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Muto v. Kemper Reinsurance Co.

Decided: May 9, 1983.

RICHARD MUTO, PLAINTIFF-APPELLANT,
v.
KEMPER REINSURANCE CO. AND/OR PRUDENTIAL PROPERTY AND CASUALTY INSURANCE CO. AND/OR LUMBERMEN'S MUTUAL CASUALTY CO., DEFENDANTS-RESPONDENTS



On appeal from the Superior Court of New Jersey, Law Division, Mercer County.

Bischoff and J. H. Coleman. The opinion of the Court was delivered by Bischoff, P.J.A.D.

Bischoff

Plaintiff Richard Muto appeals from a summary judgment in favor of defendant Prudential Property and Casualty Insurance Co. denying him benefits under the Personal Injury Protection (PIP) provisions of his automobile insurance policy. The facts presented to the trial judge in the motion papers disclose the following facts. Prior to February 1978 plaintiff lived in Harrisburg, Pennsylvania. At that time he commenced employment with the Sameric Corporation as a manager-operator of a theater. After completion of a training period he was transferred to a theater in Trenton, New Jersey, at the end of May or early June 1978 for an indefinite period of time. Since plaintiff did not have a place to live, he moved into an apartment in Trenton rented by his friend, David Mesky. Plaintiff split the rent with David Mesky. He did not use the apartment as his address for receiving personal mail, using instead the theater address.

On July 25, 1978 plaintiff and his girlfriend, Deborah Ortatay, borrowed Mesky's motorcycle to go to the shore. On the way back they were involved in an accident with an automobile driven by Callaghan. Plaintiff injured his leg in the accident and was hospitalized in New Jersey on three separate occasions. He was out of work for a year.

Following the accident plaintiff continued to live with Mesky in Trenton until the lease expired in December 1978. He then moved back to Pennsylvania where he has lived and worked ever since.

Plaintiff always had a Pennsylvania driver's license which permitted him to drive a motorcycle. He never had a New Jersey driver's license. He paid Pennsylvania state income tax and did not pay New Jersey state income tax. He was registered to vote in Pennsylvania but was never registered to vote in New Jersey.

At the time of the accident he owned a van which was registered in Pennsylvania. He stated that all vehicles owned by him were always registered in Pennsylvania and "being a

Pennsylvania resident I would have no reason to have any out-of-state [registration]".

While living in Harrisburg he purchased a policy of automobile insurance from Prudential issued to him at his Harrisburg address. He could not remember if he notified Prudential of his move to New Jersey, and Prudential, by affidavit, asserted it had not been notified of the change in address. A premium statement dated May 1978 indicated a Harrisburg address.

It is conceded that the Prudential policy contained an exclusion consistent with Pennsylvania law which barred payment of PIP benefits for injuries sustained while operating a motorcycle.

On July 25, 1980 plaintiff filed a complaint seeking to obtain payment of his medical expenses incurred as a result of injuries sustained in the accident under his PIP coverage. In count I he sought recovery from Prudential and in count II he sought recovery from Lumbermen's, the insurer of the car operated by Callaghan.

Both defendants moved for summary judgment. As to the suit on the Prudential policy the trial judge, relying on Stewart v. Nationwide Ins. Co., 171 N.J. Super. 457 (App.Div.1979), certif. den. 82 N.J. 302 (1980), and State Farm, etc., Ins. Co. v. Simmons' Estate, 84 N.J. 28 (1980), ruled that Pennsylvania law was applicable; that the exclusion for PIP benefits for injuries sustained by an operator or passenger on a motorcycle was valid, ...


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