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Dziuba v. Fletcher

December 27, 2005

VICTOR DZIUBA AND ALEXANDRA DZIUBA, HIS WIFE, PLAINTIFFS-APPELLANTS,
v.
SCOTT J. FLETCHER, KRISTEN L. VANDERHOOK, LOUIS H. VANDERHOOK, AND FIRST TRENTON INDEMNITY COMPANY, DEFENDANTS-RESPONDENTS.



On appeal from Superior Court of New Jersey, Law Division, Cumberland County, CUM-L-944-02.

The opinion of the court was delivered by: Weissbard, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued November 10, 2005

Before Judges Conley,*fn1 Weissbard and Winkelstein.

This appeal presents two unresolved issues in the application of the no-fault law: (1) whether an individual deemed to be an owner, although not the registered owner, of an uninsured vehicle, who is involved in an accident is barred from collecting personal injury protection (PIP) benefits pursuant to N.J.S.A. 39:6A-7b(1), and (2) whether such an uninsured owner must be operating his uninsured vehicle at the time of the accident in order to be barred from seeking non-economic damages pursuant to N.J.S.A. 39:6A-4.5.

Plaintiff Victor Dziuba appeals from separate orders of the Law Division entered by two different judges that (1) dismissed his complaint against defendant First Trenton Indemnity Company (First Trenton) seeking PIP benefits for medical expenses, and (2) dismissed his complaint against defendants Scott Fletcher and Kristen Vanderhook for economic and non-economic damages. We affirm as to the denial of PIP benefits and economic damages but reverse and remand as to the demand for non-economic damages.

The facts are simple and straightforward. On August 16, 2000, plaintiffs, husband and wife, were passengers in an automobile owned and operated by defendant Scott Fletcher, when it was involved in an accident with a vehicle owned by Louis Vanderhook and operated by defendant Kristen Vanderhook. Although there were three automobiles in the Dziuba household, none were insured at the time of the accident. Plaintiffs purchased a Toyota Tercel in 1995 or 1996 which was registered to Alexandra and regularly driven by her around the time of the August 16, 2000 accident. Victor regularly drove a white Dodge Caravan that was registered in either Victor or Alexandra's name at the time of the accident. Finally, Victor also operated a red Dodge Caravan around the same time. Victor was injured in the accident and received treatment from various doctors for his injuries. His medical expenses amounted to approximately $9300.

Plaintiffs instituted suit against Fletcher, Louis and Kristen Vanderhook and First Trenton, the liability carrier for Fletcher. The claim against First Trenton was for PIP benefits. Louis Vanderhook was dismissed based on lack of agency. Defendants Fletcher and Kristen Vanderhook moved for summary judgment on the basis that plaintiffs were subject to and unable to meet the verbal threshold, N.J.S.A. 39:6A-8. Alexandra did not oppose the motion, but Victor did.*fn2 The motion was granted on March 19, 2004. In an oral opinion, the judge ruled that as an owner of an uninsured vehicle, Victor was "culpably uninsured" and therefore subject to the verbal threshold. He also found that Victor's injuries did not surmount the threshold. The parties did not address, and the judge did not determine, whether N.J.S.A. 39:6A-4.5 provided an independent basis for dismissal of Victor's claim for non-economic damages.

Thereafter, First Trenton moved for summary judgment on the basis that plaintiff was ineligible for economic loss damages, including PIP benefits, since he was "culpably uninsured" at the time of the accident. Defendants Fletcher and Vanderhook similarly moved. The motions were heard by a different judge and granted on July 9, 2004. The second judge's ruling was predicated on Victor's status as "culpably uninsured," as determined by the first judge, and N.J.S.A. 39:6A-7b(1) and 39:6A-12. Again, no reference was made to N.J.S.A. 39:6A-4.5 as an independent basis for dismissal of the economic loss claim.

Victor appeals, contending that he was not culpably uninsured and was, therefore, not subject to the verbal threshold. He also argues that even if he was subject to the threshold, he surmounted it. Further, he claims that he is entitled to PIP benefits or, alternatively, economic loss damages.

The PIP claim presents an issue not previously addressed in a reported decision. N.J.S.A. 39:6A-7b(1) provides, in pertinent part, that an insurer may exclude a person from PIP benefits who at the time of the accident "was the owner or registrant of an automobile registered or principally garaged in this State that was being operated without personal injury protection coverage." There is no question that the Dziuba household had three uninsured vehicles. Plaintiff argues, however, that he was not the "owner or registrant" of any such vehicles but was only the spouse of the "owner or registrant." We reject that claim.

As the discovery revealed, Victor and Alexandra jointly owned several uninsured vehicles. Even if the cars were only registered in Alexandra's name, there is no legitimate dispute that the vehicles were joint assets in an intact household.*fn3

Indeed, throughout their depositions, Victor and Alexandra continuously used the pronoun "we" in describing their use and ownership of the vehicles. Further, the statute itself does not equate owner and registrant; rather, it speaks of "owner or registrant." Ibid. (emphasis added). While it is unlikely that the individual in whose name a vehicle is registered would not be the owner or an owner, it is more likely that an owner may not be the registrant. As Judge Menza stated in Dobrolowski v. R.C. Chevrolet, 227 N.J. Super. 412, 415 (Law Div. 1988), "[t]he owner of the vehicle is usually the person who holds the title and in whose name the vehicle is registered, but this is not always the case. . . . [T]he true owner of an automobile may be one other than the holder of the legal title." That same proposition was endorsed by the Court in Verriest v. INA Underwriters Ins. Co., 142 N.J. 401, 408 (1995) (quoting Am. Hardware Mut. Ins. Co. v. Muller, 98 N.J. Super. 119, 129 (Ch. Div. 1967), aff'd o.b., 103 N.J. Super. 9 (App. Div.), certif. denied, 53 N.J. 85 (1968)). It is common that a husband and wife jointly own the family cars even though only one can be the registrant. Such was the case here. We conclude that Victor was at least*fn4 a beneficial owner of the uninsured cars at the time of his August 16, 2000 accident. Since the uninsured cars were being operated at or about the time of the accident, Kennedy v. Allstate Ins. Co., 211 N.J. Super. 515, 520 (Law Div.), aff'd o.b., 213 N.J. Super. 137 (App. Div. 1986), certif. ...


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