On appeal from the Superior Court of New Jersey, Law Division, Bergen County, BER-L-10188-01, BER-L-1950-02.
Before Judges Conley, Braithwaite and Winkelstein.
The opinion of the court was delivered by: Winkelstein, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
The issue presented in this opinion is whether a driver who causes an accident while under the influence of alcohol is entitled to the benefits of the verbal threshold provision of an injured plaintiff's insurance policy. In this case, defendant Peter Joyce had a blood alcohol level of.16 at the time he caused an accident injuring plaintiffs. He pleaded guilty to driving under the influence. As a consequence, the Law Division ordered that he was"precluded from asserting the verbal threshold, and that all claims against [him] are governed by'no threshold....'" We granted defendant leave to appeal and now reverse.
The facts are not in dispute. On March 21, 2000, plaintiffs, Edward Woodworth and Rofel Flores, and defendant were in an automobile accident on the George Washington Bridge. Plaintiffs allege that defendant negligently operated his vehicle, colliding twice with Woodworth's car and once with Flores's. Both plaintiffs were injured in the accident.*fn2
Defendant has been employed as a full-time bartender since the 1970's. On the evening of the accident, he went to a restaurant in the Bronx, New York, where he drank"five or six" beers with his dinner. He left the restaurant and drove to a bar in Yonkers, where he had"four or five more" beers before leaving to drive home to Fort Lee. The accident occurred on his way home.
At his deposition, defendant testified that,"I guess I was under the influence of drinking and I had the accident. I did not know what went on. I don't know what happened." When asked whether he was"drunk" at the time, he replied:"I guess I was." He had no memory of what happened before the police arrived at the accident scene; he was unable to describe what occurred, beyond colliding with a car.
An officer who responded to the scene smelled the odor of alcohol coming from defendant, who told a police officer,"I'm too drunk to drive." The arresting officer observed defendant"unable to walk,""staggering" and"swaying"; with"slobbering" and"slurred" speech. Defendant was taken to the police station, where his blood alcohol level was.16. He subsequently pleaded guilty to driving while intoxicated. The conviction marked his third violation of N.J.S.A. 39:4-50.
In the Law Division, defendant moved for summary judgment, claiming plaintiffs failed to satisfy the verbal threshold established in the 1998 Automobile Insurance Cost Reduction Act (AICRA), N.J.S.A. 39:6A-8a. Plaintiffs, claiming defendant should be precluded from raising the verbal threshold as an affirmative defense,*fn3 cross-moved for an order that the verbal threshold did not apply based upon"intentional and deliberate reckless acts by the defendant." The parties filed other motions that are not relevant to this appeal.
Following oral argument, the judge denied all motions with the exception of plaintiffs' motion to preclude defendant from benefiting from the verbal threshold provisions of plaintiffs' automobile insurance policies. The judge rested her decision on N.J.S.A. 39:6A-4.5b, which precludes an injured person, convicted of operating a motor vehicle while under the influence of alcohol in connection with an accident, from having a cause of action to recover damages. The statute says:
Any person who is convicted of, or pleads guilty to, operating a motor vehicle in violation of [N.J.S.A. 39:4-50 -- driving under the influence], or a similar statute from any other jurisdiction, in connection with an accident, shall have no cause of action for recovery of economic or non-economic loss sustained as a result of the accident.
The Law Division construed this provision as barring defendant from benefiting from the verbal threshold provisions of plaintiffs' insurance policies. To arrive at this conclusion, the court relied upon New Jersey's public policy of discouraging drivers from operating their vehicles while under the influence of alcohol. The judge said the"entire purpose" of N.J.S.A. 39:6A-4.5b was"in furtherance of deterrence of drunk-drivers on our roads, and to keep them from having any advantage, economic or non-economic advantage, if there is an accident in which injuries occur." While we agree that New Jersey has a strong public policy against driving while under the influence of alcohol, we do not agree that N.J.S.A. ...