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Shuman v. Market Transition Facility

October 4, 1996

KEVIN SHUMAN, PLAINTIFF-APPELLANT,
v.
MARKET TRANSITION FACILITY, WARNER INSURANCE COMPANY AND ITS SERVICING CARRIER, MATERIAL DAMAGE ADJUSTMENT CORPORATION, DEFENDANTS-RESPONDENTS.



On appeal from Superior Court of New Jersey, Law Division, Cape May County.

Approved for Publication October 4, 1996.

Before Judges Havey, Brochin and Kestin. The opinion of the court was delivered by Havey, P.j.a.d.

The opinion of the court was delivered by: Havey

The opinion of the court was delivered by HAVEY, P.J.A.D.

In this insurance coverage case, plaintiff appeals from a summary judgment order dismissing his complaint in which he demanded personal injury protection (PIP) and uninsured motorist (UM) coverage under a policy issued by defendants to Jennifer Needles. Plaintiff had sustained injuries in an automobile accident while a passenger in an uninsured vehicle operated by Jerry Jorgenson. At the time of the accident, he and Jennifer were unmarried cohabitants. They had lived together for over eight years and have three children. Defendants denied coverage because plaintiff was not a "family member" as defined under the PIP and UM endorsements. The motion Judge agreed.

On appeal, plaintiff contends that (1) under Dunphy v. Gregor, 136 N.J. 99, 642 A.2d 372 (1994), he should be considered a family member under Jennifer's policy; (2) we should apply the "common" meaning of family, which would include him in Jennifer's family; and (3) providing PIP and UM coverage to him is consistent with the remedial purpose of the no-fault law. We reject each contention and affirm.

The PIP endorsement under defendants' policy provides that the carrier will pay for reasonable medical expenses sustained by an "insured." The term "insured" includes "family members" of the named insured. "Family member" is defined as "a person related to you by blood, marriage or adoption who is a resident of your household." The UM endorsement uses the same definition of "insured" and "family member" as is contained in the PIP endorsement.

Under New Jersey's no-fault law, every automobile liability policy must provide PIP coverage "to the named insured and members of his family residing in his household . . . ." N.J.S.A. 39:6A-4. N.J.S.A. 17:28-1.1, which regulates UM coverage, contains no such language. Plaintiff urges that because "family member" is not defined in either statute, we should give the term the broadest application, consistent with the statutory language and remedial purpose of the no-fault legislation. See Amiano v. Ohio Cas. Ins. Co., 85 N.J. 85, 90, 424 A.2d 1179 (1981); Handler v. State Farm Mut. Auto. Ins. Co., 253 N.J. Super. 641, 646, 602 A.2d 796 (App. Div. 1992). Thus, plaintiff argues, we should consider changing social mores concerning "families" and recognize that plaintiff's relationship with Jennifer constitutes a "family" unit for purposes of no-fault coverage.

However, we have expressly held that an unmarried cohabitant is not a member of the insured's family living in his household for purposes of PIP coverage. See Wood v. State Farm Mut. Auto. Ins. Co., 178 N.J. Super. 607, 609, 429 A.2d 1082 (App. Div. 1981). This is so because courts cannot ignore the clear and unambiguous language in the PIP statute which requires coverage only to traditional family members, despite our liberality in affording broadest protection to accident victims. Ibid. We reasoned in Wood :

We would be in disregard of the clearly expressed legislative intent if we were to open up the statute so as to extend its benefits to a friend of the insured, no matter how close and intimate that friendship might be.

[Ibid. ]

In State Farm Mut. Auto. Ins. Co. v. Pizzi, 208 N.J. Super. 152, 505 A.2d 160 (App. Div. 1986), we adopted Wood's reasoning in the context of UM coverage, concluding that an unmarried cohabitant was not the "spouse" or "relative" of the named insured and thus no coverage was offered, "'no matter how close and intimate that friendship might be.'" Id. at 156 (quoting Wood, (supra) , 178 N.J. Super. at 609). See also Handler, (supra) , 253 N.J. Super. at 647 ("people who live together, while not married, will not be deemed to be family or relatives for insurance coverage purposes"). We have no reason to depart from this well-founded precedent.

Plaintiff contends that we should nevertheless expand the concept of "family member" in view of our Supreme Court's recent declaration in Dunphy, (supra) , 136 N.J. 99, that a plaintiff who witnessed her fiance being struck by a car could sue for negligent infliction of emotional distress. Id. at 102-03, 115. Dunphy reasons that an unmarried cohabitant should be afforded the protection of "bystander liability" based on the "existence of an intimate familial relationship" between the plaintiff and the victim of defendant's negligence. Id. at 111.

The motion Judge here rejected plaintiff's reliance on Dunphy, concluding that Dunphy "really doesn't apply in a contract setting." We agree. Dunphy's holding was predicated on the expansion of the duty owed to bystanders under tort law, originally enunciated by the Court in Portee v. Jaffee, 84 N.J. 88, 417 A.2d 521 (1980); it was not ...


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