NANCY CHIRINO v. ELIO J. SANTANA PEREZ

(NOTE: The status of this decision is published.)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0911-06T10911-06T1

NANCY CHIRINO,

Plaintiff-Appellant,

and

CARLOS CHIRINO,

Plaintiff,

v.

ELIO J. SANTANA PEREZ,

Defendant-Respondent.

_________________________________

 

Submitted May 16, 2007 - Decided

Before Judges Wefing and Parker.

On appeal from Superior Court of New Jersey,

Law Division, Hudson County, No. L-1984-04.

DeZao & DiBrigida, attorneys for appellant

(James C. DeZao, on the brief).

O'Toole & Couch, attorneys for respondent

(Kevin J. DeCoursey, of counsel; Gregory F.

McGroarty, on the brief).

PER CURIAM

Plaintiff Nancy Chirino appeals from a trial court order dismissing her complaint against defendant Elio Santana Perez. After reviewing the record in light of the contentions advanced on appeal, we affirm.

Ms. Chirino was involved in a motor vehicle accident in January 2003 when a vehicle she was driving collided with a vehicle driven by defendant. Ms. Chirino began suit for her injuries. Ms. Chirino's car was registered in the name of her husband, Carlos Chirino, and was insured through New Jersey Manufacturers Insurance Co. ("NJM"). We are informed that in a separate proceeding, NJM obtained an order declaring that policy null and void due to material misrepresentations by Carlos Chirino; specifically, he failed to list Ms. Chirino on the policy. NJM relied upon Palisades Safety & Ins. Assn. v. Bastien, 175 N.J. 144 (2003), in which the Supreme Court held that a failure to list one's spouse as a resident driver was a material misrepresentation precluding that spouse from thereafter obtaining PIP benefits under that policy.

Based upon the voiding of the Chirino policy, defendant thereafter sought to dismiss the complaint. Plaintiff, however, maintained that she was entitled to pursue a claim for non-economic damages based upon Dziuba v. Fletcher, 382 N.J. Super. 73 (App. Div. 2005), aff'd, 188 N.J. 339 (2006). The plaintiff in that action was a passenger in a car that was involved in an automobile accident, and he commenced suit for his injuries. Discovery revealed that plaintiff and his wife owned several automobiles, none of which were insured, and which he routinely drove in that uninsured state. Id. at 78-79. Plaintiff named as defendants to his suit both the drivers involved in the accident as well as the insurance company for the driver of the vehicle in which he was a passenger, seeking to recover PIP benefits from that carrier. He was precluded from presenting a claim for economic loss damages against the allegedly negligent driver as well as from receiving PIP benefits from his driver's insurer. Id. at 80. In light of the fact, however, that at the time of the accident he was not driving one of his uninsured vehicles, he was ruled not ineligible to pursue a claim for his non-economic loss. Id. at 82.

In our judgment, Dziuba is entirely distinguishable from the present matter and provides no basis to reverse the trial court's order. Plaintiff's argument overlooks a critical distinction: the accident in Dziuba did not involve the uninsured driver driving an uninsured vehicle. Rather, in Dziuba, the uninsured driver was a passenger in an insured vehicle. Here, the NJM policy having been voided due to material misrepresentations, plaintiff was involved in an accident while driving an uninsured vehicle. As such, she is barred from pursuing this suit for damages.

Finally, we note in conclusion the unsatisfactory manner in which this matter was presented to the trial court and to this court. Rather than presenting material developed through discovery or certifications based upon personal knowledge, the underlying facts are found in statements by the attorneys in oral argument to the trial court. We considered dismissing this appeal on that basis but rejected that option in light of the fact that counsel did brief the issues. Counsel should be aware, however, that they cannot expect a similar result in the future.

The order under review is affirmed.

 

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A-0911-06T1

July 11, 2007