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Cupido v. Perez

August 27, 2010

JOHN K. CUPIDO AND TERI LYNN CUPIDO, PLAINTIFFS-RESPONDENTS,
v.
WILLIAM PEREZ, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-3242-05.

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

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued January 26, 2010

Before Judges Skillman, Gilroy and Simonelli.

This is a personal injury automobile negligence action. The issue presented is whether an out-of-state resident whose automobile is insured by an insurance company, which, although not authorized to transact either private passenger automobile or commercial motor vehicle insurance business in this State, controls affiliate companies that are authorized to transact commercial motor vehicle business in the State, is subject to the limitation-on-lawsuit threshold pursuant to N.J.S.A. 17:28-1.4, commonly referred to as the deemer statute.*fn1 We conclude that such a non-resident is subject to the threshold.

I.

On December 3, 2005, plaintiffs John Cupido and his wife, Teri Lynn Cupido, filed a complaint against defendant William Perez for damages arising out of an automobile accident that occurred on December 24, 2003, in the City of Trenton.*fn2 On June 20, 2008, the trial court entered an order determining that plaintiff was not subject to the limitation-on-lawsuit threshold, N.J.S.A. 39:6A-8(a). On March 20, 2009, the court denied defendant's motion for reconsideration, and on April 21, 2009, the parties filed a consent judgment settling the lawsuit for $45,000, reserving defendant's right to appeal the June 20, 2008 and March 20, 2009 orders.

The core facts of this appeal are not in dispute. At the time of the accident, plaintiff operated his wife's Mercury automobile. Plaintiff resided in Bristol, Pennsylvania, and his automobile was insured by Nationwide Mutual Insurance Company (Nationwide) through a policy issued in Pennsylvania. Under the policy, plaintiff selected the "Full Tort" option to sue for injuries sustained in motor vehicle accidents. Nationwide was not authorized to transact private passenger automobile or commercial motor vehicle insurance business in New Jersey. However, Nationwide controlled four affiliated insurance companies that were authorized to transact commercial motor vehicle insurance business in the State, but not private passenger automobile insurance business: Nationwide Mutual Fire Insurance Company, National Casualty Company, Titan Indemnity Company, and Nationwide Affinity Insurance Company.

Defendant operated a small sports utility vehicle insured by New Jersey Manufacturers Insurance Company, an insurer authorized to transact private passenger automobile insurance business in New Jersey. The insurance policy provided personal injury protection (PIP) benefits for payment of any medical expenses and lost wages defendant might incur as a result of personal injuries suffered in automobile accidents, pursuant to N.J.S.A. 39:6A-4.

On February 19, 2008, defendant filed a motion for summary judgment seeking to dismiss plaintiff's complaint, contending that plaintiff was subject to the limitation-on-lawsuit threshold, and that plaintiff had failed to prove the existence of a qualifying injury as required by N.J.S.A. 39:6A-8(a). Plaintiff filed a cross-motion seeking partial summary judgment on liability; and seeking an order declaring that he was not subject to the threshold pursuant to the deemer statute because he was not insured by an insurance carrier authorized to transact private passenger automobile insurance business in New Jersey.

On May 9, 2008, the court granted plaintiff's motion for partial summary judgment on liability. The court denied the parties' cross-motions concerning whether plaintiff was subject to the limitation-on-lawsuit threshold, determining that there was insufficient evidence to conclude whether Nationwide controlled any other insurance companies authorized to transact private passenger automobile insurance business in New Jersey, and whether an affiliated insurance company authorized to transact commercial motor vehicle insurance business was sufficient to trigger the deemer statute. The court denied the cross-motions without prejudice pending further discovery on the issue.

On May 23, 2008, plaintiff filed a motion for reconsideration of that part of the May 9, 2008 order denying his request for a determination that he was not subject to the limitation-on-lawsuit threshold. Although not supported by any additional documentation, the court entered an order on June 20, 2008, granting the motion.

On January 30, 2009, defendant filed a motion to reconsider the June 20, 2008 order. Defendant supported the motion with an affidavit from Robert L. Edge, a Technical Assistant of the State Department of Banking and Insurance (DOBI), averring that, although Nationwide was not authorized to transact private passenger automobile or commercial motor vehicle insurance business in New Jersey on the date of the accident, it was affiliated with and controlled the previously mentioned four insurance companies, which were authorized to transact commercial motor vehicle insurance business in New Jersey. The court denied the motion on March 20, 2009. Following this ruling, the parties entered into a ...


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