NORMAN SHOOK v. LISA COOK

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3006-05T53006-05T5

NORMAN SHOOK,

Plaintiff-Appellant,

and

ESTATE OF CHRISTINA WHITING,

and JOHN DITZLER,

Plaintiffs,

v.

LISA COOK,

Defendant-Respondent,

and

ALLSTATE INSURANCE COMPANY,

Defendant.

_________________________________

 

Submitted November 1, 2006 - Decided November 27, 2006

Before Judges Lefelt, Parrillo and Sapp-Peterson.

On appeal from the Superior Court of New Jersey,

Law Division, Camden County, L-2527-04.

Stephen W. Guice, attorney for appellant, Norman Shook.

Lawrence D. Lally, attorney for respondent, Lisa Cook.

PER CURIAM

Plaintiff Norman Shook appeals from that portion of a January 4, 2006 summary judgment dismissal of his personal injury automobile negligence lawsuit against defendant Lisa Cook, finding him subject to the verbal threshold. We affirm.

The material facts are not in dispute. On May 5, 2002, plaintiff, who did not own his own automobile, was driving a friend's car when it collided with a vehicle driven by defendant, who allegedly had run a red light at an intersection in Brooklawn Borough. Plaintiff sued defendant for personal injuries he allegedly suffered in the automobile accident. Defendant answered and interposed the verbal threshold as an affirmative defense. Discovery ensued. Defendant propounded on plaintiff a Notice to Produce requesting, among other things, a copy of the private passenger automobile insurance policy in effect for plaintiff at the time of the accident. Defendant also directed to plaintiff a Request to Admit as to the applicability of the verbal threshold. Plaintiff never responded whether he had the verbal threshold. A letter to plaintiff's counsel reiterating the request was never answered, nor was defendant's Notice to Produce nor Request to Admit. Pursuant to Rule 4:22-1, defendant deemed the Request to Admit admitted.

Defendant subsequently moved for summary judgment. Because plaintiff never filed a verbal threshold certification of a treating physician with his complaint, it was stipulated for purposes of the summary judgment motion that plaintiff's proofs did not vault the verbal threshold of N.J.S.A. 39:6A-8 if indeed that standard applied. Thus, the sole issue on the summary judgment motion was the applicability of the verbal threshold standard which, in turn, depended on whether plaintiff, who had no automobile of his own, was a resident of his father's household and therefore bound by the verbal threshold option of his father.

On the return date of the motion, the court heard argument and proofs on the residency issue. Plaintiff himself represented that he moved into the home of his girlfriend's parents, Ronald and Antoinette Whiting, at 57 Baynes Avenue in Gloucester City, a day or two before the accident because of arguments with his own parents. Although the Whitings could not specify the date when plaintiff arrived, all agreed the arrangement was temporary, until plaintiff "got situated." At the time of the accident, however, plaintiff was still working daily with his father as a mechanic at his father's garage.

It appears that as of the date of the accident, plaintiff never effectuated a change of his legal residence from that of his parents at 111 Cove Road, Mantua, nor used the Whitings' address as his legal residence. He never received mail at the Whiting home until much later after the accident. Medical billings resulting from treatment of injuries sustained in the accident were sent to his parents' home, and not the Whitings'. His driver's license continued to list his address as that of his parents and the police incident report listed that address as well. Most significant, plaintiff applied for and received personal injury protection (PIP) benefits under his father's automobile insurance policy, claiming to be a resident of the insured's household and therefore eligible for such benefits under N.J.S.A. 39:6A-4.

At the conclusion of the hearing, the motion judge granted summary judgment dismissing plaintiff's complaint, finding as a matter of law that plaintiff was a resident of his father's household and therefore subject to the verbal threshold. The judge reasoned:

So, I conclude, and I find the Whiting household was not a permanent residence of the young man. He still resided, in this Court's opinion, for -- for insurance purposes with his parents. I conclude and I find that there was not enough indicia of residency at the Whiting's household for this Court to conclude that he was there. And insurance coverage was not available to him from his father.

I'm satisfied . . . that he'd only been there perhaps shortly before the accident had occurred. And in this Court's opinion, there's no track record, substantial track record, which would cause this Court to conclude that he was indeed a resident of 57 Baynes. In this Court's opinion, he still remained . . . his residence was with his parents, where he lived there. I just cannot conclude that he established a residence in the Whiting household. In this Court's opinion, he was there on a temporary basis, as was testified by the Whitings.

And so the -- the coverage that will be required for -- it would be the coverage that existed at the time that he resided with his parents in the - the Shook household. That's my ruling, counselor.

. . . .

Based on what I've heard, I'm satisfied that he was there at the Whiting household on a temporary basis. [A]fter hearing the testimony of the Whitings, I'm convinced. I recognize that he just moved there, he'd only been there a couple -- a few days.

And in my opinion, there was not sufficient indicia of establishing that residence to conclude that he was a resident of the Whiting household. He was a resident, in this Court's opinion, of the Shook household, where he was residing since he was younger. And he, indeed, he even went back to work with his dad. He went back to work with his father. So whatever disagreement they perhaps may have had, was only a minor disagreement in my opinion

. . . .

On appeal, plaintiff contends the motion judge erred in finding plaintiff a resident of his father's household and therefore subject to the verbal threshold. Because there is no real conflict as to the material, central facts in this case and the parties only dispute the legal conclusions to be drawn therefrom, we find the matter ripe for summary judgment determination. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). Although in reviewing that decision we owe no special deference to the "trial court's interpretation of the law and the legal consequences that flow from established facts," Manalapan Realty, L.P. v. Tp. Comm. of Manalapan, 140 N.J. 366, 378 (1995), our analysis of the record leads us to the same conclusion as the one reached by the motion judge. Simply put, the undisputed evidence leads to the inexorable finding that plaintiff was a resident of his father's household at the time of the automobile accident.

N.J.S.A. 39:6A-8.1, entitled "Election of tort option," sets forth the requirements with regard to electing a lawsuit threshold option and the applicability of that election. The relevant provision states the following:

a. Election of a tort option . . . shall be in writing and signed by the named insured [on the required form] . . . . The tort option elected shall apply to the named insured and any immediate family member residing in the named insured's household. "Immediate family member" means he spouse of the named insured and any child of the named insured or spouse residing in the named insured's household, who is not a named insured under another automobile insurance policy.

[N.J.S.A. 39:6A-8.1a (emphasis added).]

Thus, the tort option selected by the named insured binds that person and the immediate family members residing in his or her household who are not otherwise insured under another auto policy. Ibid. Likewise, under N.J.S.A. 39:6A-4, a resident family member is entitled to PIP coverage under the named insured's policy for injuries sustained in any automobile. "The scheme of holding immediate family members to the tort option selected by their named insured, whose PIP premiums cover their medical expenses, is compatible with and carries out the main goals of the PIP and tort threshold statutes." Harbold v. Olin, 287 N.J. Super. 35, 41 (App. Div. 1996); see also Beaugard v. Johnson, 281 N.J. Super. 162, 168-71 (App. Div. 1995). Here, plaintiff applied for and collected PIP benefits on the basis of his declared residency as a member of his father's household. It follows therefore that he should be bound by his father's verbal threshold option. But cf. Ibarra v. Vetrano, 302 N.J. Super. 578, 582 (App. Div. 1997). Under these particular facts and circumstances, we discern no reason for treating the question of plaintiff's residency differently for purposes of determining eligibility for PIP coverage on the one hand, and the verbal threshold option on the other. Simply put, we see no principled distinction requiring a different interpretation here of the "residency" criterion.

Although the decision of the motion judge is sustainable on this basis alone, the record lends even further support. We note, at the outset, that the terms "household" and "residing" are not defined in the statute. Indeed, these terms do not have "any absolute meaning." Sjoberg v. Rutgers Cas. Ins. Co., 260 N.J. Super. 159, 162 (App. Div. 1992) (quoting Miller v. U.S. Fid. and Guar. Co., 127 N.J. Super. 37, 41 (App. Div. 1974)). Whether a family member is included under the operative language of N.J.S.A. 39:6A-8.1a will depend on the facts of each case. Sjoberg, supra, 260 N.J. Super. at 164.

Although the terms "bona fide resident" and "domicile" may be "synonymous" for some purposes, Voss v. Voss, 5 N.J. 402, 406-07 (1950); Raybin v. Raybin, 179 N.J. Super. 121, 126-27 (App. Div. 1981) (interpreting N.J.S.A. 2A:34-10), it is clear that while a person may have only one domicile, he or she may have more than one residence. Gibson v. Callaghan, 158 N.J. 662, 674 (1999); Am. Employers' Ins. Co. v. Elf Atochem N. Am., Inc., 157 N.J. 580, 590 (1999). Thus, there is substantial case law in this State construing the terms "household member," "resident relative" and similar phrases in the context of insurance coverage disputes, which recognizes the concept of a "substantially integrated family relationship" in determining whether individuals share a common household even when they reside at different locations. See Roman v. Correa, 352 N.J. Super. 124, 127-28 (App. Div. 2002); see also Gibson v. Callaghan, supra, 158 N.J. at 673.

Stated somewhat differently, a person can be a member of two households for insurance coverage purposes. In the context of PIP coverage, we held that a daughter who lived with her mother in a different state was a member of her father's household. Sjoberg, supra, 260 N.J. Super. at 162-65. In Arents v. Gen. Acc. Ins. Co., 280 N.J. Super. 423 (App. Div. 1995), in finding a son's underinsured motorist (UIM) coverage extended to his father, we concluded that an adult son was a resident of his parents' household, although the son resided in his own apartment during the week. In so holding, we considered the fact that the insured kept clothing at his parents' house, that he had a car garaged, registered, and insured at that address, and that he made household repairs. Id. at 425-26. We noted that "[a] 'substantially integrated family relationship' is the touchstone of a household. Exclusivity of residences or households is not demanded . . . ." Id. at 429 (citations omitted). See also Ohio Cas. v. Estate of Wittkopp, 326 N.J. Super. 407, 412-414 (App. Div. 1999) (holding that the child of divorced parents was a "resident" of her non-custodial father's household and covered for UIM benefits under his automobile insurance policy). As for uninsured motorist (UM) coverage, in Garrison v. Travelers Ins. Co., 261 N.J. Super. 209 (Law Div. 1992), the trial court found that the child of separated parents was a "resident relative" of her father's household, although the child resided with her mother. And, significant for present purposes, the concept of "dual household residency" was extended to N.J.S.A. 39:6A-8.1a in Roman v. Correa, supra. There, we concluded in principle that an immediate family member may reside in more than one household so as to be bound by the tort option election of the head of the household. 352 N.J. Super. at 129.

Thus, plaintiff's temporary living arrangement with the Whitings is not the touchstone of the residency issue, and dual residencies are not necessarily mutually exclusive for purposes of N.J.S.A. 39:6A-8.1a. Rather, the meaning of "residing" and "household" will vary depending on the circumstances of a given case. Miller, supra, 127 N.J. Super. at 41. On the undisputed facts here, we are satisfied that plaintiff was residing in his father's household within the meaning of N.J.S.A. 39:6A-8.1a so as to be bound by the father's verbal threshold election. He had resided with his parents until only shortly before the auto accident. At the time, plaintiff took no steps to effect a change of legal residence, holding himself out to the investigating police and medical providers as residing at his parents' address, where, among other things, he received his mail. Indeed, he provided no contrary proof when asked in discovery to acknowledge residency in his father's household. And most telling of all, plaintiff applied for and collected PIP benefits under his father's insurance policy as a "resident" of the named insured's household.

The summary judgment in favor of defendant is affirmed.

 

 

Co-plaintiff Christina Whiting was a passenger in the vehicle driven by plaintiff. She has since died and her estate was substituted in as co-plaintiff.

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11

A-3006-05T5

November 27, 2006