_____________________________________

February 26, 2015

Submitted February 4, 2015 Decided

Before Judges Fuentes, Ashrafi and O'Connor.

On appeal from Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-3388-12.

Mark S. Nathan, attorney for appellant.

Raymond F. Danielewicz, attorney for respondents.

PER CURIAM

In this automobile negligence action, plaintiff claimed he was injured in an accident as a result of defendant Christopher J. Wegfahrt's negligence. Plaintiff appeals from a January 17, 2014 order granting defendants' motion for summary judgment and dismissing plaintiff's complaint.1 The trial court granted defendants' motion because plaintiff's vehicle was principally garaged in New Jersey and was not insured in accordance with N.J.S.A. 39:6A-4. Therefore, under N.J.S.A. 39:6A-4.5(a), plaintiff was precluded from maintaining a lawsuit for any injuries sustained in the accident. We affirm.

I

The accident occurred on December 16, 2010, in Cinnaminson. At that time, plaintiff was driving a 2001 Chevrolet Silverado that was registered in North Carolina and insured by a policy issued in North Carolina by Allstate Insurance Company. The policy provided liability coverage to plaintiff of $50,000 per person and $100,000 per accident, as well as coverage for medical bills up to $1,000. The policy did not provide personal injury protection (PIP) benefits as mandated by N.J.S.A.

39:6A-4. In general, this statute requires that the owner of a vehicle have insurance coverage, in an amount not to exceed $250,000, for medical bills an insured may incur to treat injuries sustained in an automobile accident. At the time of the accident, plaintiff also owned a 1999 Ford Expedition that was registered in North Carolina and insured under the same policy as the Silverado.

There is competent evidence that, at the time of the accident, plaintiff had been residing in New Jersey for about ten years and that the Silverado was principally garaged here. The evidence consisted of plaintiff's deposition testimony, his payroll records, and various documents he signed.

After defendants filed their motion for summary judgment, plaintiff filed an affidavit in which he claimed that, during his deposition, he experienced severe pain that affected his memory. After the deposition, he recalled that the Silverado was in North Carolina for more than "one-half . . . the time from February 2010 through December 16, 2010." He asserted that he left the Silverado in North Carolina in April 2010 and drove the Ford Expedition to New Jersey for the purpose of selling the Ford in New Jersey. When he did not succeed in selling this vehicle, he drove the Ford Expedition back to North Carolina in July 2010. Plaintiff also claimed in his affidavit that, in 2010, he spent a total of three to four months in North Carolina, which included spending five to six weeks there in the summer and an aggregate of two months visiting relatives or attending family functions over the course of the year.

Defendants contended the affidavit was not competent evidence under the sham affidavit doctrine. See Shelcusky v. Garjulio, 172 N.J. 185, 201 (2002). The trial court agreed, finding the affidavit fit squarely within the doctrine because the affidavit "clearly contradict[ed]" plaintiff's deposition testimony that the Silverado was "always" in New Jersey in 2010. The trial court also observed that plaintiff's payroll records reflected that he worked in New Jersey every week throughout 2010, exposing the fallacy of plaintiff's claim that he spent five to six weeks in the summer of 2010 in North Carolina. Further, the court noted that, even if plaintiff used the Ford Expedition in New Jersey for three months in 2010, he used the Silverado in New Jersey for the remaining nine months.

The trial court found the Silverado was principally garaged in New Jersey at the time of the accident and, accordingly, plaintiff was required to obtain automobile insurance coverage that complied with New Jersey law. Because the owner of a vehicle principally garaged in this State must obtain an insurance policy that contains a provision providing PIP benefits in accordance with N.J.S.A. 39:6A-4 and the policy covering the Silverado did not contain such a provision, the trial court determined the Silverado was an uninsured vehicle under New Jersey's automobile insurance laws. Therefore, the trial court concluded, plaintiff was barred from pursuing his cause of action against defendants under N.J.S.A. 39:6A-4.5(a).

II

Plaintiff asserts the trial court erred by granting summary judgment and dismissing his complaint. He contends that N.J.S.A. 39:6A-4.5(a) bars his lawsuit only if the Silverado was uninsured and principally garaged in New Jersey. He argued that the Silverado was insured under the policy issued in North Caroline by Allstate Insurance Company and, further, there was a genuine issue of material fact whether the Silverado was principally garaged in New Jersey, precluding summary judgment. See R. 4:46-2(c). We disagree.

We review a motion seeking summary judgment using the same standard used by the trial court. Bhagat v. Bhagat, 217 N.J. 22, 38 (2014). We must determine, based on the competent evidential materials submitted by the parties, whether there are genuine issues of material fact and, if not, whether the moving party is entitled to summary judgment as a matter of law. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995); R. 4:46-2(c). Here, based upon our review of the record, there were no material issues of fact in dispute and defendants' motion for summary judgment was properly granted. We affirm substantially for the reasons expressed by Judge Patricia Richmond and add only the following.

N.J.S.A. 39:6A-4.5(a) states in pertinent part

Any person who, at the time of an automobile accident resulting in injuries to that person, is required but fails to maintain medical expense benefits coverage mandated by [N.J.S.A. 39:6A-4] . . . shall have no cause of action for recovery of economic or noneconomic loss sustained as a result of an accident while operating an uninsured automobile.

N.J.S.A. 39:6B-1 requires all owners of vehicles registered or principally garaged in New Jersey to maintain minimum amounts of standard, basic, or special liability insurance coverage for bodily injury, death, and property damage caused by their vehicles. Caviglia v. Royal Tours of Am., 178 N.J. 460, 466 (2004). In addition, N.J.S.A. 39:6A-4 requires every policy to provide a package of PIP benefits. Ibid.

The term "principally garaged" as used in N.J.S.A. 39:6B-1 is not defined in the statute and, thus, must be given its generally accepted meaning. N.J.S.A. 1:1-1. As we determined in Chalef v. Ryerson, 277 N.J. Super. 22, 27 (App. Div. 1994), the term "principally garaged" means "the physical location where an automobile is primarily or chiefly kept or where it is kept most of the time." In that case, the plaintiff had been living and working in New Jersey for four consecutive months before the accident. We deemed that span of time sufficient to find that the plaintiff's vehicle was being principally garaged here. Id. at 28.

Here, even assuming plaintiff's post-deposition affidavit is accurate and the Silverado was not garaged in New Jersey between April and July of 2010, there is no dispute that plaintiff kept the Silverado in this State for five months before the accident in December 2010. Therefore, consistent with Chalef, plaintiff's Silverado was principally garaged here at the time of the accident. Because the automobile insurance policy covering the Silverado did not include a provision providing PIP benefits in accordance with N.J.S.A. 39:6A-4, the Silverado was an uninsured vehicle under New Jersey's automobile insurance laws. Accordingly, under N.J.S.A. 39:6A-4.5(a), plaintiff's cause of action for the recovery of economic and non-economic damages sustained in the December 16, 2010 accident is barred.

Affirmed.

1 Defendant Mark Wegfahrt was alleged to have been vicariously liable for Christopher J. Wegfahrt's actions.