MASSA WILSON v. TANYA DAVIS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3460-09T3

MASSA WILSON,

Plaintiff-Appellant,

v.

TANYA DAVIS,

Defendant-Respondent.

______________________________

T

December 22, 2010

elephonically argued: December 9, 2010 - Decided:

 

Before Judges Sapp-Peterson and Fasciale.

 

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-2725-08.

 

Craig A. Altman argued the cause for the appellant (Law Offices of Craig A. Altman, attorneys; Mr. Altman, on the brief).

 

Patrick F. Carrigg, argued the cause for the respondent (Lenox, Socey, Formidoni, Brown, Giordano, Cooley & Casey, LLC, attorneys; Mr. Carrigg, on the brief).

PER CURIAM

In this verbal threshold case, plaintiff appeals from a March 19, 2010 order granting summary judgment to defendant Tanya Davis. The only question is whether the limitation on lawsuit option, N.J.S.A. 39:6A-8a, applies. A genuine issue of material fact exists concerning whether plaintiff resided in her mother's household at the time of the automobile accident. We reverse and remand for further findings of fact.

Plaintiff filed this personal injury lawsuit seeking damages for soft tissue injuries she sustained in an accident on November 16, 2006. On the day of the accident, plaintiff had permission to drive a car owned by her mother, Regina Sunday. Plaintiff did not own a vehicle.

Ms. Sunday obtained automobile insurance from Mercury Insurance Group (Mercury), elected the limitation on lawsuit option, and is listed as the named insured on the policy. Plaintiff is listed as a driver on the declarations page, and received personal injury benefits (PIP) from Mercury. The police report listed plaintiff's address as 1 Bruce Park Drive B-3, and Ms. Sunday's address as 11 Eisenhower Avenue.

Defendant filed her motion for summary judgment and argued that plaintiff failed to overcome the limitation on lawsuit option. Plaintiff contended that she was not subject to the lawsuit on limitation option because she did not reside with her mother.1 The judge granted defendant's motion and concluded that the verbal threshold applied. The judge stated that:

[P]laintiff was clearly an insured under her mother's policy, no matter that she was not literally labeled as such on the policy's declaration page. She was listed as a covered driver on the policy and was driving her mother's car at the time of the accident. She was granted health benefits under the policy's PIP coverage.

 

On appeal, plaintiff contends that a genuine issue of material fact exists about where she resided on the day of the accident and that defendant was not entitled to judgment as a matter of law.

When reviewing a grant of summary judgment, we employ the

same legal standards used by the motion judge. Spring Creek

Holding Co. v. Shinnihon U.S.A. Co., 399 N.J. Super. 158, 180

(App. Div.), certif. denied, 196 N.J. 85 (2008); Prudential

Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App.

Div.), certif. denied, 154 N.J. 608 (1998). First, we determine

whether the moving party has demonstrated that there were no

genuine disputes as to material facts, and then we decide

whether the motion judge's application of the law was correct. Atl. Mut. Ins. Co. v. Hillside Bottling Co., Inc., 387 N.J.

Super. 224, 230-31 (App. Div.), certif. denied, 189 N.J. 104

(2006). In so doing, we view the evidence in the light most

favorable to the non-moving party and analyze whether the moving

party was entitled to judgment as a matter of law. Brill v.

Guardian Life Ins. Co. of Am., 142 N.J. 520, 523, 529 (1995).

We accord no deference to the motion judge's conclusions on

issues of law, Manalapan Realty, L.P., v. Township Committee of

Manalapan, 140 N.J. 366, 378 (1995), which we review de novo.

Spring Creek, supra, 399 N.J. Super. at 180; Dep't of Envtl.

Prot. v. Kafil, 395 N.J. Super. 597, 601 (App. Div. 2007).

Pursuant to N.J.S.A. 39:6A-8.1(a), the tort option selected applies to a named insured and "any immediate family member residing in the named insured's household." Plaintiff testified in her deposition that at the time of the accident she resided with her ex-boyfriend at 1 Bruce Park Drive, the address listed in the police report. Plaintiff testified that she moved in with her mother after the accident.

Defendant contends that plaintiff testified that she stopped living at 1 Bruce Park Drive before the accident and moved in with her mother, identified Mercury as her insurance policy, and failed to tell the police that Mercury was her mother's policy. Defendant also argues that because Mercury paid plaintiff PIP benefits, plaintiff is subject to the verbal threshold elected by her mother. This is incorrect. See Ibarra v. Vetrano 302 N.J. Super. 578, 582 (App. Div. 1997) ("Defendant also suggests that a person who collects PIP benefits under a policy should be bound by the verbal threshold contained in the policy. Not so. PIP benefits advance the legislative policy that all persons injured in automobile-related accidents should be quickly and effectively compensated . . . .").

Viewing the evidence in the light most favorable to plaintiff, we conclude that a fact issue exists concerning where plaintiff resided at the time of the accident.

We reverse and remand for further findings of fact. We do not retain jurisdiction.

1 Plaintiff conceded that her soft tissue injuries would not satisfy the criteria of N.J.S.A. 39:6A-8a.