DZIUBA v. Kristen L. Vanderhook, Louis H. Vanderhook, Jane Doe Employer (a fictitious name), and First Trenton Indemnity Company, Defendants. (2006)

Supreme Court of New Jersey.

Victor DZIUBA and Alexandra Dziuba, husband and wife, Plaintiffs-Respondents, v. Scott J. FLETCHER, Defendant-Appellant, Kristen L. Vanderhook, Louis H. Vanderhook, Jane Doe Employer (a fictitious name), and First Trenton Indemnity Company, Defendants.

Decided: October 12, 2006

Michael G.B. David, Haddonfield, argued the cause for appellant (Lewis & David, attorneys). Anthony Granato, Philadelphia, PA, argued the cause for respondents (Jarve & Kaplan, attorneys, Moorestown).

We granted certification in this matter to review the Appellate Division judgment holding that N.J.S.A. 39:6A-4.5a does not bar plaintiff's recovery of non-economic damages under the tortfeasor defendant's automobile insurance policy. Dziuba v. Fletcher, 382 N.J.Super. 73, 82, 887 A.2d 732 (2005), certif. granted, 186 N.J. 363, 895 A.2d 450 (2006). As the Appellate Division decision noted, plaintiff, an uninsured motorist, was not operating his uninsured vehicle when he was injured in an accident involving defendant's car. Id. at 76, 887 A.2d 732. In such circumstances, we agree with the Appellate Division that N.J.S.A. 39:6A-4.5a does not preclude an injured plaintiff from recovering non-economic damages under a defendant's policy of automobile insurance. Accordingly, substantially for the reasons expressed in Judge Weissbard's opinion, we affirm the Appellate Division's judgment.

PER CURIAM.

For affirmance-Chief Justice PORITZ and Justices LONG, LaVECCHIA, ZAZZALI, ALBIN, WALLACE, and RIVERA-SOTO-7. Opposed-None.

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