On appeal from the Superior Court of New Jersey, Law Division, Camden County, L-7271- 98.
Before Judges A. A. Rodríguez, Lefelt and Lisa.
The opinion of the court was delivered by: Rodriguez, A. A., J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: February 14, 2002
In this appeal, we consider whether unemancipated children who are primarily members of their mother's household, but who are also members of their father's household part of the time, are bound by their father's limitation on lawsuit (verbal threshold) tort option pursuant to N.J.S.A. 39:6A-8.1a. We hold that they are so bound. The concept of dual residency/integrated family unit, which has been utilized by New Jersey courts in deciding claims for homeowner's liability, personal injury protection (PIP), underinsured (UIM) and uninsured (UM) coverage, should also be utilized in deciding tort option election issues.
The significant facts can be summarized as follows. Plaintiffs are four minors *fn1 who were injured in a collision on September 16, 1996, while passengers in an automobile. Their injuries, however, were not sufficiently serious to meet the verbal threshold set by N.J.S.A. 39:6A-8a. Plaintiffs received PIP benefits by virtue of their status as passengers/occupants in a motor vehicle.
Plaintiffs' mother and father are married. However, the parents have been separated since 1989. Plaintiffs live with their mother and visit with their father on the weekends. Sometimes, plaintiffs stay overnight at their father's home.
The father lives with his mother and sister. Plaintiffs do not keep clothes or toys permanently at their father's home. It is undisputed that the father owns a motor vehicle. He chose the verbal threshold option in obtaining insurance for that vehicle. *fn2
Plaintiffs' mother sued Rolando Correa and Esteban Correa (defendants), respectively, the owner and operator of the other vehicle as guardian ad litem, for plaintiffs. *fn3 Defendants moved for summary judgment arguing that plaintiffs' claims for non- economic damages were barred because plaintiffs reside part of the time with their father. Therefore, plaintiffs are bound by their father's election pursuant to N.J.S.A. 39:6A-8.1a.
Plaintiffs opposed the motion arguing that they live with their mother and no one in her household owns a motor vehicle. Therefore, by virtue of N.J.S.A. 39:6A-8a, they are not subject to the verbal threshold. The parties stipulated that if the verbal threshold applies to these plaintiffs, the complaint should be dismissed.
Defendants presented the deposition testimony of two of the plaintiffs and their mother in support of the summary judgment motions. Plaintiffs, although agreeing with the central facts, strongly disputed the legal conclusion that they were part of their father's household.
The judge found that plaintiffs were part of their father's and mother's households, and thus, subject to the verbal threshold. The judge also found that plaintiffs "have failed to pierce the verbal threshold." Accordingly, the judge granted defendants' motion for summary judgment and dismissed with prejudice all of plaintiffs' claims.
On appeal, plaintiffs contend that "the trial court improperly applied the dual residency/integrated family unit extension of PIP/UM/UIM coverage to the tort exemption statute." They also contend that "the trial court improperly and broadly interpreted the verbal threshold statute to include children residing in a different household." We disagree.
A review of pertinent authorities and principles is helpful. A New Jersey resident who is required to maintain PIP coverage must choose from one of two automobile insurance options. N.J.S.A. 39:6A-8. Subsection a. of the statute provides for a "limitation on lawsuit" option, commonly called the "verbal threshold" option. Subsection b. provides for an alternative, the "no limitation on lawsuit" option. The verbal threshold option precludes a cause of action for non-economic losses, unless the plaintiff's bodily injury and resulting disability meet certain statutory criteria. Ibid. The option chosen by the named insured binds that person and the immediate family members residing in his or her household. N.J.S.A. 39:68-8.1a. This section of the statue also provides that "'[i]mmediate family member' means the spouse of the named insured and any child of the named insured or spouse residing in the named insured's ...