On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, L-4779-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 22, 2008
Before Judges Lisa and Reisner.
Plaintiff Byron R. Haines appeals from a September 24, 2007 trial court order dismissing his personal injury suit against defendant Bythenia Ali. We affirm.
The order on appeal arose in the following context. Plaintiff and defendant were drivers involved in an automobile accident which occurred in Atlantic City on February 2, 2005. Plaintiff sued defendant for negligence. Defendant filed a motion for summary judgment based on her contention that plaintiff had not insured his vehicle as required by New Jersey law, and was therefore precluded by N.J.S.A. 39:6A-4.5a from maintaining a lawsuit for his alleged injuries sustained in the accident.*fn1 Because there were disputed factual issues concerning where defendant resided and where his car was principally garaged at the time of the accident, the trial judge held a plenary hearing on that issue.
The hearing revealed the following facts. At the time of the accident, plaintiff's car was registered and insured in North Carolina. There is no dispute that plaintiff's North Carolina policy did not include personal injury protection (PIP) benefits, which New Jersey law requires be purchased for any car principally garaged in this State.
In his testimony, plaintiff explained that he had been living with his mother in Atlantic City and performing part-time electrical work for a contractor named Scott Andriades. Plaintiff testified that in August 2004, he moved to North Carolina to live with his brother. However, during the second week of September 2004, he bought a car from Scott in New Jersey and immediately drove it to North Carolina to register it and insure it. He testified that two or three weeks later, he drove the car back to New Jersey. He testified that he did this because Scott called him and asked him to return to New Jersey to help him finish an electrical wiring job.
While he was working in New Jersey on this job, plaintiff used his mother's home as his "permanent address" to receive mail, but he lived "during the week" in a hotel near the job site in New Brunswick, New Jersey. Although he was still living in New Jersey at the time of the accident, in February 2005, plaintiff contended that he always intended to go back to North Carolina to live with his brother. After the accident, plaintiff moved from the hotel back into his mother's house in Atlantic City and received all of his medical treatment in New Jersey.
On cross-examination, plaintiff admitted that he was actually living in New Jersey at the time he purchased the car.
An affidavit prepared prior to the hearing recited that he insured the car in North Carolina because he was "planning to permanently move to North Carolina" but was "delayed in moving down there" due to work obligations. He agreed that after he drove the car back to New Jersey from North Carolina, he kept the car in New Jersey. He also admitted that he was living in New Jersey, and receiving medical treatment here for an unrelated back injury, up to the time of the auto accident. He was still living in New Jersey at the time of the hearing. He also admitted that at the time of the accident he had a New Jersey drivers license.
The trial judge found that at the time of the accident, plaintiff's car was "garaged in New Jersey sixteen out of the twenty weeks before the accident." Based on Chalef v. Ryerson, 277 N.J. Super. 22, 28 (App. Div. 1994), which holds that "principally garaged" means "the physical location where an automobile is primarily or chiefly kept or where it is kept most of the time," the judge concluded that the car was principally garaged in New Jersey at the time of the accident. Defendant was therefore required to maintain PIP coverage for the vehicle, regardless of whether he intended to relocate to North Carolina. See N.J.S.A. 39:6A-3 (providing that "every owner or registered owner of an automobile registered or principally garaged in this State" must purchase PIP coverage for the vehicle). The judge concluded that failure to secure PIP coverage ...