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Rashabov v. Alfuso

September 28, 2010

USMAN A. RASHABOV, PLAINTIFF-APPELLANT, AND STELLA RASHABOV, PLAINTIFF,
v.
STEVEN A. ALFUSO, DCFS TRUST, VANESSA H. DELIA, COLLEEN A. TROY, KATHLEEN A. TROY, DEFENDANTS.
STELLA N. AYVAZOVA, GULCHEKHRA M. RASHABOVA AND KAMOL A. RASHABOV, PLAINTIFFS,
v.
VANESSA H. DELIA, STEPHAN ALFUSO, KATHLEEN A. TROY, COLLEEN A. TROY, USMAN RASHABOV, DEFENDANTS, AND SELECTIVE INSURANCE COMPANY, DEFENDANT-RESPONDENT.
KATHLEEN TROY, PLAINTIFF,
v.
VANESSA H. DELIA, STEPHEN ALFUSO, DCFS TRUST, DEFENDANTS.



On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Docket Nos. L-2910-07, L-852-07 and L-1142-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued September 15, 2010

Before Judges Fuentes, Gilroy and Ashrafi.

Plaintiff Usman Rashabov appeals from an order for summary judgment dated September 30, 2008, dismissing his claims for coverage by defendant Selective Insurance Company (Selective) for injuries he suffered in a motor vehicle accident. He also appeals from an order of March 20, 2009, denying in part his motion for reconsideration. The issue is whether Selective is required to provide personal injury protection (PIP) benefits to plaintiff despite inaccurate information contained on his application to Selective for automobile insurance regarding the number of residents in his household. We affirm the grant of summary judgment to Selective.

In reviewing a grant of summary judgment, we apply the same standard under Rule 4:46-2(c) that governs the trial court. See Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007). We must "consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). On this appeal, we review the facts most favorably to plaintiff based on the summary judgment record, which consists of the deposition testimony of plaintiff and his wife, affidavits by representatives of Selective, and relevant documents, most significantly, the insurance application.

I.

In April 2005, plaintiff, who is of Turkish descent, immigrated to the United States from Russia as a refugee. He did not speak English. He came with his wife, his parents, and two brothers. The family moved into a residence on Knickerbocker Avenue in Paterson. By the fall of 2005, plaintiff had obtained employment and a driver's license.

In November 2005, plaintiff purchased a used minivan from an auto dealership in Paterson. An employee of the dealership, known to plaintiff only as Slovik, spoke Russian and assisted plaintiff with the necessary documents for the purchase. Because the dealership would not release the car to him until he obtained an automobile insurance policy, Slovik helped plaintiff purchase the policy from Selective.

Slovik completed the insurance application in plaintiff's presence. According to plaintiff, Slovik "briefly" translated "the gist of it." Plaintiff assumed that Slovik translated "whatever he considered important." Slovik asked plaintiff some questions as he filled out the form, but plaintiff could not recall the questions other than where he lived and the zip code for that address. Plaintiff signed the application after it was completed and translated as described.

The insurance application contained a section entitled "RESIDENT AND DRIVER INFORMATION," which instructed the applicant to "list all residents and dependents (licensed or not) and regular operators." Plaintiff's application listed only himself in that section. At the time, however, November 2005, and at all other relevant times, plaintiff resided in the same single-family home with his wife, father, mother, and two brothers, all of whom were adults. Plaintiff could not remember whether Slovik asked him about other residents of his household.

Above plaintiff's signature on the application was an "APPLICANT'S STATEMENT":

I have read the above application and any attachments. I declare that the information provided in them is true, complete, and correct to the best of my knowledge and belief. This information is being offered to the company as an inducement to issue the policy for which I am applying.

Selective issued an automobile insurance policy to plaintiff, effective November 28, 2005, which included coverage for PIP ...


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