BRENDA DEMA v. MARY ANN BRESLIN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3504-09T1

BRENDA DEMA,

Plaintiff-Respondent,

v.

MARY ANN BRESLIN and JASON

BRESLIN,

Defendants-Appellants.

________________________________

December 7, 2010

Argued October 20, 2010 - Decided

Before Judges Fisher and Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-6260-07.

Robert Aaron Greenberg argued the cause for appellants (Aronberg & Kouser, attorneys; Mr. Greenberg, of counsel and on the brief).

Barbara J. Davis argued the cause for respondent (Marshall, Dennehey, Warner, Coleman & Goggin, attorneys; Ms. Davis, of counsel and on the brief; Jessica D. Wachstein, on the brief).

PER CURIAM

Plaintiff appeals from the March 5, 2010 order granting summary judgment dismissing her complaint against defendants after the motion judge concluded that plaintiff's failure to maintain the requisite automobile insurance precluded her from maintaining a claim for economic and non-economic losses. We affirm.

On December 25, 2005, plaintiff was involved in a motor vehicle accident while operating an uninsured vehicle. The vehicle was registered in the name of her former husband, from whom she had just been divorced approximately two weeks earlier, on December 9. According to plaintiff's testimony during her deposition, the vehicle was given to her as part of the parties' equitable distribution of their marital assets. Plaintiff also testified that her husband was "responsible for maintaining [the vehicle] until it got transferred into [her] name" and that she was unaware that the vehicle was uninsured.

In granting summary judgment, the motion judge rejected plaintiff's argument that under our decision in Dziuba v. Fletcher, 382 N.J. Super. 73 (App. Div. 2005), aff'd o.b., 188 N.J. 339 (2006), she was not "culpably uninsured" and therefore not precluded from recovering economic and non-economic damages. The court concluded that N.J.S.A. 39:6A-4.5 (or Act) is construed objectively, rather than subjectively, and that plaintiff was precluded from recovering for her losses since she operated the vehicle while it was uninsured.

On appeal plaintiff urges that "[u]nder the limited circumstances and facts of this case, [she] is not barred from an action to recover non[-]economic, pain and suffering damages under [N.J.S.A. 39:6A-4.5]." We agree with the motion judge that the application of the prohibition against recovery for non-economic damages is determined by an objective standard.

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. Atlantic 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. Twp. Comm. 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). Because the factual record before the motion judge here was largely undisputed, we focus our discussion upon the motion judge's legal determination.

N.J.S.A. 39:6A-4.5(a) through (c) establishes the three categories of persons who may not recover for economic and non-economic losses for injuries arising out of motor vehicle accidents. It is undisputed that only subsection (a) applies to the present facts:

a. Any person who, at the time of an automobile accident resulting in injuries to that person, is required but fails to maintain medical expense benefits coverage mandated by section 4 of P.L.1972, c. 70 (C.39:6A-4) , section 4 of P.L.1998, c. 21 (C.39:6A-3.1) or section 45 of P.L.2003, c.89 (C.39:6A-3.3) shall have no cause of action for recovery of economic or noneconomic loss sustained as a result of an accident while operating an uninsured automobile.

The Supreme Court, in construing this subsection, upheld the Legislature's right to impose conditions upon the right to sue in automobile accidents. Caviglia v. Royal Tours of Am., 178 N.J. 460, 467 (2004) (noting that "[a] common thread throughout the evolution of the no-fault scheme has been the periodic inclusion of additional conditions on the right to sue in automobile accident cases); see also Johnson v. Scaccetti, 192 N.J. 256, 269 (2007) (iterating that "the primary aim of the various no-fault statutory schemes has been to achieve 'lower premiums and prompt payment of medical expenses' by restricting the insured's unlimited right to sue for noneconomic damages for injuries suffered in an automobile accident." (quoting DiProspero v. Penn, 183 N.J. 477, 485 (2005))).

In Caviglia, supra, the plaintiff driver was injured while operating his uninsured motor vehicle. He argued that the statutory bar to his recovery of non-economic damages from the tortfeasor, because his vehicle was uninsured, violated his federal and state constitutional guarantees of equal protection and due process. The trial court, which initially rejected this argument, upon reconsideration, agreed and denied the defendant's summary judgment motion. We affirmed on appeal. Caviglia v. Royal Tours of Am., 355 N.J. Super. 1 (App. Div. 2002). The Supreme Court reversed.

The Court first noted that N.J.S.A. 39:6A-4.5 "advances a policy of cost containment by ensuring that an injured, uninsured driver does not draw on the pool of accident-victim insurance funds to which he did not contribute." Caviglia, supra, 178 N.J. at 471. It next observed that "[p]reconditions on the filing of lawsuits are a common feature of our laws," and provided examples of such preconditions. Id. at 473; see, e.g., N.J.S.A. 2A:14-1 (statute of limitations); see also N.J.S.A. 59:8-8 (filing a notice of claim against a public entity is a condition precedent to filing a claim under the Tort Claims Act, N.J.S.A. 59:1-1 to -12-3). The Court also recognized that the "[l]egislatures are empowered to pass laws to meet the pressing social needs of the times, even if those laws seem to others ill-advised." Caviglia, supra, 178 N.J. at 477. Additionally, the Court stated that N.J.S.A. 39:6A-4.5 "serves the public welfare by promoting compliance with our compulsory insurance laws." Id. at 479. Finally, the Court expressed that "uninsured drivers do not belong to a class entitled to heightened protections under our Federal or State Constitutions," ibid., and that "[i]f a statutory distinction has some reasonable basis, a State does not violate the Equal Protection Clause merely because the classifications made by its laws are imperfect." Id. at 480 (quotations and internal quotation marks omitted).

More recently, the Court rejected an attempt to engraft the element of scienter into the exclusionary provisions of N.J.S.A. 39:6A-7 where the plaintiff, a passenger in a stolen vehicle, claimed that he was not only unaware that the vehicle was stolen but also unaware that the driver did not have permission of the owner to operate the motor vehicle. Hardy ex rel. Dowdell v. Abdul-Matin, 198 N.J. 95, 98 (2009). The Court once again noted that the purpose of auto insurance reform, and in this case, the "Insurance Freedom of Choice and Cost Containment Act of 1984, L. 1983, c. 362, was the reduction in private insurance costs, not the expansion of coverage." Id. at 105. The Court expressed the view that

to impose a scienter requirement in a private insurance policy where the express terms of the policy do not impose such a requirement would be inconsistent with the intent of the Legislature to reduce insurance premiums. Rather, consistent with the Legislative intent to reduce costs, we hold that the Legislature intended to authorize insurance companies to exclude PIP claims when the injured person did not have the permission of the owner to occupy the vehicle.

[Ibid.]

This reasoning applies equally to plaintiff's contention that she was not "culpably uninsured" for purposes of the exclusionary provisions of N.J.S.A. 39:6A-4.5(a). She acquired the vehicle as part of the divorce settlement, and although title had not yet been transferred to her, at the very least, she was the beneficial owner of the vehicle. Dziuba, supra, 382 N.J. at 78. Consequently, she was responsible for making sure the vehicle was properly insured. Having failed to do so, and having sustained injuries while operating her own uninsured vehicle, she is barred from PIP coverage, and from recovering economic and non-economic losses. Id. at 82.

Affirmed.