NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Transcription

1 NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. ELI NEIMAN, v. Plaintiff-Appellant, USAA CASUALTY INSURANCE COMPANY, and Defendant, LEVINSON, AXELROD, P.A., MATTHEW P. PIETROWSKI, ESQ., AND KENNETH M. HARRELL, ESQ., Defendants-Respondents. Argued December 14, 2015 Decided February 4, 2016 Before Judges Simonelli, Carroll and Sumners. On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket Nos. L and L Gregg Alan Stone argued the cause for appellant (Kirsch, Gelband & Stone, attorneys; Mr. Stone, on the brief). Patrick J. Mulqueen argued the cause for respondent (Tompkins, McGuire, Wachenfeld & Barry, attorneys; Mr. Mulqueen and Marc C. Pakrul, of counsel and on the briefs; Vincent J. Mehnert, on the brief).

2 PER CURIAM In this legal malpractice matter, appellant Eli Neiman appeals from the April 16, 2014 Law Division order, which granted summary judgment to defendants Levinson, Axelrod, P.A., Matthew P. Pietrowski, Esq. and Kenneth M. Harrell, Esq. and dismissed the complaint with prejudice. We affirm. We derive the following facts from evidence submitted by the parties in support of, and in opposition to, the summary judgment motion, and view them in the light most favorable to plaintiff. Angland v. Mountain Creek Resort, Inc., 213 N.J. 573, 577 (2013) (citing Brill v. Guardian Life Ins. Co., 142 N.J. 520, 523 (1995)). On September 12, 2008, plaintiff was a pedestrian crossing a street in West Orange when he was struck by an automobile and injured. At the time, plaintiff resided in West Orange, having permanently relocated there from Arizona two weeks prior to the accident. Plaintiff admitted he owned two automobiles that were "garaged" and "operated" in New Jersey prior to the accident. The automobiles were insured under a policy issued in Arizona by USAA Casualty Insurance Company (USAA), which is undisputedly authorized to transact automobile insurance business in New Jersey. The Arizona policy did not provide personal injury protection (PIP) coverage. On September 19, 2008, the Arizona 2

3 policy was canceled and rewritten into a New Jersey policy with a coverage period from September 20, 2008 to September 20, In October 2008, plaintiff retained defendants to represent him with respect to a personal injury claim against the driver of the automobile that struck him. On October 10, 2008, USAA denied payment for medical benefits because the policy did not provide PIP coverage. 1 USAA declined to reform the policy to New Jersey law under the "Deemer Statute," N.J.S.A. 17:28-1.4, to provide medical benefits. In July 2012, more than two years after the accident, plaintiff filed a complaint for declaratory judgment against USAA. In December 2012, plaintiff filed a complaint against defendants for malpractice, alleging that defendants failed to challenge USAA's denial of PIP coverage and timely file a lawsuit against USAA within the applicable two-year statute of limitations. The trial court consolidated the two matters and ultimately granted summary judgment to USAA and defendants. The judge found, in part, that the Deemer Statute did not apply because at the time of the accident, plaintiff was a New Jersey resident and his automobiles were used and operated here; as such, he was 1 According to plaintiff, his private health insurance company paid his medical bills and asserted a lien against any net proceeds recovered in his personal injury lawsuit. 3

4 required by N.J.S.A. 39:6A-3 to maintain PIP coverage. The judge concluded that USAA properly denied PIP benefits, the complaint against USAA was time-barred, and plaintiff could not establish a breach of a duty of care by defendants or proximate causation. On appeal, plaintiff argues, in part, that the Deemer Statute applies because pursuant to N.J.S.A. 39:3-17.1(a) and (b), he had sixty-days from the time he became a New Jersey resident to register his automobiles in New Jersey and obtain New Jersey automobile insurance coverage. We disagree. We review a ruling on a motion for summary judgment de novo, applying the same standard governing the trial court. Davis v. Brickman Landscaping, Ltd., 219 N.J. 395, 405 (2014) (citations omitted). Thus, we consider, as the motion judge did, "'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.'" Id. at 406 (citation omitted). If there is no genuine issue of material fact, we must then "'decide whether the trial court correctly interpreted the law.'" DepoLink Court Reporting & Litig. Servs. v. Rochman, 430 N.J. Super. 325, 333 (App. Div. 2013) (citation omitted). We review issues of law de novo and 4

5 accord no deference to the trial judge's legal conclusions. Nicholas v. Mynster, 213 N.J. 463, 478 (2013). Applying these standards, we discern no reason to disturb the judge's ruling. The Deemer Statute requires an out-of-state insurer authorized to transact business in New Jersey to include standard PIP coverage pursuant to N.J.S.A. 39:6A-4 "for any New Jersey resident who is not required to maintain [PIP] coverage pursuant to [N.J.S.A. 39:6A-4 or N.J.S.A. 39:6A-3.1] and who is not otherwise eligible for such benefits, whenever the automobile... insured under the policy is used or operated in this State." N.J.S.A. 17: (emphasis added). The question in this case is whether the Deemer Statute is inapplicable because plaintiff was required to maintain PIP coverage pursuant to N.J.S.A. 39:6A-4. Every owner of an automobile principally garaged in New Jersey must maintain automobile liability insurance coverage, including PIP coverage. N.J.S.A. 39:6A-3 and -4; see also Caviglia v. Royal Tours of Am., 178 N.J. 460, 466 (2004) (stating that "[a]ll owners of motor vehicles registered or principally garaged in New Jersey are required to maintain minimum amounts of standard, basic, or special liability insurance coverage for bodily injury, death, and property damage caused by their vehicles"); Chalef v. Ryerson, 277 N.J. Super. 5

6 22, 26 (App. Div. 1994) (stating that because an out-of-state insured vehicle was principally garaged in New Jersey, the owner must maintain PIP coverage). In order to find that plaintiff was required to maintain New Jersey PIP coverage, it must be established that his automobile was principally garaged here. To determine where an automobile is principally garaged, the pivotal factor is where the vehicle "is primarily or chiefly kept" or "kept most of the time[,]" not where the owner intends to reside. Chalef, supra, 277 N.J. Super. at 27 (citations omitted). That determination need not be made here because there was no question that plaintiff's automobiles were principally garaged in New Jersey at the time of the accident. Thus, he was required to maintain automobile insurance coverage under the provisions approved by the Commissioner, including PIP coverage. Consequently, the Deemer Statute does not apply, and USAA was not required to provide PIP coverage. N.J.S.A. 39:3-17.1(a) and (b), on which plaintiff relies, do not apply as well. Those provisions merely grant a new resident a sixty-day grace period to operate, drive or register a motor vehicle in this State; they do not concern a new resident's mandatory obligation to obtain automobile insurance coverage in New Jersey for an automobile principally garaged 6

7 here. That obligation is governed by the Compulsory Automobile Liability Insurance Act, N.J.S.A. 39:6A-1 to -35. N.J.S.A. 39:6A-4 makes clear that any owner of an automobile, whether a new resident or not, must obtain automobile liability insurance coverage, including PIP coverage, when an automobile becomes principally garaged in this State. Because the Deemer Statute did not apply to require USAA to provide PIP coverage, defendants had no duty to challenge USAA's denial of PIP benefits. Accordingly, summary judgment was properly granted to defendants. Affirmed. 7