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Kevin Robinson v. Michael Zorn

April 17, 2013

KEVIN ROBINSON, PLAINTIFF-APPELLANT,
v.
MICHAEL ZORN, NEW JERSEY TRANSIT CORPORATION, AND ANGELO LIONELLI, DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-519-10.

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

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

APPELLATE DIVISION

April 17, 2013

Submitted March 18, 2013

Before Judges Fasciale, Maven and Carroll.

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

In this personal injury lawsuit, plaintiff appeals from an order denying his motion to amend his complaint to assert an uninsured motorist (UM) claim against defendant New Jersey Transit (NJT). Plaintiff, an out-of-state uninsured individual, seeks a ruling from us that would require NJT to provide UM coverage. Because that request is unauthorized under present statutory law and is more appropriately within the province of the Legislature, we decline to do so and affirm.

The judge denied the motion, relying on Ross v. Transport of New Jersey, 114 N.J. 132, 147 (1989). In Ross, the Court determined that the defendant Transport of New Jersey*fn1 was not obligated to comply with the Compulsory Insurance Law, N.J.S.A. 39:6B-1 to -3, which requires owners of motor vehicles registered or principally garaged in New Jersey to maintain motor vehicle liability insurance coverage for at least the statutory minimum. Id. at 141-42. The Court applied N.J.S.A. 39:6-54, which established a public entity exemption from the Compulsory Insurance Law, and concluded that a public entity, which has not chosen to insure or self-insure, is freed from the obligation to provide UM coverage. Ibid.

The Legislature then performed two important tasks pertinent to our analysis. In 1987, the Legislature amended N.J.S.A. 39:6-54a. L. 1987, c. 428, § 3.*fn2 And, in 2003, the Legislature enacted an insurance reform package and established, as part of that effort, a special automobile insurance policy (SAIP), N.J.S.A. 39:6A-3.3.*fn3 A SAIP provides limited automobile insurance.

The central question here is whether the Legislature altered the holding in Ross by passing the 1987 amendment and creating the SAIP. We conclude the Legislature did not modify the holding in Ross to require that public entities provide UM insurance coverage to out-of-state uninsured residents like plaintiff. Although plaintiff seeks a ruling from us that would require NJT to provide UM insurance coverage, we hold that the wisdom of any such requirement, which would change the policy of limiting government liability exposure as expressed in the New Jersey Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3, should be left to the Legislature.

I.

Plaintiff, a resident of Pennsylvania, did not own or have access to a vehicle. In October 2008, he boarded an NJT bus in Philadelphia to travel to a doctor's appointment in New Jersey. While in New Jersey, plaintiff sustained injuries caused by an accident between the bus and a vehicle driven by defendant Angelo Lionelli.*fn4

Plaintiff filed his complaint against Lionelli, the bus driver, and NJT. Plaintiff then learned that there was no insurance available to compensate him for his pain and suffering. Although Lionelli had obtained a SAIP providing coverage for personal injury protection and death benefits, that policy did not provide third-party liability insurance, pursuant to N.J.S.A. 39:6A-3.3c. Plaintiff was ineligible to receive compensation under the New Jersey Property-Liability Insurance Guaranty Association Act (PLIGA), N.J.S.A. 17:30A-1 to -20, because he resided in Pennsylvania. Also, plaintiff was unable to obtain benefits through the Pennsylvania Financial Responsibility Assigned Claims Plan (PFRACP) because the accident occurred in New Jersey, 75 Pa. C.S.A. § 1752. He did not have automobile insurance of his own or live with any relative who did.

In June 2011, plaintiff filed a motion to amend his complaint to add a UM claim against NJT. On July 28, 2011, the judge denied the motion,*fn5 tried the case on liability only, determined that Lionelli was solely responsible for the accident, and then dismissed the complaint against NJT and the bus driver. In February 2012, the judge conducted a proof hearing and entered judgment against Lionelli in the amount of $86,668.65. This appeal followed.

On appeal, plaintiff argues that the judge erred by denying his motion to amend the complaint to add a UM claim against NJT. He contends that (1) Ross is factually distinguishable and inapplicable due to the creation of the SAIP; (2) denying his motion violates public policy; and (3) barring him from UM coverage against NJT would violate the Privileges and Immunities Clause of the Fourteenth Amendment to the United States Constitution, U.S. Const. amend. XIV, § 1.*fn6

Rule 4:9-1 governs motions to amend the pleadings. Our Supreme Court has construed this rule to "require[] that motions for leave to amend be granted liberally, even if the ultimate merits of the amendment are uncertain." Prime Accounting Dep't v. Twp. of Carney's Point, 212 N.J. 493, 511 (2013) (internal quotation marks omitted). The Court stated, however, that [o]ne exception to that rule arises when the amendment would be "futile," because "the amended claim will nonetheless fail and, hence, allowing the amendment would be a useless endeavor." Notte v. Merchants Mut. Ins. Co., 185 N.J. 490, 501 (2006). "'[C]courts are free to refuse leave to amend when the newly asserted claim is not sustainable as a matter of law. . . .

[T]here is no point to permitting the filing of an amended pleading when a subsequent motion to dismiss must be granted.'" Ibid. (quoting Interchange State Bank v. Rinaldi, 303 N.J. Super. 239, 256-57 (App. Div. 1997)). [Ibid. (alterations in original).]

We conclude that the proposed amendment to assert a UM claim against NJT under present law would be futile, and the judge, therefore, did ...


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