October 9, 2008
BYRON R. HAINES, PLAINTIFF-APPELLANT/ CROSS-RESPONDENT,
BYTHENIA ALI, DEFENDANT-RESPONDENT/CROSS-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 rendered the car "uninsured" under New Jersey law, which precludes the driver of an uninsured vehicle from maintaining a lawsuit for injuries sustained in an accident involving that vehicle. See N.J.S.A. 39:6A-4.5a.
Plaintiff raises the following appellate arguments for our consideration:
POINT I: PLAINTIFF HAD VALID INSURANCE IN EFFECT ON THE DATE OF ACCIDENT ISSUED THROUGH INTEGON/GMAC INSURANCE COMPANY AND, THEREFORE, IS NOT SUBJECT TO THE LIMITATIONS IMPOSED BY N.J.S.A. 39:6A-4.5.
POINT II: THE TRIAL COURT ERRED IN FAILING TO ENFORCE THE WAIVER PROVISIONS OF NEW JERSEY COURT RULE 4:5-4.
POINT III: DEFENDANT IS NOT ENTITLED TO SUMMARY JUDGMENT AS A MATTER OF LAW.
NEITHER THE STANDARDS OF NEW JERSEY COURT RULE 4:46-2(C) NOR THE STANDARDS FOR DETERMINING SUMMARY JUDGMENT SET FORTH IN BRILL V. GUARDIAN LIFE INSURANCE COMPANY OF AMERICA HAVE BEEN MET. AS SUCH, SUMMARY JUDGMENT SHOULD BE DENIED.
On this appeal, we must defer to the trial court's factual findings and conclusions so long as they are supported by substantial credible evidence. State v. Locurto, 157 N.J. 463, 470-74 (1999); Rova Farms Resort, Inc., v. Investors Ins. Co., 65 N.J. 474, 484 (1974). Having reviewed the record, we conclude that there is sufficient credible evidence that at the time of the accident plaintiff was living in New Jersey and principally garaged his car here, even if he intended to eventually move to North Carolina. See Chalef v. Ryerson, supra, 277 N.J. Super. at 28. Moreover, regardless of where plaintiff bought the insurance, his policy did not include PIP coverage and therefore he was not in compliance with N.J.S.A. 39:6A-4.5a, which provides:
Any person who, at the time of an automobile accident resulting in injuries to that person, is required but fails to maintain medical expense benefits [PIP] coverage . . . shall have no cause of action for recovery of economic or non-economic loss sustained as a result of an accident while operating an uninsured automobile.
Plaintiff was therefore precluded from maintaining this lawsuit and his complaint was properly dismissed.
We find no error in the judge's decision to entertain defendant's application to dismiss the complaint even though it was not asserted until shortly before trial. As in Ahammed v. Logandro, 394 N.J. Super. 179 (App. Div. 2007), which concerned a workers' compensation defense to an auto accident claim, Ali's defense here is one which absolutely negates Haines' cause of action. Id. at 192. Unlike Hernandez v. Stella, 359 N.J. Super. 415 (App. Div. 2003), it does not concern a procedural default (there a failure to file a physician's certification) which could be cured. Id. at 418.
We recognize that certain procedural defenses, such as the statute of limitations, may be waived if not asserted in a timely manner, particularly if delay in asserting the defense defeats the Legislature's purpose in creating it. See Williams v. Bell Telephone Lab., Inc., 132 N.J. 109, 119-20 (1993); White v. Karlsson, 354 N.J. Super. 284, 292 (App. Div.), certif. denied, 175 N.J. 170 (2002). However, Williams and White are not on point here. The bar of N.J.S.A. 39:6A-4.5a represents a legislative policy designed to enforce the requirement that New Jersey automobiles have PIP coverage. See Caviglia v. Royal Tours of Am., 178 N.J. 460, 479 (2004). That purpose is served by dismissing plaintiff's complaint. Consequently, the trial judge's decision to entertain the defense, but require defendant to pay a portion of plaintiff's counsel fees as a penalty for the delay in asserting the defense, was an equitable approach consistent with the purpose of the statute.
Plaintiff's remaining appellate contentions are without sufficient merit to warrant discussion in a written decision. R. 2:11-3(e)(1)(E).