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Echeverri v. Blakely

March 14, 2006

JOSE ECHEVERRI, PLAINTIFF-APPELLANT,
v.
WILLIAM L. BLAKELY, DEFENDANT-RESPONDENT.



On appeal from Superior Court of New Jersey, Law Division, Union County, Docket No. L-3140-03.

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

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued January 11, 2006

Before Judges Stern, Parker*fn1 and Miniman.

This is an appeal from a grant of summary judgment in favor of defendant William L. Blakely dismissing the complaint of plaintiff Jose Echeverri for failure to prove a permanent injury under the Automobile Insurance Cost Reduction Act of 1998 (AICRA), N.J.S.A. 39:6A-1.1 to -35. Echeverri does not contest the trial court's conclusion that his injuries did not satisfy the limitation on lawsuit threshold. Rather, he argues that he should not be subject to that threshold at all. For the reasons expressed in this opinion, we affirm the trial court's conclusion that Echeverri was required by AICRA to prove a permanent injury or a displaced fracture.

On September 24, 2001, while riding a motorcycle Echeverri was involved in an accident with an automobile. As a result, Echeverri was taken to Union Hospital emergency room where he underwent medical treatment and was diagnosed with fractured ribs; cervical and lumbar strains and sprains with radiculopathy; possible stress fractures of the right knee, tibia, and humerus; and multiple contusions and abrasions. Echeverri maintained motorcycle liability insurance, but it did not provide personal injury protection (PIP) benefits. At the time of the accident, Echeverri resided with his mother and was named as the principal driver of a 1990 Camaro, one of two vehicles on his mother's automobile policy. He was also the owner of up to three uninsured motor vehicles that were principally garaged in New Jersey. His mother elected the limitation on lawsuit option in her policy, which reduced the premium on the 1990 Camaro to $4,060.

The trial court, relying on Koff v. Carrubba, 290 N.J. Super. 544, 549 (App. Div.), certif. denied, 146 N.J. 498 (1996), held Echeverri subject to the AICRA threshold. The trial court found the Koff case controlling in this instance.

The records indicate that the plaintiff involved in this accident on August 11, 2001 . . . was a resident of his parent's household. He's a child of the named insured. He's not a named insured on any other auto policy. The policy, the verbal selection that was made for that policy is binding upon him. He is PIP eligible under that policy. The criteria therefore of Koff are controlling. I do believe he is therefore subject to the verbal and the review of the records indicate that he has not satisfied the verbal threshold as it relates to this case.

On appeal, Echeverri contends that he should not be subject to the limitation on lawsuit threshold under AICRA. He points out that he was not eligible for PIP benefits under his mother's policy because the accident happened while he was riding on a motorcycle. PIP benefits are only available to an injured person if they were injured while occupying, entering into, alighting from or using an automobile, or while a pedestrian.

N.J.S.A. 39:6A-4. Echeverri contends that the motion judge erred as a matter of law when he concluded that Koff was controlling because Koff owned an automobile for which he chose the verbal threshold. Thus Koff was required to maintain PIP coverage, whereas here, Echeverri claims that he did not own an automobile on which he was required to maintain PIP benefits because his automobiles were in storage and not operable.*fn2

However, the motion judge did not rest his decision on Echeverri's ownership of a motor vehicle but rather upon his status in his mother's household and the provisions of her policy. Our review is confined to that issue.

In determining whether the decision below was correct, we "may review the trial court's legal interpretation without limitation." Illva Saronno Corp. v. Liberty Hill Realty, Inc., 344 N.J. Super. 443, 450 (App. Div. 2001); see also Manalapan Realty v. Township Comm. of Tp. of Manalapan, 140 N.J. 366, 378 (1995) (holding that "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference"); and Dolson v. Anastasia, 55 N.J. 2, 7 (1969).

In Koff we sustained a motorcyclist's damage claim for personal injuries when he collided with an automobile was subject to the verbal threshold, N.J.S.A. 39:6A-8(a), because he chose that option for a liability policy which insured only his automobile, not his motorcycle. Koff, supra, 290 N.J. Super. at 545. We set out the test to be applied under the ...


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