DENISE v. THOMAS VS. MARIA BOBADILLA(L-1864-14, PASSAIC COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: August 9, 2017
• Docket: A-1834-15T4
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-1834-15T4 DENISE V. THOMAS,

Plaintiff-Respondent, v.

MARIA BOBADILLA1,

Defendant,

and

ALLSTATE INSURANCE COMPANY,

Defendant-Appellant. ________________________________

Argued March 21, 2017 – Decided August 9, 2017

Before Judges Koblitz, Rothstadt and Sumners.

On appeal from Superior Court of New Jersey, Law Division, Passaic County, Docket No. L- 1864-14.

Kenneth N. Lipstein argued the cause for appellant.

S. Robert Princiotto argued the cause for respondent (Marcus & Levy, attorneys; Mr. Princiotto, on the brief).

PER CURIAM

1 We have revised the caption to reflect defendant's name as spelled in the police report and other documents. In this automobile negligence action, plaintiff Denise V.

Thomas claimed she was injured in an accident as a result of

defendant Maria Bobadilla's negligence. Thomas was insured by

defendant All-State Insurance Company (All-State), through a

policy she purchased in Florida. The trial court denied All-

State's motion for summary judgment to dismiss Thomas' claim

because it determined that All-State was obligated to provide her

with uninsured motorist benefits under the Deemer Statute,

N.J.S.A. 17:28-1.4, as Bobadilla was covered by a basic insurance

policy without bodily insurance protection. For the reasons that

follow, we reverse.

In December 2011, Thomas separated from her husband and left

Florida to relocate to New Jersey, where she has since remained.

Seven months later, on July 7, 2012, Thomas was driving her

automobile in New Jersey when she was involved in an auto accident

with Bobadilla. Although her automobile had been with her since

her arrival to our state, at the time of the accident it was still

registered in Florida under her name and insured by All-State

under a Florida policy in which she declined uninsured motorist

coverage. At the time of the accident, Bobadilla had a basic

insurance policy without bodily insurance coverage.

2 A-1834-15T4 All-State moved for summary judgment contending that since

Bobadilla, the tortfeasor, was insured without bodily injury

coverage, Thomas could not seek recovery for bodily injury through

her Florida All-State policy that did not have uninsured or

underinsured protection. All-State argued the Deemer Statute did

not afford uninsured or underinsured coverage to Thomas' out-of-

state All-State policy because her automobile was principally

garaged in New Jersey for seven months prior to the accident and

she should have obtained coverage under a New Jersey automobile

insurance policy.

The trial court denied the motion with written findings of

facts and conclusions of law. The court found that when the

accident occurred Thomas was not a New Jersey resident and did not

have to acquire New Jersey insurance coverage. The court reasoned

"while there may be indicators that Thomas did in fact relocate

back to New Jersey, seven months is not a sufficient amount of

time to declare her an official New Jersey resident at the time

of the accident." Further, the court determined that Bobadilla

was an uninsured motorist under the Deemer Statute. Thus, the

court reasoned that the Deemer Statute converted Thomas' Florida

All-State policy to a New Jersey policy with the lawsuit limitation

option. N.J.S.A. 17:28-1.45; N.J.S.A. 39:6A-8(a).

3 A-1834-15T4 Several months later, the court entered a consent judgement

in favor of Thomas against All-State in the amount of $15,000,

with All-State reserving the right to appeal the court's denial

of its summary judgment motion.

On appeal, All-State reiterates its argument that Thomas is

not entitled to seek recovery for bodily injury because Bobadilla's

insurance coverage did not have bodily injury coverage and the

Florida All-State policy that covered Thomas' automobile did not

provide uninsured or underinsured benefits. All-State contends

that the Deemer Statute does not apply to afford Thomas the lawsuit

limitation option to seek recovery for bodily injury because as a

New Jersey resident with an automobile principally garaged in New

Jersey, she should have had a New Jersey policy. All-State further

argues that since Thomas did not have a New Jersey policy with

personal injury protection benefits, N.J.S.A. 39:6A-4.5(a)

precludes her from seeking recovery for bodily injury.

We review a motion seeking summary judgment using the same

standard used by the trial court. Bhagat v. Bhagat, 217 N.J. 22,

38 (2014). We must determine, based on the competent evidential

materials submitted by the parties, whether there are genuine

issues of material fact and, if not, whether the moving party is

entitled to summary judgment as a matter of law. Brill v. Guardian

Life Ins. Co. of Am., 142 N.J. 520, 540 (1995); R. 4:46-2(c).

4 A-1834-15T4 Here, based upon our review of the record, there were no material

issues of fact in dispute, therefore All-State's motion for summary

judgment should have been granted.

The Deemer Statute requires an out-of-state insurer

authorized to transact business in New Jersey to include standard

personal injury protection (PIP) coverage pursuant to N.J.S.A.

39:6A-4 "for any New Jersey resident who is not required to

maintain [PIP] coverage pursuant to [N.J.S.A. 39:6A-4 or N.J.S.A.

39:6A-3.1] and who is not otherwise eligible for such benefits,

whenever the automobile . . . insured under the policy is used or

operated in this State." N.J.S.A. 17:28-1.4 (emphasis added).

The question in this case is whether the Deemer Statute is

inapplicable because Thomas was required to maintain PIP coverage

pursuant to N.J.S.A. 39:6A-4.

Every owner of an automobile registered or principally

garaged in New Jersey is required to maintain minimum amounts of

standard, basic, or special liability insurance coverage for

bodily injury, death, and property damage caused by their

automobiles. `N.J.S.A. 39:6A-4.5(a). In addition, every insurance

policy must provide a package of PIP benefits. Ibid. A person

who fails to maintain such coverage "shall have no cause of action

for recovery of economic or noneconomic loss sustained as a result

5 A-1834-15T4 of an accident while operating an uninsured automobile." N.J.S.A.

39:6A-4.5(a).

The term "principally garaged" as used in N.J.S.A. 39:6B-1

is not defined in the statute and, thus, must be given its

generally accepted meaning. N.J.S.A. 1:1-1. As we determined in

Chalef v. Ryerson, 277 N.J. Super. 22, 27 (App. Div. 1994), the

term "principally garaged" means "the physical location where an

automobile is primarily or chiefly kept or where it is kept most

of the time." In Chalef, the plaintiff had been living and working

in New Jersey for four consecutive months before the accident. We

deemed that span of time sufficient to find that the plaintiff's

automobile was being principally garaged in New Jersey. Id. at

28.

Here, Thomas was living in New Jersey and driving her Florida

registered and insured automobile in New Jersey for seven

consecutive months prior to the accident. Based upon the four-

month time period we concluded was sufficient in Chalef, we

disagree with the trial court that Thomas did not have a sufficient

time to register and insure her automobile in New Jersey.

Consequently, the Deemer Statute does not apply to the present

circumstances, and Thomas' failure to insure her automobile under

a New Jersey policy precludes her from seeking recovery for her

bodily injury under N.J.S.A. 39:6A-4.5(a).

6 A-1834-15T4 Lastly, Thomas' contention that not applying the Deemer

Statute violates her constitutional equal protection rights is

without sufficient legal basis to merit discussion in this opinion.

R. 2:11-3(e)(1)(E).

Reversed and remanded for the entry of an order granting

defendant summary judgment.

7 A-1834-15T4