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Baduini v. Serina3/10/2005
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued December 14, 2004
Plaintiffs appeal from an order of February 5, 2004, granting defendant's motion for summary judgment, denying plaintiffs' motion to strike the affirmative defenses, and dismissing the complaint under the"deemer" statute, N.J.S.A. 17:28-1.4, for failure to satisfy the verbal threshold. The judgment was based, in part, on Judge Edward Oles' letter opinion of October 1, 2003, as orally amended on November 21, 2003, which held that plaintiff Richard Baduini was subject to the verbal threshold for injuries he suffered as a result of an accident which occurred in New Jersey on September 6, 2001, while driving his 1995 GMC Jimmy which was insured under a Pennsylvania automobile insurance policy. Judge Oles held that the case is subject to the"deemer" statute, and that, therefore, plaintiff had to satisfy the verbal threshold, which he admittedly did not do. The judge subsequently ruled that"gross negligence" did not excuse application of the statute.
I.
Plaintiff is a New Jersey resident who owns two vehicles. Both are registered in New Jersey and have New Jersey license plates. The 1998 Honda Accord was principally garaged in this state and insured in New Jersey under a United States Automobile Association (USAA) insurance policy in which he elected what he calls the"no tort threshold." The 1995 GMC Jimmy was also registered in New Jersey, but principally garaged at the plaintiff's vacation home in Pennsylvania and insured under a USAA policy issued in Pennsylvania with a"full tort option," the equivalent to the New Jersey"no tort threshold." The Pennsylvania policy listed plaintiff's address as Point Pleasant, New Jersey, but noted that the vehicle was"principally garaged" at his Pennsylvania address. According to plaintiff,"USAA issued two insurance identification cards to me for my 1995 GMC Jimmy. One card was for Pennsylvania and the other for New Jersey." The"Pennsylvania Financial Responsibility Identification Card" in the record noted Point Pleasant, New Jersey, as plaintiff's address. There is no suggestion of fraud. However, the Pennsylvania policy did not provide for the minimum personal injury protection (PIP) benefits, as required by N.J.S.A. 39:6A-4; see also N.J.S.A. 39:6A-10. To the contrary, the total"medical expense" covered by the Pennsylvania policy benefit was only $10,000.
Plaintiff argues that he need not satisfy the verbal threshold, N.J.S.A. 39:6A-8(a), because he is not subject to the deemer statute, N.J.S.A. 17:28-1.4, as a result of his personal injury protection (PIP) coverage and"no tort threshold" election made under the New Jersey policy issued on the Honda. New Jersey residents have two policy options, a verbal or"limitation on lawsuit" threshold, that bars a plaintiff's suit for non-economic damages if his or her injuries do not satisfy one of the categories set forth in N.J.S.A. 39:6A-8(a), or the so-called"zero" or"no limitation on lawsuit" threshold under which an injured plaintiff can sue for non-economic damages without limitation. N.J.S.A. 39:6A-8(b). The deemer statute extends PIP benefits for accidents occurring in New Jersey to persons injured while riding in out-of-state vehicles insured by carriers who are authorized to write motor vehicle coverage in New Jersey. N.J.S.A. 17:28-1.4. This coverage is provided in exchange for requiring an injured plaintiff to satisfy the verbal threshold before seeking non-economic damages."If defendant's insurer is authorized to transact or transacts insurance business in New Jersey, by operation of N.J.S. 17:28-1.4, defendant is'deemed' to be covered by N.J.S. 39:6A-4 [providing PIP benefits
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