Victor Dziuba and Alexandra Dziuba, husband and wife v. Scott J. Fletcher et als.

SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).
 

Victor Dziuba and Alexandra Dziuba, husband and wife, v. Scott J. Fletcher et als. (A-90-05)
 
 
(NOTE: This Court wrote no full opinion in this case. Rather, the Court s affirmance of the judgment of the Appellate Division is based substantially on the reasons expressed in Judge Weissbard s written opinion below.)

Argued September 11, 2006 -- Decided October 12, 2006

PER CURIAM
 
The issue before the Court is whether an injured passenger, who was not operating one of his uninsured vehicles at the time of the accident, was barred, pursuant to N.J.S.A. 39:6A-4.5a, from recovering non-economic damages.

On August 16, 2000, Victor and Alexandra Dziuba were passengers in an automobile owned and operated by Scott Fletcher, when it was involved in an accident with a vehicle owned by Louis Vanderhook and driven by Kristen Vanderhook. Victor was injured in the accident and received treatment from various doctors. His medical expenses were approximately $9,300. There were three vehicles in the Dziuba household, but none were insured at the time of the accident

The Dziubas sued Fletcher, Louis and Kristen Vanderhook, and First Trenton Indemnity Company (First Trenton), the liability insurance carrier for Fletcher. The claim against First Trenton was for personal injury protection (PIP) benefits. Louis Vanderhook was dismissed from the case based on a lack of agency. Fletcher and Kristen Vanderhook moved for summary judgment, contending that the Dziubas were subject to but failed to meet the verbal threshold. Victor opposed this motion. The motion judge granted the motion, finding that as an owner of an uninsured vehicle, Victor was culpably uninsured and, therefore, was subject to the verbal threshold. He also found that Victor s injuries did not overcome the threshold. The parties did not address and the judge did not determine whether there was an independent basis for dismissal of Victor s claim for non-economic damages.

Thereafter, First Trenton moved for summary judgment on the basis that Victor was ineligible for economic loss damages, including PIP benefits, because he was culpably uninsured at the time of the accident. Fletcher and Kristen Vanderhook also moved for summary judgment, relying on the same arguments. The motion judge, based on the previous finding that Victor was culpably uninsured, granted the motions.

Victor appealed to the Appellate Division, arguing that he is not culpably uninsured and, therefore, is not subject to the verbal threshold. He also contended that even if he is subject to the verbal threshold, he overcame it. He also claimed that he is entitled to PIP benefits or, alternatively, economic loss damages.

The Appellate Division affirmed in part and reversed in part, finding that the trial court was correct in determining that Victor was statutorily barred from collecting PIP benefits and economic loss damages. The appellate panel noted that N.J.S.A. 39:6A-7b(1) provides in pertinent part that the insurer may exclude a person from PIP benefits who at the time of the accident was the owner or registrant of an automobile registered or principally garaged in New Jersey that was being operated without personal injury protection coverage. The court noted that the Dziuba home had three uninsured vehicles that were part of the joint assets of the home and that Victor was at the very least a beneficial owner of the uninsured cars at the time of the accident, precluding him from recovering PIP benefits from First Trenton. The Appellate Division also affirmed the trial court s holding that Victor was culpably uninsured in relation to economic damages and, therefore, was precluded from coverage.

On the issue of non-economic damages, the Appellate Division noted that the issue was one of first impression: whether an individual who is culpably uninsured, and thus ineligible for PIP benefits, must actually be operating his or her uninsured vehicle at the time of the accident. The panel determined that, according to the language of N.J.S.A. 39:6A-4.5, the uninsured vehicle must be the vehicle involved in accident to preclude its owner/registrant from recovering non-economic damages. The panel based its holding on specific statutory language providing that the injured culpably uninsured party shall have no claim to non-economic damages sustained as a result of an accident while operating an uninsured automobile. Accordingly, the Appellate Division reversed the order of summary judgment only as to the issue of non-economic damages, finding that because Victor was not operating an uninsured vehicle at the time of the accident, he was not precluded from recovering such damages.

The Supreme Court granted certification limited to the non-economic damages issue.

HELD: Judgment of the Appellate Division is AFFIRMED substantially for the reasons expressed in Judge Weissbard s written opinion. N.J.S.A. 39:6A-4.5a does not preclude an injured uninsured motorist from recovering non-economic damages under a defendant s policy of automobile insurance when the uninsured motorist was not operating his uninsured vehicle at the time of the accident involving defendant s car.

CHIEF JUSTICE PORITZ and JUSTICES LONG, ZAZZALI, LaVECCHIA, ALBIN, WALLACE and RIVERA-SOTO join in this PER CURIAM opinion.
 
 

SUPREME COURT OF NEW JERSEY
A- 90 September Term 2005
 
 

VICTOR DZIUBA and ALEXANDRA DZIUBA, husband and wife,

Plaintiffs-Respondents,

v.

SCOTT J. FLETCHER,

Defendant-Appellant,

and

KRISTEN L. VANDERHOOK, LOUIS H. VANDERHOOK, JANE DOE EMPLOYER (a fictitious name), and FIRST TRENTON INDEMNITY COMPANY,

Defendants.

Argued September 11, 2006 - Decided October 12, 2006

On certification to the Superior Court, Appellate Division, whose opinion is reported at 382 N.J. Super. 73 (2005).

Michael G.B. David argued the cause for appellant (Lewis & David, attorneys).

Anthony Granato, argued the cause for respondents (Jarve & Kaplan, attorneys).

PER CURIAM

We granted certification in this matter to review the Appellate Division judgment holding that N.J.S.A. 39:6A-4.5a does not bar plaintiff s recovery of non-economic damages under the tortfeasor defendant s automobile insurance policy. Dziuba v. Fletcher, 382 N.J. Super. 73, 82 (2005), certif. granted, 186 N.J. 363 (2006). As the Appellate Division decision noted, plaintiff, an uninsured motorist, was not operating his uninsured vehicle when he was injured in an accident involving defendant s car. Id. at 76. In such circumstances, we agree with the Appellate Division that N.J.S.A. 39:6A-4.5a does not preclude an injured plaintiff from recovering non-economic damages under a defendant s policy of automobile insurance. Accordingly, substantially for the reasons expressed in Judge Weissbard s opinion, we affirm the Appellate Division s judgment.
CHIEF JUSTICE PORITZ and JUSTICES LONG, ZAZZALI, LaVECCHIA, ALBIN, WALLACE, and RIVERA-SOTO join in this per curiam opinion.

SUPREME COURT OF NEW JERSEY
 
NO. A-90 SEPTEMBER TERM 2005

ON CERTIFICATION TO Appellate Division, Superior Court

VICTOR DZIUBA and
ALEXANDRA DZIUBA,
husband and wife,

Plaintiffs-Respondents,

v.

SCOTT J. FLETCHER,

Defendant-Appellant,

and

KRISTEN L. VANDERHOOK,
LOUIS H. VANDERHOOK,
JANE DOE EMPLOYER (a
fictitious name), and
FIRST TRENTON INDEMNITY
COMPANY,

Defendants.

DECIDED October 12, 2006
Chief Justice Poritz PRESIDING
OPINION BY Per Curiam
CONCURRING/DISSENTING OPINIONS BY
DISSENTING OPINION BY

CHECKLIST AFFIRM
CHIEF JUSTICE PORITZ X JUSTICE LONG X
JUSTICE LaVECCHIA X
JUSTICE ZAZZALI X
JUSTICE ALBIN X
JUSTICE WALLACE X
JUSTICE RIVERA-SOTO X
TOTALS 7