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Dries v. Gingerelli

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


April 17, 2008

RONALD DRIES AND JACQUELINE DRIES, HUSBAND AND WIFE, AND SCOTT DRIES, PLAINTIFFS-APPELLANTS,
v.
MICHAEL GINGERELLI, JR., ANGELIQUE N. KEELER AND MARK C. SPENCER, DEFENDANTS, AND NEW JERSEY CITIZENS UNITED RECIPROCAL EXCHANGE, DEFENDANT-RESPONDENT.
NEW JERSEY CITIZENS UNITED RECIPROCAL EXCHANGE, PLAINTIFF,
v.
ANGELIQUE N. KEELER, MICHAEL GINGERELLI, JR., MARK C. SPENCER, RONALD DRIES AND JACQUELINE DRIES, HUSBAND AND WIFE, AND SCOTT DRIES, DEFENDANTS.

On appeal from the Superior Court of New Jersey Law Division, Essex County, Docket No. L-3500-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued April 7, 2008

Before Judges Stern, Collester and C.L. Miniman.

The injured plaintiffs, Ronald and Scott Dries and Ronald's wife, appeal from an order granting summary judgment dismissing their complaint against New Jersey Citizens United Reciprocal Exchange (NJ CURE), the carrier of the vehicle in which they were riding at the time of a motor vehicle accident on March 1, 2005.*fn1 Judge Eugene Codey, Jr. concluded that the policy was void "ab initio for material misrepresentations made to NJ CURE" by the insured when the policy was issued, that NJ CURE "ha[d] no duty to defend" its insured Angelique Keeler and that there was no "bodily injury liability coverage available under the policy," but that as innocent third-party passengers, plaintiffs were entitled to "the mandatory minimum compulsory insurance in effect at the time of the accident," which the judge deemed to be the basic policy under the Automobile Insurance Cost Reduction Act (AICRA), N.J.S.A. 39:6A-1.1 to -35, and that plaintiffs were "entitled to limited PIP benefits, if eligibility requirements are met."*fn2 The Dries argue that the motion judge "erred in voiding the [NJ CURE] policy that was issued to defendant Angelique Keeler" and that the Dries "are at least entitled to basic Personal Injury Protection (PIP) benefits and liability coverage limits of 15,000/30,000 from" NJ CURE.

We affirm Judge Codey's determination substantially for the reasons he gave on April 28, 2006, "declaring the [] Keeler policy void ab initio," and holding that plaintiffs were entitled to minimum limits required by compulsory insurance laws. See Palisades Safety & Ins. Ass'n v. Bastien, 175 N.J. 144 (2003) (holding a policy void ab initio for a similar misrepresentation, but treating a spouse as a first party claimant not entitled to the minimum protection). We find no basis for a finding under existing law that the misrepresentation was not "material" even if there was no intent to cover the unreported resident and he was not involved in the accident. A certification of the underwriting manager for the company which "serves as the Attorney-in-Fact" for NJ CURE certified that "[h]ad Angelique Keeler disclosed that Lawrence Foy was a resident of her household, she would have failed to meet [CURE's] underwriting guidelines" because of his license suspension and conviction for driving while revoked. According to the certification, which is uncontested, "[p]ursuant to Underwriting Guidelines on file with the Department of Banking and Insurance since 1992, Angelique Keeler would not qualify to be a member of NJ CURE."

We reverse the judgment as to the amount of minimum coverage because the case on which Judge Codey appeared to rely, Mannion v. Bell, 380 N.J. Super. 259, 266 (Law Div. 2005), was subsequently overruled by New Jersey Mfrs. Ins. Co. v. Varjabedian, 391 N.J. Super. 253, 254 (App. Div.), certif. denied, 192 N.J. 295 (2007), to which we adhere. Varjabedian held the "carrier's default liability" to innocent third parties is that required by AICRA under a standard automobile policy of $15,000/$30,000. Ibid. PIP benefits under a standard policy would also apply. See N.J.S.A. 39:6A-3, -4, -10. See also Craig & Pomeroy, New Jersey Auto Insurance Law (Gann 2008) § 5.1.

Accordingly, we remand to the Law Division for further consideration as to liability and PIP coverage in light of Varjabedian, supra, 391 N.J. Super. at 254.

Remanded.


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