ALISON MOSES VS. ROBERT J. MANALO(L-4670-11, UNION COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE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-4569-14T2
ALISON MOSES,
Plaintiff-Appellant,
v.
ROBERT J. MANALO,
Defendant-Respondent,
and
GREGORIO L. MANALO,
Defendant.
________________________________
Argued March 7, 2017 – Decided August 10, 2017
Before Judges Reisner and Sumners.
On appeal from Superior Court of New Jersey,
Law Division, Union County, Docket No. L-4670-
11.
Matthew B. Weisberg argued the cause for
appellant.
Daniel J. Pomeroy argued the cause for
respondent (Pomeroy, Heller & Ley, LLC,
attorneys; Mr. Pomeroy, on the brief; Karen
E. Heller, attorney, on the brief).
PER CURIAM
Plaintiff Alison Moses, a Florida resident covered by a
Florida automobile insurance policy, was driving a rental car west
on Interstate Route 78 when she was rear-ended by an automobile
driven by defendant Robert J. Manalo. During the subsequent
litigation, the trial court entered an order on January 31, 2014,
which granted defendant's pre-trial motion, declaring that
plaintiff's bodily injury claim was subject to the lawsuit
limitation threshold through application of the Deemer Statute,
N.J.S.A. 17:28-1.4, and N.J.S.A. 39:6A-8(a).
At trial, the jury found defendant negligent, but did not
award plaintiff any damages because it determined that she failed
to prove that she sustained a permanent injury as required by the
lawsuit limitation. On April 27, 2015, the court entered an order
dismissing her complaint due to the no cause of action verdict.
Before us, without citing any legal authority, plaintiff
contends the January 31 order, declaring that the Deemer Statute
applies and subjects her claim to the lawsuit limitation, is
"prejudicial reversible error." We disagree.
The salient facts are not in dispute, and the issue presented
is a question of law, which we review de novo. Davis v. Devereux
Found., 209 N.J. 269, 286 (2012).
Initially, however, we are constrained to point out that
plaintiff's appeal is procedurally deficient. A notice of appeal
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must "designate the judgment, decision, action or rule, or part
thereof appealed from." R. 2:5-1(f)(3)(A). It is well-established
"that it is only the orders designated in the notice of appeal
that are subject to the appeal process and review." W.H. Indus.,
Inc. v. Fundicao Balancins, Ltda., 397 N.J. Super. 455, 458 (App.
Div. 2008); 1266 Apartment Corp. v. New Horizon Deli, Inc., 368
N.J. Super. 456, 459 (App. Div. 2004). Plaintiff's notice of
appeal fails to indicate that she is appealing the court's January
31 order, applying the lawsuit limitation. Further, Rule 2:6-
1(a)(1) requires that the appendix contain a "statement of all
items submitted to the [trial] court" and copies of those items.
Plaintiff had not provided us with a transcript of the argument
or the court's decision.1 Nevertheless, after considering the
record that was provided, we are able to conduct meaningful review
of the court's order that the lawsuit limitation applies to
plaintiff's claim. See R. 2:8-2; R. 2:9-9.
At the time of the accident, plaintiff was driving a rental
automobile. She had a Florida insurance policy that covered her
personal automobile. It also covered her for damages arising out
of her use of "a non-owned auto," defined as "a private passenger,
1
Defendant's brief states there is a transcript of the January
31, 2014 proceeding, but it is not part of the record on appeal.
Further, it is unclear whether the trial court placed its decision
on the record at the proceeding.
3 A-4569-14T2
farm or utility auto or trailer not owned by or furnished for the
regular use of either you or a relative, other than a temporary
substitute auto. An auto rented or leased for more than 30 days
will be considered as furnished for regular use." The policy
further provided that "[w]hen the policy applies to the operation
of a motor vehicle outside of your state, we agree to increase
your coverages to the extent required by local law." Consequently,
the rental automobile she was driving was covered by her Florida
policy.
In our state, 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 "whenever the automobile or motor vehicle insured
under the policy is used or operated in this State." N.J.S.A.
17:28-1.4. Since plaintiff's insurance provider provided
insurance coverage in New Jersey, we therefore agree with the
trial court's order that the Deemer Statute applied and plaintiff's
claim was subject to the lawsuit limitation.
Affirmed.
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