NJ Supreme Court Holds that Passenger in Own Uninsured Vehicle Cannot Pursue Personal Injury Lawsuit

June 22, 2011

On June 1, 2011, the NJ Supreme Court held that N.J.S.A. 39:6A-4.5(a) bars a person who was injured while a passenger in her own uninsured automobile from pursuing a  personal injury action to recover economic and noneconomic damages for those injuries. 

On August 24, 2006, the plaintiff, Denise Perrelli and Geovanni Valverde were driving south on the Garden State Parkway in Perrelli’s uninsured vehicle.  When they left the plaintiff’s home, Perrelli was driving the vehicle but after stopping at a rest area, Valverde took over the driving.  Upon leaving the rest area, the plaintiff’s vehicle was involved in an accident with a car driven by Paul Pastorelle.  As a result of the accident, Valverde was killed and Perrelli sustained serious physical and psychological injuries.

Two years before the accident, the plaintiff had purchased a 1992 Oldsmobile Cutlass and insured it through New Jersey Manufacturers (NJM).  When the plaintiff was first insured by NJM, she lived in Paramus where she received her premium notices.  Thereafter she moved twice.  She could not recall whether she received any premium notices at her last address, but believed her insurance was in effect on the day of the accident.  Perrelli’s coverage remained in effect until August 4, 2006 when NJM canceled her policy for nonpayment of premium.

On August 22, 2008, the plaintiff filed her complaint alleging her injuries were caused by the defendant’s negligence.  The defendant filed an answer and subsequently moved for summary judgment asserting that N.J.S.A. 39:6A-4.5(a) barred the action.  The trial court denied the defendant’s motion and the Appellate Division denied defendant’s motion for leave to appeal.  The Supreme Court granted defendant’s motion for leave to appeal.

N.J.S.A. 39:6A-4.5(a) states, “any person who, at the time of an automobile accident resulting in injuries to that person, is required but fails to maintain medical expense benefits coverage…(mandated by N.J.S.A. 39:6A-4 or N.J.S.A. 39:6A-3.1) shall have no cause of action for recovery of economic or non-economic loss sustained as a result of an accident while operating an uninsured automobile.”

The issue presented to the court was whether the phrase “while operating” required the plaintiff herself to have actually been driving her uninsured automobile at the time of the accident.  The defendant asserted that it was irrelevant whether the plaintiff was physically driving the car.  “The same legislative purpose of deterring the operation of uninsured motor vehicles, and precluding injured persons who caused the operation of an uninsured motor vehicle and did not contribute to the insurance pool from collecting it, apply equally whether the person seeking recovery for their injury is the driver of his or her own uninsured vehicle or a passenger in it.  Each involves an equal attempt to drain from the insurance pool without contributing to it, and each involves an equal violation of the law.”

The plaintiff argued that the statute, by its “clear and unambiguous meaning”, precludes recovery but only if the plaintiff was physically “operating the vehicle.”  The plaintiff’s noted that the statute had been amended on three occasions and the Legislature never added language to the effect of one who “operates or causes to be operated” an uninsured vehicle.  Lastly, the plaintiff argued that the Statute makes clear the uninsured person must be “culpably” or “knowingly” uninsured and in this case because the plaintiff believed she was insured, she could not be culpably uninsured.

The Supreme Court noted that in interpreting the Statute, if the language is clear on its face, courts should enforce the statute according to its terms.  However, where a literal interpretation would create a manifestly absurd result, the spirit of the law should control.  The Court noted that “to reduce the costs of automobile insurance, to protect victims of automobile accidents and reduce public expenditures when accidents are caused by judgment-proof tortfeasors, New Jersey requires all owners of motor vehicles registered or principally garaged in (the State)…to maintain minimum amounts of…insurance coverage for bodily injury, death and property damage caused by their vehicles.” N.J.S.A. 39:6A-4.5, adopted in 1985, was designed to further the costs and judicial objectives of the No Fault Act.  The Legislature wanted to ensure that an injured, uninsured driver did not draw on the pool of accident victim insurance funds to which he (or she) did not contribute.  The Court found that there was no doubt that the Legislature wanted to assure that all automobiles were covered by compulsory insurance by precluding those who do not have the required coverage from recovering from others merely by having someone else drive their vehicle.

The Court then held “that the preclusion of recovery contained in N.J.S.A. 39:6A-4.5(a) applies to the owner of an uninsured vehicle whether injured as a driver or passenger.”

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Commercial Driver Can Be Charged Simultaneously with General and CDL DWI

May 11, 2011

The New Jersey Appellate Division has ruled in State v. Nunnally that a commercial driver suspected of drunk driving may be charged under both the law addressing DWI for personal automobiles and the law dealing DWI and commercial drivers. In this case, a group of school children flagged down a Glen Rock police officer and reported that a DPW plow truck had hit two traffic signs and driven away. The police officer followed the truck to the DPW yard and observed the defendant emerge the truck. The defendant allegedly had bloodshot eyes, slurred speech, smelled of alcohol and could not walk or stand without assistance. He was arrested for suspicion of operating a commercial vehicle with a BAC in excess of .04% (NJSA 39:3-10.13). The defendant than repeatedly failed to blow properly into the Alcotest machine. He was then read the warnings pertaining to CDL refusal and was cited for refusal to take a breath test under the general refusal statute (NJSA 39:4-50(a)), not the CDL refusal statute.

The Municipal court (and eventually the Law Division) found that the defendant could not be charged with general refusal. Additionally, the court found that the State could not amend the general refusal charge to a CDL refusal as the 90 days statute of limitations had expired.

The Appellate Division found that the lower court’s decision was correct. Specifically, the Appellate Division found that “a driver of a commercial vehicle who is arrested and charged only with CDL DUI, and who thereafter refuses a breath test, may only be charged under the cognate CDL refusal statute, and may not be prosecuted under the general refusal statute.” However, the Appellate Division did find that the laws governing general DWI and commercial DWI are separate and distinct. Accordingly, the Court held that if a driver violates general and CDL DWI statutes, he can be arrested and charged under both sets of statutes. The Court further noted that a CDL refusal is not a lesser included offense of general refusal and an individual can be found guilty of violating each separate statute.

Finally, the Court found that the statute address commercial DUI does not allow prosecutions based only on observations.

Reardon Anderson represents the interests of businesses, insurance companies and individuals throughout New Jersey and the metropolitan New York City area. Please visit our website at http://reardonanderson.com to learn more about our firm.


Reardon Anderson Successful in having client dismissed from lawsuit seeking over $350,000 in damages

April 27, 2011

Reardon Anderson was successful in having its insurance company client and their third-party administrator dismissed from a subrogation action in which the plaintiff was seeking monetary damages in excess of $350,000.  In this matter, Reardon Anderson’s client had issued a Non-trucking Liability policy to a trucking company.  In the underlying case, a driver operating a tractor and trailer owned by the trucking company struck a personal automobile.  As a result of the accident, the occupant in the personal automobile claimed neck and back injuries resulting in a fusion.  The insurer of the personal automobile paid $250,000 in PIP benefits to their insured and $100,000 for uninsured motorist coverage.  Upon the conclusion of the underlying personal injury claim by its insured, the insurer of the personal automobile filed suit against our insurance company (and third-party administrator) client that issued the NTL policy and the insurance company which had issued a commercial auto policy to the trucking company, seeking reimbursement for those funds it had expended.

During this case, it was argued that at the time of the accident, the driver of the truck was under dispatch.  Accordingly, under the NTL policy, no coverage was available.  Interestingly, the principal for the trucking company claimed that the driver of the truck was not authorized to use his trucks as he had never heard of the driver before this accident.  Ultimately, the court granted Reardon Anderson’s summary judgment motion filed on behalf of the insurance company which issued the NTL policy and that company’s third-party administrator.

— Erik Anderson, Esq.

Reardon Anderson is a Tinton Falls, New Jersey based law firm which represents the interests of businesses, insurance companies and individuals throughout New Jersey and the metropolitan New York City area. Please visit our website at http://reardonanderson.com to learn more about our firm.


US and Mexico Agree to Trucking Deal

March 4, 2011

The United States and Mexican governments have announced an agreement in principal to end a 20 year ban on Mexican trucks entering the United States.  Under the North American Free Trade Agreement, which went into effect in 1994, Mexican truckers were suppose to be permitted to transport goods into the United States.  However, since the enactment of NAFTA, Congress passed a series of laws to deny Mexican truckers the ability to drive into the United States.  As a result of these laws, NAFTA ruled that Mexico could impose punitive tariffs.  Despite NAFTA making this ruling in the late 1990s, the tariffs were not instituted until 2009.

Under the tentative deal reached by both countries, Mexican trucks will have to meet requirements equal to (and in some cases tougher than) those imposed on American truckers.  One of the more stringent requirements is that Mexican trucks must carry electronic recorders to ensure they only drive between the United States and Mexico and not domestically.  Additionally, the electronic records must track compliance with the United States’ hour of service laws.  Mexican truckers most also speak English and pass drug and safety tests.

It i s hoped that the Department of Transportation will have the proposed agreement available for public notice and comment by April.  Upon completing the comment period, the agreement would be formalized between the nations.  Under the agreement in principal, once the formal agreement is signed, half of the tariffs imposed on the United States will be suspended.  The remainder of the tariffs will be lifted when the first Mexican carrier complies with certification requirements.  It is estimated that $2.4 billion of United States goods would be subjected to the Mexican tariffs annually.

— Erik Anderson, Esq.

Reardon Anderson is a Tinton Falls, New Jersey based law firm which represents the interests of businesses, insurance companies and individuals throughout New Jersey and the metropolitan New York City area. Please visit our website at http://reardonanderson.com to learn more about our firm.


Gov. Christie Signs Law Giving Injured Persons Priority Over PIP Carriers

February 2, 2011

Governor Chris Christie has signed S-191 which amends the Personal Injury Protection statute (N.J.S.A. 39:6A-9.1(b)) to provide that a injured party must be made whole prior to a PIP carrier seeking recovery from an at fault party’s insurer.  As previously reported in our blog, the proposed law passed both houses of the legislature without opposition.  The newly amended law provides that “any recovery by an insurer, health maintenance organization or governmental agency…shall be subject to any claim against the insured tortfeasor’s insurer by the injured party and shall be paid on after satisfaction of that claim, up to the limits of the insured tortfeasor’s motor vehicle or other liability policy.

The amended law nullifies the Supreme Court’s decision in Fernandez v. Nationwide which held that it was proper to give priority to a carrier seeking to be reimbursed for PIP benefits it had paid out even if it reduced the amount of money which could be recovered by an injured party.

— Erik Anderson, Esq.

Reardon Anderson is a Tinton Falls, New Jersey based law firm which represents the interests of businesses, insurance companies and individuals throughout New Jersey and the metropolitan New York City area. Please visit our website at http://reardonanderson.com to learn more about our firm.


EZ Pass records admissible at trial

October 25, 2010

An unpublished Appellate decision concerning a domestic violence action may have ramifications in the defense of trucking claims. In S.S.S. v. M.A.G., 2010 WL 4007600 (N.J. Super A.D.), at the hearing for a final restraining order, the plaintiff testified that on October 4, 2009, the defendant called the plaintiff to meet with him the next day. On October 5, at 9:00 a.m. the plaintiff left her classroom at Rutgers-Newark and entered defendant’s car. Defendant then drove the plaintiff to a motel. At the motel, plaintiff alleged that the defendant pushed the plaintiff, grabbed her arm and shoved her. According to the plaintiff, the assault occurred in Jersey City at 9:30 a.m. and she returned to school at 10:00 a.m.

The defendant, appearing pro se, testified that the plaintiff’s testimony was “all a lie.” He offered a letter from his employer stating that the company’s records show the defendant arrived at work at 8:35 a.m. and left at 5:00 p.m. The judge refused to accept the letter, ruling it was hearsay.

The defendant also offered into evidence his EZ Pass records showing he crossed the Bayonne Bridge into Brooklyn at 8:16 a.m. The defendant argued that it would be impossible for him to cross the bridge at that time, arrive at work at 8:35 a.m. and be able to arrive at Rutgers-Newark to pick the plaintiff up at 9:00 a.m. The judge refused to accept the EZ Pass records.

The Appellate Division noted that:

N.J.R.E. 803(c) (6) provides that a business record is admissible as an exception to the hearsay rule, provided that the writing was ‘made at or near the time of observation,’ was prepared in the regular course of business and it was the ‘regular practice of that business’ to keep such a record. Business records maintained in a computer system are not treated differently from hard copies made because they are stored electronically. Although no reported decision has ever considered whether EZ Pass records qualify as a business record under N.J.R.E. 803(c) (6), such records are not qualitatively different from the many records that have been so admitted.

How this decision will impact the defense of trucking claims remains to be developed. Potential uses for EZ Pass records at trial include: showing compliance or a violation of the hours of service regulations; demonstrating a “habit” of speeding or adherence to the speed limit; or allowing jurors to figure out average speeds a trucker drives (e.g. , if the driver enters the toll plaza at 2 p.m., the accident occurred at 2:30 p.m. and the accident scene was 35 miles from the toll plaza a juror will “do the math” and find that the driver was averaging 70 mph).

—Thomas Reardon III, Esq.

Reardon Anderson represents the interests of trucking companies, insurance companies and individuals throughout New Jersey and the metropolitan New York City area. Please visit our website at http://www.reardonanderson.com to learn more about our firm.