CUPIDO v. Perez

2 A.3d 1159, 415 N.J. Super. 587
CourtNew Jersey Superior Court Appellate Division
DecidedAugust 27, 2010
DocketA-4557-08T2
StatusPublished
Cited by4 cases

This text of 2 A.3d 1159 (CUPIDO v. Perez) is published on Counsel Stack Legal Research, covering New Jersey Superior Court Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
CUPIDO v. Perez, 2 A.3d 1159, 415 N.J. Super. 587 (N.J. Ct. App. 2010).

Opinion

2 A.3d 1159 (2010)
415 N.J. Super. 587

John K. CUPIDO and Teri Lynn Cupido, Plaintiffs-Respondents,
v.
William PEREZ, Defendant-Appellant.

No. A-4557-08T2.

Superior Court of New Jersey, Appellate Division.

Argued January 26, 2010.
Decided August 27, 2010.

*1160 Robert M. Kaplan argued the cause for appellant (Margolis Edelstein, attorneys for appellant; Mr. Kaplan, of counsel; Michelle L. Hodak, Mount Laurel, on the brief).

Dennis S. Brotman, Lawrenceville, argued the cause for respondents (Fox Rothschild, LLP, attorneys; Mr. Brotman, on the brief).

Before Judges SKILLMAN, GILROY and SIMONELLI.

The opinion of the court was delivered by

GILROY, J.A.D.

This is a personal injury automobile negligence action. The issue presented is whether an out-of-state resident whose automobile is insured by an insurance company, which, although not authorized to transact either private passenger automobile or commercial motor vehicle insurance business in this State, controls affiliate companies that are authorized to transact commercial motor vehicle business in the State, is subject to the limitation-on-lawsuit threshold pursuant to N.J.S.A. 17:28-1.4, commonly referred to as the deemer statute.[1] We conclude that such a non-resident is subject to the threshold.

I.

On December 3, 2005, plaintiffs John Cupido and his wife, Teri Lynn Cupido, filed a complaint against defendant William Perez for damages arising out of an automobile accident that occurred on December 24, 2003, in the City of Trenton.[2] On June 20, 2008, the trial court entered an order determining that plaintiff was not subject to the limitation-on-lawsuit threshold, N.J.S.A. 39:6A-8(a). On March 20, 2009, the court denied defendant's motion for reconsideration, and on April 21, 2009, the parties filed a consent judgment settling the lawsuit for $45,000, reserving defendant's right to appeal the June 20, 2008 and March 20, 2009 orders.

The core facts of this appeal are not in dispute. At the time of the accident, plaintiff operated his wife's Mercury automobile. Plaintiff resided in Bristol, Pennsylvania, and his automobile was insured by Nationwide Mutual Insurance Company (Nationwide) through a policy issued in Pennsylvania. Under the policy, plaintiff selected the "Full Tort" option to sue for injuries sustained in motor vehicle accidents. Nationwide was not authorized to transact private passenger automobile or *1161 commercial motor vehicle insurance business in New Jersey. However, Nationwide controlled four affiliated insurance companies that were authorized to transact commercial motor vehicle insurance business in the State, but not private passenger automobile insurance business: Nationwide Mutual Fire Insurance Company, National Casualty Company, Titan Indemnity Company, and Nationwide Affinity Insurance Company.

Defendant operated a small sports utility vehicle insured by New Jersey Manufacturers Insurance Company, an insurer authorized to transact private passenger automobile insurance business in New Jersey. The insurance policy provided personal injury protection (PIP) benefits for payment of any medical expenses and lost wages defendant might incur as a result of personal injuries suffered in automobile accidents, pursuant to N.J.S.A. 39:6A-4.

On February 19, 2008, defendant filed a motion for summary judgment seeking to dismiss plaintiff's complaint, contending that plaintiff was subject to the limitation-on-lawsuit threshold, and that plaintiff had failed to prove the existence of a qualifying injury as required by N.J.S.A. 39:6A-8(a). Plaintiff filed a cross-motion seeking partial summary judgment on liability; and seeking an order declaring that he was not subject to the threshold pursuant to the deemer statute because he was not insured by an insurance carrier authorized to transact private passenger automobile insurance business in New Jersey.

On May 9, 2008, the court granted plaintiff's motion for partial summary judgment on liability. The court denied the parties' cross-motions concerning whether plaintiff was subject to the limitation-on-lawsuit threshold, determining that there was insufficient evidence to conclude whether Nationwide controlled any other insurance companies authorized to transact private passenger automobile insurance business in New Jersey, and whether an affiliated insurance company authorized to transact commercial motor vehicle insurance business was sufficient to trigger the deemer statute. The court denied the cross-motions without prejudice pending further discovery on the issue.

On May 23, 2008, plaintiff filed a motion for reconsideration of that part of the May 9, 2008 order denying his request for a determination that he was not subject to the limitation-on-lawsuit threshold. Although not supported by any additional documentation, the court entered an order on June 20, 2008, granting the motion.

On January 30, 2009, defendant filed a motion to reconsider the June 20, 2008 order. Defendant supported the motion with an affidavit from Robert L. Edge, a Technical Assistant of the State Department of Banking and Insurance (DOBI), averring that, although Nationwide was not authorized to transact private passenger automobile or commercial motor vehicle insurance business in New Jersey on the date of the accident, it was affiliated with and controlled the previously mentioned four insurance companies, which were authorized to transact commercial motor vehicle insurance business in New Jersey. The court denied the motion on March 20, 2009. Following this ruling, the parties entered into a consent judgment settling plaintiff's personal injury claim for $45,000 and staying execution on the judgment pending defendant's appeal of the June 20, 2008 and March 20, 2009 orders.

II.

On appeal, defendant argues that the trial court erroneously determined plaintiff was not subject to the limitation-on-lawsuit threshold. Defendant contends that plaintiff was subject to the deemer *1162 statute because plaintiff's out-of-state insurer controlled affiliated insurance companies authorized to transact commercial motor vehicle insurance in the State. Plaintiff counters that "[a] plain reading of the statute [cannot] reasonably be interpreted to include an insurance company authorized to transact commercial motor vehicle insurance, and not private passenger automobiles." Plaintiff also contends that defendant failed to present evidence that any of Nationwide's affiliate insurance carriers authorized to transact commercial motor vehicle insurance business in New Jersey were doing so on the day of the accident.

We begin our analysis by quoting the deemer statute:

Any insurer authorized to transact or transacting automobile or motor vehicle insurance business in this State, or controlling or controlled by, or under common control by, or with, an insurer authorized to transact or transacting 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 personal injury protection benefits coverage pursuant to [N.J.S.A. 39:6A-4] or [N.J.S.A. 17:28-1.3] for any New Jersey resident who is not required to maintain personal injury protection coverage pursuant to [N.J.S.A. 39:6A-4] or [N.J.S.A.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cite This Page — Counsel Stack

Bluebook (online)
2 A.3d 1159, 415 N.J. Super. 587, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cupido-v-perez-njsuperctappdiv-2010.