NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4896-08T34896-08T3

SHEILA ARONBERG, as General

Administratrix and Administratrix

ad Prosequendum of the Estate of

LAWRENCE R. ARONBERG, deceased,

Plaintiff-Respondent,

v.

WENDELL TOLBERT and FLEETWOOD

TAGGART d/b/a FLEETWOOD TRUCKING,

Defendants-Appellants,

and

ALLSTATE NEW JERSEY INSURANCE

COMPANY,

Defendant.

________________________________________________________________

Argued October 28, 2009 - Decided

Before Judges Fisher, Sapp-Peterson and Espinosa.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-458-07.

Stephen A. Rudolph argued the cause for appellant (Monte & Rudolph, attorneys; David M. Molnar, on the brief).

David Maran argued the cause for respondent (Maran & Maran, PC, attorneys; Mr. Maran, on the brief).

The opinion of the court was delivered by

ESPINOSA, J.A.D.

N.J.S.A. 39:6A-4.5(a) bars uninsured drivers from suing for personal injuries sustained in automobile accidents. This case presents the issue whether that statutory bar applies to a wrongful death action brought by the uninsured decedent's heirs. We conclude that it does not.

Lawrence Aronberg, a New Jersey resident, insured his automobile with Allstate Insurance Company (Allstate). As a result of his failure to pay premiums when due, the insurance was canceled prior to his fatal motor vehicle accident. His mother, plaintiff Sheila Aronberg, brought this action, alleging a survival claim on behalf of the decedent and a wrongful death claim on behalf of his estate, against Wendell Tolbert, a driver involved in the accident, and his employer. Defendants' motion for summary judgment was granted in part, resulting in the dismissal of the survival claim, and denied as to the wrongful death claim. We granted defendants' motion for leave to appeal and now affirm.

Allstate's Statement of Account reflected that, after Aronberg failed to pay the premium due in April 2005, Allstate sent him a "renewal cancellation bill of $324.37 due 5/24/05," which was for the equivalent of two months' premiums. Aronberg paid the full amount of $324.37 on May 13, 2005 and avoided cancellation. The policy was renewed in May 2005 for the period from May 24, 2005 to November 24, 2005.

Aronberg failed to pay the July premium of $143.60 by its due date of July 24, 2005. Allstate sent him an automobile policy cancellation notice for non-payment of premium, dated August 5, 2005. The notice advised Aronberg that he was required to make a payment of the "Minimum Amount Due," $287.20, by August 23, 2005 to avoid cancellation. Like the notice sent after the April delinquency, this notice required him to bring the account current by paying the equivalent of the premiums for July and August by the due date for the August premium. The notice emphasized the need for Allstate to receive the full amount due by that date:

If you want your insurance coverage to continue and do not want it to cancel, please make sure we receive the Minimum Amount Due by the end of the day (midnight) on August 23, 2005 or your policy will cancel at 12:01 a.m. Standard Time on August 24, 2005.

Aronberg made a payment of $143.60 on August 5, 2005. Because this payment fell short of the Minimum Amount Due, Allstate forwarded a "Special Notice" on August 5, 2005 that acknowledged his payment and advised that his continuing delinquency would result in the cancellation of the policy. The Special Notice advised:

Please be advised that your cancellation effective date is/was 12:01 a.m. on August 24, 2005. Your payment of $143.60 was received on August 5, 2005. This amount has been applied to your policy; however, as of the date of this notice, we still have not received the Minimum Amount Due. Please note that the Cancellation Notice previously sent to you on August 4, 2005 will be enforced unless the full Minimum Amount Due is received before 12:01 a.m. on August 24, 2005.

In order to avoid having your policy cancel, we must receive an additional payment of $143.60 before your cancellation effective date which is/was 12:01 a.m. on August 24, 2005.

Otherwise, your policy will terminate according to the Cancellation Notice we previously sent you.

Aronberg made no further payments before the accident and his death on September 15, 2005.

A payment of $143.60 was made on or about September 20, 2005, by an heir or representative of the decedent after his death. Allstate sent a reinstatement notice that recited the dates of cancellation (August 24, 2005) and reinstatement (September 20, 2005). Allstate's Statement of Account reflects a credit of $123.70 for the time that coverage had lapsed. The reinstatement notice noted the following condition of receipt of the September payment:

[O]ur acceptance of this payment does not (a) reinstate the policy, or (b) afford coverage for any accident, occurrence, or loss which took place before this receipt was issued.

At the close of discovery, defendants filed a motion for summary judgment, seeking the dismissal of the survival and wrongful death claims. The court granted the motion as to the survival action but denied the motion to dismiss the wrongful death action. Plaintiffs did not seek leave to appeal from the dismissal of the survival action. We granted defendants' motion for leave to appeal from the denial of their motion to dismiss the wrongful death action, in which they raise the following issues:

POINT I

THE TRIAL COURT ERRED IN NOT DISMISSING THE WRONGFUL DEATH CLAIMS OF DECEDENT'S HEIRS AFTER HOLDING THAT THE DECEDENT'S CLAIMS WERE BARRED FOR HIS FAILURE TO MAINTAIN AUTOMOBILE INSURANCE AND OPERATING AN UNINSURED VEHICLE AT THE TIME OF THE ACCIDENT IN VIOLATION OF N.J.S.A. 39:6A-4.5 ET. SEQ.

A. THE LEGISLATURE'S ENACTMENT OF THE PROSCRIPTIONS OF N.J.S.A 39:6A-4.5 DID NOT INTEND TO PERMIT FAMILY MEMBERS TO CONTINUE TO BENEFIT FROM THE MISCONDUCT OF ONE WHO FAILS TO MAINTAIN MANDATORY AUTOMOBILE INSURANCE COVERAGES.

B. THE ENTITLEMENTS, BENEFITS, LIMITATIONS AND RESTRICTIONS ARISING FROM NEW JERSEY'S NO-FAULT STATUTES APPLY EQUALLY TO NOT ONLY THE NAMED INSURED BUT ALSO TO ANY MEMBERS OF HIS/HER FAMILY.

C. NEW JERSEY'S WRONGFUL DEATH AND SURVIVORSHIP STATUTES MUST BE READ IN PARI MATERIA WITH THE PROVISIONS OF AICRA WHEN VIEWING THE LEGISLATURE'S RESPECTIVE PURPOSES IN ENACTING THOSE RESPECTIVE STATUTORY CAUSES OF ACTION.

When reviewing a grant of summary judgment, we employ the same standard used by the trial court, which grants summary judgment if the record shows that "there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c). Burnett v. Gloucester County Bd. of Chosen Freeholders, 409 N.J. Super. 219, 228 (App. Div. 2009); Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). Issues of law are reviewed de novo, without deference to the trial court's conclusions on issues of law. Zabilowicz v. Kelsey, 200 N.J. 507, 512-13 (2009). Following our review, we agree with the trial court that the statutory bar created by N.J.S.A. 39:6A-4.5(a) applies to survival actions but not to wrongful death actions. This result is not anomalous, as the dissent suggests, but rather, fully consistent with both the language of N.J.S.A. 39:6A-4.5 and the Wrongful Death Act, N.J.S.A. 2A:31-1 to -6, and their underlying policies.

N.J.S.A. 39:6A-4.5 implements a public policy rationale "to deter drunk driving, the intentional use of automobiles as weapons, and drivers from operating uninsured vehicles" by barring such drivers from maintaining an action for damages arising from an automobile accident. Caviglia v. Royal Tours of Am., 178 N.J. 460, 474 (2004).

N.J.S.A. 39:6A-4.5(a) provides:

Any person who, at the time of an automobile accident resulting in injuries to that person, is required but fails to maintain [mandatory] medical expense benefits coverage . . . shall have no cause of action for recovery of economic or noneconomic loss sustained as a result of an accident while operating an uninsured automobile.

This provision "advances a policy of cost containment by ensuring that an injured, uninsured driver does not draw on the pool of accident-victim insurance funds to which he did not contribute" and "gives the uninsured driver a very powerful incentive to comply with the compulsory insurance laws." Caviglia, supra, 178 N.J. at 471.

Because Aronberg was driving his uninsured automobile at the time of the accident, he would have been statutorily barred from asserting a cause of action for losses sustained in the accident if he had lived. Defendants argue that the statutory bar should also apply to both the survival and the wrongful death claims, because both are derivative of and dependent on his death. However, this common factor does not dictate that the two causes of action will be extinguished on the same grounds.

It is well established that a wrongful death action can be viable under circumstances in which a survival action is barred. See, e.g., Miller v. Estate of Sperling, 166 N.J. 370, 382-83, 386 (2001) (decedent's heirs permitted to bring a wrongful death claim based upon medical malpractice even though decedent failed to assert claim before expiration of statute of limitations); Alfone v. Sarno, 87 N.J. 99, 110 (1981) (although decedent's right to sue for personal injuries had been extinguished by a previous judgment or settlement, the wrongful death action could be maintained for those elements of damages not recoverable in an earlier action); Gershon v. Regency Diving Ctr., Inc., 368 N.J. Super. 237, 247 (App. Div. 2004) ("Decedent's unilateral decision to contractually waive his right of recovery [did] not preclude his heirs . . . from instituting and prosecuting a wrongful death action."); Troum v. Newark Beth Israel Med. Ctr., 338 N.J. Super. 1, 27 (App. Div.) (where decedent failed to timely file a medical malpractice action, the statute of limitations barred a survival action but a wrongful death action based upon the same alleged negligence was unaffected), certif. denied, 168 N.J. 295 (2001).

The difference in these results derives from the fact that actions under the New Jersey Wrongful Death Act and the New Jersey Survivor Act "serve different purposes and are designed to provide a remedy to different parties." Smith v. Whitaker, 160 N.J. 221, 231 (1999). See also N.J. Div. of Youth & Family Servs. v. M.W., 398 N.J. Super. 266, 289 (App. Div.), certif. denied, 196 N.J. 347 (2008); F.F. v. G.A.D.R., 331 N.J. Super. 23, 27-28 (App. Div.) ("The cause of action for wrongful death and the deceased's own cause of action for personal injuries are separate and distinct claims. . . . The decedent's personal claim is an asset of his estate; the death claim is not."), certif. denied, 165 N.J. 530 (2000).

A survival action permits the decedent's estate to pursue any cause of action that the decedent would have had if he had survived. Galante v. May, 364 N.J. Super. 284, 288 (App. Div. 2003). Because of this unity of identity between the claim asserted in the survival action and the claim that would have been asserted by the decedent if he had lived, it is reasonable to apply a bar designed to punish the decedent uninsured driver to the survival action that seeks to vindicate the claim of the uninsured driver who has died. Accordingly, the trial court correctly granted summary judgment dismissing that claim, a result that plaintiff has not sought leave to appeal. It does not follow, however, that the statutory bar should also apply to the wrongful death action.

The Wrongful Death Act, N.J.S.A. 2A:31-1 to -6, is remedial legislation that is designed to "eliminate the inequity of denying all right of recovery for the death of a family member." Alfone, supra, 87 N.J. at 109. In contrast to the survival action, recovery under the Wrongful Death Act compensates the survivors of the decedent for their losses as a result of the tortious conduct of others, ibid., and does not accrue to the decedent or his estate as a matter of law. Miller, supra, 166 N.J. at 383-84.

The argument that the wrongful death action here should be barred rests largely on the language in the statute that suggests that the right to sue is limited to circumstances in which the decedent would have been able to maintain a cause of action. Since Aronberg would not have been "entitled . . . to maintain an action for [his] damages," it is argued that the Wrongful Death Act does not grant his heirs the right to sue for their damages.

However, a comparison of the language in the statutes does not support this conclusion. First of all, N.J.S.A. 39:6A-4.5(a) has a narrowly circumscribed target. The statutory bar is explicitly limited to the person who fails to maintain compulsory insurance and is applied only when he is injured while driving the uninsured vehicle. "Any person who [fails to maintain mandatory coverage] shall have no cause of action for recovery of . . . loss sustained as a result of an accident while operating an uninsured automobile" N.J.S.A. 39:6A-4.5(a). Therefore, the punitive effect of the statute is limited - both to the person who failed to obtain insurance and to particular circumstances. Even the uninsured motorist who is the target of the statute escapes the bar if he or she happens to be a passenger when injured. See Dziuba v. Fletcher, 188 N.J. 339, 340 (2006) (N.J.S.A. 39:6A-4.5(a) did not bar recovery of non-economic damages by plaintiff, an uninsured motorist, because he was not operating his uninsured vehicle when he was injured).

Moreover, contrary to the interpretation adopted by the dissent, the language of the Wrongful Death Act does not link the viability of a claim under that statute "to the victim's possession of" a viable claim. The statute authorizes a wrongful death action "[w]hen the death of a person is caused by a wrongful act . . . such as would, if death had not ensued, have entitled the person injured to maintain an action for damages resulting from the injury[.]" N.J.S.A. 2A:31-1 (emphasis added). The focus is on the "wrongful act" that caused death and whether that constituted an actionable tort ab initio rather than the broader concept of viability, which could be affected by the decedent's actions or inaction at some point after the wrongful act occurred. Therefore, the facts that give rise to the claim are death, causation and a wrongful act that constitutes an actionable tort.

As the Supreme Court explained in Miller, supra, 166 N.J. at 382, the limiting language in the Wrongful Death Act pertains only to the character of the injury, and is not intended as a procedural or jurisdictional requirement. In so holding, the Court agreed that "[t]he more reasonable interpretation" of such language is that it is "directed at the necessity of some original tort on the part of the defendant, under circumstances giving rise to liability in the first instance, rather than to subsequent changes in the situation affecting only the interest of the decedent." Id. at 384-85 (quoting W. Keeton, et al, Prosser & Keeton on the Law of Torts