On appeal from the Superior Court of New Jersey, Law Division, Essex County.
Shebell, A.m. Stein and Conley. The opinion of the court was delivered by Shebell, J.A.D.
[261 NJSuper Page 581] Plaintiff, Joe Gibson, Jr., appeals from an order of the Law Division dismissing his complaint against defendant, New Jersey Manufacturers Insurance Company, for personal injury protection (PIP) benefits. At issue is N.J.S.A. 39:6A-7b(1) which provides that insurers may exclude from PIP benefits a person who at the time of the accident "was the owner or registrant of an automobile registered or principally garaged in this State that was being operated without personal injury protection coverage[.]" (Emphasis added). We reverse the Law Division's order of dismissal of January 16, 1992 and remand for further proceedings.
Plaintiff brought the matter before the Law Division on Order to Show Cause "why the relief sought by the Plaintiff's Complaint should not be granted." See R. 4:67-5. In support of his application, plaintiff filed an affidavit alleging that on September 16, 1990, he was involved in a motor vehicle accident on the New Jersey Turnpike while he was operating a motor vehicle owned by his sister, who was insured by defendant. He acknowledged that he owned a motor vehicle at the time of the accident; however, he stated "the motor vehicle was not in use and I did not have automobile liability insurance coverage." He further stated that he had been insured for "the period from 7/26/89 to 7/26/90." However, he stated "there was a lapse in my insurance policy from 7/26/90 until 9/19/90." His affidavit continues as follows:
3. During that period of time, I was aware that I had no automobile liability insurance coverage and as a result, at no time did I operate my motor vehicle during those two months.
4. Rather, I parked my motor vehicle in the parking space allotted to me where I rent an apartment in a three family house, namely, 156 Elmwood Avenue, East Orange, New Jersey. That vehicle remained stationary in my allotted parking space a few days before 7/26/90 until 9/19/90, at which time I obtained automobile liability insurance coverage.
5. This is the very reason why I was driving my sister's, Vernary Gibson, vehicle on the date of the accident.
Defendant supplied the court with a law clerk's affidavit indicating that information was received that Joe Gibson, Jr., had an insurance policy and "that policy continued to be in effect until the termination date of July 26, 1990. Thereafter, there was a lapse in Joe Gibson, Jr.'s automobile liability insurance policy from 7/26/90 until 9/19/90. On that September date Joe Gibson, Jr. renewed his automobile liability insurance policy. . . ."
The Law Division Judge, by letter dated January 27, 1992, provided counsel for the respective parties with the following reasons for his decision:
Plaintiff was the operator of a motor vehicle owned by his sister. He owned his own motor vehicle and made application for PIP benefits to defendant's carrier. In the Kennedy case, supra the Court held that the operator of another's car was excluded from PIP benefit coverage when he had no PIP coverage on his own vehicle. NJSA 39:6A-7(b)(1). In Caldwell, supra the Court denied UCJF benefits to a pedestrian injured in a hit and run situation where plaintiff pedestrian owned an uninsured vehicle, albeit temporarily inoperable and being repaired. Prior to the 1983 amendments to NJSA 39:6-70(d) and 39:6-78(c) the claimant ...