McDAID v. KOMAR

JEROME SIMANDLE, District Judge

This action is brought before the Court upon a motion made by the Plaintiffs James J. McDaid and Marietta N.T. McDaid for partial summary judgment as to the verbal threshold defenses contained in the Defendant's Answer, pursuant to Rule 56, Fed R. Civ. P. Plaintiff's counsel certifies that he served defense counsel with a copy of his motion on June 23, 2004. Defendant's opposition to this motion for partial summary judgment, due on or before July 7, 2004, has not been received by the Court. Additionally, no request for an extension of time was received. This motion, therefore, will be considered as unopposed. For the reasons stated herein, Plaintiffs' motion will be granted and Defenses Nine and Ten of the Defendant's Answer will be dismissed with prejudice.

This action arises out of a motor vehicle collision that occurred in New Jersey. The Plaintiff, James J. McDaid, is a Pennsylvania citizen who has lived in Pennsylvania with his wife, Plaintiff Marietta N.T. McDaid, for 45 years. (Pl. Br. at ¶ 2-3.) The Defendant is Holly Komar, a citizen of Connecticut. (Compl. at ¶ 2.) At the time of the collision, the Plaintiffs did not own any motor vehicles, but when necessary, borrowed a 1999 Chevrolet Venture minivan owned by McDaid Brothers, Inc. (hereinafter "McDaid Bros."), a general contracting company that belonged to Plaintiffs' three sons. (Pl. Br. at ¶ 5.) The Plaintiff was operating the Chevrolet Venture at the time of the collision. (Pl. Br. at ¶ 1.)

The Venture was registered and insured in Delaware with State Farm Insurance, and the named insured on the policy was one of the Plaintiffs' sons, Joseph W. McDaid d/b/a McDaid Bros. (Pl. Br. at ¶ 5.) State Farm is a nation-wide automobile insurance provider, and is authorized to do business in New Jersey. Plaintiff James McDaid was not the named insured on the insurance policy, but was listed as "a licensed driver." (Pl. Ex. B.) He owned no other insurance policies issued under New Jersey law. (Pl. Br. at ¶ 8.) At the time of the collision, none of the Plaintiffs' sons resided with the Plaintiffs, nor were they in the automobile with Plaintiff James McDaid. (Pl. Br. at ¶ 6.)

Plaintiffs have filed the present suit against Defendant Komar, seeking damages for physical injuries that James McDaid sustained in a March 2, 2003 accident. Plaintiffs assert that the Defendant fell asleep at the wheel of her car while driving on Interstate 295, and that her recklessness and negligence caused the collision. (Compl. at ¶ 5-6.) Defendant denies all these allegations, and asserts, among other things, that the action is bound by the provisions of the New Jersey Automobile Reparation Reform Act 39:6A-1, and in particular, that Plaintiffs have not complied with New Jersey's verbal threshold statute, N.J.S.A. 39:6A-8, and are barred from maintaining their action. (Ans., Defenses 9, 10.)

The Plaintiffs bring this action before the federal district court based on diversity jurisdiction pursuant to 28 U.S.C. § 1332(a). (Compl. at ¶ 3.) The Plaintiffs and Defendant are citizens of separate states, and the amount in controversy allegedly exceeds $75,000.00. (Compl. at ¶ 3.)

A. Standard of Review

A motion for summary judgment is appropriate whenever a court determines that "no genuine issue as to any material fact" exists and that one party has failed to establish an essential element of their case, on which they will have the burden of proof at trial. Celotex v. Catrett, 477 U.S. 317, 323-324 (1986). In that case, the moving party is entitled to a judgment as a matter of law pursuant to the plain language of Rule 56(c), Fed.R.Civ.P. Celotex, 477 U.S. at 323.

Furthermore, because the Plaintiffs' motion for partial summary judgment is unopposed, the statement of facts filed by the Plaintiffs is deemed uncontroverted and accepted as true by this Court. Anchorage Associates v. Virgin Islands Board of Tax Review, 922 F.2d 168, 174 (3d Cir. 1990). However, despite being deemed unopposed, a motion for summary judgment will be granted only if it is meritorious, that is, the Plaintiff movants are entitled to a judgment as a matter of law based upon the facts as stated by them. Id. at 175. B. Discussion

In the Ninth and Tenth Defenses raised by the Defendant in her Answer, the Defendant has raised the verbal threshold defense, arguing that the Plaintiffs are barred from bringing forth their action by the provisions of New Jersey's verbal threshold statute, N.J.S.A. 39:6A-8, as applied to them through New Jersey's deemer statute, N.J.S.A. 17:28-1.4. (Ans., Defenses 9, 10.)

New Jersey's verbal threshold statute, N.J.S.A. 39:6A-8, was enacted as part of New Jersey's "no-fault insurance" tort reform, and limits tort recovery for non-economic losses to "bodily injury which results in death; dismemberment; significant disfigurement or significant scarring; displaced fractures; loss of a fetus; or a permanent injury within a reasonable degree of medical probability, other than scarring or disfigurement" and exempts at-fault drivers from tort liability for all other claims. N.J.S.A. 39:6A-8(a).

The verbal threshold is intended to apply to the maintenance and use of all automobiles in New Jersey. N.J.S.A. 39:6A-8. For that purpose, the so-called New Jersey Deemer Statute, N.J.S.A. 17:28-1.4, was enacted to extend the verbal threshold to insurance policies of out-of-state residents using their automobiles in New Jersey if the insurers are authorized to do business in New Jersey. Comitale v. Masters, 302 N.J. Super. 291, 293 (App.Div. 1997). The New Jersey courts have found that even if the parties involved in a collision are not New Jersey citizens, but the collision occurred in New Jersey, the verbal threshold defense may be raised if either the Plaintiff or the Defendant is insured by a company authorized to do business in New Jersey. Whitaker v. DeVilla, 147 N.J. 341, 356 (1997); see also Beaugard v. Johnson, 281 N.J. Super. 162, 167 (App.Div. 1995). Here, the accident occurred in New Jersey when the Plaintiff was driving a Chevrolet Venture, insured by State Farm Insurance Company, a company authorized to do business in New Jersey. (Ans., Defense 10.)

However, the deemer statute explicitly provides that the verbal threshold only applies where the party in the lawsuit is either the named insured or an immediate family member of the named insured when the lawsuit arises out of an automobile accident in New Jersey that involves out-of-state parties. N.J.S.A. 17:28-1.4.

In this case, there is no question that the Plaintiff is not the "named insured" on the policy. The Plaintiff is a citizen of Pennsylvania and lives alone with his wife. (Pl. Br. at ¶ 3.) He owns and operates no car of his own, but is an occasional driver of his son's company car, the 1999 Chevrolet Venture that was involved in the collision. (Pl. Br. at ¶ 4-5.) His son, Joseph McDaid d/b/a McDaid Bros. was specifically listed as the "named insured" on the insurance policy for the Chevrolet at the time of the collision. (Pl. Ex. B.) The Plaintiff is merely listed in the policy as an additional driver; he is not the "named insured." (Id.) Indeed, the policy states that Joseph McDaid's name is "shown for informational purposes only." (Id. at 1.)

In addition, it is clear that the Plaintiff is not an "immediate family member" of the named insured. N.J.S.A. 39:6A-8.1. The statute provides that an immediate family member is "the spouse of the named insured and any child of the named insured or spouse residing in the named insured's household, who is not a named insured under another automobile insurance policy." Id. Plaintiff James McDaid is the father of the named insured, Joseph McDaid, and does not reside with him. (Pl. Br. at ¶ 6.) As such, he does not qualify as an "immediate family member" as defined by N.J.S.A. 39:6A-8.

Therefore, because there is no question that Plaintiff is neither the "named insured" nor "an immediate family member" of the named insured, the deemer statute does not apply to make his claims subject to New Jersey's verbal threshold statute. Thus, the verbal threshold defense does not bar the claims in this case, and the Court will grant the Plaintiffs' motion for partial summary judgement on the Defenses regarding the application of the verbal threshold statute.

For the reasons stated herein, the Plaintiffs' unopposed motion for partial summary judgment on Defendant's Ninth and Tenth Defenses in her Answer to the Complaint will be granted, and those claims will be dismissed from the case with prejudice.

This matter having come before the Court upon the unopposed motion of the Plaintiffs James J. McDaid and Marietta N.T. McDaid for partial summary judgment on the New Jersey verbal threshold defense in the Defendant's Answer, pursuant to Rule 56, Fed.R.Civ.P.; and this Court having considered the plaintiffs' submissions; and this Court noting that defendant's opposition to this motion was due on July 16, 2004; and the Court noting that no opposition to this summary motion judgment has been filed by plaintiff as of this date; and for reasons expressed in an opinion of today's date; and for good cause shown;

IT IS this 3rd day of August 2004 hereby

ORDERED that the motion of Plaintiffs James J. McDaid and Marietta N.T. McDaid for partial summary judgment be, and hereby is, GRANTED ; and IT IS FURTHER ORDERED that the Ninth and Tenth affirmative defenses regarding the New Jersey verbal threshold in the Answer shall be, and hereby are, DISMISSED WITH PREJUDICE.