NOT FOR PUBLICATION WITHOUT THE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-1834-15T4
DENISE V. THOMAS,
Plaintiff-Respondent,
v.
MARIA BOBADILLA1,
Defendant,
and
ALLSTATE INSURANCE COMPANY,
Defendant-Appellant.
________________________________
Argued March 21, 2017 – Decided August 9, 2017
Before Judges Koblitz, Rothstadt and Sumners.
On appeal from Superior Court of New Jersey,
Law Division, Passaic County, Docket No. L-
1864-14.
Kenneth N. Lipstein argued the cause for
appellant.
S. Robert Princiotto argued the cause for
respondent (Marcus & Levy, attorneys; Mr.
Princiotto, on the brief).
PER CURIAM
1
We have revised the caption to reflect defendant's name as
spelled in the police report and other documents.
In this automobile negligence action, plaintiff Denise V.
Thomas claimed she was injured in an accident as a result of
defendant Maria Bobadilla's negligence. Thomas was insured by
defendant All-State Insurance Company (All-State), through a
policy she purchased in Florida. The trial court denied All-
State's motion for summary judgment to dismiss Thomas' claim
because it determined that All-State was obligated to provide her
with uninsured motorist benefits under the Deemer Statute,
N.J.S.A. 17:28-1.4, as Bobadilla was covered by a basic insurance
policy without bodily insurance protection. For the reasons that
follow, we reverse.
In December 2011, Thomas separated from her husband and left
Florida to relocate to New Jersey, where she has since remained.
Seven months later, on July 7, 2012, Thomas was driving her
automobile in New Jersey when she was involved in an auto accident
with Bobadilla. Although her automobile had been with her since
her arrival to our state, at the time of the accident it was still
registered in Florida under her name and insured by All-State
under a Florida policy in which she declined uninsured motorist
coverage. At the time of the accident, Bobadilla had a basic
insurance policy without bodily insurance coverage.
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All-State moved for summary judgment contending that since
Bobadilla, the tortfeasor, was insured without bodily injury
coverage, Thomas could not seek recovery for bodily injury through
her Florida All-State policy that did not have uninsured or
underinsured protection. All-State argued the Deemer Statute did
not afford uninsured or underinsured coverage to Thomas' out-of-
state All-State policy because her automobile was principally
garaged in New Jersey for seven months prior to the accident and
she should have obtained coverage under a New Jersey automobile
insurance policy.
The trial court denied the motion with written findings of
facts and conclusions of law. The court found that when the
accident occurred Thomas was not a New Jersey resident and did not
have to acquire New Jersey insurance coverage. The court reasoned
"while there may be indicators that Thomas did in fact relocate
back to New Jersey, seven months is not a sufficient amount of
time to declare her an official New Jersey resident at the time
of the accident." Further, the court determined that Bobadilla
was an uninsured motorist under the Deemer Statute. Thus, the
court reasoned that the Deemer Statute converted Thomas' Florida
All-State policy to a New Jersey policy with the lawsuit limitation
option. N.J.S.A. 17:28-1.45; N.J.S.A. 39:6A-8(a).
3 A-1834-15T4
Several months later, the court entered a consent judgement
in favor of Thomas against All-State in the amount of $15,000,
with All-State reserving the right to appeal the court's denial
of its summary judgment motion.
On appeal, All-State reiterates its argument that Thomas is
not entitled to seek recovery for bodily injury because Bobadilla's
insurance coverage did not have bodily injury coverage and the
Florida All-State policy that covered Thomas' automobile did not
provide uninsured or underinsured benefits. All-State contends
that the Deemer Statute does not apply to afford Thomas the lawsuit
limitation option to seek recovery for bodily injury because as a
New Jersey resident with an automobile principally garaged in New
Jersey, she should have had a New Jersey policy. All-State further
argues that since Thomas did not have a New Jersey policy with
personal injury protection benefits, N.J.S.A. 39:6A-4.5(a)
precludes her from seeking recovery for bodily injury.
We review a motion seeking summary judgment using the same
standard used by the trial court. Bhagat v. Bhagat, 217 N.J. 22,
38 (2014). We must determine, based on the competent evidential
materials submitted by the parties, whether there are genuine
issues of material fact and, if not, whether the moving party is
entitled to summary judgment as a matter of law. Brill v. Guardian
Life Ins. Co. of Am., 142 N.J. 520, 540 (1995); R. 4:46-2(c).
4 A-1834-15T4
Here, based upon our review of the record, there were no material
issues of fact in dispute, therefore All-State's motion for summary
judgment should have been granted.
The Deemer Statute requires an out-of-state insurer
authorized to transact business in New Jersey to include standard
personal injury protection (PIP) coverage pursuant to N.J.S.A.
39:6A-4 "for any New Jersey resident who is not required to
maintain [PIP] coverage pursuant to [N.J.S.A. 39:6A-4 or N.J.S.A.
39:6A-3.1] and who is not otherwise eligible for such benefits,
whenever the automobile . . . insured under the policy is used or
operated in this State." N.J.S.A. 17:28-1.4 (emphasis added).
The question in this case is whether the Deemer Statute is
inapplicable because Thomas was required to maintain PIP coverage
pursuant to N.J.S.A. 39:6A-4.
Every owner of an automobile registered or principally
garaged in New Jersey is required to maintain minimum amounts of
standard, basic, or special liability insurance coverage for
bodily injury, death, and property damage caused by their
automobiles. `N.J.S.A. 39:6A-4.5(a). In addition, every insurance
policy must provide a package of PIP benefits. Ibid. A person
who fails to maintain such coverage "shall have no cause of action
for recovery of economic or noneconomic loss sustained as a result
5 A-1834-15T4
of an accident while operating an uninsured automobile." N.J.S.A.
39:6A-4.5(a).
The term "principally garaged" as used in N.J.S.A. 39:6B-1
is not defined in the statute and, thus, must be given its
generally accepted meaning. N.J.S.A. 1:1-1. As we determined in
Chalef v. Ryerson, 277 N.J. Super. 22, 27 (App. Div. 1994), the
term "principally garaged" means "the physical location where an
automobile is primarily or chiefly kept or where it is kept most
of the time." In Chalef, the plaintiff had been living and working
in New Jersey for four consecutive months before the accident. We
deemed that span of time sufficient to find that the plaintiff's
automobile was being principally garaged in New Jersey. Id. at
28.
Here, Thomas was living in New Jersey and driving her Florida
registered and insured automobile in New Jersey for seven
consecutive months prior to the accident. Based upon the four-
month time period we concluded was sufficient in Chalef, we
disagree with the trial court that Thomas did not have a sufficient
time to register and insure her automobile in New Jersey.
Consequently, the Deemer Statute does not apply to the present
circumstances, and Thomas' failure to insure her automobile under
a New Jersey policy precludes her from seeking recovery for her
bodily injury under N.J.S.A. 39:6A-4.5(a).
6 A-1834-15T4
Lastly, Thomas' contention that not applying the Deemer
Statute violates her constitutional equal protection rights is
without sufficient legal basis to merit discussion in this opinion.
R. 2:11-3(e)(1)(E).
Reversed and remanded for the entry of an order granting
defendant summary judgment.
7 A-1834-15T4