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Aronberg v. Tolbert

June 8, 2010

SHEILA ARONBERG, AS GENERAL ADMINISTRATRIX AND ADMINISTRATRIX AD PROSEQUENDUM OF THE ESTATE OF LAWRENCE R. ARONBERG, DECEASED, PLAINTIFF-RESPONDENT,
v.
WENDELL TOLBERT AND FLEETWOOD TAGGART D/B/A FLEETWOOD TRUCKING, DEFENDANTS-APPELLANTS, AND ALLSTATE NEW JERSEY INSURANCE COMPANY, DEFENDANT.



On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-458-07.

The opinion of the court was delivered by: Espinosa, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued October 28, 2009

Before Judges Fisher, Sapp-Peterson and Espinosa.

N.J.S.A. 39:6A-4.5(a) bars uninsured drivers from suing for personal injuries sustained in automobile accidents. This case presents the issue whether that statutory bar applies to a wrongful death action brought by the uninsured decedent's heirs. We conclude that it does not.

Lawrence Aronberg, a New Jersey resident, insured his automobile with Allstate Insurance Company (Allstate). As a result of his failure to pay premiums when due, the insurance was canceled prior to his fatal motor vehicle accident. His mother, plaintiff Sheila Aronberg, brought this action, alleging a survival claim on behalf of the decedent and a wrongful death claim on behalf of his estate, against Wendell Tolbert, a driver involved in the accident, and his employer. Defendants' motion for summary judgment was granted in part, resulting in the dismissal of the survival claim, and denied as to the wrongful death claim. We granted defendants' motion for leave to appeal and now affirm.

Allstate's Statement of Account reflected that, after Aronberg failed to pay the premium due in April 2005, Allstate sent him a "renewal cancellation bill of $324.37 due 5/24/05," which was for the equivalent of two months' premiums. Aronberg paid the full amount of $324.37 on May 13, 2005 and avoided cancellation. The policy was renewed in May 2005 for the period from May 24, 2005 to November 24, 2005.

Aronberg failed to pay the July premium of $143.60 by its due date of July 24, 2005. Allstate sent him an automobile policy cancellation notice for non-payment of premium, dated August 5, 2005. The notice advised Aronberg that he was required to make a payment of the "Minimum Amount Due," $287.20, by August 23, 2005 to avoid cancellation. Like the notice sent after the April delinquency, this notice required him to bring the account current by paying the equivalent of the premiums for July and August by the due date for the August premium. The notice emphasized the need for Allstate to receive the full amount due by that date:

If you want your insurance coverage to continue and do not want it to cancel, please make sure we receive the Minimum Amount Due by the end of the day (midnight) on August 23, 2005 or your policy will cancel at 12:01 a.m. Standard Time on August 24, 2005.

Aronberg made a payment of $143.60 on August 5, 2005. Because this payment fell short of the Minimum Amount Due, Allstate forwarded a "Special Notice" on August 5, 2005 that acknowledged his payment and advised that his continuing delinquency would result in the cancellation of the policy. The Special Notice advised:

Please be advised that your cancellation effective date is/was 12:01 a.m. on August 24, 2005. Your payment of $143.60 was received on August 5, 2005. This amount has been applied to your policy; however, as of the date of this notice, we still have not received the Minimum Amount Due. Please note that the Cancellation Notice previously sent to you on August 4, 2005 will be enforced unless the full Minimum Amount Due is received before 12:01 a.m. on August 24, 2005.

In order to avoid having your policy cancel, we must receive an additional payment of $143.60 before your cancellation effective date which is/was 12:01 a.m. on August 24, 2005.

Otherwise, your policy will terminate according to the Cancellation Notice we previously sent you.

Aronberg made no further payments before the accident and his death on September 15, 2005.

A payment of $143.60 was made on or about September 20, 2005, by an heir or representative of the decedent after his death. Allstate sent a reinstatement notice that recited the dates of cancellation (August 24, 2005) and reinstatement (September 20, 2005). Allstate's Statement of Account reflects a credit of $123.70 for the time that coverage had lapsed. ...


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