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Bessor v. Colatrella

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


September 25, 2008

PHILIP N. BESSOR, IV, PLAINTIFF-APPELLANT,
v.
MICHAEL COLATRELLA AND CHRISTOPHER M. COLATRELLA, DEFENDANTS-RESPONDENTS.

On appeal from Superior Court of New Jersey, Atlantic County, Law Division, Docket No. L-10356-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted August 26, 2008

Before Judges Payne and Alvarez.

Plaintiff Philip N. Bessor, IV, entered a guilty plea in municipal court to driving while intoxicated (DWI), N.J.S.A. 39:4-50, subject to a civil reservation, an order that "the plea shall not be evidential in any civil proceeding" pursuant to Rule 7:6-2(a)(1). Nearly two years later, plaintiff filed a complaint against defendants Michael Colatrella (Michael) and Christopher M. Colatrella (Christopher).*fn1 The complaint alleged that plaintiff suffered personal injuries and other losses in an automobile accident caused by Christopher's negligence, but which occurred while plaintiff was admittedly driving under the influence. Defendants were granted summary judgment dismissing the complaint because the motion judge found that, despite the civil reservation, the conviction triggered N.J.S.A. 39:6A-4.5(b). The statute bars recovery, regardless of liability, for any loss suffered "in connection with" an accident where a claimant has entered a guilty plea to DWI, as was the case here. Plaintiff's appeal followed and we affirm.

Because plaintiff's breath smelled of alcohol and he admitted to drinking when the accident occurred on September 10, 2004, his blood alcohol level (BAC) was analyzed at the hospital where he was treated. Ninety-four minutes after the accident, his BAC was reported to be 0.116%, 0.036% above the statutory limit.*fn2 N.J.S.A. 39:4-50(a).

Immediately prior to the accident, plaintiff was proceeding on his motorcycle northbound when Christopher backed out of a driveway located to plaintiff's right. Christopher pulled into the southbound lane and proceeded forward from plaintiff's left onto the northbound lane, where plaintiff collided with the passenger side of Christopher's vehicle. After the collision, plaintiff's motorcycle crashed into a flower pot on Michael's property on the right side of the road beyond the driveway, at which point motorcycle and driver flew in separate directions towards a wooded area. Plaintiff suffered a compound fracture to his leg as a result, among other injuries.

Plaintiff's guilty plea to DWI was entered on November 8, 2004. The complaint alleging personal injury and property damage was filed on August 31, 2006. The motion judge orally granted summary judgment and dismissed the complaint on November 2, 2007. He thereafter amplified the decision by way of a written opinion.

Plaintiff contends that the motion judge erred in awarding summary judgment because the civil reservation that he was granted when he entered his guilty plea protected him from application of N.J.S.A. 39:6A-4.5(b). Plaintiff further contends that because the third count of his complaint sought relief against Michael on a theory of premises liability, N.J.S.A. 39:6A-4.5(b) is inapplicable to that count.

We must first decide whether the statutory enactment or the court rule controls. Where a statutory enactment concerns substantive law, as opposed to matters of judicial procedure and administration, the statute will control. Winberry v. Salisbury, 5 N.J. 240, 247, 255, cert. denied, 340 U.S. 877, 71 S.Ct. 123, 95 L.Ed. 638 (1950). Where a statute addresses procedural rights, a court rule that may appear in conflict generally controls. Ferreira v. Rancocas Orthopedic Assocs., 178 N.J. 144, 161-63 (2003) (Zazzali, concurring); N.J. State Bar Ass'n v. State, 387 N.J. Super. 24, 48 (App. Div.), certif. denied, 188 N.J. 491 (2006).

N.J.S.A. 39:6A-4.5(b) is substantive in nature, similar to a statute of limitations, and is indeed "within the Legislature's province." See Ferreira, supra, 178 N.J. at 164. The statute clearly extinguishes substantive rights. It states:

Any person who is convicted of, or pleads guilty to, operating a motor vehicle in violation of Rule 39:4-50 . . . or a similar statute from any other jurisdiction, in connection with an accident, shall have no cause of action for recovery of economic or non-economic loss sustained as a result of the accident. [N.J.S.A. 39:6A-4.5(b).]

Furthermore, the statute was enacted to address important societal concerns; not only the deterrence of drunk driving, but also the reduction of costs associated with automobile insurance. Camp v. Lummino, 352 N.J. Super. 414, 417, 419 (App. Div. 2002). Both societal goals are advanced by the enforcement of the statutory bar in this case.

Moreover, closer examination of Rule 7:6-2(a)(1) makes clear that it should not protect plaintiff in this factual scenario. First, the proof of plaintiff's operation of a motor vehicle while intoxicated appears overwhelming. Given his BAC, the odor of alcohol on his breath, and his admissions about the use of alcohol, a conviction was the likely outcome whether he pled guilty or tried the matter. No unfairness results to plaintiff where he would probably have been convicted at trial and precluded from asking for the protection of a civil reservation under Rule 7:6-2(a)(1).

Second, by its very terms, the rule is triggered not by good cause or some other compelling circumstance, but merely "[on] the request of the defendant." State v. LaResca, 267 N.J. Super. 411, 421 (App. Div. 1993); Pressler, Current N.J. Court Rules, comment 2.2 on R. 7:6-3 (2008). Such requests are to be granted on a liberal basis and the burden rests on the State or some other interested party to show good cause why the civil reservation should not be granted. LaResca, supra, 267 N.J. Super. at 421. The societal interest served by Rule 7:6-2(a)(1) is obvious: to expedite the entry of routine pleas in our busy municipal courts. Concerns of judicial efficiency pale in comparison to the need to deter drunk driving.

In this case, there was no interested party to object. The municipal court prosecutor's responsibility was to deal with the DWI summons. Although at the time of the entry of the plea, defendants may have been on notice of the potential claim, they were likely unrepresented as the complaint was not filed until two years later. They would have had no means of monitoring the terms and conditions under which plaintiff entered a guilty plea. There was no reason or opportunity for anyone to object to the civil reservation or for a hearing to be conducted thereon. The civil reservation was likely granted as a matter of routine, simply because the request was made.

We find that the statute controls because it concerns substantive matters and predominant societal interests. In addition, the civil reservation was awarded in a factual vacuum, merely at plaintiff's request without any showing of good cause.

Therefore, the need for enforcement of the statutory bar in this case overrides the need to enforce the civil reservation.

Plaintiff also contends that because the third count of the complaint, against Michael as the landowner, sounded only in premises liability theories, the separate cause of action should be preserved and summary judgment should be vacated. In our view, the plain language of the statute requires a contrary result.

Admittedly, N.J.S.A. 39:6A-4.5(b) is a section of an act titled, the "Automobile Insurance Cost Reduction Act" (AICRA). N.J.S.A. 39:6A-1.1. In order to deter drunk driving, however, and the impact that it has upon the public and upon automobile insurance premiums, the legislature is entitled to place a bar to recovery under any theory. See Caviglia v. Royal Tours of Am., 178 N.J. 460, 474-75 (2004). In other words, the public policy concerns that compelled the statutory enactment are advanced regardless of whether the theory of liability in this case relates to automobiles or premises. The conduct to be deterred, drunk driving, is the same. Accordingly, the motion judge's decision to dismiss count three of the complaint was not in error. The award of summary judgment on that count is also affirmed.

Affirmed.


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