Preview:

a3006-05.opn.html

Original Wordprocessor Version
(NOTE: The status of this decision is Unpublished.) Original Wordprocessor Version

This case can also be found at *CITE_PENDING*. (NOTE: The status of this decision is unpublished.)
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-3006-05T53006-05T5 NORMAN SHOOK, Plaintiff-Appellant, and ESTATE OF CHRISTINA WHITING, and JOHN DITZLER, Plaintiffs, v. LISA COOK, Defendant-Respondent, and ALLSTATE INSURANCE COMPANY, Defendant. _________________________________

Submitted November 1, 2006 - Decided November 27, 2006 Before Judges Lefelt, Parrillo and Sapp-Peterson. On appeal from the Superior Court of New Jersey, Law Division, Camden County, L-2527-04. Stephen W. Guice, attorney for appellant, Norman Shook. Lawrence D. Lally, attorney for respondent, Lisa Cook. PER CURIAM

file:///C|/Users/Peter/Desktop/Opinions/a3006-05.opn.html[4/20/2013 3:41:44 PM]

a3006-05.opn.html

Plaintiff Norman Shook appeals from that portion of a January 4, 2006 summary judgment dismissal of his personal injury automobile negligence lawsuit against defendant Lisa Cook, finding him subject to the verbal threshold. We affirm. The material facts are not in dispute. On May 5, 2002, plaintiff, who did not own his own automobile, was driving a friend's car when it collided with a vehicle driven by defendant, who allegedly had run a red light at an intersection in Brooklawn Borough. Plaintiff sued defendant for personal injuries he allegedly suffered in the automobile accident. Defendant answered and interposed the verbal threshold as an affirmative defense. Discovery ensued. Defendant propounded on plaintiff a Notice to Produce requesting, among other things, a copy of the private passenger automobile insurance policy in effect for plaintiff at the time of the accident. Defendant also directed to plaintiff a Request to Admit as to the applicability of the verbal threshold. Plaintiff never responded whether he had the verbal threshold. A letter to plaintiff's counsel reiterating the request was never answered, nor was defendant's Notice to Produce nor Request to Admit. Pursuant to Rule 4:22-1, defendant deemed the Request to Admit admitted. Defendant subsequently moved for summary judgment. Because plaintiff never filed a verbal threshold certification of a treating physician with his complaint, it was stipulated for purposes of the summary judgment motion that plaintiff's proofs did not vault the verbal threshold of N.J.S.A. 39:6A-8 if indeed that standard applied. Thus, the sole issue on the summary judgment motion was the applicability of the verbal threshold standard which, in turn, depended on whether plaintiff, who had no automobile of his own, was a resident of his father's household and therefore bound by the verbal threshold option of his father. On the return date of the motion, the court heard argument and proofs on the residency issue. Plaintiff himself represented that he moved into the home of his girlfriend's parents, Ronald and Antoinette Whiting, at 57 Baynes Avenue in Gloucester City, a day or two before the accident because of arguments with his own parents. Although the Whitings could not specify the date when plaintiff arrived, all agreed the arrangement was temporary, until plaintiff "got situated." At the time of the accident, however, plaintiff was still working daily with his father as a mechanic at his father's garage. It appears that as of the date of the accident, plaintiff never effectuated a change of his legal residence from that of his parents at 111 Cove Road, Mantua, nor used the Whitings' address as his legal residence. He never received mail at the Whiting home until much later after the accident. Medical billings resulting from treatment of injuries sustained in the accident were sent to his parents' home, and not the Whitings'. His driver's license continued to list

file:///C|/Users/Peter/Desktop/Opinions/a3006-05.opn.html[4/20/2013 3:41:44 PM]

a3006-05.opn.html

his address as that of his parents and the police incident report listed that address as well. Most significant, plaintiff applied for and received personal injury protection (PIP) benefits under his father's automobile insurance policy, claiming to be a resident of the insured's household and therefore eligible for such benefits under 142 N.J. 520, 540 (1995). Although in reviewing that decision we owe no special deference to the "trial court's interpretation of the law and the legal consequences that flow from established facts," Manalapan Realty, L.P. v. Tp. Comm. of Manalapan, 140 N.J. 366, 378 (1995), our analysis of the record leads us to the same conclusion as the one reached by the motion judge. Simply put, the undisputed evidence leads to the inexorable finding that plaintiff was a resident of his father's household at the time of the automobile accident. N.J.S.A. 39:6A-8.1, entitled "Election of tort option," sets forth the requirements with regard to electing a lawsuit threshold option and the applicability of that election. The relevant provision states the following: a. Election of a tort option . . . shall be in writing and signed by the named insured [on the required form] . . . . The tort option elected shall apply to the named insured and any immediate family member residing in the named insured's household. "Immediate family member" means he spouse of the named insured and any child of the named insured or spouse residing in the named insured's household, who is not a named insured under another automobile insurance policy. [ N.J.S.A. 39:6A-8.1a (emphasis added).] Thus, the tort option selected by the named insured binds that person and the immediate family members residing in his or her household who are not otherwise insured under another auto policy. Ibid. Likewise, under N.J.S.A. 39:6A-4, a resident family member is entitled to PIP coverage under the named insured's policy for injuries sustained in any automobile. "The scheme of holding immediate family members to the tort option selected by their named insured, whose PIP premiums cover their medical expenses, is compatible with and carries out the main goals of the PIP and tort threshold statutes." Harbold v. Olin, 287 N.J. Super. 35, 41 (App. Div. 1996); see also Beaugard v. Johnson, 281 N.J. Super. 162, 168-71 (App. Div. 1995). Here, plaintiff applied for and collected PIP benefits on the basis of his declared residency as a member of his father's household. It follows therefore that he should be bound by his father's verbal threshold option. But cf. Ibarra v. Vetrano, 302 N.J. Super. 578, 582 (App. Div. 1997). Under these particular facts and circumstances, we discern no reason for treating the question of plaintiff's residency differently for purposes of determining eligibility for PIP coverage on the one hand, and the verbal threshold option on the other. Simply put, we see no principled distinction requiring a different interpretation here of the "residency" criterion. Although the decision of the motion judge is sustainable on this basis alone, the record lends even further support. We note, at the outset, that the terms "household" and "residing" are not defined in the statute. Indeed, these terms

file:///C|/Users/Peter/Desktop/Opinions/a3006-05.opn.html[4/20/2013 3:41:44 PM]

a3006-05.opn.html

do not have "any absolute meaning." Sjoberg v. Rutgers Cas. Ins. Co., 260 N.J. Super. 159, 162 (App. Div. 1992) (quoting Miller v. U.S. Fid. and Guar. Co., 127 N.J. Super. 37, 41 (App. Div. 1974)). Whether a family member is included under the operative language of N.J.S.A. 39:6A-8.1a will depend on the facts of each case. Sjoberg, supra, 260 N.J. Super. at 164. Although the terms "bona fide resident" and "domicile" may be "synonymous" for some purposes, Voss v. Voss, 5 N.J. 402, 406-07 (1950); Raybin v. Raybin, 179 N.J. Super. 121, 126-27 (App. Div. 1981) (interpreting 158 N.J. 662, 674 (1999); Am. Employers' Ins. Co. v. Elf Atochem N. Am., Inc., 157 N.J. 580, 590 (1999). Thus, there is substantial case law in this State construing the terms "household member," "resident relative" and similar phrases in the context of insurance coverage disputes, which recognizes the concept of a "substantially integrated family relationship" in determining whether individuals share a common household even when they reside at different locations. See Roman v. Correa, 352 N.J. Super. 124, 127-28 (App. Div. 2002); see also Gibson v. Callaghan, supra, 158 N.J. at 673. Stated somewhat differently, a person can be a member of two households for insurance coverage purposes. In the context of PIP coverage, we held that a daughter who lived with her mother in a different state was a member of her father's household. Sjoberg, supra, 260 N.J. Super. at 162-65. In Arents v. Gen. Acc. Ins. Co., 280 N.J. Super. 423 (App. Div. 1995), in finding a son's underinsured motorist (UIM) coverage extended to his father, we concluded that an adult son was a resident of his parents' household, although the son resided in his own apartment during the week. In so holding, we considered the fact that the insured kept clothing at his parents' house, that he had a car garaged, registered, and insured at that address, and that he made household repairs. Id. at 425-26. We noted that "[a] 'substantially integrated family relationship' is the touchstone of a household. Exclusivity of residences or households is not demanded . . . ." Id. at 429 (citations omitted). See also Ohio Cas. v. Estate of Wittkopp, 326 N.J. Super. 407, 412-414 (App. Div. 1999) (holding that the child of divorced parents was a "resident" of her noncustodial father's household and covered for UIM benefits under his automobile insurance policy). As for uninsured motorist (UM) coverage, in Garrison v. Travelers Ins. Co., 261 N.J. Super. 209 (Law Div. 1992), the trial court found that the child of separated parents was a "resident relative" of her father's household, although the child resided with her mother. And, significant for present purposes, the concept of "dual household residency" was extended to N.J.S.A. 39:6A-8.1a in Roman v. Correa, supra. There, we concluded in principle that an immediate family member may reside in more than one household so as to be bound by the tort option election of the head of the household. 352 N.J. Super. at 129. Thus, plaintiff's temporary living arrangement with the Whitings is not the touchstone of the residency issue, and dual residencies are not necessarily mutually exclusive for purposes of N.J.S.A. 39:6A-8.1a. Rather, the meaning of
file:///C|/Users/Peter/Desktop/Opinions/a3006-05.opn.html[4/20/2013 3:41:44 PM]

a3006-05.opn.html

"residing" and "household" will vary depending on the circumstances of a given case. Miller, supra, 127 N.J. Super. at 41. On the undisputed facts here, we are satisfied that plaintiff was residing in his father's household within the meaning of N.J.S.A. 39:6A-8.1a so as to be bound by the father's verbal threshold election. He had resided with his parents until only shortly before the auto accident. At the time, plaintiff took no steps to effect a change of legal residence, holding himself out to the investigating police and medical providers as residing at his parents' address, where, among other things, he received his mail. Indeed, he provided no contrary proof when asked in discovery to acknowledge residency in his father's household. And most telling of all, plaintiff applied for and collected PIP benefits under his father's insurance policy as a "resident" of the named insured's household. The summary judgment in favor of defendant is affirmed.

Co-plaintiff Christina Whiting was a passenger in the vehicle driven by plaintiff. She has since died and her estate was substituted in as co-plaintiff. (continued) (continued) 11 A-3006-05T5 November 27, 2006 0x01 graphic

This archive is a service of Rutgers School of Law - Camden. This archive is a service of Rutgers School of Law - Camden.

file:///C|/Users/Peter/Desktop/Opinions/a3006-05.opn.html[4/20/2013 3:41:44 PM]



Download a3006-05.opn.pdf

New Jersey Law