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Brokenbaugh v. New Jersey Manufacturers Insurance Co.

Decided: April 13, 1978.

LINDA BROKENBAUGH, PLAINTIFF-RESPONDENT,
v.
NEW JERSEY MANUFACTURERS INSURANCE COMPANY, DEFENDANT-APPELLANT AND CROSS-RESPONDENT, AND STATE OF NEW JERSEY UNSATISFIED CLAIM AND JUDGMENT FUND BOARD, DEFENDANT-RESPONDENT, AND JOSEPH L. DARGAN, DEFENDANT-RESPONDENT AND CROSS-APPELLANT



On appeal from Superior Court, Law Division, Gloucester County.

Lynch, Kole and Petrella. The opinion of the court was delivered by Lynch, P.J.A.D.

Lynch

[158 NJSuper Page 426] Plaintiff, who was injured in an accident on January 6, 1973 while a passenger in an automobile driven by an uninsured motorist, filed a declaratory judgment action against the New Jersey Manufacturers Insurance Company (NJM) and the State of New Jersey Unsatisfied Claim and Judgment Fund (Fund). The complaint alleged that NJM had issued to Carlton Colburn (Colburn) and Gladys Brokenbaugh (Gladys),*fn1 plaintiff's mother, an

automobile policy which was in effect at the time of plaintiff's accident; that plaintiff was a "person insured" by said policy and was entitled to the personal injury protection (PIP) and uninsured motorist coverage (UM) made mandatory in such policies by the New Jersey Automobile Reparation Act of 1972 (reform act), particularly N.J.S.A. 39:6A-4(PIP) and N.J.S.A. 39:6A-14 (UM). Alternatively, plaintiff sought a declaration that "[a]s the victim of an uninsured motorist," she is entitled to file claim against the Fund.

On November 4, 1976 the trial judge found that plaintiff was entitled to coverage under the policy issued by NJM. Following a motion by plaintiff and the Fund to fix the form of judgment, judgment was entered on March 30, 1977 providing, insofar as pertinent, that summary judgment was granted in favor of plaintiff and the Fund against NJM; the complaint against the Fund was dismissed; NJM must reimburse plaintiff for medical bills in the amount of $13,728.80 plus statutory interest of 10% per annum; NJM must pay the attorneys' fees incurred by plaintiff and the Fund. NJM appeals.

The PIP statute.

N.J.S.A. 39:6A-4 provides in pertinent part:

Every automobile liability insurance policy insuring an automobile as defined in this act against loss resulting from liability imposed by law for bodily injury, death and property damage sustained by any person arising out of ownership, operation, maintenance or use of an automobile shall provide additional coverage, as defined herein below, under provisions approved by the Commissioner of Insurance, for the payment of benefits without regard to negligence, liability or fault of any kind, to the named insured and members of his family residing in his household who sustained bodily injury as a result of an accident involving an automobile, * * *. [Emphasis supplied]

Plaintiff contends that she is covered under the statute because she was a member of the "family" of the insured, Colburn, and resided in his household at the time of the accident.

Plaintiff was born July 10, 1952 to James and Gladys Brokenbaugh. James deserted his wife during pregnancy and in June or July 1954 Gladys Brokenbaugh and her daughter, plaintiff herein, began living with Colburn. Gladys never divorced her "first" husband and never married Colburn. In any event, she and Colburn lived as man and wife and eventually produced three offspring of their own. Plaintiff resided with her mother and Colburn until she was 4 1/2 years old. At that time she went to live with her grandmother in Philadelphia and began attending school there. Throughout her residence in Philadelphia, Colburn "contributed weekly to her support" and plaintiff, in turn, would visit her mother and Colburn frequently. She returned to their household sometime during the winter of 1970. From that time to the date of the accident she lived with Gladys and Colburn. Also during that time Colburn provided food, shelter and medical care for Gladys and plaintiff. Both looked solely to Colburn for their support and plaintiff has always called Colburn "Daddy."

At trial, all parties moved for summary judgment. On the issue of PIP coverage the trial judge held in a letter opinion that Linda was covered by the policy as a member of Colburn's "family residing in his household," as provided in N.J.S.A. 39:6A-4.

In making this finding the judge referred to the PIP endorsement to the policy which was approved by the Commissioner of Insurance. The endorsement extends coverage to "eligible injured persons." So far as pertinent, the endorsement reads:

"Eligible injured persons" means:

(a) The named insured or any relative of the named insured * * *

" Relative " means a person related to the named insured by blood, marriage or adoption (including a ward or foster child) who is a resident of the same household as the named insured. [Emphasis in original]

The trial judge held that Linda was a "foster child" of Colburn residing in his household and therefore was covered under the NJM policy for PIP benefits. We agree.

Legislation involving automobile insurance must be liberally construed to give the broadest protection to automobile accident victims consistent with the language of the pertinent statute. N.J.S.A. 39:6A-16; Motor Club of America Ins. Co. v. Phillips , 66 N.J. 277, 293 (1974). And the endorsement approved by the Commissioner is "evidential" in determining the legislative intent. Id. at 286. It is with these ...


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