                        NOT FOR PUBLICATION WITHOUT THE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-4567-14T4

LORRAINE BRYANT,

        Plaintiff-Appellant/
        Cross-Respondent,

v.

JOHN H. GOVEN,

        Defendant,

and

AMERIPRISE AUTO & HOME
INSURANCE, AMERIPRISE
INSURANCE COMPANY and IDS
CASUALTY PROPERTY INSURANCE
COMPANY,

     Defendants-Respondents/
     Cross-Appellants.
——————————————————————————————————-

              Argued April 6, 2017 – Decided May 2, 2017

              Before Judges Hoffman and O'Connor.

              On appeal from Superior Court of New Jersey,
              Law Division, Union County, Docket No. L-0359-
              14.

              Christopher J. Portee argued the cause for
              appellant/cross-respondent (Epstein Ostrove,
              LLC, attorneys; Carol Matula, of counsel and
          on the briefs;    Daniel   N.   Epstein,   on   the
          briefs).

          Michael R. Tucker, Jr., argued the cause for
          respondents/cross-appellants (Bruno, Gerbino
          & Soriano, LLP, attorneys; Mr. Tucker and
          Matthew J. Smith, on the briefs.

PER CURIAM

     On September 13, 2011, plaintiff Lorraine Bryant sustained

bodily injuries and incurred medical expenses when her host driver,

defendant John H. Goven, lost control of his truck and slammed

into a pole.   Plaintiff filed suit against Goven seeking damages;

in the same complaint, she sued defendant insurance companies,1

seeking personal injury protection (PIP) benefits and uninsured

motorist (UM) coverage under her mother's automobile insurance

policy.

     Plaintiff appeals from an April 24, 2015 Law Division order

denying her motion for summary judgment against defendants and

dismissing her claims against defendants as judicially estopped,

based upon her failure to list the claims in a previously filed

bankruptcy petition.   Defendants appeal from the same order.




1  For ease of reference, we refer to defendant insurance companies
(Ameriprise Auto & Home Insurance, Ameriprise Insurance Company,
and IDS Property Casualty Insurance Company, all related entities)
jointly as defendants. Because defendant John H. Goven defaulted,
our reference to defendants excludes him unless otherwise noted.

                            2                                   A-4567-14T4
       Plaintiff argues the motion court should not have dismissed

her complaint because of her failure to disclose her claims during

her    concurrent      bankruptcy           proceeding.      She       further     argues

defendants owe her benefits under her mother's insurance policy

because (1) she lived with her mother at the time of her accident,

(2) her mother did not have to list her on the policy to insure

her,   and    (3)    she    had   a     reasonable    excuse     for    not   notifying

defendants      of    her    automobile         accident    until      twenty      months

afterwards.     Defendants argue plaintiff does not have standing to

bring her claims because the claims belong to the Chapter 7 Trustee

(the Trustee) of plaintiff's bankruptcy estate.                         Alternatively,

defendants argue we should vacate the judgment plaintiff obtained

against Goven, as plaintiff failed to provide them with notice of

the trial court's proof hearing after Goven defaulted.

       We    agree   with     plaintiff's        contention      the     motion     court

prematurely     dismissed         her    complaint.        The   court    should      have

notified the Trustee of the case and allowed the Trustee to decide

whether to pursue plaintiff's claims.                     We therefore vacate the

dismissal order because the motion court did not provide notice

to the Trustee, who owns the claim on behalf of plaintiff's

creditors.      We reject defendants' argument we should vacate the

judgment plaintiff obtained against Goven based upon plaintiff's

failure to provide them with notice of the trial court's proof

                                        3                                         A-4567-14T4
hearing.        Because plaintiff never notified defendants of the

hearing,     they   are    not   in    privity   with    Goven,     and    they   may

relitigate plaintiff's damages in any future UM proceeding.

                                          I.

       On    October   26,     2010,    defendants       issued    an     automobile

insurance policy to plaintiff's mother, who resided in Elizabeth.

The policy insured her 1998 Cadillac Deville, and included $75,000

of PIP coverage and $100,000 of UM bodily injury coverage per

person.      Plaintiff's mother renewed the policy twice, maintaining

the policy through April 26, 2012. The policies listed plaintiff's

mother as the only driver.

       The   policy    stated    defendants      would   "pay     personal    injury

protection benefits to or for an insured who sustains bodily

injury.      The bodily injury must be caused by an accident arising

out of the ownership, maintenance or use, including loading or

unloading, of a private passenger car as an automobile."2                         The

policy defined "insured" as the "named insured or any any relative

who sustains bodily injury while[] [o]ccupying or using an auto."

The    policy    defined     "relative"    as    "a   person    related     to    [the

policyholder] by blood, marriage or adoption who is a resident in

[the policyholder's] household."




2     The underlined terms were bolded in the original policy.
                              4                             A-4567-14T4
       The policy also stated defendants would "pay damages for

bodily injury . . . caused by an accident which the insured is

legally entitled to recover from the owner or operator of an

uninsured motor vehicle . . . arising out of the ownership,

maintenance or use of that vehicle."            In this context, the policy

defined "insured" to include the policyholder's "relative if a

resident of [the policyholder's] household."

       The policy also required:

            In the event of an accident, written notice
            must be given to us as soon as reasonably
            practicable but in no event more than [thirty]
            days after the date of accident, unless the
            eligible injured person submits written proof
            providing clear and reasonable justification
            for failure to comply with such time
            limitation.

       At   her     deposition,     plaintiff    described     the    accident.

Although she wore a seatbelt, plaintiff remembered her "body was

just   going      around"   in   the   pickup   truck,   and   she    then   lost

consciousness.       She awoke outside of the truck with her son above

her, calling her name.           The police report stated Goven's vehicle

crashed into the back of a stopped car and then hit a pole.                  The

police report also listed the address of plaintiff's mother as

plaintiff's address.

       An ambulance took plaintiff to the hospital.                  Plaintiff's

ambulance bill and emergency room (ER) records listed her mother's

address as her own.         The ER records stated plaintiff sustained a
                                  5                             A-4567-14T4
lumbar sprain, shoulder contusion, and cervical strain.           Plaintiff

subsequently received treatment from other doctors.              One doctor

gave her injections into her lower back to decrease her pain.               The

doctor also gave her injections into her shoulder, which had a

tear.

     At the time of her deposition in October 2014, plaintiff

continued to have pain in her upper back, lower back, down her

left leg, and into her foot.          The following month, a doctor wrote

to plaintiff's counsel, stating plaintiff had "impressive disc

herniations   at    almost   every     level."    The   doctor   stated     the

herniations were "traumatic" and were "all permanent in nature and

caused by the motor vehicle accident of September 13, 2011."

     Goven    had   a   "basic"   automobile     insurance   policy,     which

provided no liability insurance coverage and only a $10,000 per

person medical expense extension.          Plaintiff received the $10,000

under Goven's policy.        Plaintiff had no automobile or health

insurance in her own name.            Because plaintiff's mother had been

sick and was not driving her car, plaintiff assumed she had dropped

her auto insurance by the time of the subject accident.

     On June 7, 2013, plaintiff filed a Chapter 7 bankruptcy

petition with the United States Bankruptcy Court for the District

of New Jersey.      Plaintiff did not list any claim relating to the

subject accident in her disclosure of personal property.

                                  6                                    A-4567-14T4
     Plaintiff first met with her current counsel on June 21,

2013.     She was unsure whether she "would be able [to] file suit

at that date."    She did not "realize" she "needed to disclose this

suit in" her bankruptcy petition.         Four days later, plaintiff's

counsel    sent   the   police   report   of   the    subject   accident    to

defendants.

     Defendants took a recorded statement from plaintiff on July

16, 2013; she explained she did not report the accident within

thirty days because she did not think her mother had auto insurance

at the time. On August 2, 2013, plaintiff submitted an application

for PIP benefits, listing her mother's address as her address.

Because the statute of limitations was about to run, plaintiff

filed suit against defendants, including Goven, seeking insurance

benefits under her mother's auto insurance policy and damages

against Goven.

     On September 20, 2013, the Bankruptcy Court granted plaintiff

a discharge under 11 U.S.C.A. § 727.                 Five days later, the

Bankruptcy Court entered a final decree, discharging the Trustee

and closing plaintiff's bankruptcy case.

     In February 2015, plaintiff filed a motion for a "declaratory

judgment" establishing her entitlement to insurance benefits under

her mother's automobile insurance policy.            Defendants opposed the

motion and filed a cross-motion for summary judgment.              On April

                                 7                                   A-4567-14T4
24, 2015, following oral argument, the court denied plaintiff's

motion and granted defendants' cross-motion.   The court explained

its denial of plaintiff's motion:

         Plaintiff claims that she resided with her
         [m]other for [fifty-four] years. However, the
         only proofs offered by plaintiff to establish
         this fact is her own deposition testimony, and
         one gas bill addressed to a Lorraine Drisco
         (phonetic).   Plaintiff claims that she used
         the name Drisco because it was her son's
         [f]ather's name, a party's own testimony in a
         single utility bill with the first name as
         plaintiff, but a different last name, is
         certainly not to this [c]ourt, sufficient
         proof to establish the material fact that she
         resided with her [m]other at the time of the
         subject accident.

The court also explained its grant of defendants' cross-motion:

         In this case, clearly, [plaintiff] did file
         and had her debts discharged . . . without
         revealing . . . the potential right to claim
         under this litigation. Here, defendant claims
         that plaintiff is judicially estopped from
         arguing she's entitled to benefits, whether
         PIP or UIM under her [m]other's policy of
         insurance.   Defendant argues that plaintiff
         had debts in connection with . . . the
         litigation that were discharged as a result
         of her bankruptcy.

         To the extent that all of her debts were
         discharged, it's hard to argue with that at
         this point. I do find . . . judicial estoppel,
         without considering the other arguments of
         defendant[s] . . . .     [D]efendant[s] [are]
         entitled [to] summary judgment in this matter.

The court did not dismiss plaintiff's claims against Goven.



                           8                               A-4567-14T4
      Even     though    the        April    24,      2015     order    was      clearly

interlocutory, plaintiff filed a notice of appeal on June 5, 2015,

and   defendants    filed      their        cross-appeal       on   June   29,     2015.

Notwithstanding plaintiff's previous bankruptcy filing, and with

no notice to the Trustee or counsel for defendants, on July 13,

2015, the trial court held a proof hearing to determine plaintiff's

damages, and entered a $400,000 default judgment against Goven.

                                            II.

      We     initially    review          certain     procedures       applicable       to

plaintiff's Chapter 7 bankruptcy filing.                      When a debtor files a

bankruptcy     petition,      the    debtor       formally     requests    the    relief

afforded by the Bankruptcy Code.                  The petition not only initiates

a bankruptcy action, it also acts as an order for relief of the

debtor, as provided by the case under which the petition was

submitted. The debtor becomes obligated to provide full disclosure

of his or her financial affairs, 11 U.S.C.A. § 521, in exchange

for the Bankruptcy Code's protections, such as the automatic stay

provisions of 11 U.S.C.A. § 362(a).

      The    purpose     of   a     Chapter       7   case,    sometimes      called     a

liquidation, is to allow an individual debtor to retain certain

exempt assets, 11 U.S.C.A. § 522, surrender all assets in excess

of those exemptions to the appointed Chapter 7 trustee, 11 U.S.C.A.

§ 704, and discharge all unsecured debts, 11 U.S.C.A. § 727(a),

                                      9                                          A-4567-14T4
in order to make an unencumbered fresh start, relieved from the

immediate    financial     pressure       that    drove     the   debtor    to   file

bankruptcy.    Grogan v. Garner, 498 U.S. 279, 286, 111 S. Ct. 654,

660, 112 L. Ed. 2d 755, 765 (1991).

     The commencement of a bankruptcy case also creates an estate

consisting of "all legal or equitable interests of the debtor in

property as of the commencement of the case."                      11 U.S.C.A. §

541(a)(1).     "The scope of this [Code section] is broad.                          It

includes all kinds of property, including tangible or intangible

property,    causes   of   action     .    .     .,   and   all   other    forms    of

property . . . ."      Senate Report No. 95-989.              All property comes

into the debtor's estate, and in a Chapter 7 case, the trustee

succeeds to the debtor's interest in the property as fiduciary to

the debtor's creditors.

     The debtor's petition includes schedules listing all assets

and liabilities.      11 U.S.C.A. § 521(a)(1)(B)(i).               The debtor has

an affirmative duty to provide complete disclosure.                       Ibid.; see

Oneida Motor Freight, Inc. v. United Jersey Bank, 848 F.2d 414,

416-17 (3d Cir.) (noting § 521 outlines a non-exhaustive list of

the debtor's duties in a bankruptcy case), cert. denied, 488 U.S.

967, 109 S. Ct. 495, 102 L. Ed. 2d 532 (1988).               Schedule B requires

disclosure of all personal property "of whatever kind," in which

the debtor has a whole or partial interest.                   The schedule lists

                                 10                                          A-4567-14T4
various categories of assets and requires the debtor to describe

the nature and location of the property, whether it is owned with

another, and the value of the debtor's interest.             Specifically,

item    21    requests    disclosure    of   "[o]ther    contingent      and

unliquidated     claims   of   every   nature,   including   tax   refunds,

counterclaims of the debtor, and rights to setoff claims."               The

debtor who has an interest in an unliquidated personal injury

claim must disclose that claim.         Among the property a debtor may

retain as exempt is "a payment, not to exceed $23,675, on account

of personal bodily injury, not including pain and suffering or

compensation for actual pecuniary loss, of the debtor."                    11

U.S.C.A. § 522(d)(11)(D).       According to 28 U.S.C.A. § 157(b)(5),

             [t]he district court shall order that personal
             injury tort and wrongful death claims shall
             be tried in the district court in which the
             bankruptcy case is pending, or in the district
             court in the district in which the claim
             arose, as determined by the district court in
             which the bankruptcy case is pending.

       Once the debtor files his or her petition, the Chapter 7

panel trustee conducts a meeting of creditors.               11 U.S.C.A. §

341(a).      A "debtor shall appear and submit to examination under

oath" conducted by the trustee at the meeting of creditors.                11

U.S.C.A. § 343.      Any creditor may examine a debtor at the § 341(a)

meeting.     Ibid.



                                 11                                 A-4567-14T4
       When a Chapter 7 debtor fulfills all duties described by the

Code,    see    11   U.S.C.A.    §    521,    and    otherwise     provides   full

disclosure, the debtor is eligible to retain all scheduled exempt

property, 11 U.S.C.A. § 523, and any other property of the estate,

see 11 U.S.C.A. § 541(a), abandoned or not administered by the

trustee.       11 U.S.C.A. § 554(a) and (c).             Moreover, a debtor is

entitled to a discharge of the unsecured debts.                      11 U.S.C.A.

727(a).

                                     A. Standing

       "The issue of standing presents a legal question subject to

our de novo review."       Courier-Post Newspaper v. Cty. of Camden,

413 N.J. Super. 372, 381 (App. Div. 2010).                     Our Supreme Court

defines standing broadly and does not restrict New Jersey courts

to the rigid "case or controversy" requirement under Article III,

§ 2 of the United States Constitution.               Salorio v. Glaser, 82 N.J.

482,    490    (1980).    The   New       Jersey    Constitution    "contains    no

analogous provision limiting the subject-matter jurisdiction of

the Superior Court."       Id. at 491 (citing N.J. Const. art. VI, §

3, ¶ 2).      New Jersey courts remain "free to fashion [our] own law

of standing consistent with notions of substantial justice and

sound judicial administration."              Ibid.     The Court has therefore

found    "it    unnecessary     to    consider       whether   federal   standing



                                     12                                   A-4567-14T4
requirements have been met" when deciding questions of standing

in New Jersey courts.   Ibid.

     New Jersey courts "have traditionally taken a generous view

of standing in most contexts."   In re N.J. State Contract A71188

for Light Duty Automotive Parts, 422 N.J. Super. 275, 289 (App.

Div. 2011).

          Without ever becoming enmeshed in the federal
          complexities and technicalities, we have
          appropriately confined litigation to those
          situations where the litigant's concern with
          the subject matter evidenced a sufficient
          stake and real adverseness.    In the overall
          we have given due weight to the interests of
          individual justice, along with the public
          interest,   always  bearing   in   mind  that
          throughout our law we have been sweepingly
          rejecting procedural frustrations in favor of
          "just and expeditious determinations on the
          ultimate merits."

          [Crescent Park Tenants Ass'n v. Realty
          Equities Corp. of N.Y., 58 N.J. 98, 107-08
          (1971).]

"A financial interest in the outcome ordinarily is sufficient to

confer standing."   EnviroFinance Grp., LLC v. Envtl. Barrier Co.,

LLC, 440 N.J. Super. 325, 340 (App. Div. 2015).    "Ordinarily, a

litigant may not claim standing to assert the rights of a third

party.   However, standing to assert the rights of third parties

is appropriate if the litigant can show sufficient personal stake

and adverseness so that the [c]ourt is not asked to render an



                            13                             A-4567-14T4
advisory opinion."        Jersey Shore Med. Ctr.-Fitkin Hosp. v. Estate

of Baum, 84 N.J. 137, 144 (1980).

      Defendants argue plaintiff lacks standing because her claims

became part of her bankruptcy estate after she filed her bankruptcy

petition.   They cite federal cases in which federal courts have

held the plaintiffs lacked standing to bring claims that they

neglected to disclose in their bankruptcy proceedings because the

trustee had "exclusive standing to assert those claims."                  DiMaio

Family Pizza & Luncheonette v. Charter Oak Fire Ins. Co., 448 F.3d

460, 463 (1st Cir. 2006).         Finding these cases neither controlling

nor persuasive, we conclude plaintiff has standing to bring her

claims.

      New Jersey courts are "free to fashion [our] own law of

standing consistent with notions of substantial justice and sound

judicial administration." Glaser, supra, 82 N.J. at 491. Although

defendants are correct that plaintiff's claims are part of her

bankruptcy estate, plaintiff may retain up to $23,675 "on account

of   personal    bodily       injury."      11    U.S.C.A.   §    522(d)(11)(D).

Plaintiff may also retain any property that the trustee abandons

or declines to administer.          11 U.S.C.A. § 554(a) and (c).          These

rights    give   her      a    "financial        interest"   in    her   claims,

EnviroFinance, supra, 440 N.J. Super. at 340, and a "sufficient

personal stake and adverseness so that [the trial court was] not

                                   14                                    A-4567-14T4
asked to render an advisory opinion."             Estate of Baum, supra, 84

N.J. at 144.

                            B. Judicial Estoppel

     We next review the trial court's application of the judicial

estoppel doctrine.         "The doctrine of judicial estoppel is well

entrenched in New Jersey's jurisprudence."            Newell v. Hudson, 376

N.J. Super. 29, 38 (App. Div. 2005); see also Koppel v. Olaf Realty

Corp., 56 N.J. Super. 109, 121 (Ch. Div. 1959), aff'd, 62 N.J.

Super. 103 (App. Div. 1960).

     "It   is    'an   equitable    doctrine   precluding    a   party    from

asserting a position in a case that contradicts or is inconsistent

with a position previously asserted by the party in the case or a

related legal proceeding.'"         Newell, supra, 376 N.J. Super. at 38

(quoting Tamburelli Props. v. Cresskill, 308 N.J. Super. 326, 335

(App. Div. 1998)); McCurrie v. Town of Kearney, 174 N.J. 523, 533-

34 (2002).      "The purpose of the judicial estoppel doctrine is to

protect 'the integrity of the judicial process.'"            Kimball Int'l,

Inc. v. Northfield Metal Prods., 334 N.J. Super. 596, 606 (App.

Div. 2000) (quoting Cummings v. Bahr, 295 N.J. Super. 374, 387

(App.   Div.     1996)),     certif.    denied,     167   N.J.   88   (2001).

Essentially, if a litigant's position in one matter is true, then

the contrary position in the subsequent matter cannot be.                Thus,

the doctrine is not intended to bar every inconsistency, but

                                   15                                 A-4567-14T4
"[r]ather . . . designed to prevent litigants from 'playing fast

and loose with the courts.'"      Cummings, supra, 295 N.J. Super. at

387 (citing Ryan Operations G.P. v. Santiam-Midwest Lumber Co.,

81 F.3d 355, 358 (3d Cir. 1996)).

     "Bad faith" "is not a requirement in New Jersey."      Atlantic

City v. Cal. Ave. Ventures, LLC, 23 N.J. Tax 62, 68-69 (App. Div.

2006) (citing Kimball Int'l, Inc., supra, 334 N.J. Super. at 608

n.4; Bray v. Cape May City Zoning Bd. of Adjustment, 378 N.J.

Super. 160, 166-67 (App. Div. 2005)).         Moreover, "[s]ince the

purpose of the doctrine of judicial estoppel is to protect the

integrity of the tribunal before which a party seeks to contest

facts which he has previously [and successfully] admitted . . .,

it is that tribunal which should determine whether or not to invoke

this doctrine."   State v. Gonzalez, 273 N.J. Super. 239, 260 (App.

Div. 1994) (citation omitted), aff'd, 142 N.J. 618 (1995).     "Thus,

the forum court applies its own law regarding the applicability

of judicial estoppel."    Cal. Ave. Ventures, LLC, supra, 23 N.J.

Tax at 68.

     The application of judicial estoppel, particularly to bar a

plaintiff's cause of action, is an extraordinary remedy and its

application is subject to the court's sound discretion.     See Klein

v. Stahl GMBH & Co. Maschinefabrik, 185 F.3d 98, 108 (3d Cir.

1999) (citing McNemar v. Disney Store, Inc., 91 F.3d 610, 613 (3d

                             16                               A-4567-14T4
Cir. 1996) (Appellate courts "review the application of judicial

estoppel under an 'abuse of discretion' standard"), cert. denied,

519 U.S. 1115, 117 S. Ct. 958, 136 L. Ed. 2d 845 (1997)).                As an

equitable doctrine, judicial estoppel "should be invoked only

'when a party's inconsistent behavior will otherwise result in a

miscarriage of justice.'"      Kimball Int'l, Inc., supra, 334 N.J.

Super. at 608 (quoting Ryan Operations, supra, 81 F.3d at 365);

see also State Farm Fire & Cas. Co. v. Connolly, 371 N.J. Super.

119, 125 (App. Div. 2004).         A misapplication of a trial court's

discretion results when "its ruling is founded on an error of law

or a misapplication of law to the facts."          Montrose v. Med. Grp.

Participating Sav. Plan v. Bulger, 243 F.3d 773, 780 (3d Cir.

2001) (citing In re O'Brien, 188 F.3d 116, 122 (3d Cir. 1999)).

      Plaintiff argues the trial court should not have dismissed

her complaint as judicially estopped because "the bankruptcy can

be reopened under 11 U.S.C.A. § 350(b) should [she] recover

benefits in any trial."     "Rather than remand with instructions for

the trustee to review the case . . . , [plaintiff] requests that

her attorney be permitted to prosecute [her] claims, and if there

is a recovery, the bankruptcy trustee can be notified to reopen

the   case."   We   agree   that    the   trial   court   should   not    have

completely dismissed plaintiff's claims, but we decline to allow



                               17                                   A-4567-14T4
plaintiff to pursue them without notifying the Trustee of her

bankruptcy estate.

      If plaintiff had properly disclosed her claims during her

bankruptcy, the Trustee would have reviewed them and decided

whether to pursue them.         The trial court should have provided the

Trustee     the   opportunity    to    review   plaintiff's        claims    before

determining whether plaintiff's failure to disclose her claims

renders her judicially estopped from pursuing them herself.                         A

bankruptcy trustee may reopen a case at any time to administer

assets.     11 U.S.C.A. § 350(b).          As necessary, the trustee may

examine the debtor or other evidence to assess the prospects of

recovery for benefit of the creditors.              If the trustee chooses to

assume the presentation of the claims as pled, the trial court

should schedule a trial.           If the Trustee prevails, defendants

should pay the Trustee on behalf of the estate, because the

approval     of   any   distribution     of   the    monies   rests     with     the

bankruptcy court.

      Judicial     estoppel   applies    when   a    party    is    "asserting      a

position in a case that contradicts or is inconsistent with a

position previously asserted by the party in the case or a related

legal proceeding."       Newell, supra, 376 N.J. Super. at 38 (quoting

Tamburelli Props., supra, 308 N.J. Super. at 335).                   The Trustee

did   not    address    plaintiff's     accident-related       claims       in   the

                                  18                                        A-4567-14T4
bankruptcy court, so the Trustee may maintain these claims before

New Jersey courts without contradiction.           We therefore conclude

the   trial   court    mistakenly    exercised   its   discretion   when    it

dismissed plaintiff's claims against defendants without first

affording the Trustee the opportunity to review and possibly pursue

these claims.         If the Trustee declines to pursue plaintiff's

claims, the trial court may reconsider defendants' motion for

dismissal in accordance with Kimball Int'l, Inc., supra, 334 N.J.

Super. at 608 (recognizing "judicial estoppel is an 'extraordinary

remedy,' which should be invoked only 'when a party's inconsistent

behavior will otherwise result in a miscarriage of justice'"

(quoting Ryan Operations, supra, 81 F.3d at 365)).

                           C. Summary Judgment

      A court may grant summary judgment only "if the pleadings,

depositions, answers to interrogatories and admissions on file,

together with affidavits, if any, show that there is no genuine

issue as to any material fact challenged and that the moving party

is entitled to a judgment or order as a matter of law."             R. 4:46-

2(c).   The court must view the facts in a light most favorable to

the non-moving party.       Polzo v. Cnty. of Essex, 209 N.J. 51, 56-

57 n.1 (2012) (citing Brill v. Guardian Life Ins. Co. of Am., 142

N.J. 520, 523 (1995)).      The factfinder must resolve the slightest

doubt as to an issue of material fact, Saldana v. DiMedio, 275

                                19                                   A-4567-14T4
N.J. Super. 488, 494 (App. Div. 1994), or even simply an issue of

credibility, D'Amato by McPherson v. D'Amato, 305 N.J. Super. 109,

114-15 (App. Div. 1997).   These questions consequently preclude a

court from granting judgment as a matter of law.        "[S]ummary

judgment should be denied unless the right thereto appears so

clearly as to leave no room for controversy."   Saldana, supra, 275

N.J. Super. at 495.

     Our review of a ruling on summary judgment is de novo,

applying the same legal standard as the trial court.   Nicholas v.

Mynster, 213 N.J. 463, 478 (2013).   Thus, we must first determine

whether any genuine issue of material fact exists, and, if not,

evaluate whether the trial court's ruling was correct as a matter

of law.   Henry v. N.J. Dep't of Human Servs., 204 N.J. 320, 330

(2010).

     "[A]n insured bears the burden of establishing that a claim

is within the basic policy terms."     Cobra Prods., Inc. v. Fed.

Ins. Co., 317 N.J. Super. 392, 401 (1998) (citing Diamond Shamrock

Chems. v. Aetna, 258 N.J. Super. 167, 216 (App. Div. 1992), certif.

denied, 134 N.J. 481 (1993)), certif. denied, 160 N.J. 89 (1999).

"The insurer has the burden of establishing application of an

exclusion."   Ibid. (citing Hartford Accident & Indem. Co. v. Aetna

Life & Cas. Ins. Co., 98 N.J. 18 (1984)).    "If the words used in

an exclusionary clause are clear and unambiguous, 'a court should

                             20                             A-4567-14T4
not engage in a strained construction to support the imposition

of liability.'"    Flomerfelt v. Cardiello, 202 N.J. 432, 442 (2010)

(quoting Longobardi v. Chubb Ins. Co., 121 N.J. 530, 537 (1990)).

      "In determining whether there is a common household, [New

Jersey] courts often consider whether the insured and the relative

seeking   coverage     share    a    'substantially      integrated     family

relationship.'"      Gibson v. Callaghan, 158 N.J. 662, 673 (1999).

"That two people reside under the same roof is neither necessary

nor   sufficient     for   a   finding    that   those    people      share    a

'household.'"     Id. at 672.       This court has previously held a son

remained in his parents' household because he maintained a bedroom

in their house and regularly spent two nights a week there, even

though he "lived primarily" in an apartment in New York City.                 Id.

at 673 (citing Arents v. Gen. Accident Ins. Co., 280 N.J. Super.

423, 425-26 (App. Div. 1995)).           This court also "considered the

fact that the insured kept clothing at his parents' house, that

he had a car garaged, registered, and insured at that address, and

that he made household repairs."         Ibid. (citing Arents, supra, 280

N.J. Super. at 425-26).

      Plaintiff argues the trial court should have granted her

summary judgment because (1) she lived in her mother's household,

(2) her mother did not need to list her as a driver on her policy

in order for plaintiff to have coverage under the policy, and (3)

                                21                                     A-4567-14T4
she notified defendants within a reasonable time.                 We conclude the

record presents a genuine issue of material fact as to whether

plaintiff lived in her mother's home.               We refrain from deciding

plaintiff's last two contentions because the trial court did not

reach them.

      During     discovery     and    the   hearing     on   summary      judgment,

plaintiff   produced      a    single     gas   bill,   addressed    to    "Loraine

Drisco," for her mother's home.             The bill showed a "Turn On Date"

of January 26, 1996, a "Last Payment Date" of October 5, 2010, and

a   "Reinstate    Date"   of    January     20,   2012.      In   her   answer     to

defendants' interrogatories, plaintiff stated her middle name was

"Drisco."      At the hearing, her counsel stated "Drisco" was the

name of her son's father.            Plaintiff did not provide any other

documentation that she lived with her mother.                Plaintiff did not

produce evidence establishing she lived with her mother "so clearly

as to leave no room for controversy."               Saldana, supra, 275 N.J.

Super. at 495.       We therefore conclude the trial court properly

denied plaintiff's motion for summary judgment.

                               D. Attorney's Fees

      Rule 4:42-9(a)(6) permits the award of attorney's fees "[i]n

an action upon a liability or indemnity policy of insurance, in

favor of a successful claimant."            See, e.g., Maros v. Transamerica

Ins. Co., 76 N.J. 572, 579 (1978).                 The rule is intended "to

                                     22                                     A-4567-14T4
discourage groundless disclaimers and to provide more equitably

to an insured the benefits of the insurance contract without the

necessity of obtaining a judicial determination that the insured,

in fact, is entitled to such protection."           Sears Mortg. Corp. v.

Rose, 134 N.J. 326, 356 (1993) (quoting Gaur. Ins, v. Saltman, 217

N.J. Super. 604, 610 (App. Div. 1987)).          In other words, an award

for attorney's fees and costs in an action to enforce insurance

benefits is supported by "[t]he theory . . . that one covered by

a policy is entitled to the full protection provided by the

coverage, and that benefit should not be diluted by the insured's

need to pay counsel fees in order to secure its rights under the

policy." Liberty Vill. Assocs. v. W. Am. Ins. Co., 308 N.J. Super.

393, 406 (App. Div.) (citing Sears Mortg., supra, 134 N.J. at

356), certif. denied, 154 N.J. 609 (1998).

     Plaintiff argues she is entitled to attorney's fees.            Because

plaintiff    has   not    yet   established   herself   as   a   "successful

claimant," we decline to award her attorney's fees at this point

of the litigation.       See, e.g., Maros, supra, 76 N.J. at 579.

                         E. Notice of Proof Hearing

     "[P]laintiffs are obligated to provide notice to their UM/UIM

carrier of the institution of suit against the tortfeasor." Zirger

v. Gen. Accident Ins. Co., 144 N.J. 327, 340-41 (1996).                  When

plaintiffs   provide     this   notice,   they   establish   the   carrier's

                                  23                                 A-4567-14T4
privity with the tortfeasor for the purposes of issue and claim

preclusion, preventing redundant litigation.          Id. at 342.    When

plaintiffs do not provide this notice, the carrier is not in

privity with the tortfeasor for the purposes of issue and claim

preclusion, so the carrier may relitigate the issue of damages.

Vaccaro v. Pa. Nat'l Mut. Cas. Ins. Co., 349 N.J. Super. 133, 143

(App. Div.) ("To bind the UM/UIM carrier, there must be notice to

the   carrier   and   an   adversarial   proceeding    that   determines

damages."), certif. denied, 174 N.J. 40 (2002).

      Defendants argue plaintiff should have given them notice of

the hearing and allowed them to oppose her proofs because they

step "into Mr. Goven's shoes for the purposes" of plaintiff's UM

action.   Defendants are clearly mistaken.    Because plaintiff never

notified defendants of the hearing, they are not in privity with

Goven and may relitigate his damages in any future UM action.         See

Vaccaro, supra, 349 N.J. Super. at 143.       We therefore decline to

vacate plaintiff's default judgment against Goven.

      We do, however, vacate the trial court's order of dismissal

and remand the matter for additional proceedings consistent with

our opinion.    We do not retain jurisdiction.




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