On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket No. L-2620-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Sapp-Peterson and Messano.
Defendant New Jersey Indemnity Insurance Company (NJIIC) appeals from a series of three orders that 1) permitted plaintiff Johnny Ramirez to amend his complaint and add NJIIC as a party defendant; 2) found plaintiff was "entitled to personal injury protection [PIP] benefits from [NJIIC] for medical bills causally related to his motor vehicle accident o[f] July 26, 2003"; and 3) ordered NJIIC to pay counsel fees and costs to plaintiff. NJIIC contends that plaintiff, though living in its insured's household, was not a member of the insured's family, was not economically dependent upon the insured, Brokenbaugh v. N.J. Manufacturer's Insurance Co., 158 N.J. Super. 424 (App. Div. 1978), and therefore was not entitled to PIP benefits under N.J.S.A. 39:6A-4.
We have considered this argument in light of the record and applicable legal standards. We reverse, vacate the orders that required NJIIC to pay plaintiff PIP benefits and counsel fees, and remand the matter to the trial court for the entry of judgment in favor of NJIIC. As a result, we do not consider the argument NJIIC raises with respect to the order permitting the amendment of plaintiff's complaint since the issue is now moot.
On July 26, 2003, plaintiff was a passenger in a car operated by defendant Carlos Duenas and owned by defendant Sonia Duenas Espana when it was involved in a motor vehicle accident in Elizabeth. Plaintiff made a claim for PIP benefits with New Jersey Manufacturer's Insurance Company (NJM) pursuant to an automobile insurance policy issued to Pedro Arcos. On September 12, 2003, NJIIC issued a denial letter to plaintiff's counsel, noting that plaintiff was "not a relative of [Arcos] and was not in [Arcos's] vehicle." On July 22, 2005, plaintiff filed suit against Carlos Duenas, Sonia Duenas Espana, the Unsatisfied Claim and Judgment Fund, and NJM.*fn1 After discovery ended on September 4, 2006, NJM moved for summary judgment arguing that it did not issue the policy to Arcos, a separate company, NJIIC did. Plaintiff cross-moved to amend his complaint and add NJIIC as a defendant in place of NJM.
Considering both applications, the judge entered two orders, both dated October 20, 2006; one granted NJM's summary judgment motion and dismissed the complaint as to it, and the second granted plaintiff's cross-motion and permitted him to file an amended complaint naming NJIIC as a defendant.*fn2 No additional discovery was permitted and NJIIC's subsequent motion for summary judgment was denied.
The matter proceeded as a bench trial before another judge on May 15 and 16, 2007. Plaintiff, his mother, Sandra Pineda, and Mary Ellen Trogani, a supervisor in NJIIC's PIP department all testified, and we reference that testimony in greater detail below. On June 4, 2007, the trial judge placed her findings of fact and conclusions of law upon the record, which we summarize briefly at this point as follows:
It is clear and unrebutted that since entering the United States [plaintiff] has been dependent upon Pedro Arcos, relying on him for economic support, family and de facto membership in the family unit, membership in the domestic circle that made up the family of Sandra Pineda and Pedro Arcos . . . . Although admittedly [plaintiff] was not a blood or marriage or adopted ward of Pedro Arcos, he was clearly a member of his domestic circle . . . .
[Plaintiff] has never been financially independent . . . . He went from the household of  Arcos and  Pineda to his girlfriend, to live together with her mother and uncle, not in a household or family of his own . . . .
Despite his job with Artistic Fence as an independent contractor and the money he had made, he has never independently maintained a household of his own. Even when living with his girlfriend, he lived with her mother and uncle and did not achieve financial, emotional, or emancipated independence as is argued by [NJIIC]. Moreover, the court is satisfied that [plaintiff] lived with and continues to this day to live with Arcos and Pineda as a de facto family within the domestic circle with reciprocal duties of care and support, both financial and emotional. See, Brokenbaugh[,][supra, 158 N.J. Super.] at 433.
On June 8, 2007, the judge entered an order requiring NJIIC to pay plaintiff's PIP benefits, and on July 20, 2007, after hearing oral argument on plaintiff's motion for counsel fees, she entered an order requiring NJIIC to pay $24,750 in fees, and $574.70 in ...