On appeal from the Superior Court of New Jersey, Law Division, Essex County.
Pressler, Bilder and Gruccio. The opinion of the court was delivered by Bilder, J.A.D.
[206 NJSuper Page 366] Derrick Campbell died as a result of an automobile accident which occurred on September 5, 1980. His mother, plaintiff Eula Langley made claim for personal injury protection (PIP) benefits to defendant Allstate Insurance Company. Although her general right to receive benefits was initially contested, it is now acknowledged. Following institution of suit, she was paid funeral and essential services benefits. At issue are survivor
benefits under N.J.S.A. 39:6A-4b. The question is whether her son, Derrick Campbell, was an "income producer" within the meaning of the PIP statute, N.J.S.A. 39:6A-2d and 39:6A-4b.
Following a nonjury trial, the judge found the plaintiff had failed to meet her burden of proving the decedent was an "income producer" at the time of his death and denied her survivor benefits. On appeal she contends the decision was against the weight of the evidence and that the trial judge abused his discretion in denying her a new trial which would have permitted the production of new evidence of Derrick's active employment as a bartender at the time of his death.
Apart from Derrick's employment activities during the last few months of his life, the factual background seems uncontroverted. Allstate has stipulated that it issued the policy to plaintiff and that her son was a resident in her household at the time of the automobile accident.
Eighteen-year old Derrick lived in Newark with his mother and sister. He graduated from high school sometime in 1979 and a few months later went to work for Wiggins Plastic, Inc. in Clifton. He worked there from February 14, 1980 until July 8, 1980, about two months before his death, at a salary of $150 per week. According to his mother, he immediately then went to work as a bartender at Hawaii-Five-O, a Newark tavern in which his father, Cleatis Campbell, had some interest. No application for unemployment benefits was made with respect to the loss of his job at Wiggins Plastic.
Plaintiff testified Derrick contributed $30 per week towards family expenses from the commencement of his employment at Wiggins Plastic until his death. Unlike the verified employment at Wiggins Plastic, plaintiff's proofs as to Derrick's subsequent work were undocumented. Plaintiff sought to testify that Derrick told her about his tavern job, see Evid.R. 63(32), and successfully testified as to a daily routine commensurate with employment, the continued $30 contributions and to seeing him working at the bar on a number of occasions in July
and August. These later viewings were corroborated by the testimony of her cousin, Lenora Green. In explanation of her inability to furnish evidence of his tavern job by way of documentary evidence or employer verification, plaintiff testified that she understood from Derrick that he was being paid "under the table" and therefore no documentation existed and no verification would be forthcoming. She didn't even attempt to obtain aid from the tavern.
I figured that it wouldn't make any sense, since he was getting paid off the books. I didn't figure that he would give me a record.
The statute under which plaintiff claims benefits provides for income continuation benefits to members of the family for "the payment of the loss of income of an income producer" as the result of his or her death. N.J.S.A. 39:6A-4b. An "income producer" is defined as "a person, who at the time of the accident causing . . . death, was in an occupational status, earning or producing income." N.J.S.A. 39:6A-2d. Allstate does not deny plaintiff would be entitled to income continuation benefits as a result of Derrick's death if he was an income producer; it denies he was an income producer. The burden of establishing entitlement is on the plaintiff. See Miltner v. Safeco Ins. Co. of America, 175 N.J. Super. 156, 158 (Law Div.1980).
Who an "income producer" is within the meaning of N.J.S.A. 39:6A-2d and 39:6A-4b has been established by our Supreme Court in Gambino v. Royal Globe Ins. Co., 86 N.J. 100 (1981). He or she is a person "who, as part of [his or her] normal and prevailing way of life [is] gainfully engaged in work that generates income, but [is] foreclosed from such normal endeavors or preempted from that usual status because of injuries incurred in an automobile accident." Id. at 109. The term encompasses "all persons meaningfully and concretely engaged in or committed to an occupational way of life, one that regularly and normally ...