SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-6353-99T5
YVONNE MARTIN,
Plaintiff-Appellant,
v.
RUTGERS CASUALTY INSURANCE
COMPANY,
Defendant-Appellant.
Submitted: November 7, 2001 Decided:
January 4, 2002
Before Judges Wefing, Lesemann and Parrillo.
On appeal from the Superior Court of New
Jersey, Law Division, Burlington County,
Docket No. L-002279-97.
Begelman & Orlow, attorneys for appellant
(Stephen M. Tatonetti, on the brief).
Bruce M. Resnick, attorney for respondent
(Daniel P. Ring, on the brief).
The opinion of the court was delivered by
WEFING, J.A.D.
The trial court granted defendant's motion for summary
judgment, concluding that plaintiff was not entitled to either
personal injury protection benefits (PIP) or uninsured motorist's
coverage (UM) under a policy of insurance it had issued to Robert
Lockhart. Plaintiff has appealed. After carefully reviewing the
entire record in light of the contentions advanced on appeal, we
affirm.
Plaintiff was involved in a one-car accident at approximately
8:30 a.m. on August 28, 1995. She was driving southbound on
Interstate 295 in Mount Laurel when she was cut off by a vehicle
which sped off. She applied her brakes to avoid the other car and
skidded off the roadway onto the grassy median. The car flipped
over several times.
Plaintiff's passengers were her two sons, who were six and
seven years old. Plaintiff was divorced from their father, who had
custody of the boys. She had picked them up for routine
visitation.
At the time of the accident, plaintiff was engaged to Paul
Martin. She was living with him in Lindenwold. Neither of them
had an automobile; when they needed a car they would borrow one
from Mr. Martin's mother and stepfather, Mr. Lockhart. Mr.
Lockhart testified in deposition that plaintiff and his stepson
would borrow a car once or twice a month to pick up or return her
sons. Mr. Lockhart's automobiles were insured through defendant,
Rutgers Casualty Insurance Co.
Unbeknownst to Mr. Lockhart, however, plaintiff did not have
a valid New Jersey driver's license; indeed, she had not had one
for some years. Plaintiff testified in deposition that her New
Jersey driver's license was initially suspended in 1989. She
admitted it had been suspended five times between 1989 and the
accident in 1995. The period of suspension was periodically
extended because on several occasions she was ticketed for driving
while on the revoked list. Plaintiff had, from the time of the
initial suspension, received a number of tickets, including several
charges of driving while intoxicated.
After the accident, plaintiff presented a claim for PIP
coverage and UM benefits under this Rutgers policy. Rutgers
declined coverage and this suit resulted. Before passing to the
merits of plaintiff's claim we note in passing that no claim for
damages was ever asserted on behalf of the boys who appear to have
escaped from the accident entirely unscathed. We also note that
the copy of the policy provided to us states that disputes over
coverage should be submitted to binding arbitration; neither party
apparently invoked that clause at any stage of the proceedings
below. Finally, we note that in her deposition plaintiff admitted
she had no unreimbursed expenses as a result of the accident.
The UM endorsement to the Lockhart policy excluded coverage
for bodily injury sustained by a person "[u]sing a vehicle without
a reasonable belief that that person is entitled to do so." The
PIP endorsement contained a similar exclusion. Further, the
Rutgers policy defined "reasonable belief" in the following manner:
"Any person operating the vehicle without a valid license . . .
shall be conclusively presumed to be operating the insured vehicle
without a reasonable belief they are entitled to do so."
Rutgers pointed to these policy provisions and maintained that
plaintiff could not have had a reasonable belief she was permitted
to drive the Lockhart car. Plaintiff argued the policy provisions
were invalid under N.J.S.A. 39:6A-7 and further, that she had a
driver's license issued by the State of Texas, where she had
resided for approximately one and one-half years.
As to this latter contention, a search of the Texas motor
vehicle records has failed to disclose the existence of any license
for plaintiff, under either of the names she provided. The record
is barren of any evidence that plaintiff had such a license other
than her own self-serving assertion to that effect. That is
clearly insufficient to create a question of material fact for
purposes of a summary judgment motion. Brill v. Guardian Life Ins.
Co.,
142 N.J. 520 (1995).
We turn then to the question whether the Rutgers exclusion is
invalid under New Jersey law. N.J.S.A. 39:6A-7 sets forth certain
limited situations in which an insurer may exclude PIP coverage,
including instances in which injuries are sustained by a person
"occupying or operating an automobile without the permission of the
owner or other named insured." Plaintiff points to dicta contained
in our opinion in Rutgers Casualty Ins. Co. v. Ohio Casualty,
299 N.J. Super. 249, 255 (App. Div. 1997), aff'd.
153 N.J. 205 (1998)
in which we stated, in another context, "The statute [N.J.S.A.
39:6A-7] countenances no other true exclusions from PIP benefits."
Plaintiff contends that Rutgers' use of the term "reasonable
belief" and its definition of that term are an unwarranted
expansion of the statute's limited exemptions. We are unable to
agree.
We note first the very different question that we were
addressing in Rutgers v. Ohio. That matter addressed the question
of the right of contribution between automobile insurance carriers
who had paid PIP benefits. Id. at 251. Rutgers had paid such
benefits and then sought contribution from other carriers who
refused, citing the follow-the-family clauses in their respective
policies. Ibid. We decline to transform our brief comment in that
case into a holding governing the entirely different factual
complex here.
Plaintiff also relies upon St. Paul Ins. Co. v. Rutgers
Casualty Ins.,
232 N.J. Super. 582 (App. Div. 1989). In our
judgment, that case provides no authority for finding coverage in
the present instance. In that case, seventeen-year old Darren
Mingo, who had a learner's permit but not a driver's license,
borrowed his mother's car and drove it, unaccompanied, on the
public roads. While doing so, he struck another vehicle. He then
fled the scene. The other driver sued for her injuries but
Rutgers, which insured the mother's vehicle, declined coverage.
The injured driver recovered under the UM portion of her own
policy, issued by St. Paul. St. Paul in turn commenced a
subrogation action against Rutgers. While we remanded for a
determination whether Mingo's mother had previously permitted him
to drive the vehicle in similar circumstances, thus perhaps
engendering in him a "reasonable belief" that he had permission to
drive, Id. at 589, we also noted that an exclusion of benefits for
one using the car without a reasonable belief as to entitlement was
plain and unambiguous and not against any public policy. Id. at
586. While a youth holding a learner's permit, who may have been
allowed in the past to drive on the street by himself, could form
a "reasonable belief" that he had permission to use the vehicle, an
individual who knows that her driver's license has been suspended
and remains suspended, could form no "reasonable belief" that she
had permission to drive a vehicle.
Plaintiff also cites Rutgers Casualty Ins. Co. v. Collins,
158 N.J. 542 (1999). In our judgment, that case only supports the
summary judgment granted Rutgers below. In that case, Joseph
Collins and his wife Rhonda were on their way to a concert and
noted their car had bad brakes; they stopped at the home of
Joseph's parents but the parents were not home. Joseph went into
the house, found the keys to their car and the two left with that
car. Rhonda drove initially because Joseph's license had been
revoked. On their way home, however, Joseph drove because Rhonda
was tired. She was asleep in the rear seat when Joseph had an
accident in which she was killed. Her estate presented a claim for
damages and Rutgers declined coverage. The Court concluded that
Joseph could not have had a reasonable belief under the
circumstances that he had permission to drive the car but remanded
the matter to the trial court to determine whether Rhonda, who
initially drove the car, could have had such a reasonable belief.
Id. at 551. The Court noted that if she did have such a reasonable
belief, coverage would attach and would not be affected by her
subsequent grant of the keys to Joseph. Ibid.
We also note the very limited question presented to us. We
are not confronted with a claim for PIP coverage put forth by an
unwitting, injured passenger. Neither are we presented with a
claim for liability coverage by an individual injured as a result
of a collision with a vehicle driven by plaintiff. Rather, we are
asked to conclude that an individual who had to know she was not
entitled to drive this automobile is entitled to PIP coverage and
UM coverage for injuries she received while driving with complete
disregard of her lack of entitlement. We decline to reach such a
result.
We can perceive nothing in a ruling that denies coverage to
plaintiff that would be contrary to New Jersey's strong public
policy of construing insurance policies in favor of coverage.
Motor Club of America v. Phillips,
66 N.J. 277, 292-94 (1974). In
our judgment, such a holding is fully consonant with the policies
articulated in N.J.S.A. 17:29C-7, which permits an insurer to
decline coverage if the named insured or other customary operator
has had his driver's license suspended or revoked. It is also in
accord with N.J.S.A. 17:33B-13, which defines a person eligible to
purchase automobile insurance as excluding one whose driver's
license has been suspended or revoked.
After reviewing the record presented in this matter, we fully
concur with the result reached by the trial court and affirm the
grant of summary judgment to defendant.
Affirmed.