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Zabilowicz v. Kelsey

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


January 14, 2009

EDWARD ZABILOWICZ, PLAINTIFF-APPELLANT,
v.
ROSLYNE KELSEY, DEFENDANT-RESPONDENT.

On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-816-07.

Per curiam.

FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued November 10, 2008

Before Judges R. B. Coleman and Simonelli.

Plaintiff Edward Zabilowicz appeals from the February 29, 2008 order granting summary judgment to defendant Roslyne Kelsey, dismissing his complaint with prejudice. We affirm.

There are no factual disputes. Plaintiff and defendant reside in Pennsylvania. They were involved in an automobile accident in New Jersey. Plaintiff sustained injuries as a result of the accident. The injuries do not vault the verbal threshold. N.J.S.A. 39:6A-8(a). Plaintiff was insured by an insurance carrier authorized to do business in New Jersey; defendant was not. Plaintiff selected the "limited tort option" on his policy.

In granting summary judgment to defendant, the motion judge concluded that defendant can assert the verbal threshold defense pursuant to the deemer statute, N.J.S.A. 17:28-1. On appeal, plaintiff contends that the deemer statute does not apply because defendant's insurer was not authorized to do business in New Jersey. We disagree.

We use the same standard as the trial court when deciding a summary judgment motion. Jolley v. Marquess, 393 N.J. Super. 255, 267 (App. Div. 2007); Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). Summary judgment must be granted if "the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 528-29 (1995). If there is no genuine issue of fact, we must then decide whether the motion judge's ruling on the law was correct. Prudential, supra, 307 N.J. Super. at 167. Applying these standards, we conclude that summary judgment was properly granted.

N.J.S.A. 17:28-1.4 requires an out-of-state insurer authorized to do business in New Jersey to include in their policies coverage for the insured vehicle to assure that if the vehicle is operated in New Jersey the policy will provide the minimum liability coverage, uninsured motorist coverage, and personal injury protection coverage that the insurer would be obligated to provide a New Jersey insured. Thus, irrespective of the minimum insurance requirements of the insured's state, the deemer statute guarantees that if the insured's vehicle is operated in New Jersey the insurer will provide [the minimum coverage]. [Whitaker v. DeVilla, 147 N.J. 341, 348 (1997).]

The statute also provides "that automobile insurance policies sold to out-of-state residents by insurers authorized to do business in New Jersey would be deemed to be subject to the verbal threshold if the automobile were operated in New Jersey." Id. at 349 (citing N.J.S.A. 17:28-1.4). Accordingly, an out-of-state plaintiff insured by an insurance company authorized to transact business in New Jersey is subject to the New Jersey verbal threshold limitation under the deemer statute. Comitale v. Masters, 302 N.J. Super. 291, 295 (App. Div. 1997) (citing Whitaker, supra. 147 N.J. at 356).

Affirmed.

20090114

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