Opinion
DOCKET NO. A-1919-15T2
12-22-2016
LATONYA DEAN, Plaintiff-Appellant, v. C&D DISPOSAL SERVICES d/b/a CORE TRANSPORT, and ALEXANDER J. ROMBOUGH, Defendants-Respondents.
Kelly A. Conlon argued the cause for appellant (Davis, Saperstein & Salomon, P.C., attorneys; Kevin Decie, of counsel; Andrew Lavadera, on the briefs). Richard C. Bryan argued the cause for respondents (Cipriani & Werner, P.C., attorneys; Mr. Bryan, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3. Before Judges Sabatino, Nugent and Haas. On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-1109-14. Kelly A. Conlon argued the cause for appellant (Davis, Saperstein & Salomon, P.C., attorneys; Kevin Decie, of counsel; Andrew Lavadera, on the briefs). Richard C. Bryan argued the cause for respondents (Cipriani & Werner, P.C., attorneys; Mr. Bryan, on the brief). PER CURIAM
Plaintiff Latonya Dean was allegedly injured when defendants' commercial vehicle rear-ended her leased car on a street in Newark, New Jersey. At the time of the accident, plaintiff's car, which she co-leased with her mother who resided in Ithaca, New York, was registered and insured in the State of New York. Plaintiff's New York auto insurer paid for her medical expenses associated with the accident. Plaintiff then sued defendants C&D Disposal Services (doing business as Core Transport) and the driver, Alexander Rombough, in the Law Division for further damages.
After discovery revealed that plaintiff leased an apartment and a parking space in New Jersey and had other documented ties to this State, the trial court granted defendants' motion for summary judgment pursuant to N.J.S.A. 39:6A-4.5(a). The statute bars owners of certain "uninsured" vehicles from suing tortfeasors who have injured them in a motor vehicle accident in this State. The provision reads as follows:
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 section 4 of P.L.1972, c.70 (C.39:6A-4), section 4 of P.L.1998, c.21 (C.39:6A-3.1) or section 45 of P.L.2003, c.89 (C.39:6A-3.3) shall have no cause of action for recovery of economic or noneconomic loss sustained as a result of an accident while operating an uninsured automobile.See also Caviglia v. Royal Tours of Am., 178 N.J. 460, 478 (2002). (holding N.J.S.A. 39:6A-4.5(a) constitutional).
[N.J.S.A. 39:6A-4.5(a) (emphasis added).]
Based on the discovery materials provided and without conducting an evidentiary hearing, the trial court concluded that plaintiff's co-leased automobile was "principally garaged" in New Jersey as of the time of the accident, and that she was thus required to have obtained (presumably with her mother as co-lessee) an automobile insurance policy in New Jersey, rather than New York. Consequently, the trial court dismissed her complaint against defendants, despite the defendant driver's alleged negligence that caused the collision.
For the reasons that follow, we remand this matter to develop the record further and to address in the first instance several codified provisions, which we identify infra, that may affect the applicability of the preclusion in N.J.S.A. 39:6A-4.5(a) to this case. See N.J.S.A. 39:3-6.1; N.J.S.A. 17:33B-13; and N.J.A.C. 11:3-34.4. Additionally, given plaintiff's sworn testimony that she was typically spending several days each week in New York with her ill mother in Ithaca and attending part-time college courses and working at an internship in New York, an evidentiary hearing is warranted to adjudicate the contested residency-related issues, with the court making appropriate credibility findings.
I.
Since we are remanding this case to develop the record more fully and to focus on certain unresolved legal issues, we need not comprehensively detail all of the pertinent facts and contentions that have emerged thus far in discovery. We highlight certain salient matters here.
Plaintiff grew up in Ithaca, New York, and graduated from high school there in 2001. Over the course of the next decade, she attended college intermittently in Philadelphia and New York. In 2004, she enrolled in a six-year combined undergraduate and MBA program at the Laboratory Institute of Merchandising ("LIM") in New York.
Although plaintiff testified at her deposition that she initially went to LIM full-time, she did miss semesters at times because she was caring for her ill mother in Ithaca. Plaintiff testified that her mother was diabetic and had "been in two comas since" plaintiff started her course work at LIM.
According to plaintiff, while attending LIM, she either stayed with her father's family in the Bronx or with her sister in New Jersey. She testified that she also would drive three-and-a-half hours between New Jersey and Ithaca, approximately "two or three times a week," due to her mother's illness.
Plaintiff possesses a New York State driver's license. That license lists the same street address in Ithaca where she grew up and where her mother continues to reside.
In January 2012, plaintiff began co-leasing with her mother a 2012 Nissan Infiniti G37 from a dealership in Englewood, New Jersey. The Nissan was registered in New York State at the same Ithaca address. On the lease agreement signed by both plaintiff and her mother, they identify the Ithaca residence as their respective addresses. The mother is specifically listed as a co-lessee with plaintiff and not as a guarantor of the auto loan. According to plaintiff's deposition testimony, her mother made payments on the auto lease.
The record does not contain a copy of the registration, or disclose whether both plaintiff and her mother are named on that document.
Plaintiff insured the Nissan under a GEICO private passenger automobile insurance policy with New York coverage. The policy provided a minimum of $100,000 of bodily injury protection and $50,000 for property damage liability. This coverage appears to exceed the minimum $15,000 level of medical benefits required in New Jersey under N.J.S.A. 39:6A-3.
The record does not contain the GEICO auto insurance policy or plaintiff's application for insurance with GEICO. However, the record does include the declarations page for the policy, which reflects an Ithaca, New York address.
In December 2010, plaintiff signed a one-year lease for a New Jersey apartment in Leonia. Plaintiff thereafter signed another lease with a different apartment complex in Piscataway in January 2012. On the application for that Piscataway apartment, plaintiff listed her Leonia apartment as her current address, and her Ithaca address as her previous one. On October 24, 2012, plaintiff notified the Piscataway landlord that she would not be renewing her lease when it terminated on December 31, 2012.
On October 22, 2012, plaintiff applied for a sixteen-month apartment lease in Wood-Ridge, New Jersey, to expire on February 25, 2014. She also listed the Nissan on the apartment lease as her vehicle for parking purposes.
The Wood-Ridge landlord approved plaintiff's lease application on October 23, 2012. Included in the lease was a parking space for the Nissan. According to the lease agreement, parking was optional, and plaintiff had to opt in to have parking assigned to her, which she selected. She paid $125 a month for that parking spot. Plaintiff consistently made her rent payments. Her bank statements from that period also reflected the Wood-Ridge address.
In the police report prepared following the accident in this case, plaintiff identified her address as being in Ithaca, New York. However, when plaintiff rented a replacement car following the accident, she listed her Wood-Ridge address. On the insurance report detailing the repair work completed on the Nissan, plaintiff again listed her Wood-Ridge address.
Following the accident, plaintiff's New York-based GEICO policy paid $13,029.54 for her medical expenses. There is no indication in the record, nor do defendants allege, that GEICO has accused plaintiff of insurance fraud or has requested any repayment of the money it paid for her medical expenses.
Defendants' attorney questioned plaintiff at length during her deposition about where she actually lived and kept her car. Plaintiff attempted to explain the apparent discrepancies between her assertions of continued residential ties to the State of New York and documents presented by defense counsel reflecting her nexus to New Jersey. She maintained that the apartments in Leonia and Piscataway were her boyfriend's places, and that she had signed the leases as favors to him.
Plaintiff further contended that her sister had initially leased the Wood-Ridge apartment around the time of Superstorm Sandy, and that plaintiff eventually took over the lease in October 2012. Although plaintiff admittedly kept her clothes at the Wood-Ridge apartment and had her bank statements mailed there, she insisted that she was spending a substantial number of days each week in New York visiting her mother in Ithaca, taking courses at LIM in Manhattan, and doing an unspecified internship in New York City.
Given the sometimes imprecise nature of plaintiff's deposition testimony, it is difficult to quantify exactly how many days each week she contends to have been staying in New York. Viewed in a light most favorable to plaintiff, her responses cumulatively could amount to four or five days each week, depending upon the veracity of her answers and how they are interpreted.
Plaintiff provided varying responses at her deposition concerning her series of jobs, which we need not delve into here except to note that they provide further support for defendants' theme that she had a substantial nexus to New Jersey during the relevant time frame.
The motor vehicle accident occurred on a snowy day on March 16, 2013. According to plaintiff, she was driving her Nissan to Newark to pick up a friend at Penn Station. While on McCarter Highway, plaintiff slowed down as she approached a traffic light that had turned yellow. According to plaintiff, as she was slowing down, a dump truck driven by co-defendant Rombough struck her car from behind. The impact caused plaintiff's car to be pushed into the intersection, and her head to be slammed into the steering wheel. Police responded to the accident scene.
Although her car's trunk and rear tail lights were damaged, plaintiff did not immediately seek medical attention that day. She did go to the hospital the following day, where she was diagnosed with a contusion of her jawline and a lumbar sprain. She subsequently received medical treatments, which, as we have noted, were paid for in full or in part by her insurer GEICO.
The trial court granted defendants' motion for summary judgment under N.J.S.A. 39:6A-4.5(a). The court concluded that plaintiff's Nissan had been "principally garaged" in New Jersey as of the time of the accident. In making that determination, the court found especially significant that plaintiff was leasing an apartment in New Jersey and paying a monthly fee for a parking spot there. The court rejected plaintiff's argument that she was essentially in a transient situation dividing her time between New Jersey and New York, deeming her contentions to be of a "'gauzy or merely suspicious nature'" insufficient to defeat summary judgment. See Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 529 (1995) (expressing this concept).
In determining that the Nissan plaintiff co-leased with her mother was principally garaged in New Jersey, the trial court relied upon our opinion in Chalef v. Ryerson, 277 N.J. Super. 22, 27 (App. Div. 1994). In Chalef, we interpreted the meaning of the term "principally garaged" within N.J.S.A. 39:6A-3. That provision, which we will discuss in more detail, infra, provides, in relevant part, that "every owner or registered owner of an automobile registered or principally garaged in this State shall maintain automobile liability insurance coverage, under provisions approved by the Commissioner of Banking and Insurance." N.J.S.A. 39:6A-3 (emphasis added).
As we discuss, infra, the use of the term "or" in this provision may not necessarily be readily harmonized with other statutes and regulations that seem to suggest that a vehicle of a person without a New Jersey driver's license be both registered and principally garaged in this State in order to be insured here.
As we noted in Chalef, N.J.S.A. 39:6A-3 does not define the phrase "principally garaged." Chalef, supra, 277 N.J. Super. at 27. However, bearing in mind what appeared to be the Legislature's intent "in enacting [a] system of compulsory automobile insurance providing basic PIP coverage," in Chalef we construed the statutory term "principally garaged" to mean "the physical location where an automobile is primarily or chiefly kept or where it is kept most of the time." Ibid. (citing Frasca v. United States, 702 F. Supp. 715, 718 (C.D. Ill. 1989)). Although the intent of the owner may be a factor in the analysis, "the physical location where the automobile is primarily kept" is the "pivotal factor" in determining where the vehicle is principally garaged. Chalef, supra, 277 N.J. Super. at 28.
Applying that definition, we factually considered in Chalef a car owner who had a New Jersey driver's license and who maintained a New Jersey residence but who also had lived at various times during the year in other states — including Maryland where she had undergone several job interviews. Id. at 27. Although the plaintiff in Chalef professed an intention to move back to Maryland, and had insured her car there, we concluded that she nonetheless had "principally garaged" the vehicle in New Jersey and was thus subject to this State's insurance requirement. Id. at 28.
Our opinion in Chalef contrasted the circumstances in that case from those in State v. Arslanouk, 167 N.J. Super. 387, 391-92 (App. Div. 1979), in which we reversed a defendant's conviction of insurance fraud. The New Jersey defendant in Arslanouk was driving a California vehicle owned by his friend. The friend resided with and cared for his ailing father in New Jersey for five weeks, while still maintaining ownership of a home in California. Id. at 389. We held that the defendant was not obligated to have a New Jersey insurance policy for the vehicle, since the owner was clearly visiting this State temporarily due to his father's medical condition and did not intend to remain. Id. at 391-92.
Applying these factors here, the trial court in this case ruled that plaintiff was obligated to obtain a New Jersey auto insurance policy, with the minimum coverage amounts prescribed by the New Jersey Commissioner. Having failed to do so, the court reasoned, plaintiff was barred by N.J.S.A. 39:6A-4.5(a) from suing defendants for damages.
The trial court rejected as inconsequential plaintiff's contention that the coverage levels under her New York auto policy issued by GEICO exceeded the minimum levels mandated under New Jersey law. The court also rejected her argument that a person in her circumstances should not be treated as having an "uninsured automobile" as that term is used in N.J.S.A. 39:6A-4.5(a). The court specifically found plaintiff was "culpably uninsured."
II.
Plaintiff appeals the trial court's ruling, asserting that, at the very least, there are genuine issues of material fact that require an evidentiary proceeding. She argues such a proceeding is needed to determine whether she was obligated to insure her co-leased vehicle in this State, and whether any failure to do so thereby bars her automobile negligence claim against a tortfeasor under N.J.S.A. 39:6A-4.5(a). As a preface to our discussion of those arguments, we consider certain other aspects of the overall statutory and regulatory scheme that might affect the analysis.
A.
Under New Jersey's compulsory automobile insurance system as mandated by the No-Fault Law, N.J.S.A. 39:6A-1 to -35, motorists with vehicles registered in the State must at least have certain forms of insurance coverage. Sotomayor v. Vasquez, 109 N.J. 258, 261 (1988). The Legislature designed the insurance system to ensure victims in motor vehicle accidents are immediately compensated for their injuries, but that system only works if every vehicle in New Jersey maintains sufficient insurance coverage. Citizens United Reciprocal Exch. v. Perez, 223 N.J. 143, 152 (2015). To that end, the No-Fault Law specifically requires at N.J.S.A. 39:6A-3:
If drivers cannot afford standard insurance plans outlined in N.J.S.A. 39:6A-4, they may qualify for more affordable options of "alternate basic insurance" coverage under N.J.S.A. 39:6A-3.1 or "low-income insurance" under N.J.S.A. 39:6A-3.3.
every owner or registered owner of an automobile registered or principally garaged in this State shall maintain automobile liability insurance coverage, under provisions approved by the Commissioner of Banking and Insurance, insuring against loss resulting from liability imposed by law for bodily injury, death and property damage . . .The trial court accordingly applied the terms of this statute in determining that plaintiff's co-leased Nissan was "principally garaged" in New Jersey as of the time of the March 2013 accident.
[N. J.S.A. 39:6A-3 (emphasis added).]
During the course of this appeal, however, other provisions in the motor vehicle registration laws and insurance laws have come to our attention that appear to complicate the analysis. The provisions may also bear upon the trial court's legal assumption that plaintiff (and presumably her mother as co-lessee) were eligible to purchase, and indeed were required to purchase, automobile coverage in this State.
Without resolving those complications here on an incomplete record, and lacking the benefit of the trial court's initial analysis of them, we note the following provisions that might be read to conflict with, or perhaps qualify, the terms of N.J.S.A. 39:6A-3. These statutory provisions and regulations lie within the intersection of our State's motor vehicle registration laws and insurance laws.
A portion of our insurance statutes not presented to the trial court defines, subject to certain exceptions, an "eligible person" who can obtain auto coverage under the terms of the Fair Automobile Insurance Reform Act, N.J.S.A. 17:33B-13 to -21, as follows:
"Eligible person" means a person who is an owner or registrant of an automobile registered in this State or who holds a valid New Jersey driver's license to operate an automobile . . .
[N. J.S.A. 17:33B-13 (emphasis added).]
Meanwhile, a portion of the insurance regulations similarly defines the qualifications of an "eligible person" in N.J.A.C. 11:3-34.4 with the following language, subject to certain exceptions:
(a) An "eligible person" is a person who is an owner or registrant of an automobile registered and principally garaged in this State or who is a resident and holds a valid New Jersey driver's license to operate an automobile . . . [.]These provisions arguably signify that, absent possession of a valid New Jersey driver's license, an individual is not an "eligible person" unless he or she has an automobile that is both "registered" and "principally garaged" in this State.
(b) An "eligible person" includes a person who is an owner or registrant of an automobile registered in the State or who holds a valid New Jersey driver's license to operate an automobile and is domiciled in this State who is temporarily residing out-of-State and whose car may be principally garaged in another state while the person either is a full time student or is in the military service and is stationed out-of-State.
[N. J.A.C. 11:3-34.4(a) and (b) (emphasis added).]
These regulations were partially modified or superseded in 2007 and 2011 in ways that do not appear to materially affect the analysis here. See 38 N.J.R. 4624(a), 39 N.J.R. 5086(a), 42 N.J.R. 1984(a), 43 N.J.R. 2525(a).
Assuming, for the moment, that these provisions could affect the legal analysis in this case, we then consider whether plaintiff and her mother as co-lessee could have lawfully registered the Nissan in New Jersey under the applicable motor vehicle laws. That question would appear to implicate N.J.S.A. 39:3-6.1, the definitional section within the registration statutes. N.J.S.A. 39:3-6.1, in relevant part, states as follows:
As used in this act unless other meaning is clearly apparent from the language or context, or unless inconsistent with the manifest intention of the Legislature:
. . . .
"Properly registered," as applied to place of registration, means:
(a) The jurisdiction where the person registering the vehicle has his legal residence, or
(b) In the case of a commercial vehicle, the jurisdiction in which it is registered if the commercial enterprise in which such vehicle is used has a place of business there and, if the vehicle is most frequently dispatched, garaged, serviced, maintained, operated or otherwise controlled in or from such place of business and, the vehicle has been assigned to such place of business, or
(c) In the case of a commercial vehicle, the jurisdiction where, because of an agreement or arrangement between two or more jurisdictions, or pursuant to a declaration, the vehicle has been registered as required by that jurisdiction.
In such case of doubt or dispute as to the proper place of registration of a vehicle, the division shall make the final determination, but in making such determination, the division may confer with departments of the other jurisdictions affected.
[N.J.S.A. 39:3-6.1 (emphasis added).]
Notably, subsection (a) of this definitional statute refers to the "jurisdiction" for proper registration of a vehicle in the singular, rather than the plural. Further, the definition refers to "where the person registering the vehicle has his legal residence," again using terminology in the singular, as opposed a phrasing of "has a legal residence." A singular meaning is also suggested by the last portion of the provision addressing cases "of doubt or dispute as to the proper place of jurisdiction," granting the New Jersey motor vehicle agency the discretion to "confer with departments of the other jurisdictions affected." N.J.S.A. 39:3-6.1 (emphasis added). See also N.J.S.A. 39:3-6.2 (authorizing the New Jersey motor vehicle agency director to enter into agreements or arrangements with other jurisdictions to allow owners of vehicles "properly registered" in those states and who have paid the appropriate fees to operate and own vehicles in this State).
Defense counsel at oral argument on the appeal suggested that this latter unnumbered paragraph within N.J.S.A. 39:3-6.1 may pertain only to commercial vehicles under subsections (b) and (c), and not to other vehicles under subsection (a). This question has not been briefed. In any event, it is not readily apparent that the unnumbered paragraph's application is confined only to subsections (b) and (c). This legal issue should be explored on remand.
The term "legal residence" is not defined within N.J.S.A. 39:3-6.1(a). Because the concept is phrased in the singular, as well as the related terms "place of registration" and "jurisdiction," the statutory definition of "legal residence" conceivably could mean the individual's place of primary residence or his or her "domicile." But see N.J.A.C. 13:21-5.13 (providing for "temporary" registration for "a new or used vehicle to a nonresident person or entity who has purchased or leased said vehicle . . . in this State while enroute to another state or Federal district").
At oral argument on appeal, defendant offered two older cases that might assist in resolving these questions: State v. Garford Trucking, Inc., 4 N.J. 346 (1950), and State v. Perretti, 9 N.J. Super. 97 (App. Div. 1950). Neither of these cases concern N.J.S.A. 39:3-6.1. In Perretti, this court concluded that persons who were domiciled in New York but who also maintained a residence in New Jersey were "actual and bona fide" residents of New Jersey for the purposes of obtaining a New Jersey hunting license. The hunting license statute, N.J.S.A. 23:3-4, did not use the term "legal residence" or describe its residency requirements in singular terms. Garford Trucking is likewise not obviously dispositive because that case simply held that a company domiciled in New Jersey could be guilty of operating an unregistered vehicle in this State in violation of N.J.S.A. 39:3-4.
The collective import of these provisions potentially suggests, at least at first blush, that in order for a person without a New Jersey driver's license to be eligible to register her vehicle in this State, the vehicle must not only be "principally garaged" here, but also must be registered by a person whose (perhaps-singular) "legal residence" is likewise in this State. Defendants argue that this is not so, and that the "eligible person" language in N.J.S.A. 17:33B-13 and N.J.A.C. 11:3-34.4 is confined to issues concerning the calculation of points for driving violations and not for other purposes. We are not yet persuaded this suggested distinction is correct, and we have not been provided with legislative history that supports that interpretation.
Defendants also point to N.J.S.A. 2C:21-4.6(b), a recently-amended criminal statute that, subject to certain exceptions, requires an owner of a vehicle "principally garaged" in this State to insure her vehicle in New Jersey. Defendants acknowledge, however, that the 2015 revision to this statute does not apply to plaintiff's 2013 accident. She has not been prosecuted or civilly sued for insurance violations. No reported case has yet explored how N.J.S.A. 2C:21-4.6(b), as revised, correlates with the provisions in the insurance and registrations laws.
The parties and the trial court also did not grapple with the potential complication of the fact that plaintiff's mother, who is the co-lessee of the vehicle, indisputably resides in New York. Arguably, the proper state for obtaining insurance is supposed to be co-extensive with the state of the vehicle's registration. In this instance, the Nissan was registered in New York, where the mother clearly resides. We cannot tell at present if the New York registration was improper since a co-lessee resided in that State.
We need not resolve here whether the determination of legal residency for purposes of the motor vehicle registration laws lies within the primary jurisdiction of the motor vehicle agency, or whether the New Jersey — as opposed to the New York — administrative agency would have the appropriate jurisdiction. See City of Atlantic City v. Laezza, 80 N.J. 255, 265 (1979) (regarding the doctrine of primary jurisdiction).
Putting aside the wrinkle created by her co-lessor mother's New York residency, it is conceivable that plaintiff might have become an "eligible person" for a New Jersey auto policy if she had surrendered her New York driver's license and obtained a New Jersey license in its stead. See N.J.S.A. 39:3-17.1 (affording a person with an out-of-state driver's license "who becomes a resident of this State" a sixty-day period to obtain a New Jersey license). There has not yet been a finding that plaintiff was obligated to obtain a New Jersey driver's license, or, if so, when such an obligation was triggered.
For the reasons we note, infra, in Part II(B), it is premature to answer these licensure and insurance eligibility questions until an evidentiary hearing is conducted. In addition, it is not self-evident that the trial court in a personal injury case without the State's involvement would be the proper tribunal to decide such licensure issues.
Without full briefing of these various issues, we decline to resolve them definitively here. Instead, they are best referred in the first instance for consideration by the trial court where, for reasons we now explain, the case must be remanded in any event for an evidentiary hearing and fuller development of the record.
By no means do we hold in this non-precedential and essentially preliminary decision that Chalef is no longer good law and that the "principally garaged" standard of N.J.S.A. 39:6A-3 we applied in that decision is now inoperative or somehow qualified. We simply point out the potential dissonance not discussed in Chalef presented by other statutory provisions and regulations, and leave for a future time to determine, with the trial court's input, if the provisions can be sensibly harmonized.
B.
The general standards of evaluating a motion for summary judgment are well-established. The court is to consider the evidence "in the light most favorable to the non-moving party" and analyze whether "the moving party [was] entitled to judgment as a matter of law." Brill, supra, 142 N.J. at 529; R. 4:46-2(c). Appellate courts likewise examine the factual record, and reasonable inferences that can be drawn from those facts, in a light most favorable to plaintiff as the non-moving party. Brill, supra, 142 N.J. at 540. Appellate courts review a trial court's grant of a summary judgment motion de novo, applying the same legal standards that govern such summary judgment motions. W.J.A. v. D.A., 210 N.J. 229, 237-38 (2012).
Summary judgment ordinarily should be denied when the determination of whether there is a genuine issue of material fact hinges upon a credibility determination. See, e.g., Parks v. Rogers, 176 N.J. 491, 502 (2003) (reversing summary judgment because of the presence of a genuine fact issue as to whether defendant knew or should have known about the dangerous condition of a railing in his home, viewing the record in a light most favorable to plaintiff); see also Conrad v. Michelle & John, Inc., 394 N.J. Super. 1, 13 (App. Div. 2007) (finding that the trial court improperly made a credibility determination on summary judgment by disregarding certain deposition testimony and finding an eyewitness's version more believable).
To the extent that plaintiff's intent has some, if not dispositive, relevance to determining the car's principal locus, see Chalef, supra, 277 N.J. Super. at 28, an evidentiary hearing will afford an important opportunity for the court to evaluate her state of mind. "[W]here the subjective elements of willfulness, intent or good faith of the moving party are material to the claim or defense of the opposing party, a conclusion from papers alone that palpably there exists no genuine issue of material fact will ordinarily be very difficult to sustain." Judson v. Peoples Bank & Trust Co. of Westfield, 17 N.J. 67, 76 (1954). "The telltale factor of demeanor in the presence of the trier of fact often assumes such vital importance in such cases that the opposing party should generally not be denied the opportunity to have the moving party, or its officers, appear on the witness stand before the trier of fact." Ibid.
To be sure, parties may not present "sham" sworn assertions to avoid summary judgment. See, e.g., Shelcusky v. Garjulio, 172 N.J. 185, 201 (2002). However, where a party has presented sworn testimony, affidavits, or certifications on personal knowledge indicating that a genuine dispute of material fact exists, it is generally inappropriate for trial courts to resolve the credibility of those assertions, or lack thereof, based upon the paper record. Instead, a fact-finding proceeding may be necessary to resolve the disputed issue. See, e.g., Bruno v. Gale, Wentworth & Dillon Realty, 371 N.J. Super. 69, 76-77 (App. Div. 2004).
In this particular context involving the threshold question of whether plaintiff has the ability to pursue her lawsuit, the factual issues must be decided by the court at an evidentiary hearing, rather than by a trial jury. See, e.g., Lopez v. Swyer, 62 N.J. 267, 276 (1973) (analogously ordering the trial judge to conduct an evidentiary hearing to determine the applicability of the "discovery rule" for purposes of tolling the statute of limitations); see also Hardwicke v. Am. Boychoir Sch., 188 N.J. 69, 81 (2006) (likewise ordering an evidentiary hearing to be presided over by the trial court in accordance with Lopez).
We acknowledge that defendants have presented in their papers strong evidentiary support for their position that the co-leased car was "principally garaged" in this State as of the time of the motor vehicle accident. Even so, we are not persuaded that plaintiff's opposing sworn assertions — claiming that she was spending much of her time in New York to attend to her sick mother and taking courses in that State — are so inherently incredible to be resolvable without an evidentiary hearing to evaluate her demeanor and sincerity.
Although we have significant doubts that a person in plaintiff's situation would pay substantial funds to rent a New Jersey apartment and parking space there as a matter of pure convenience, we believe the more prudent procedural course is to develop the record more fully and definitively at an evidentiary hearing. At the same time, the trial court can address the problematic statutory and regulatory questions of law that we have identified above.
Although the Attorney General's Office and the Banking and Insurance Department declined in a letter "at this time" our invitation to participate in the appeal, we respectfully suggest they may wish to consider participation in this case on remand at the trial level. --------
C.
One more topic may warrant attention on remand. As part of their arguments on appeal, defendants contend that public policy favors the enforcement of the N.J.S.A. 39:6A-4.5(a) lawsuit prohibition here, because plaintiff may have been improperly motivated to register and insure her Nissan in New York rather than in New Jersey in order to save money on her insurance premiums. More bluntly, defendants essentially insinuate that plaintiff may be an insurance "rate evader."
The record, however, is bereft of any evidence that automobile insurance rates in Ithaca, New York are materially cheaper than in Wood-Ridge, New Jersey. The record also does not contain any proofs concerning plaintiff's state-of-mind in choosing the state of her leased car's registration and insurance, and whether her actions and inactions are the result of inadvertence rather than a deliberate scheme to evade higher insurance premiums.
If defendants wish to press this rate-evasion policy argument further, the record on remand must be developed, with corresponding judicial findings, with respect to (1) the comparative premium differentials, and (2) plaintiff's reasons for registering and insuring the Nissan in New York rather than New Jersey, a subject never inquired about at her deposition.
Moreover, defendants have not yet sufficiently explained why it would be appropriate to treat plaintiff as a rate evader when neither law enforcement authorities nor her own insurer (which paid her medical bills) have accused her of insurance fraud or other wrongdoing. The interplay between N.J.S.A. 39:6A-4.5(a) and the Insurance Fraud Protection Act, N.J.S.A. 17:33A-1 to -14, has not been addressed in this case thus far. That said, if defendants wish to abandon this policy argument, then additional factual development and legal analysis will not be necessary on this point.
D.
Pending the remand, we decline to address the various other issues presented on appeal, including plaintiff's argument that her vehicle should not be considered an "uninsured vehicle" under N.J.S.A. 39:6A-4.5(a), since she procured a New York automobile policy having allegedly more than adequate coverages.
The remand shall be completed by March 15, 2017, unless the trial court needs and requests by letter additional time. If, on remand, the court again decides that plaintiff is statutorily disqualified from pursuing her lawsuit, plaintiff may file an amended notice of appeal to include that ruling. The clerk's office thereafter will issue an accelerated post-remand briefing schedule. Conversely, if the trial court reconsiders its original ruling and finds, upon further reflection, no statutory bar to the suit, defendants may file a motion with this court for leave to appeal.
Remanded for further proceedings. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION