GISELE LIGHTNER v. TOMAS SOLIS,

NOT FOR PUBLICATION WITHOUT THE
 
APPROVAL OF THE APPELLATE DIVISION
 

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-3156-01T3

GISELE LIGHTNER,

Plaintiff-Respondent,

v.

TOMAS SOLIS,

Defendant-Appellant,

and

ROXIE HARRIS, JR., and COLONIAL
PENN INSURANCE COMPANY,

Defendants.

___________________________________

Argued March 19, 2003 - Decided April 15, 2003

Before Judges Newman, Carchman and Parrillo.

On appeal from the Superior Court of
New Jersey, Law Division, Essex County,
L-1530-00.

Carl Mazzie argued the cause for appellant
(Foster & Mazzie, attorneys; Mr. Mazzie,
on the brief).

Alex Casale argued the cause for respondent,
Solis (Goodman& Lustgarten, attorneys; Mr.
Casale, on the brief).

The opinion of the court was delivered by

PARRILLO, J.A.D.

Defendant Tomas Solis (defendant) appeals from the denial of his motion for summary judgment seeking dismissal of plaintiff Gisele Lightner's automobile negligence personal injury lawsuit. At issue is N.J.S.A. 39:6A-4.5 which bars recovery for injuries sustained by the owner "as a result of an accident while operating an uninsured automobile." (Emphasis added). We affirm the denial of summary judgment, but remand for a plenary hearing in which the judge as fact finder is to determine the applicability of the statutory exclusion.
The facts viewed most favorably to plaintiff, the non-moving party, Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995), are as follows. On July 28, 1998, plaintiff was sitting in the passenger seat of a parked automobile _ a 1989 Lincoln Mark VII _ owned by and registered to her and Roxie Harris. Plaintiff got into the car to put on her makeup because it had a mirror, and to wait for Mr. Harris with whom she was going to walk to the store. She apparently had no intention of driving the automobile at that time. While she was seated inside the vehicle, it was rear-ended by a car driven by defendant. Plaintiff sustained bodily injuries.
At the time of the accident, plaintiff had failed to insure her vehicle, in violation of N.J.S.A. 39:6A-3 and 6B-1, and N.J.S.A. 17:28-1.1. It had previously been insured by Colonial Penn Insurance Company (Colonial), but the policy was canceled for non-payment of premium effective June 21, 1998, one month before the accident. Since then, plaintiff's automobile, although operable, had been "sitting there for awhile," only being moved from one side of the street to the other to avoid parking tickets.
Plaintiff sued defendant for damages consisting of non- economic loss, and Colonial, for personal injury protection (PIP) benefits. Summary judgment was subsequently granted in favor of Colonial, plaintiff's former PIP carrier, the court having found no insurance coverage existed at the time of the accident. Defendant then moved for summary judgment as well on the ground that under N.J.S.A. 39:6A-4.5, plaintiff is barred from recovering any damages because she had failed to insure her vehicle. In denying defendant's motion, the trial court reasoned:
Clearly, the language of that statute [N.J.S.A. 39:6A-4.5] says the word "operating." If the legislature intended -- and there's no question here that plaintiff was uninsured -- but the issue in this case is whether or not she was an operator of the vehicle. She was in the vehicle, apparently, allegedly on the passenger side with no intention to operate the vehicle.
 
It seems like that's . . . at this point is a question of fact that may be developed at the time of trial, but there's nothing before me that would -- that gives me the right to rule that she was an operator at the time. That might be a question of fact at the time of trial.
 
However, if the legislature wanted to include language "owner or operator," then she certainly would have fallen within the purview of that statute, and her claim would be barred. But the statute only talks about operating -- operating an uninsured automobile.

Based on that, I cannot expand the statute beyond. I do not find that the Liberty Mutual Insurance Company case, [ 334 N.J. Super. 400 (Law Div. 2000)], which . . . barred PIP or UM coverage, which clearly applies to someone who's uninsured, and clearly stands for that proposition, can be expanded to include a claim for non-economic loss against a third-party.
 
In light of the clear and unambiguous language of the statute dealing with the statute [summary judgment] will be denied.
 
Thereafter, the parties agreed to the extent of plaintiff's damages and defendant's liability, and accordingly, judgment was entered in favor of plaintiff in the amount of $15,000. This appeal follows from the denial of defendant's motion for summary judgment.
Defendant contends that plaintiff is precluded by N.J.S.A. 39:6A-4.5(a) from recovering any damages because the undisputed facts demonstrate that she was the owner of an uninsured motor vehicle that was in operation in and around the time of the accident. Plaintiff counters that because a rational jury could determine that her vehicle was not in fact operating at the time of the accident, denial of summary judgment in this case was appropriate.
Because plaintiff's lawsuit is based on the alleged negligent operation of a motor vehicle, it implicates the New Jersey Automobile Insurance Cost Reduction Act (AICRA), N.J.S.A. 39:6A-1 to -35. Specifically, N.J.S.A. 39:6A-4.5(a) provides that a person "shall have no cause of action for recovery of economic or non-economic loss sustained as a result of an accident while operating an uninsured automobile."See footnote 11 (emphasis added.) The issue in this case is whether plaintiff's uninsured
motor vehicle was being "operated" within the meaning of N.J.S.A. 39:6A-4.5(a).
We begin our analysis by noting that "'the meaning of a statute must . . . be sought in the language in which the act is framed, and if that is plain, . . . the sole function of the courts is to enforce it according to its terms.'" Sheeran v. Nationwide Mutual Ins. Co., Inc., 80 N.J. 548, 556 (1979) (quoting Caminetti v. United States, 242 U.S. 470, 485, 37 S. Ct. 192, 194, 61 L. Ed. 442, 452 (1917)). However, when the meaning of a word used in a statute is not explicit, or where the literal application of the word suggests more than one arguable meaning, the court's function is to ascertain the Legislature's purpose in enacting the statute. State v. Sutton, 132 N.J. 471, 479 (1993). Dep't of Health v. Sol Schnoll Dressed Poultry Co., 102 N.J. Super. 171, 175 (App. Div. 1968). To that end, "'words used may be expanded or limited according to the manifest reason and obvious purpose of the law. The spirit of the legislative direction prevails over the literal sense of the terms.'" New Capitol Bar & Grill Corp. v. Employment Security Div., 25 N.J. 155, 160 (1957) (citing Alexander v. New Jersey Power & Light Co., 21 N.J. 373, 378 (1956)).
The legislative purpose must be derived from an overall understanding of the words utilized and their relationship to other related provisions. State v. Afanador, 134 N.J. 162, 172 (1993). "There is need to keep in view . . . the structure of the statute, and the relation . . . between its several parts." Dupurquet Co. v. Evans, 297 U.S. 216, 218, 56 S. Ct. 412, 80 L. Ed. 2d 591 (1936). In other words, the meaning of a word or
series of words may be ascertained by reference to a neighboring set of words or similar provisions in the same statutory scheme. State v. Mortimer, 135 N.J. 517, 536 (1994), cert. denied, 513 U.S. 970, 115 S. Ct. 440, 130 L. Ed. 2d 351 (1994).
In this case, to gain insight into legislative purpose, there are other places to look in AICRA, its predecessor, the New Jersey Automobile Reparation Reform Act, N.J.S.A. 39:6A-1 to -34, commonly referred to as the No-Fault Law, and related legislation, namely the Unsatisfied Claim and Judgment Fund Law, N.J.S.A. 39:6-70(d) and -78(c). Thus, although not specifically addressing N.J.S.A. 39:6A-4.5(a), several cases have been decided that shed light on the legislative intent behind other provisions in the statutory scheme requiring an owner's vehicle to be insured as a condition of eligibility for various benefits. Illustrative is Foxworth v. Morris, 134 N.J. 284 (1993), a case involving eligibility for payment under the Unsatisfied Claim and Judgment Fund (Fund), N.J.S.A. 39:6-70. Subsection (d) requires that in order for an injured person to be eligible to collect benefits from the Fund, he must not be "at the time of the accident, the owner or registrant of an uninsured motor vehicle . . . ."
Prior to Foxworth, we had held that the owner of a temporarily inoperable and uninsured vehicle, who had intended to have the repairs made and to continue operating it, was excluded from recovery under the Fund. Caldwell v. Kline, 232 N.J. Super. 406 (App. Div. 1989). There, we specifically called attention to the 1983 amendment to N.J.S.A. 39:6-70(d) and 78(c), noting that "[p]rior thereto 70(d) and 78(c) required proof that at the time of the accident the claimant was not 'operating or riding in an uninsured motor vehicle owned by him.'" Caldwell, supra, 232 N.J. Super. at 411. We pointed out that "[t]he 1983 amendment . . . removed the focus of operation/use and broadened the disqualification to all owners of uninsured motor vehicle[s]." Ibid. But we also recognized that the disqualification was not without limitation and was not intended to be so broad as to encompass an owner of a motor vehicle who has taken the vehicle off the road with no intent of operating it. Id. at 412 . In such an instance, "there can be no concern of injury by a financially irresponsible or uninsured motorist." Ibid. The Foxworth Court agreed with the view expressed in Caldwell that such a broad disqualification based on the status of ownership alone overstated the exclusion intended by the Legislature. In Foxworth, the plaintiff, a passenger injured in a motor vehicle accident involving two uninsured automobiles, had purchased an inoperable 1976 Saab several months prior to the accident. 134 N.J. at 286. He had no insurance on the Saab. Ibid. While the Court found that plaintiff intended to eventually repair and operate the vehicle, it acknowledged that he claimed he never drove the vehicle, that he had stored the car from the time of purchase, and that he ultimately "junked it." Id. at 290.
The Court rejected the notion that to maintain Fund eligibility, an owner under the statute must insure an inoperable and unregistered car, explaining:
[W]hen one has taken a vehicle off the road with no intention of operating the uninsured vehicle, disqualification under N.J.S.A. 39:6- 70(d) would "extend its scope beyond that intended by the Legislature." 232 N.J. Super. at 412. "Without the intent to operate and without registration and license plates, the vehicle could be no danger to anyone." Ibid.
 
[Id. at 290-91 (quoting Caldwell, supra, 232 N.J. Super. at 412).]
 
The Court further explained that although the owner need not show an intent to abandon the vehicle, he must demonstrate that "there was no intention to make the vehicle operable in the immediate future after acquisition or withdrawal from the road, and present competent proof that the basis for inoperability was substantial." Id. at 291.
Further insight into the legislative purpose is provided by cases interpreting N.J.S.A. 39:6A-7(b)(1), which provides a specific exclusion from PIP benefits when a person was the owner or registrant of an automobile registered or principally garaged in this State that was being operated without PIP coverage. Thus, in Kennedy v. Allstate Ins. Co., 211 N.J. Super. 515 (Law Div.), aff'd, 213 N.J. Super. 137 (App. Div. 1986), the claimant was excluded from PIP coverage benefits under another's insurance where the claimant operated his uninsured vehicle up until the time of the accident. And in Lilly v. Prudential Ins. Co., 246 N.J. Super. 357 (Law Div. 1990), aff'd o.b., 246 N.J. Super. 280 (App. Div. 1991), it was held that PIP benefits could not be denied to the owner of an uninsured operable automobile placed in storage prior to the accident. The Lilly court relied upon the rationale expressed in Caldwell, supra:
"An owner without an intent to operate his vehicle, whether it be because of temporary inoperability or otherwise, is not the type of person the Legislature wanted to exclude. Without the intent to operate and without registration and license plates, the vehicle could be no danger to anyone. Moreover, when the absence of insurance is the result of a decision to remove the vehicle from operation, there can be no concern of injury by a financially irresponsible or uninsured motorist."
 
[Lilly, 246 N.J. Super. at 361.]
More recently, in Gibson v. New Jersey Mfrs. Ins. Co., 261 N.J. Super. 579 (App. Div. 1993), we acknowledged that the exclusion of all claimants without PIP coverage on their owned or registered vehicles goes beyond the intent of the Legislature and that the issue really centers on "the intent of the owner with regard to operation of the vehicle in or around the time of the accident." 261 N.J. Super. at 583-585. And most recently, in Carmichael v. Bryan, 310 N.J. Super. 34 (App. Div. 1998), we had occasion to interpret the predecessor to the very statutory provision at issue here, N.J.S.A. 39:6A-4.5(a), prior to its amendment in 1997. In that case, we held that the original version of Section 4.5 was not meant to apply to owners of vehicles that are not operable at the time of the accident so long as there was no intent to operate them in or around the time. 310 N.J. Super. at 46-7.
It is evident from a reading of the amended version at issue, and from the line of cases construing similar-type statutory provisions, that simple ownership of an uninsured motor vehicle, alone, at the time of accident is not an absolute bar to recovery of damages as a result of the accident. On the other hand, it is also plain that actual operation of the uninsured vehicle at the accident scene is not necessary for N.J.S.A. 39:6A-4.5(a) to bar recovery. See Gibson, supra, 261 N.J. Super. at 585. Indeed, in Liberty Mut. Ins. Co. v. Hyman, 334 N.J. Super. 400 (Law Div. 2000), the court denied recovery of PIP and uninsured motorist (UM) benefits under N.J.S.A. 39:6A-7(b) and N.J.S.A. 39:6A-4.5 to an owner of a registered, but uninsured vehicle who was injured while a passenger in another automobile that was struck by the defendant driver. And in Jendrzejewski v. Allstate Ins. Co., 341 N.J. Super. 460 (App. Div.), certif. denied, 170 N.J. 209 (2001), we held that a pedestrian, who was struck by a motorist, was not precluded by operation of N.J.S.A. 39:6A-4.5(a) and -7 from receiving PIP benefits, not because he was not operating an uninsured automobile involved in the accident, but rather because his insolvent insurer did not render him "uninsured" within the meaning of the statutory punitory exclusions.
Between the two extremes of simple ownership and actual operation lies a host of circumstances involving uninsured vehicles that must be individually analyzed to determine the owner's eligibility to sue for economic and non-economic loss under N.J.S.A. 39:6A-4.5 The determination is necessarily fact sensitive. As the court in Foxworth, supra, noted: "[t]he problem is defining the point at which 'there can be no concern of injury by a financially irresponsible or uninsured motorist.'" 134 N.J. at 289 (quoting Caldwell, supra, 232 N.J. Super. at 412.
We believe that under N.J.S.A. 39:6A-4.5, the analysis must focus on the intent of the owner whether to operate the uninsured vehicle in or around the time of the accident, or not. This reading of the statute is consistent with the interpretation of similarly-worded statutes discussed above and most accurately reflects the purpose of the Legislature as suggested by the Foxworth holding and others. "A vehicle that is not, and will not be in the immediate future, operated on the roadways poses no danger of injury by a financially irresponsible or uninsured motorist." Carmichael v. Bryan, supra, 310 N.J. Super. at 46 (quoting Caldwell, supra, 232 N.J. Super. at 412). Accordingly, in those instances where the owner's intent not to operate his or her uninsured vehicle is manifest, see Lilly v. Prudential Ins. Co., supra, 246 N.J. Super. at 360, he or she should not be subject to the ineligibility provisions of N.J.S.A. 39:6A-4.5.
Here, the motion judge properly determined that ownership of an uninsured vehicle, by itself, is not a disqualifying event under N.J.S.A. 39:6A-4.5. And given the importance of the subjective element to the issue at hand, the court also properly determined that plaintiff's intent ought not be resolved on a motion for summary judgment on the state of this record. See Shanley & Fisher, P.C. v. Sisselman, 215 N.J. Super. 200, 212 (App. Div. 1987). See also Underwood v. Atlantic City Racing Ass'n, 295 N.J. Super. 335, 343 (App. Div. 1996), certif. denied, 149 N.J. 140 (1997).
In Gibson v. New Jersey Mfrs. Ins. Co., supra, we had occasion to relate the principles of summary judgment in the context of a case involving the same issue of intent as the subject case. There we stated: We recognize the difficulty of enforcing the exclusion in circumstances where the issue centers on the intent of the owner with regard to operation of the vehicle in or around the time of the accident. However, issues of subjective intent are often presented to the fact finder in our court system, both in criminal and civil cases. An examination of the surrounding facts and circumstances is required in such an undertaking. The dispute is a factual one which generally cannot be decided based merely upon a review of affidavits, certifications, or pleadings. The Law Division judge here erred in concluding on the papers that "the factual picture here does not warrant the findings of non-intent to operate the motor vehicle."
 
We hold that when an insurer comes forward with proof that the owner or registrant of an automobile registered or principally garaged in this State, who is seeking PIP benefits lacks PIP coverage, a prima facie case of exclusion has been established. The PIP claimant must then come forward and show that the vehicle was not being operated in or around the time of the accident, based on a conscious determination to prevent use of the uninsured vehicle as demonstrated by the conduct of the owner or registrant. Although the burden of producing evidence that the vehicle was purposely not being operated shifts to the claimant, the ultimate burden of persuasion as to the appropriateness of the exclusion should not shift from the insurer.
 
[Id. at 585-86 (citation omitted).]
 
We are satisfied that this case presents a genuine issue of material fact as to plaintiff's intent. Although there was evidence that plaintiff's automobile was moved from one side of the street to the other to avoid parking violations, the record is barren of any proof as to the frequency of these moves or their proximity in time to the accident. The record is unclear as well whether plaintiff owned another motor vehicle at the time and, if so, whether that vehicle was also uninsured. On the other hand, there was evidence that plaintiff specifically did not use the subject automobile because it was uninsured. Suffice it to say, a myriad of considerations inform the inquiry into a plaintiff's intent and the ultimate disqualification decision, including, among other things, the automobile's operability, the presence or absence of license plates and registration, and the prior use of the vehicle in relation to the subject accident. We believe that the state of the record before us, although not fully developed, raises disputed issues of material fact as to plaintiff's intent to operate the uninsured vehicle without the appropriate insurance.
On remand, the determination will have to be made after a plenary hearing. The motion judge suggested the determination would be that of the jury. We disagree. Since this aspect of the case is clearly statutory, the issue shall be resolved by the judge as fact finder. Carmichael v. Bryan, supra, 310 N.J. Super. at 49. Cf. Manetti v. Prudential Prop. & Cas. Ins. Co., 196 N.J. Super. 317, 320-21 (App. Div. 1984).
Affirmed in part; reversed in part and remanded. Footnote: 1 1Prior to its amendment in 1997, L. 1997, c. 151, 13, N.J.S.A. 39:6A-4.5(a) provided that any injured person who was required to carry medical expense benefits coverage, but who failed to do so, was subject to the verbal threshold, N.J.S.A. 39:6A-8, for the recovery of non-economic loss. This provision was interpreted to bar recovery of economic damages as well in automobile negligence actions. Monroe v. City of Paterson, 318 N.J. Super. 505 (App. Div. 1999).