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Birck v. Hanover Insurance Co.

July 5, 2007

ANA BIRCK, PLAINTIFF-APPELLANT,
v.
HANOVER INSURANCE COMPANY, PALISADES INSURANCE COMPANY, DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-12014-04.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued March 20, 2007

Before Judges Graves and Lihotz.

On March 18, 2004, plaintiff Ana Birck suffered significant injuries when the vehicle in which she was a passenger, driven by Irina Blaine, collided with a utility pole. Plaintiff filed a complaint in the Law Division against defendants to recover the cost of her medical expenses. Plaintiff appeals from the order dated November 9, 2005, entered after a bench trial, which concluded that: (1) the insurance contract between plaintiff and defendant Hanover Insurance Company was void ab initio, due to a material misrepresentation by plaintiff regarding her place of residence in her application for insurance; and (2) under N.J.S.A. 39:6A-7(b)(1), plaintiff was excluded from collecting Personal Injury Protection Benefits (PIP) under Blaine's automobile insurance policy, issued by defendant Palisades Insurance Company, because she held no valid motor vehicle insurance coverage at the time of the accident. Plaintiff also appeals from the December 20, 2005 order denying her motion for reconsideration. We affirm.

The circumstances surrounding plaintiff's purchase of the Hanover policy are contextually necessary for our review of the trial judge's decision. On November 13, 2003, plaintiff, who was a New Jersey resident, traveled to Massachusetts to visit a friend. On that date, she purchased a 1997 Mercury Sable from Express Auto Center in Marlboro, Massachusetts (Express). An employee of Express first took plaintiff to the Rapo-Jepsen Insurance agency to obtain automobile insurance coverage and then to the office of the Massachusetts Registry of Motor Vehicles to register the car. The registration and insurance application forms completed and executed by plaintiff that day listed her residential address as "26A Summit Avenue, Brookline, MA 02446." The insurance application signed by plaintiff is entitled, "Application for Massachusetts Motor Vehicle Insurance," and contains the following statement:

NOTICE: If you or someone else on your behalf has knowingly given us false, deceptive, misleading or incomplete information and if such false, deceptive, misleading or incomplete information increases our risk or loss, we may refuse to pay claims under any or all of the Optional Insurance Parts and we may cancel your policy.

Additionally, above plaintiff's signature appears her attestation that the statements in the application are true.

Plaintiff agrees she never resided at the Massachusetts address. She contends, however, that she did not fill-out the forms; rather, a representative of Express or the insurance brokerage agency completed the forms and she signed them. Plaintiff asserts she was at a disadvantage because her native language is Portuguese and she is not fluent in English. On cross-examination, plaintiff admitted she understood what was meant by "residential address," and did not disclose to the insurance agency representative that she lived in New Jersey.

After receiving plaintiff's application for insurance, Hanover issued policy number ADN7244218, initially effective for the period November 13, 2003 to November 13, 2004. Plaintiff paid monthly payments of $122 to Hanover.

The Hanover policy repeated the above stated notice language appearing in the insurance application in two places: at section 28 "General Provisions and Exclusions" paragraph 18, entitled "False Information;" and on page two of the coverage selections sheet, where it is set-off from and appears at the top of the page before other policy provisions. The policy's cancellation provisions state:

We can cancel all or any part of this policy including your Compulsory Insurance if:

2. We find that you were responsible for fraud or material misrepresentation when you applied for this policy or any extension or renewal of it. . . .

Finally, the Hanover contract contains choice of law provisions, which include: "This policy is a legal contract under Massachusetts law . . . . There are many laws of Massachusetts relating to automobile insurance. We and you must and do ...


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