ROSEMARY FOEHNER v. NEW JERSEY MANUFACTURERS INSURANCE COMPANY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4640-06T34640-06T3

ROSEMARY FOEHNER,

Plaintiff-Appellant,

v.

NEW JERSEY MANUFACTURERS

INSURANCE COMPANY,

Defendant-Respondent.

_______________________________

Submitted April 23, 2008- Decided

Before Judges Sapp-Peterson, Messano and King.

On appeal from the Superior Court, Law Division, Union County, Docket No. L-3875-05.

David Wendel argued the cause for appellant (Schwartz, Barkin & Mitchell, attorneys; Mr. Wendel, on the brief).

Robert F. Cox argued the cause for respondent (McCreedy & Cox, attorneys; Mr. Cox, on the brief).

PER CURIAM

Plaintiff, Rosemary Foehner, appeals from the trial judge's dismissal of her claim for personal injury protection (PIP) benefits and the order granting defendant, New Jersey Manufacturers Insurance Company's (NJM) motion for involuntary dismissal. Plaintiff was involved in an accident as a pedestrian when she was struck by Richard Taborell's car. She submitted a PIP benefits claim with Taborell's automobile insurer, NJM. NJM informed plaintiff that she had to submit her claim for PIP benefits directly to her own insurer because she apparently was the owner of a licensed vehicle at the time of the accident.

Plaintiff then sued NJM for wrongly denying her claim for PIP benefits. At the non-jury trial, the judge initially determined that plaintiff's medical records should be redacted with regard to those portions relating to causation. The judge then granted defendant's motion for involuntary dismissal on the basis that she could not prove that the injuries for which she sought PIP benefits were the result of the accident involving Taborell.

The judge never did resolve the issue of plaintiff's eligibility for PIP benefits in light of N.J.S.A. 39:6A-7. We reverse and remand for a resolution of that issue and then a trial on damages, if plaintiff prevails on liability.

I

Plaintiff's action against NJM was filed on October 27, 2005. She sought coverage for PIP benefits for the November 6, 2003 accident in Union County with Taborell in which she claimed personal injuries, including a comminuted fibular fracture, and medical expenses of about $15,000 for out-patient treatment at UMDNJ in Newark.

In its December 2005 answer NJM contended that a motor vehicle was registered in plaintiff's name on November 6, 2003, a 1989 Chevrolet pick-up truck. This truck had been involved in an earlier accident on February 26, 2003. NJM contended that this vehicle was registered to plaintiff with valid license plates at the time of this November 6, 2003 subject accident, which registration did not expire until January 2004. This was the basis of NJM's denial of the PIP claim. NJM also ostensibly claimed that her medical treatment was neither necessary nor reasonable, but this denial seems questionable.

II

N.J.S.A. 39:6A-4 provides that every standard automobile liability insurance policy

shall contain personal injury protection benefits for the payment of benefits without regard to negligence, liability or fault of any kind, to the named insured and members of his family residing in his household who sustain bodily injury as a result of an accident while occupying, entering into, alighting from or using an automobile, or as a pedestrian, caused by an automobile or by an object propelled by or from an automobile, and to other persons sustaining bodily injury while occupying, entering into, alighting from or using the automobile of the named insured, with permission of the named insured.

However, N.J.S.A. 39:6A-7 limits PIP benefits by allowing insurers to deny claims by any person who at the time of the accident, "was the owner or registrant of an automobile registered or principally garaged in this State that was being operated without personal injury protection coverage[.]" N.J.S.A. 39:6A-7(b)(1). Concerning this limitation, this court said that,

when an insurer comes forward with proof that the owner or registrant of an automobile registered or principally garaged in this State, who is seeking PIP benefits lacks PIP coverage, a prima facie case of exclusion has been established. The PIP claimant must then come forward and show that the vehicle was not being operated in or around the time of the accident, based on a conscious determination to prevent use of the uninsured vehicle as demonstrated by the conduct of the owner or registrant. Although the burden of producing evidence that the vehicle was purposely not being operated shifts to the claimant, the ultimate burden of persuasion as to the appropriateness of the exclusion should not shift from the insurer.
 
[Gibson v. New Jersey Mfrs. Ins. Co., 261 N.J. Super. 579, 585-86 (App. Div. 1993).]

Here, plaintiff did not dispute that she was the owner of a 1989 Chevy pick-up at the time of the November 6, 2003 accident with Taborell. Proof of her ownership of the truck is prima facie that she is excluded from receiving PIP benefits. Id. at 585. In such a case, plaintiff must come forward with proof that that the pick-up "was not being operated in or around the time of the accident, based on a conscious determination to prevent use of the vehicle" before she can receive PIP benefits. Id. at 585-86. In order to collect PIP benefits, it is not enough for plaintiff to simply show that the accident occurred as she here contends. Rather, she must present proof that around the time of the accident, her conduct indicated that she was determined to prevent the use of the pick-up.

III

This trial proceeded in a most unconventional, if not bizarre, manner. The trial judge did not hear any proofs on plaintiff's eligibility for PIP benefits before proceeding to the damages issue. Nor did the judge hear even a proffer of proofs on the issue of the carrier's liability in the circumstance. R. 1:7-3.

This record really defies rational appellate review. We find that the best solution here in the interest of justice is a remand for a new trial before a different judge _ a fresh start. Indeed, there has not yet been any true trial on the crucial issue of the carrier's liability or on the subsidiary issue of damages.

We order that the matter first be heard on the issue of plaintiff's eligibility for PIP benefits because of the alleged "out of commission" status of her pick-up truck under N.J.S.A. 39:6A-7. If plaintiff prevails, after a recess, the matter should proceed on the issue of damages by way of conventional proofs. If NJM unreasonably denies that the UMDNJ's charges were fair and the treatment necessary, in response to requests for admission, Rule 4:22-1, the economic consequences of Rule 4:23-1(c) shall obtain and should be assessed against NJM. Indeed, the true victim here may well be UMDNJ if it deserves compensation through PIP benefits, and if coverage is available to the injured plaintiff whom it served. Plaintiff was allegedly discharged from the emergency room after x-rays on the day of the accident with a leg immobilizer, crutches and pain medication.

True, plaintiff may have to produce an expert on causation and reasonableness if NJM continues to deny these elements of this PIP claim but NJM must also produce an expert to the contrary, or its defense thereto could well be deemed frivolous and subject to sanctions. R. 1:4-8.

Finally, we order this matter remanded to a different trial judge for a new, fresh start. See Matter of Baby M., 109 N.J. 396, 463 n.19 (1988); In re Guardianship of R., 155 N.J. Super. 186, 195 (App. Div. 1977).

Reversed and remanded for a new trial.

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A-4640-06T3

May 22, 2008