On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-002279-97.
Before Judges Wefing, Lesemann and Parrillo.
The opinion of the court was delivered by: Wefing, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: November 7, 2001
The trial court granted defendant's motion for summary judgment, concluding that plaintiff was not entitled to either personal injury protection benefits (PIP) or uninsured motorist's coverage (UM) under a policy of insurance it had issued to Robert Lockhart. Plaintiff has appealed. After carefully reviewing the entire record in light of the contentions advanced on appeal, we affirm.
Plaintiff was involved in a one-car accident at approximately 8:30 a.m. on August 28, 1995. She was driving southbound on Interstate 295 in Mount Laurel when she was cut off by a vehicle which sped off. She applied her brakes to avoid the other car and skidded off the roadway onto the grassy median. The car flipped over several times.
Plaintiff's passengers were her two sons, who were six and seven years old. Plaintiff was divorced from their father, who had custody of the boys. She had picked them up for routine visitation.
At the time of the accident, plaintiff was engaged to Paul Martin. She was living with him in Lindenwold. Neither of them had an automobile; when they needed a car they would borrow one from Mr. Martin's mother and stepfather, Mr. Lockhart. Mr. Lockhart testified in deposition that plaintiff and his stepson would borrow a car once or twice a month to pick up or return her sons. Mr. Lockhart's automobiles were insured through defendant, Rutgers Casualty Insurance Co.
Unbeknownst to Mr. Lockhart, however, plaintiff did not have a valid New Jersey driver's license; indeed, she had not had one for some years. Plaintiff testified in deposition that her New Jersey driver's license was initially suspended in 1989. She admitted it had been suspended five times between 1989 and the accident in 1995. The period of suspension was periodically extended because on several occasions she was ticketed for driving while on the revoked list. Plaintiff had, from the time of the initial suspension, received a number of tickets, including several charges of driving while intoxicated.
After the accident, plaintiff presented a claim for PIP coverage and UM benefits under this Rutgers policy. Rutgers declined coverage and this suit resulted. Before passing to the merits of plaintiff's claim we note in passing that no claim for damages was ever asserted on behalf of the boys who appear to have escaped from the accident entirely unscathed. We also note that the copy of the policy provided to us states that disputes over coverage should be submitted to binding arbitration; neither party apparently invoked that clause at any stage of the proceedings below. Finally, we note that in her deposition plaintiff admitted she had no unreimbursed expenses as a result of the accident.
The UM endorsement to the Lockhart policy excluded coverage for bodily injury sustained by a person "[u]sing a vehicle without a reasonable belief that that person is entitled to do so." The PIP endorsement contained a similar exclusion. Further, the Rutgers policy defined "reasonable belief" in the following manner: "Any person operating the vehicle without a valid license . . . shall be conclusively presumed to be operating the insured vehicle without a reasonable belief they are entitled to do so."
Rutgers pointed to these policy provisions and maintained that plaintiff could not have had a reasonable belief she was permitted to drive the Lockhart car. Plaintiff argued the policy provisions were invalid under N.J.S.A. 39:6A-7 and further, that she had a driver's license issued by the State of Texas, where she had resided for approximately one and one-half years.
As to this latter contention, a search of the Texas motor vehicle records has failed to disclose the existence of any license for plaintiff, under either of the names she provided. The record is barren of any evidence that plaintiff had such a license other than her own self-serving assertion to that effect. That is clearly insufficient to create a question of material fact for purposes of a summary judgment motion. Brill v. Guardian Life Ins. Co., 142 N.J. 520 (1995).
We turn then to the question whether the Rutgers exclusion is invalid under New Jersey law. N.J.S.A. 39:6A-7 sets forth certain limited situations in which an insurer may exclude PIP coverage, including instances in which injuries are sustained by a person "occupying or operating an automobile without the permission of the owner or other named insured." Plaintiff points to dicta contained in our opinion in Rutgers Casualty Ins. Co. v. Ohio Casualty, 299 N.J. Super. 249, 255 (App. Div. 1997), aff'd. 153 N.J. 205 (1998) in which we stated, in another context, "The statute [N.J.S.A. 39:6A-7] countenances no other true exclusions from PIP benefits." Plaintiff contends ...