ALICIA ORTIZ VS. PERSONAL SERVICE INSURANCE COMPANY, ETC. (L-2819-17, OCEAN COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4190-17T2
ALICIA ORTIZ,
Plaintiff-Appellant,
v.
PERSONAL SERVICE
INSURANCE COMPANY,
a Good2Go Auto Insurance
Company,
Defendant-Respondent.
_____________________________
Argued March 5, 2019 – Decided March 20, 2019
Before Judges Fisher and Hoffman.
On appeal from Superior Court of New Jersey, Law
Division, Ocean County, Docket No. L-2819-17.
Eugene C. Hendrickson argued the cause for appellant
(Hendrickson & Edelstein, attorneys; Eugene C.
Hendrickson, on the brief).
Jared P. Kingsley argued the cause for respondent
(Methfessel & Werbel, attorneys; Jared P. Kingsley, on
the brief).
PER CURIAM
Plaintiff Alicia Ortiz commenced this declaratory judgment against
defendant Personal Service Insurance Company, which issued an auto insurance
policy to Lourdes Naba, plaintiff's daughter, with whom plaintiff claimed she
resided in Lakewood. Plaintiff alleged that, on May 2, 2017, she was in an auto
accident while operating a vehicle borrowed from the brother of her boyfriend.
Asserting she was a resident of Lourdes's home, plaintiff claimed she was
entitled to personal injury protection (PIP) benefits under Lourdes's policy with
defendant; plaintiff completed and submitted a PIP application to defendant.
Defendant took a recorded statement from plaintiff about the accident; during
the course of that statement, plaintiff acknowledged she did not have a valid
driver's license at the time of the accident. Defendant declined the request for
PIP benefits, advising plaintiff it was "not possible" for her to obtain permission
to operate the vehicle because she was "not legally eligible to drive" in this State.
With that, plaintiff commenced this action seeking a declaration that she
was eligible for PIP benefits under Lourdes's policy with defendant. After
engaging in discovery, defendant successfully moved for summary judgment.
Plaintiff appeals, arguing:
I. PLAINTIFF ALICIA ORTIZ IS ENTITLED TO PIP
MEDICAL EXPENSE BENEFITS AS A RESIDENT
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RELATIVE UNDER HER DAUGHTER LOURDES
NABA'S POLICY OF INSURANCE WITH
DEFENDANT PERSONAL SERVICE INSURANCE
COMPANY PURSUANT TO N.J.S.A. 39:6A-4.
II. THE DEFENDANT'S RELIANCE ON UNPUB-
LISHED DECISIONS CONCERNING UNINSURED
MOTORIST COVERAGE, INSURANCE POLICY
LANGUAGE WHICH DOES NOT CONFORM TO
THE PIP STATUTE AND ISSUES CONCERNING
THE INITIAL PERMISSIVE RULE ARE
MISPLACED AND INAPPLICABLE TO THE CASE
BEFORE THE COURT.
III. THE DEFENDANT ARGUED THAT THE
POLICY WAS VOID AB [I]NITIO FOR THE
FAILURE OF PLAINTIFF'S DAUGHTER TO LIST
FAMILY MEMBERS RESIDING IN HER
HOUSEHOLD.
IV. PLAINTIFF IS ENTITLED TO ATTORNEYS
FEES AND COSTS IN A SUCCESSFUL PIP
ACTION.
We find insufficient merit in Points I, II and III to warrant further discussion in
a written opinion. R. 2:11-3(e)(1)(E). Because of that determination, there is
no basis upon which to consider the relief plaintiff seeks in Point IV. We add
only the following brief comments.
The matter was ripe for summary judgment because there was no dispute
about any material fact. See Brill v. Guardian Life Ins. Co. of Am., 142 N.J.
520, 540 (1995). There was no dispute plaintiff was not a licensed driver. And
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while there was no dispute that plaintiff resided with Lourdes – defendant's
insured – Lourdes never identified plaintiff as a household resident. The motion
judge granted summary judgment solely because plaintiff was an unlicensed
driver at the time of the accident.
We agree that because plaintiff was not a licensed driver she was excluded
from receiving PIP benefits under Lourdes's policy with defendant. N.J.S.A.
39:6A-7(b) permits an insurer to exclude from benefits "any person having
incurred injuries . . ., who, at the time of the accident . . . (2) was occupying or
operating an automobile without the permission of the owner or other named
insured." The motion judge held, and we agree, that a vehicle owner cannot
grant permissive user status to an unlicensed driver and, so, that unlicensed
driver is not entitled to PIP benefits when operating a vehicle without
permission. Ibid. Indeed, plaintiff – knowing she was unlicensed – must also
be assumed to know she was not entitled to drive the vehicle and that a vehicle
owner could not permit her to drive the vehicle within the meaning of N.J.S.A.
39:6A-7(b). See Martin v. Rutgers Cas. Ins. Co., 346 N.J. Super. 320, 325 (App.
Div. 2001).
We affirm the summary judgment on the absence-of-permission ground
without reaching the question whether Lourdes's policy should be found void ab
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initio due to the failure to identify plaintiff as a household member when
applying for the policy in question.
Affirmed.
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