NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5431-08T15431-08T1

FREDERICK VOSS,

Plaintiff-Respondent,

v.

KRISTOFFE J. TRANQUILINO, JAIME A.

TRANQUILINO,

Defendants,

and

TIFFANY'S RESTAURANT,

Defendant-Appellant.

________________________________________________________________

Argued December 14, 2009 - Decided

Before Judges Lisa, Baxter and Alvarez.

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-3697-08.

Richard S. Ranieri argued the cause for appellant (Weber Gallagher Simpson Stapleton Fires & Newby LLP, attorneys; Mr. Ranieri and H. Benjamin Sharlin, on the briefs).

William A. Wenzel argued the cause for respondent.

The opinion of the court was delivered by

LISA, P.J.A.D.

N.J.S.A. 39:6A-4.5(b) provides that a driver of a motor vehicle who is convicted of or pleads guilty to driving while intoxicated (DWI), N.J.S.A. 39:4-50(a), in connection with an accident "shall have no cause of action for recovery of economic or noneconomic loss sustained as a result of the accident." The issue in this appeal is whether this statutory provision bars a dram shop claim by an intoxicated motorist against a liquor licensee that allegedly served him alcoholic beverages when he was visibly intoxicated prior to the motor vehicle accident.

Although a literal reading of the statute suggests that all claims are barred, we reach a contrary conclusion. We hold that N.J.S.A. 39:6A-4.5(b) does not bar a dram shop claim because (1) the purpose of the statute is to reduce automobile insurance premiums and its scope should be limited accordingly to losses that are subject to coverage under Title 39; (2) an interpretation barring dram shop claims would unjustifiably constitute repeal by implication of a portion of the New Jersey Licensed Alcoholic Beverage Server Fair Liability Act, N.J.S.A. 2A:22A-1 to -7, commonly referred to as the "Dram Shop Act"; and (3) immunizing liquor licensees from liability in such circumstances would be inimical to the policy of this State of curbing drunk driving. We therefore affirm the trial court's order denying the liquor licensee's motion to dismiss the complaint based on N.J.S.A. 39:6A-4.5(b).

The relevant facts are undisputed. On November 9, 2006, plaintiff was injured when the motorcycle he was operating in Toms River Township collided with a vehicle operated by Kristoffe Tranquilino and owned by Jaime Tranquilino. Plaintiff alleged that prior to the accident he was a patron at Tiffany's Restaurant, the holder of a liquor license, and that Tiffany's negligently served him alcoholic beverages, which substantially contributed to the happening of the accident and was a proximate cause of his injuries. A blood test of plaintiff taken after the accident revealed a blood alcohol concentration of .196 percent, nearly two and one-half times the legal limit of .08 percent. See N.J.S.A. 39:4-50(a). Plaintiff was charged with DWI to which he pled guilty.

Plaintiff sued the Tranquilinos and Tiffany's. Defendants promptly moved pursuant to Rule 4:6-2(e) to dismiss for failure to state a claim upon which relief could be granted, asserting that because of plaintiff's guilty plea to DWI, his claim was barred by N.J.S.A. 39:6A-4.5(b). Plaintiff did not oppose the Tranquilinos' motion, which the trial court granted and which is not a subject of this appeal. Plaintiff opposed the motion filed by Tiffany's. The trial court denied the motion. Relying on Camp v. Lummino, 352 N.J. Super. 414 (App. Div. 2002), the court found that the Legislature's purpose in enacting N.J.S.A. 39:6A-4.5(b) was to contain the cost of automobile insurance premiums and, in light of that purpose and the contrary provisions of the Dram Shop Act, which would be "eviscerate[d]" if the statute barred such claims against liquor licensees, the statute did not bar plaintiff's claim against Tiffany's. Tiffany's moved for leave to appeal. We denied the motion but the Supreme Court granted it and remanded the matter to this court for disposition on the merits.

The trial court's finding that N.J.S.A. 39:6A-4.5(b) does not bar plaintiff's dram shop claim was a legal conclusion, which we review de novo. Manalapan Realty v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995).

In Camp, we considered whether N.J.S.A. 39:6A-4.5(b) precluded social host liability in a claim by an underage plaintiff who was injured in a single vehicle accident after leaving the defendant's home and who pled guilty to DWI in connection with the accident. Camp, supra, 352 N.J. Super. at 416. We explained that the legislative history underlying the statutory provision and the fact that the provision was part of "An Act Concerning Automobile Insurance and Revising Various Parts of the Statutory Law," amending chapter 6A of Title 39 dealing with "Compulsory Automobile Liability Insurance" and "no fault" coverage, provided a clear indication that the purpose of the provision was to reduce the cost of automobile insurance. Id. at 417.

We therefore concluded that the provision could not be understood to preclude social host liability as to an underage plaintiff and we "decline[d] to enlarge the scope of N.J.S.A. 39:6A-4.5(b) beyond the object of the bill as expressed in its title or the subject matter covered by the specific section of Title 39 it expressly amend[ed]." Id. at 418. We observed that nothing in the legislative history suggested "that N.J.S.A. 39:6A-4.5(b) affects actions unrelated to those involving coverage under N.J.S.A. 39:6A." Id. at 419. Therefore, the plaintiff's common law social host claim was not barred because it did not implicate motor vehicle coverage or a cause of action subject to coverage under Title 39. Ibid.

That analysis and conclusion apply with even greater force to a dram shop claim, which, unlike the common law claim in Camp, is governed by statute. The Dram Shop Act was enacted in 1987, L. 1987, c. 152,