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Stricklen v. Ferruggia

June 30, 2005

TOSHIBA A. STRICKLEN, PLAINTIFF-APPELLANT,
v.
ERMANNO FERRUGGIA, DEFENDANT-RESPONDENT, AND STATE FARM INSURANCE COMPANY, DEFENDANT.



On appeal from the Superior Court of New Jersey, Law Division, Essex County, L-7488-02.

The opinion of the court was delivered by: Axelrad, J.T.C. (temporarily assigned).

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE COMMITTEE ON OPINIONS

APPROVED FOR PUBLICATION

Argued April 6, 2005

Before Judges Newman, Axelrad and Landau.

In this appeal, we are faced with the novel issue of whether an injured co-owner of an automobile involved in an accident, who is an "additional driver" but not a "named insured" on the policy, and who is not a member of the named insured's household under the statutory definition, is bound by the election of the verbal threshold option by her co-owner who was the only owner listed as the "named insured" on the policy. The motion judge found in the affirmative. We affirm.

On August 20, 2000, plaintiff Toshiba Stricklen, also known as Toshiba Evans, was involved in an automobile accident with defendant Ermanno Ferruggia at the intersection of South Orange Avenue and Twelfth Street in Newark, New Jersey, while operating a l999 Ford Explorer. According to the police report, each party claimed the other person ran a red light and struck his or her respective vehicle. Plaintiff was taken by ambulance to the Columbus Hospital emergency room and released later that day. She complained of injuries to her neck, back and right knee. Her chiropractor's diagnosis was post-traumatic cervical sprain/strain, thoracic sprain/strain, muscle spasm, lumbar sprain/strain and cephalgia.

At the time of the accident, plaintiff resided at 271 1/2 Sixth Avenue in Newark with her grandmother Ruth Johnson and her uncle Kenneth Evans (uncle or Evans). Evans had obtained an automobile liability policy with defendant State Farm Insurance Company (State Farm) for the Explorer and a l987 GMC Sl5 Jimmy which was in effect on the date of the accident.*fn1 The declaration page of the policy, which is the only insurance documentation contained in the appendix, is addressed to Evans. Under "Additional Policy Information," it lists both Evans and plaintiff*fn2 with their respective tier and driver point history and states "Limitation on Lawsuit Option." The following section, "Driver(s) in Household," states "[t]he following list of drivers is shown for informational purposes only and does not extend or expand coverage beyond that contained in this automobile policy. Our records indicate the persons listed below are the only licensed drivers reported to us: KENNETH EVANS, TOSHIBA EVANS."

On September 8, 2000, plaintiff signed an affidavit with reference to the action, stating in pertinent part:

3. Neither I nor any member of my household was the owner of an automobile.

4. I am not otherwise entitled to New Jersey Automobile No-Fault benefits for this accident.

5. I am, therefore, executing this affidavit in order to receive New Jersey Automobile No-Fault benefits under the State Farm Insurance Company's policy issued to Kenneth Evans.

Plaintiff deposed that her uncle owned both the Jimmy and the Explorer, she had access to both cars, and although she usually drove the Explorer, she did not have exclusive use of that vehicle. She acknowledged she was listed on the subject State Farm policy.

The undisputed evidence is that plaintiff and Evans were co-owners of the Explorer at the time of the accident. The vehicle's "Odometer Disclosure Statement and Statement of Seller" (Odometer Statement) dated May 3, 2000 lists Evans as the buyer and plaintiff as the co-buyer; both individuals signed the buyer's signature lines. Additionally, plaintiff and her uncle are listed as sellers on a March 3, 200l Odometer Statement executed in connection with a sale of the car to Janice Evans. ...


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