DOLORES KLEIBER v. STATE FARM INSURANCE CO., et al.

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NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1614-04T31614-04T3

DOLORES KLEIBER,

Plaintiff-Appellant,

v.

STATE FARM INSURANCE CO.,

STATE FARM MUTUAL AUTOMOBILE

INSURANCE COMPANY and STATE

FARM INSURANCE COMPANIES,

Defendants-Respondents.

_______________________________________

 

Argued January 17, 2006 - Decided February 2, 2006

Before Judges C. S. Fisher and Yannotti.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. MON-L-4583-02.

Richard J. Weber argued the cause for appellant (Madnick, Milstein, Mason, Weber, Farnsworth & Collazo, attorneys; Mr. Weber, on the brief).

Patricia B. Adams argued the cause for respondents (Campbell, Foley, Lee, Murphy & Cernigliaro, attorneys; Ms. Adams, on the brief).

PER CURIAM

Plaintiff Dolores Kleiber appeals from an order entered October 22, 2004 granting summary judgment in favor of defendants State Farm Insurance Co., State Farm Mutual Automobile Insurance Company and State Farm Insurance Companies (State Farm).

We briefly summarize the facts relevant to our consideration of this appeal. Plaintiff was involved in an automobile accident on September 24, 1999 in Middletown, New Jersey. The driver of the other vehicle involved in the accident was not insured. Plaintiff's vehicle was insured under a policy issued in Florida by State Farm. Florida does not have compulsory uninsured motorist (UM) coverage and, on April 24, 1992, plaintiff refused to purchase optional UM coverage for her automobile. Plaintiff never changed that coverage choice and never purchased UM coverage under the Florida policy.

Plaintiff moved to New Jersey in or about January 1999. She began working as a school librarian and leased an apartment in Toms River for a year. Plaintiff testified at her deposition that initially it was not clear whether she would remain in New Jersey because she would have to return to Florida if her employment contract was not renewed. The contract apparently was renewed because on September 24, 1999, when the accident occurred, plaintiff was still residing in New Jersey.

At her deposition, plaintiff testified that in December 1998, before she left Florida, she called State Farm and one of its agents told her not to change the policy until she determined whether she would remain in New Jersey permanently. Plaintiff's policy came up for renewal in April 1999 and, according to plaintiff, State Farm's agent told her "not to change things." State Farm forwarded to plaintiff a renewal form at her New Jersey address.

On September 19, 2002, plaintiff filed a complaint seeking a declaratory judgment in which she alleged that, at the time the policy was issued in Florida, State Farm had "an obligation to" plaintiff, because State Farm knew that plaintiff "would be operating her motor vehicle in the State of New Jersey." Plaintiff also alleged that State Farm had "an obligation and a duty" to offer plaintiff optional coverage, as required by N.J.S.A. 17:28-1.1(b). State Farm filed an answer denying the allegations and on or about September 8, 2004, moved for summary judgment. The judge granted the motion and this appeal followed.

Plaintiff argues that the judge erred in entering judgment for State Farm. She contends that State Farm had a duty to inform her that she was required to register her car in New Jersey and obtain auto insurance coverage in this State. Plaintiff asserts that, had she been so informed, she would have purchased additional optional UM coverage in the amount of $100,000, which is the amount of the liability coverage she maintained under the Florida policy. Plaintiff also contends that summary judgment was inappropriate because there was a genuine issue of material fact as to whether State Farm should be estopped from denying plaintiff coverage in the amount of $100,000. We disagree with these contentions and affirm.

Under our court rules, summary judgment shall be granted if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. R. 4:46-2(c). "An issue of fact is genuine only if, considering the burden of persuasion at trial, the evidence submitted by the parties on the motion, together with all legitimate inferences therefrom favoring the non-moving party, would require submission of the issue to the trier of fact." Ibid. A genuine issue of material fact does not exist if there is "a single, unavoidable resolution of the alleged disputed issue of fact. . . ." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995)(citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S. Ct. 2505, 2511, 91 L. Ed. 2d 202, 213 (1986)). When reviewing an order granting summary judgment, we consider whether the motion judge correctly applied these principles. Prudential Property Ins. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). We are convinced that the judge properly granted summary judgment because there are no genuine issues of material fact and State Farm was entitled to judgment as a matter of law.

Here, it is undisputed that, at the time of the accident, plaintiff's automobile was insured under a Florida policy which did not provide UM coverage. It is also undisputed that State Farm transacts automobile insurance business here in New Jersey. As the motion judge correctly noted, in these circumstances, N.J.S.A. 17:28-1.4 applies. This statute, which is known as the "deemer" statute, provides in pertinent part that:

[a]ny 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 ...uninsured motorist insurance requirements of [N.J.S.A. 17:28-1.1]. . . .

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

The minimum amount of UM coverage required under N.J.S.A. 17:28-1.1 is $15,000 per person and $30,000 per accident. The statute provides as follows:

a. Except for a basic automobile insurance policy, no motor vehicle liability policy or renewal of such policy of insurance, ...shall be issued in this State with respect to any motor vehicle registered or principally garaged in this State unless it includes coverage in limits for bodily injury or death as follows:

(1) an amount or limit of $15,000.00, exclusive of interest and costs, on account of injury to, or death of, one person, in any one accident, and

(2) an amount or limit, subject to such limit for any one person so injured or killed, of $30,000.00, exclusive of interest and costs, on account of injury to or death of more than one person, in any one accident. . . .

[N.J.S.A. 17:28-1.1(a)(1) and (2).]

The statute additionally provides:

b. Uninsured and underinsured motorist coverage shall be provided as an option by an insurer to the named insured electing a standard automobile insurance policy up to at least the following limits: $250,000.00 each person and $500,000.00 each accident for bodily injury; $100,000.00 each accident for property damage or $500,000.00 single limit, subject to an exclusion of the first $500.00 of such damage to property for each accident, except that the limits for uninsured and underinsured motorist coverage shall not exceed the insured's motor vehicle liability policy limits for bodily injury and property damage, respectively.

[N.J.S.A. 17:28-1.1(b).]

Accordingly, by reason of the operation of N.J.S.A. 17:28-1.4, plaintiff is entitled under her Florida policy to the minimum amounts of UM coverage required by N.J.S.A. 17:28-1.1(a). See Whitaker v. DeVilla, 147 N.J. 341, 348 (1997)(holding that the "deemer" statute requires, among other things, that automobile insurance policies issued in other states by insurers authorized to transact auto insurance business in New Jersey will be deemed to include the mandatory minimum UM coverage required under N.J.S.A. 17:28-1.1).

Plaintiff argues that State Farm and its agents had a duty to inform her that she was required to obtain an auto insurance policy issued in this State. Pursuant to N.J.S.A. 39:6A-3, every owner of an automobile that is either registered in this State, or principally garaged here, must obtain auto insurance coverage with bodily injury, property damage and PIP coverage in the minimum amounts required by law. A vehicle is "principally garaged" in this State if New Jersey is the "physical location" where the vehicle is "kept most of the time." Chalef v. Ryerson, 277 N.J. Super. 22, 27 (App. Div. 1994)(citing Frasca v. United States, 702 F. Supp. 715, 718 (C.D.Ill. 1989)).

It is clear that, although plaintiff may have been initially uncertain as to whether she would remain in New Jersey after she moved here in or about January 1999, she resided in this State continuously for nine months. Therefore, the conclusion is inescapable that, in the nine months after January 1999, plaintiff's automobile was "principally garaged" in New Jersey and she was required to obtain an auto insurance policy in New Jersey. N.J.S.A. 39:6A-3.

Even so, we are not convinced that plaintiff is entitled to the $100,000 in UM coverage that she demands in this case. Had State Farm advised plaintiff to obtain a New Jersey policy for her automobile, that policy would have only included mandatory UM coverage in the amount of $15,000 per person/$30,000 per accident. N.J.S.A. 17:28-1.1(a). The insurer would have been required to offer plaintiff the option to purchase additional UM coverage. But there is no evidence whatsoever from which a reasonable fact finder could conclude that plaintiff would have exercised the option under N.J.S.A. 17:28-1.1(b) and purchased additional UM coverage in the amount of $100,000.

As we stated previously, UM coverage is not mandated under Florida law. The coverage is optional in that state and, in 1992, plaintiff was given the opportunity to purchase UM coverage. She declined. Plaintiff signed a certification dated April 24, 1992, which states the following:

YOU ARE ELECTING NOT TO PURCHASE CERTAIN VALUABLE COVERAGE WHICH PROTECTS YOU AND YOUR FAMILY OR YOU ARE PURCHASING UNINSURED MOTORIST LIMITS LESS THAN YOUR BODILY INJURY LIABLITY LIMITS WHEN YOU SIGN THIS FORM. PLEASE READ CAREFULLY.

The certification also states that plaintiff understood and agreed that her rejection of coverage applied to the policy "and future renewals or replacements of such policy which are issued at the same Bodily Injury Liability limits." The certification also states, "If I decide to change my selection or rejection of Uninsured Motorist Vehicle Coverage, I must let the company know in writing." Plaintiff did not subsequently change her "rejection" of UM coverage. Indeed, plaintiff renewed the Florida policy in April 1999, several months before the accident and she continued to decline the optional UM coverage available under the Florida policy.

In light of this undisputed evidence, we are not convinced that there is any factual support for plaintiff's assertion that she would have elected to purchase UM coverage (in addition to the $15,000/$30,000 required by N.J.S.A. 17:28-1.1) if one of State Farm's agents had informed her after she moved to New Jersey that she should obtain a New Jersey policy and provided her with that option. The evidence on this factual assertion is so "one-sided" that State Farm was entitled to prevail as a matter of law. Brill, supra, 142 N.J. at 540 (citing Liberty Lobby, supra, 477 U.S. at 252, 106 S. Ct. at 2512, 91 L. Ed. 2d at 214).

 
Affirmed.

(continued)

(continued)

9

A-1614-04T3

February 2, 2006