On appeal from the Superior Court, Law Division, Essex County.
Pressler, Brody and Cohen. The opinion of the court was delivered by Pressler, P.J.A.D.
This is an appeal from a judgment entered in a declaratory judgment action brought on behalf of the infant plaintiff to adjudicate the respective liability of two automobile liability insurers to afford him personal injury protection benefits (PIP) for injuries he sustained when, as a pedestrian, he was struck by an insured automobile.
N.J.S.A. 39:6A-4 requires every automobile liability policy to provide PIP benefits for the "named insured and members of his family residing in his household. . . ." In Brokenbaugh v. N.J. Manufacturers Ins. Co., 158 N.J. Super. 424 (App.Div.1978), we held that the term "family" includes a domestic circle consisting of the insured, the woman he lives with but to whom
he is not married, and the woman's child whom he has not fathered. We reasoned that
In Brokenbaugh, the child's natural father had abandoned her and had never provided for her support. Support was provided by the insured. The question raised by this appeal is whether a child who is a member of such a domestic circle loses his PIP status as a member of the insured's family because of his continuing parental relationship with his noncustodial parent, including support payments by that parent. We conclude that he does not.
The infant plaintiff Nathan James was born in 1974, one of three children of the marriage of Ansely James and Lendia Robertson. In 1978 Lendia Robertson and her three children moved in with Bernie Addison, the insured here, and his two children, forming a domestic circle which has endured since that time. Lendia Robertson and Ansely James were divorced in 1979 by a judgment requiring him to pay $180 a month for the three children but no alimony. He has complied with this order and has regularly exercised his visitation rights. Robertson and Addison have not married.
In May 1982, Nathan James, then 8 years old, was struck by an automobile operated by Elizabeth J. Corpening and insured by defendant Allstate Insurance Company. Addison, with whom Nathan was then residing, owned an automobile insured by defendant State Farm Mutual Automobile Insurance Company. Allstate refused to pay PIP benefits, contending that Nathan was entitled to benefits under Addison's policy. State Farm refused to pay benefits, contending that Nathan, although residing in Addison's household, was not a member of Addison's family. This action against both carriers ensued.
State Farm moved for summary judgment dismissing both the complaint as to it and Allstate's cross-claim. The motions
were granted and judgment accordingly entered against Allstate to provide the PIP benefits. In support of its motion, State Farm relied on the affidavit of its insured, Addison, in which he averred that although Nathan and his mother resided with him, he was not related by blood or marriage to either and "did not, and * * * [does] not, support Nathan James in any manner." ...