TYRONE S. HENRY, SR v. SANTOSH S. BHOWMIK
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3331-15T4
TYRONE S. HENRY, SR.,
INDIVIDUALLY AND AS THE
ADMINISTRATOR OF THE ESTATE
OF TYRONE S. HENRY, JR.,
Plaintiff,
v.
SANTOSH S. BHOWMIK,
Defendant,
and
CURE AUTO INSURANCE,
Defendant-Appellant,
and
THE NEW JERSEY PROPERTY
LIABILITY INSURANCE
GUARANTY ASSOCIATION,
Defendant-Respondent.
————————————————————————————————
Argued October 24, 2017 – Decided February 8, 2018
Before Judges Hoffman and Mayer.
On appeal from Superior Court of New Jersey,
Law Division, Atlantic County, Docket No.
L-6636-14.
Chad B. Sponder argued the cause for appellant
(Eric S. Poe, of counsel and on the brief;
Abbey True Harris, on the briefs).
Mark M. Tallmadge argued the cause for
respondent (Bressler, Amery & Ross, PC,
attorneys; Mark M. Tallmadge, on the brief).
Matthew R. Major argued the cause for
intervenor-respondent AtlantiCare Regional
Medical Center (Wilson, Elser, Moskowitz,
Edelman & Dicker, LLP, attorneys; Matthew R.
Major, of counsel and on the brief).
PER CURIAM
Defendant CURE Auto Insurance (CURE) appeals from an October
26, 2015 Law Division order granting plaintiff's motion for summary
judgment, requiring CURE to provide personal injury protection
(PIP) benefits, as a matter of law, to plaintiff, administrator
of the estate of his late son, Tyrone S. Henry Jr. (Tyrone). CURE
argues the trial court erred in its application of the law by
finding CURE liable for PIP benefits for an unnamed additional
insured under the terms of a voided insurance contract.
At the outset, we note this appeal is interlocutory because
CURE filed this appeal before the trial court made findings on
damages. Nevertheless, because dismissal of this appeal, at this
juncture, would cause further undue delay in the payment of
2 A-3331-15T4
substantial unpaid medical bills,1 we therefore sua sponte grant
leave to appeal nunc pro tunc the issue of CURE's liability for
PIP benefits. R. 2:4-4(b)(2); see also Medcor, Inc. v. Finley,
179 N.J. Super. 142, 144-45 (App. Div. 1981) (holding this court
has discretion on whether to grant leave to appeal from an
interlocutory order). For the reasons that follow, we affirm and
remand for the Law Division to determine damages.
I
On January 31, 2014, Tyrone sustained serious injuries after
an automobile driven by defendant Santosh Bhowmik struck him as
he walked across an intersection in Pleasantville. Tyrone
ultimately died from his injuries on February 8, 2014, after first
incurring substantial medical treatment bills at AtlantiCare
Regional Medical Center (AtlantiCare).2 At the time of the
accident, Tyrone lived in Ocean City with his cousin, Chanel Pitt,
who owned an automobile that CURE insured.
On December 8, 2014, plaintiff filed a complaint in the Law
Division, Atlantic County, against defendants, Bhowmik, CURE, and
1
"The prompt distribution of PIP benefits to accident victims
has remained a staple of the no-fault system since that system was
first developed." Rutgers Cas. Ins. Co. v. LaCroix,
194 N.J. 515,
523 (2008).
2
According to AtlantiCare's brief, Tyrone spent eight days in
intensive care before expiring, resulting in an unpaid treatment
bill of $378,042.70.
3 A-3331-15T4
The New Jersey Property Liability Insurance Guaranty Association
(PLIGA). In relevant part, the complaint sought to recover PIP
benefits from CURE, or alternatively, from PLIGA, for the injuries
and subsequent death of Tyrone.
On January 8, 2015, PLIGA filed an answer with cross-claims
denying the material allegations of the complaint. On January 28,
2015, CURE filed an answer with counterclaims and cross-claims,
denying the complaint's allegations and seeking a declaration that
the CURE insurance policy at issue was void, and thus, PLIGA was
liable to plaintiff for PIP benefits. At that time, CURE had
already filed a separate declaratory judgment action against Pitt
in Cape May County in November 2014, seeking to void her insurance
policy for material misrepresentations in failing to disclose all
household members as of her March 2, 2012 policy renewal.3
On July 6, 2015, plaintiff moved for summary judgment seeking
a declaration obligating either CURE or PLIGA to pay PIP benefits,
and to consolidate the proceeding with the declaratory judgment
action filed by CURE in Cape May County. CURE and PLIGA opposed
the summary judgment motion, which the Atlantic County judge
initially denied without prejudice on August 26, 2015, finding
3 On March 2, 2010, Pitt first obtained automobile insurance from
CURE; the policy renewed annually.
4 A-3331-15T4
that a "dispute of fact" remained. The judge also denied the
consolidation motion.
In early September 2015, plaintiff filed a motion for
reconsideration of the denial of his summary judgment motion,
which CURE again opposed. In his motion, plaintiff cited Citizens
United Reciprocal Exch. v. Perez,
223 N.J. 143, 151-52 (2015),
decided by our Supreme Court the previous month for the proposition
that innocent third parties remain eligible to collect PIP
benefits, even when a policy is rescinded for a material
misrepresentation made by the insured at the inception of the
policy.
Meanwhile, CURE requested a proof hearing in its declaratory
judgment action after Pitt failed to answer its complaint. On
September 16, 2015, a Cape May County judge held a proof hearing
and then entered a final judgment declaring the Pitt policy void
ab initio, finding Pitt made "material misrepresentations in
failing to disclose all household members" at the time of her
March 2012 policy renewal.
Thus, CURE agreed with plaintiff that reconsideration of the
motion was appropriate, but on a different basis; namely that its
insurance policy had been officially declared void ab initio by
the Cape May County judge. CURE further asserted that Perez did
5 A-3331-15T4
not apply, arguing instead that Lovett v. Alan Lazaroff & Co.,
244 N.J. Super. 510 (App. Div. 1990) governed this dispute.
On reconsideration, the Atlantic County judge concluded
plaintiff was an innocent third party and thus entitled to PIP
benefits from CURE for three reasons: (1) Tyrone was unaware of
the misrepresentations Pitt made to CURE; (2) there was no
assertion that Tyrone benefitted from the misrepresentations; and
(3) Tyrone did not have input in the policy's procurement.
Following the grant of summary judgment, on February 22,
2016, a different judge entered an order confirming a settlement
between plaintiff and Bhowmik. On March 4, 2016, the court entered
an order dismissing plaintiff’s claims against PLIGA. On April
1, 2016, the court entered an order permitting AtlantiCare to
intervene to pursue its claim for payment of medical expenses
arising out of treatment provided to Tyrone. On April 6, 2016,
CURE filed a notice of appeal from the October 26, 2015 summary
judgment order.
II
We review the trial court's grant of summary judgment de
novo, applying the same standard as the trial court. Abboud v.
Nat'l Union Fire Ins. Co. of Pittsburgh,
450 N.J. Super. 400, 406
(App. Div. 2017). We should affirm summary judgment if the record
shows "no genuine issue as to any material fact challenged and
6 A-3331-15T4
. . . the moving party is entitled to a judgment or order as a
matter of law." Ibid. (quoting Templo Fuente de Vida Corp. v.
Nat'l Union Fire Ins. Co. of Pittsburgh,
224 N.J. 189, 199 (2016));
see also Brill v. Guardian Life Ins. Co. of Am.,
142 N.J. 520, 540
(1995); R. 4:46. We afford no special deference to the legal
conclusions of the trial court. Templo Fuente,
224 N.J. at 199.
Therefore, because no genuine issue of material fact exists in the
record, we review de novo the trial court's legal determination
that Tyrone, an "additional insured" under the policy under review,
is entitled to PIP benefits from CURE as an innocent third party.
Ibid.
Our Supreme Court has described the remedy of rescission as
follows:
Rescission remains a form of equitable relief
in whatever setting its need arises, and
courts wielding that remedy retain the
discretion and judgment required to ensure
that equity is done. In furtherance of that
objective, a court may shape the rescission
remedy in order to serve substantial justice.
. . . The power to mold the rescission remedy
to do justice under the circumstances is
perforce available when rescission is employed
in the insurance context.
[LaCroix,
194 N.J. at 528-29.]
New Jersey’s no-fault scheme imposes a requirement that
insurers promptly pay PIP benefits to reimburse those injured in
7 A-3331-15T4
automobile accidents regardless of fault.
N.J.S.A. 39:6A-4 in
relevant part states:
[E]very standard automobile liability
insurance policy . . . shall contain [PIP]
benefits for the payment of benefits without
regard to . . . fault of any kind, to the
named insured and members of his [or her]
family residing in his [or her] household who
sustain bodily injury as a result of an
accident while occupying, entering into,
alighting from or using an automobile, or as
a pedestrian . . . and to other persons
sustaining bodily injury while occupying,
entering into, alighting from or using the
automobile of the named insured, with
permission of the named insured.
[(emphasis added).]
More simply stated, there are two main coverage classes for PIP
benefits under the statute: (1) the named insured (first-party
insured) and family members residing in the household (additional
insureds), and (2) other persons injured while occupying, entering
into, alighting from or using the vehicle of the named insured
with that person’s permission. LaCroix,
194 N.J. at 523.
The law in New Jersey is well-settled that when a factual
misrepresentation is made in an insurance application, rescission
may be justified if the insurer relied on the misrepresentation
in determining whether to issue the policy. See, e.g., Perez,
223 N.J. at 150-51; Palisades Safety & Ins. Ass'n v. Bastien,
175 N.J.
144, 148-49, 151 (2003) (affirming the denial of a claim for PIP
8 A-3331-15T4
benefits by the innocent wife of an insured, when the insured
intentionally failed to place his wife's name on the policy to
reduce his premium, citing the resident's spouse "unique position
to be aware of the other spouse's interactions with the insurer
of the household's vehicles.").
However, even if a policy is voided, PIP benefits may
nevertheless be awarded to innocent third parties. LaCroix,
194 N.J. at 524. In LaCroix, the court affirmed an equitable remedy
fashioned by this court that required payment of PIP benefits to
an additional insured even though the underlying policy was voided.
Id. at 519. There, the question before the court was "whether a
dependent child, newly licensed, only recently of driving age, and
living with her parent, stands on different footing when the
equities are considered in connection with her claim for PIP
benefits under her father's void automobile insurance policy."
Id. at 526. Distinguishing its decision from Bastien, where the
Court found that awarding PIP benefits "would have served to
encourage insurance fraud[,]" the LaCroix court found "room for
some consideration of innocence . . . when the fraud is due to the
action of the parent of a young driver." Id. at 526-27 (citing
Bastien,
175 N.J. at 149,151-52). Noting that it has "never turned
a deaf ear to the equities when plainly innocent parties cry out
for relief," the Court found "no abuse in the Appellate Division's
9 A-3331-15T4
molding of the rescission remedy" that entitled the plaintiff to
PIP benefits from her father's voided policy. Id. at 530, 532.
III
CURE does not contest the factual findings made by the motion
judge in granting summary judgment for plaintiff. Thus, the
following facts are undisputed. Tyrone sustained injures in an
automobile accident that led to his death on February 8, 2014. At
the time, Tyrone, twenty-three years old, resided with his cousin,
Pitt, who owned a New Jersey registered motor vehicle that CURE
insured. Plaintiff sought PIP benefits under Pitt's policy as an
additional insured resident relative. CURE declined PIP benefits
and filed an action against Pitt to void the policy ab initio for
various reasons, including failing to "provide her true household
members."
In the Cape May County action — a suit involving only CURE
and Pitt — the judge voided the policy ab initio "for material
misrepresentations in failing to disclose all household members
as of the renewal of March 2, 2012." If Tyrone were listed on the
policy, and the policy was not otherwise voided, he would have
been entitled to PIP benefits as an additional insured. Neither
party contends that Tyrone was aware of Pitt's misrepresentation,
benefitted from the misrepresentation, or had input in the
procurement of the policy.
10 A-3331-15T4
The declaratory judgment action CURE filed in Cape May County
named Pitt as the only defendant, even though the New Jersey
Declaratory Judgment Act (the Act),
N.J.S.A. 2A:16-56, mandates
that "all persons having or claiming any interest which would be
affected by the declaration shall be made parties to the
proceeding." On April 3, 2014, CURE sent a letter to plaintiff's
attorney denying plaintiff's claim for PIP benefits under Pitt's
policy. This letter clearly established CURE's knowledge that
plaintiff had an "interest which would be affected" by the
declaratory judgment action. The record contains no explanation
for CURE's failure to make plaintiff, PLIGA, and AtlantiCare
parties to the declaratory judgment action.
CURE's declaratory judgment complaint alleged that Pitt made
misrepresentations concerning her address and household residents
with respect to CURE's policy and its renewals. Following Pitt's
default, and a proof hearing, the Cape May County judge entered
judgment by default, declaring "the policy issued by [CURE] to
Chanel Pitt is void ab initio for material misrepresentations in
failing to disclose all household members as of the renewal of
March 2, 2012." The court's order does not identify the particular
misrepresentations. Nor does the record before this court contain
any evidence concerning such misrepresentations.
11 A-3331-15T4
In its responsive pleading in the matter under review, CURE
alleged that Pitt obtained insurance from CURE on March 2, 2010,
and the policy renewed annually through the time of Tyrone's fatal
accident, January 31, 2014. However, the only evidence in the
record concerning CURE's policy is a two-page "Summary of Coverage"
for the renewal effective March 2, 2014, the policy period
following the subject accident. The record does not contain a
copy of the CURE policy, the application for the initial policy
in 2010, or any of the renewal applications. Nor does the record
contain any evidence of Pitt's alleged misrepresentations, only
the allegations contained in CURE's unverified pleadings.
The record does include an affidavit from plaintiff that
Tyrone moved in with Pitt in June 2013. Because CURE's policy
renewed on March 2, 2013 and the subject accident occurred on
January 31, 2014, Tyrone did not reside with Pitt at the time when
CURE's policy renewed. In addition, because the judge in Cape May
County voided the policy for "failing to disclose all household
members as of the renewal of March 2, 2012," and Tyrone did not
move in with Pitt until June 2013, Tyrone's residence with Pitt
could not have constituted the misrepresentation that resulted in
the voiding of CURE's policy.
CURE's primary argument on appeal is that an insurer has no
liability "to an additional unnamed insured seeking to recover
12 A-3331-15T4
under the terms of a voided insurance contract," thereby implicitly
asserting that it has established "a voided insurance contract"
through the declaratory judgment action. However, our cases
construing the Act "hold that recourse to the [Act] . . . will
settle the policy dispute as to the parties in court. The
declaration when granted will not prejudice nonparties." Constant
v. Pac. Nat'l Ins. Co.,
84 N.J. Super. 211, 221 (Law Div. 1964);
see also Condenser Serv. & Eng'g Co. v. Am. Mutual Liab. Ins. Co.,
45 N.J. Super. 31, 42 (App. Div. 1957); Weissbard v. Potter Drug
& Chem. Corp.,
6 N.J. Super. 451, 455 (Ch. Div. 1949), aff'd,
4 N.J. 115 (1949). Moreover, CURE's position ignores
N.J.S.A. 2A:16-
57, which specifically provides, "No declaratory judgment shall
prejudice the rights of persons not parties to the proceeding."
The record on appeal fails to reflect what evidence CURE
submitted to the Cape May County judge to support the entry of the
order voiding Pitt's 2012 policy — the year before the relevant
policy period in the matter under review. Nor does the record
contain any evidence that supports voiding Pitt's policy for any
policy period. We are constrained to conclude the record lacks
any basis for this court to consider that the insurance policy
13 A-3331-15T4
CURE issued to Pitt was or should be voided vis-à-vis plaintiff,
PLIGA, or AtlantiCare.4 We therefore affirm on that basis.
Nevertheless, the motion judge addressed CURE's voided policy
argument and determined that CURE's rescission of its policy issued
to Pitt would not preclude plaintiff's recovery of PIP benefits.
We therefore add the following comments concerning CURE's argument
that the trial judge abused her discretion when she concluded
Tyrone was entitled to PIP benefits from CURE.
The record indicates the motion judge carefully reviewed and
analyzed the equities and concluded they support molding the
rescission remedy to allow plaintiff to collect PIP benefits on
behalf of Tyrone's estate under CURE's voided policy. The judge
found sufficient similarities to Lacroix to warrant a similar
outcome, noting it significant that Tyrone did not know of the
misrepresentations Pitt made to CURE, did not benefit from the
misrepresentations, and did not have input in procuring the policy.
We also cannot conclude that awarding PIP benefits here would
4
In contrast, the record in LaCroix included an admission by the
named insured that he did not list his daughter on the policy
application "to secure lower premium payments." LaCroix,
194 N.J.
at 519. The record also indicated the policy premium would have
increased by approximately $500 if the daughter's name had been
disclosed, making the "misrepresentation plainly material to the
insurer." Id. at 520.
14 A-3331-15T4
encourage insurance fraud. See LaCroix,
194 N.J. at 526. Thus,
even if the record had established a valid basis for voiding the
subject policy vis-à-vis plaintiff, PLIGA, or AtlantiCare, we
discern no basis to conclude the trial judge mistakenly exercised
her discretion in finding that "equity and precedent requires"
CURE to pay plaintiff PIP benefits. See Perez,
223 N.J. 151-52.
Affirmed, and remanded. We do not retain jurisdiction.
15 A-3331-15T4
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
