Brokenbaugh v. New Jersey Mfrs. Ins. Co.

• Decision Date: 13 April 1978
• Citation: 158 N.J.Super. 424,386 A.2d 433
• Parties: , 96 A.L.R.3d 793 Linda BROKENBAUGH, Plaintiff-Respondent, v. NEW JERSEY MANUFACTURERS INSURANCE COMPANY, Defendant-Appellant and Cross-Respondent, and State of New Jersey Unsatisfied Claim and Judgment Fund Board, Defendant-Respondent, and Joseph L. Dargan, Defendant-Respondent and Cross-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 424

158 N.J.Super. 424

386 A.2d 433, 96 A.L.R.3d 793

Linda BROKENBAUGH, Plaintiff-Respondent, v. NEW JERSEY MANUFACTURERS INSURANCE COMPANY Defendant-Appellant and Cross-Respondent and State of New Jersey Unsatisfied Claim and Judgment Fund Board, Defendant-Respondent and Joseph L. Dargan, Defendant-Respondent and Cross-Appellant.

Superior Court of New Jersey,Appellate Division.

Argued Feb. 22, 1978.

Decided April 13, 1978.

C. Kennon Hendrix, Pennsauken, for defendant-appellant (Roy D. Cummins, Pennsauken, attorney).

Kenneth A. DiMuzio, Woodbury, for plaintiff-respondent (Falciani & DiMuzio, Woodbury, attorneys).

William R. Powers, Jr., Moorestown, for defendant-respondent Unsatisfied Claim and Judgment Fund Bd. (Moss, Powell & Powers, Moorestown, attorneys).

John L. Fratto, Camden, for defendant-respondent Dargan (Bleakly, Stockwell & Zink, Camden, attorneys; Fred F. Fitchett, Camden, on the brief).

Before Judges LYNCH, KOLE and PETRELLA.

The opinion of the court was delivered by

LYNCH, P. J. A. D.

Plaintiff, who was injured in an accident on January 6, 1973 while a passenger in an automobile driven by an uninsured motorist, filed a declaratory judgment action against the New Jersey Manufacturers Insurance Company (NJM) and the State of New Jersey Unsatisfied Claim and Judgment Fund (Fund). The complaint alleged that NJM had issued to Carlton Colburn (Colburn) and Gladys Brokenbaugh (Gladys), ¹ plaintiff's mother, an automobile policy which was in effect at the time of plaintiff's accident; that plaintiff was a "person insured" by said policy and was entitled to the personal injury protection (PIP) and uninsured motorist coverage (UM) made mandatory in such policies by the New Jersey Automobile Reparation Act of 1972 (reform act), particularly N.J.S.A. 39:6A-4 (PIP) and N.J.S.A. 39:6A-14 (UM). Alternatively, plaintiff sought a declaration that "(a)s the victim of an uninsured motorist," she is entitled to file a claim against the Fund.

On November 4, 1976 the trial judge found that plaintiff was entitled to coverage under the policy issued by NJM. Following a motion by plaintiff and the Fund to fix the form of judgment, judgment was entered on March 30, 1977 providing, insofar as pertinent, that summary judgment was granted in favor of plaintiff and the Fund against NJM; the complaint against the Fund was dismissed; NJM must reimburse plaintiff for medical bills in the amount of $13,728.80 plus statutory interest of 10% per annum; NJM must pay the attorneys' fees incurred by plaintiff and the Fund. NJM appeals.

The PIP statute.

N.J.S.A. 39:6A-4 provides in pertinent part:

Every automobile liability insurance policy insuring an automobile as defined in this act against loss resulting from liability imposed by law for bodily injury, death and property damage sustained by any person arising out of ownership, operation, maintenance or use of an automobile shall provide additional coverage, as defined herein below, under provisions approved by the Commissioner of Insurance, for the payment of benefits without regard to negligence, liability or fault of any kind, to the named insured and members of his family residing in his household who sustained bodily injury as a result of an accident involving an automobile, * * * . (Emphasis supplied).

Plaintiff contends that she is covered under the statute because she was a member of the "family" of the insured, Colburn, and resided in his household at the time of the accident.

Plaintiff was born July 10, 1952 to James and Gladys Brokenbaugh. James deserted his wife during pregnancy and in June or July 1954 Gladys Brokenbaugh and her daughter, plaintiff herein, began living with Colburn. Gladys never divorced her "first" husband and never married Colburn. In any event, she and Colburn lived as man and wife and eventually produced three offspring of their own. Plaintiff resided with her mother and Colburn until she was 41/2 years old. At that time she went to live with her grandmother in Philadelphia and began attending school there. Throughout her residence in Philadelphia, Colburn "contributed weekly to her support" and plaintiff, in turn, would visit her mother and Colburn frequently. She returned to their household sometime during the winter of 1970. From that time to the date of the accident she lived with Gladys and Colburn. Also during that time Colburn provided food, shelter and medical care for Gladys and plaintiff. Both looked solely to Colburn for their support and plaintiff has always called Colburn "Daddy."

At trial, all parties moved for summary judgment. On the issue of PIP coverage the trial judge held in a letter opinion that Linda was covered by the policy as a member of Colburn's "family residing in his household," as provided in N.J.S.A. 39:6A-4.

In making this finding the judge referred to the PIP endorsement to the policy which was approved by the Commissioner of Insurance. The endorsement extends coverage to "eligible injured persons." So far as pertinent, the endorsement reads:

"Eligible injured persons" means:

(a) The named insured or any relative of the named insured * * *

"Relative " means a person related to the named insured by blood, marriage or adoption (including a ward or foster child) who is a resident of the same household as the named insured. (Emphasis in original)

The trial judge held that Linda was a "foster child" of Colburn residing in his household and therefore was covered under the NJM policy for PIP benefits. We agree.

Legislation involving automobile insurance must be liberally construed to give the broadest protection to automobile accident victims consistent with the language of the pertinent statute. N.J.S.A. 39:6A-16; Motor Club of America Ins. Co. v. Phillips, 66 N.J. 277, 293, 330 A.2d 360 (1974). And the endorsement approved by the Commissioner is "evidential" in determining the legislative intent. Id. at 286, 330 A.2d 360. It is with these guidelines that we seek the legislative intent as to the meaning of the term "members of (the insured's) family."

In Cicchino v. Biarsky, 26 N.J.Misc. 300, 61 A.2d 163 (D.Ct.1948), a landlord sought to evict a tenant to provide an apartment for one he deemed his "foster daughter." The action was brought under the federal Housing and Rent Act of 1948. The pertinent section of that act, 50 U.S.C.A. Appendix, § 1899(a)(2), reads as follows:

"No action or proceeding to recover possession of any controlled housing accommodations with respect to which a maximum rent is in effect under this title shall be maintainable by any landlord against any tenant in any court, notwithstanding the fact that the tenant has no lease or that his lease has expired, so long as the tenant continues to pay the rent to which the landlord is entitled unless

"(2) the landlord seeks in good faith to recover possession of such housing accommodations for his immediate and personal use and occupancy as housing accommodations, or for the immediate and personal use and occupancy as housing accommodations by a member or members of his immediate family, * * * ."

In Cicchino the "foster-daughter's" parents died while she was an infant and the landlord undertook voluntarily to raise her in all respects as his own. The tenant sought to block the eviction, noting that under the Housing and Rent Act of 1948 a landlord could only evict to provide space for members of his "immediate family." After recognizing that the term "family" has various definitions, the court noted that Congress had defined the term to include "in-laws." Thus, recognizing that the term was not confined to those in a "legal" or blood relationship to the landlord, the court held that the foster-daughter was within the definition of family:

Webster's New International Dictionary (1922) defines:

"foster mother or father a woman or man who has performed the duties of a parent to the child of another by rearing the child as own child."

And

"foster child * * * one who has received the care of a foster parent."

"foster brothers or sisters those reared as children in the same family, or nursed at the same breast, but not of the same parentage."

It is not necessary, for the purposes of this case, that an all inclusive definition of immediate family be formulated. It is sufficient to determine that a foster child reared from infancy to womanhood by the foster parent in his home and still a member of his household, is a member of his immediate family within the meaning and intent of the statute. (26 N.J.Misc. at 304, 61 A.2d at 165).

In our view the trial judge's reliance on Cicchino is warranted. Here, as in Cicchino, there are indications that the definition of the term "family" is not confined to those who stand in a legal or blood relationship. By using the terms "ward " and "foster child," the Commissioner indicates that family shall include those who live within the domestic circle of, and are economically dependent on, the named insured. Such is the circumstance of plaintiff and Colburn. The undisputed facts below show that plaintiff was dependent on Colburn in all respects and viewed him as a father.

NJM places great stress on the fact that plaintiff's mother and Colburn had never married. However, that should not affect the relationship which plaintiff had with Colburn in this context. In Moore Shipbuilding Corp. v. Industrial Acc. Comm'n, 185 Cal. 200, 196 P. 257 (Sup.Ct.1921), the court held that the child of a woman who was living adulterously with decedent was entitled to compensation benefits on his death. The statute provided benefits to those who lived in decedent's "family or household." The court noted that the purpose of the statute was to provide compensation for those dependent on the worker and that, from this standpoint, it made no real difference where the dependency arose. The court held:

The only question open to discussion is whether as a matter of law the relation shown by the undisputed evidence...