                                NOT FOR PUBLICATION WITHOUT THE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-4661-17T2

JACQUELYN WASHINGTON,

          Plaintiff-Appellant,

v.

ZACHARY SAIFI and
PROGRESSIVE INSURANCE
COMPANY,

          Defendants-Respondents.


                    Argued June 5, 2019 – Decided June 26, 2019

                    Before Judges Koblitz, Currier, and Mayer.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Essex County, Docket No. L-6791-16.

                    Bridget Saro argued the cause for appellant (Law
                    Offices of Frank J. Zazzaro, attorneys; Bridget Saro, on
                    the briefs).

                    David M. Geissler argued the cause for respondent
                    Zachary Saifi (Law Offices of David C. Harper,
                    attorneys; David M. Geissler, on the brief).

                    Shlomo Y. Singer argued the cause for respondent
                    Progressive Insurance Company (Cooper, Maren,
            Nitsberg, Voss & DeCoursey, attorneys; Vittorio Vella,
            on the brief).

PER CURIAM

      In this automobile negligence action, plaintiff Jacquelyn Washington

appeals from the April 27, 2018 order granting summary judgment to defendants

Zachary Saifi and Progressive Insurance Company (Progressive), and the June

8, 2018 order denying her motion for reconsideration. The trial judge found

plaintiff was culpably uninsured under N.J.S.A. 39:6A-4.5 as she did not have

the requisite Personal Injury Protection (PIP) coverage required under the

statute. We affirm.

      In January 2015, plaintiff was involved in an automobile accident with

defendant Saifi on the Garden State Parkway. Plaintiff had resided and worked

in New Jersey since June 2013. She was driving an SUV registered to her

brother, George, who lived in Pennsylvania. However, the vehicle, used solely

by plaintiff, had been garaged at her apartment in New Jersey for the eighteen

months that she had lived in the state prior to the accident. Plaintiff was making

the payments on the vehicle. When it was paid in full, George transferred the

title to plaintiff in September 2015.

      The SUV was insured through an automobile policy issued by Progressive

in Pennsylvania. George was identified as the first named insured, plaintiff was

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                                        2
listed as a named insured, and both were noted as living in Pennsylvania. The

policy    provided     liability   coverage     of    $100,000/$300,000        and

uninsured/underinsured coverage of the same amount. It also provided $5000

in medical expenses benefits.

      Following the accident, plaintiff filed a claim with Progressive for

medical expense benefits. In response, plaintiff's counsel received a letter from

the insurer's claim department in April 2015, stating in pertinent part:

             Since this accident occurred in the State of New Jersey
             your client is entitled to New Jersey PIP coverage under
             the Deemer Statute, N.J.S.[A.] 17:28-1.4. Under this
             Policy, Pennsylvania PIP coverage pays for reasonable
             and necessary medical expenses incurred as a result of
             the motor vehicle accident, up to a $5,000 limit. NJ PIP
             coverage has a $250 deductible per accident, 20%
             copay for the first $5,000 of medical expenses and a
             maximum limit of $250,000 per accident. If your client
             exhausts the available benefits under the Pennsylvania
             PIP Coverage, she is entitled to New Jersey PIP
             benefits. At that time, she will be responsible to pay
             the $250 deductible and the 20% co-payment for the
             first $5,000 of incurred medical expenses.

             After the deductible and co-payment have been met we
             would be responsible for payment of reasonable and
             necessary medical expenses up to a maximum limit of
             $250,000.

Thereafter, Progressive paid $25,503.20 in PIP benefits to plaintiff's medical

providers.


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                                        3
        Plaintiff instituted suit, seeking damages for her personal injuries against

Saifi and underinsured motorist coverage from Progressive. Saifi moved for

summary judgment, asserting that plaintiff's claim was barred under N.J.S.A.

39:6A-4.5(a) because she had not procured the requisite amount of PIP

coverage.1

        In a thorough April 27, 2018 written decision, Judge Mayra V. Tarantino

granted summary judgment to defendants. The judge determined that plaintiff

was the beneficial owner of the SUV because she had exclusive control of it, she

was making the payments on the vehicle, and title was transferred to her shortly

after the accident. Judge Tarantino also noted the uncontroverted evidence that

the SUV was principally garaged in New Jersey. Therefore, she concluded that,

"as 'true owner' . . . of a vehicle that was principally garaged in New Jersey . . .

[p]laintiff was required to maintain automobile liability insurance coverage

under the provisions approved by the Commissioner, including mandatory

medical expense benefits coverage of $15,000."

        In addressing plaintiff's argument that her SUV was insured under a

Pennsylvania policy, the judge noted that policy did not provide the requisite

$15,000 PIP coverage. Because plaintiff failed to procure the PIP coverage


1
    In a letter to the trial court, Progressive joined in the motion.
                                                                            A-4661-17T2
                                           4
required under New Jersey law, the judge found she was barred from recovering

damages under N.J.S.A. 39:6A-4.5. In turn, because plaintiff was not entitled

to recover damages from Saifi, she was also precluded from recovering

underinsured motorist benefits from Progressive. Plaintiff's subsequent motion

for reconsideration was denied.

      We review a ruling on a motion for summary judgment de novo, applying

the same standard governing the trial court. Templo Fuente De Vida Corp. v.

Nat'l Union Fire Ins. Co., 224 N.J. 189, 199 (2016). We must consider, as the

motion judge did, "whether the competent evidential materials presented, when

viewed in the light most favorable to the non-moving party, are sufficient to

permit a rational factfinder to resolve the alleged disputed issue in favor of the

non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540

(1995).

      Here, based on our review of the record, there were no material issues of

fact in dispute; therefore, the motion for summary judgment was properly

granted.

      Every owner of an automobile principally garaged in New Jersey must

maintain automobile liability insurance coverage under provisions approved by

the Commissioner, including mandatory medical expense benefits of $15,000


                                                                          A-4661-17T2
                                        5
per person. N.J.S.A. 39:6A-3, -3.1, 3.3; see also Caviglia v. Royal Tours of

Am., 178 N.J. 460, 466 (2004) (stating that "[a]ll owners of motor vehicles

registered or principally garaged in New Jersey are required to maintain

minimum amounts of standard, basic, or special liability insurance coverage for

bodily injury, death, and property damage caused by their vehicles").

      A vehicle owner is deemed "culpably uninsured" if he or she is "required

by statute to maintain [the requisite] PIP coverage but . . . ha[s] failed to do so."

Perrelli v. Pastorelle, 206 N.J. 193, 202 (2011) (quoting Craig & Pomeroy, New

Jersey Auto Insurance Law § 15:5 at 305 (2011)). 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 of an accident while operating an

uninsured automobile." N.J.S.A. 39:6A-4.5(a).

      In order to find that plaintiff was required to maintain New Jersey medical

expense benefits coverage, it must be established that her vehicle was

principally garaged in New Jersey. 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. Id. at 27. We


                                                                             A-4661-17T2
                                         6
deemed that span of time sufficient to find the plaintiff's car was principally

garaged in New Jersey. Id. at 28.

      Here, plaintiff was living in New Jersey and parking her vehicle at her

apartment every day for eighteen months prior to the accident. She had more

than sufficient time to register and insure her SUV in New Jersey. Her failure

to insure her vehicle under a New Jersey policy precludes her from seeking

recovery for her bodily injuries under N.J.S.A. 39:6A-4.5(a).

      Plaintiff asserts that because Progressive provided her with New Jersey's

maximum PIP coverage of $250,000, her Pennsylvania policy was reformed,

and therefore, she is not a "culpably uninsured" driver. We disagree.

      There is no evidence supporting plaintiff's contention that Progressive

reformed its policy when it provided plaintiff the New Jersey limits of PIP

coverage. In fact, plaintiff benefitted from Progressive's decision to pay her

over $25,000 in medical expenses when she only paid for coverage of $5000.

Progressive's decision does not impact, and is irrelevant to, New Jersey's

statutory automobile insurance requirements.

      For the same reasons, we reject plaintiff's argument that since she had an

automobile insurance policy providing coverage to her SUV, she cannot be

deemed culpably uninsured. Because plaintiff's policy lacked the requisite PIP


                                                                        A-4661-17T2
                                       7
coverage, she was considered uninsured under New Jersey law and is barred

from recovering damages for economic and non-economic losses.

      We also disagree that the Deemer Statute, N.J.S.A. 17:28-1.4, serves to

protect plaintiff's claims against defendants. The Deemer Statute requires an

out-of-state insurer authorized to transact business in New Jersey to include 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). It "was intended to ensure that New

Jersey residents injured by out-of-state vehicles have recourse to policies

providing coverage at least as broad as a New Jersey policy." Craig & Pomeroy,

New Jersey Auto Insurance Law § 3:3 (2019).

      For the reasons already stated, plaintiff was required to obtain an

insurance policy with the requisite New Jersey coverage. Because she failed to

do so, the Deemer Statute is inapplicable.

      Affirmed.




                                                                         A-4661-17T2
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