Clarifying Meaning of 'Operating' Vehicle, Appeals Court OKs Wrongful Death Suit Involving Uninsured Driver

In a published decision, the New Jersey Appellate Division declined to apply the statutory bar in NJSA 39:6A-4.5(a) to a plaintiff’s claims over the second of two accidents at the same location—30 minutes later—and found that the plaintiffs-decedent was not “operating” an uninsured vehicle during the second accident.

According to the opinion, on Oct. 26, 2019, Najim Memudu was driving a 2007 Lexus south on the New Jersey Turnpike in Edison when Khawaja Hameed rear-ended his vehicle. Memudu’s vehicle was disabled by the accident and partially hanging into the lane of travel. A passing tow truck driver, Brandon McMahon, stopped to help at the scene. Memudu asked to use McMahon’s cell phone light to search for his own phone in his car.

Then McMahon saw a Ford Transit Van driven by Joshua M. Gonzalez crash into the front passenger side of Memudu’s Lexus. As a result of that second accident, Memudu was pronounced dead at the scene, according to the opinion.

The plaintiff, Nasir Memudu as administrator ad prosequendum and general administrator of Najim Memudu’s estate, filed a complaint that alleged claims under the Wrongful Death Act and the Survivor Act. According to the opinion, his claim was brought against Hameed and A-1 Limousine, the owners and operators of the vehicle that first crashed into Memudu. A second set of defendants included Gonzalez, and several companies who allegedly owned the vehicle he operated—W. Campbell Holdings, Campbell Freightliner of Orange County, Campbell Group Associates, and W. Campbell Supply Company.

After discovery concluded, Gonzales and the Campbell companies, as well as Hameed and A-1 moved for summary judgment, according to the opinion. On April 1, 2022, summary judgment was granted to Hameed and A-1, but was denied to Gonzales and the Campbell defendants on April 14, 2022.

“Based on our review of the record and the applicable legal principles, we conclude the statutory bar pursuant to N.J.S.A. 39:6A4.5(a) is not implicated because decedent was not operating his vehicle,” stated Judge Joseph L. Marczyk, in his written opinion for the court.

“The pivotal issue before us on appeal is whether N.J.S.A. 39:6A-4.5(a) operates to bar plaintiff’s Wrongful Death and Survivor Acts claims as a result of decedent being uninsured at the time of the fatal accident,” stated Marczyk. “In addressing this question, we must determine whether decedent was ‘operating’ his vehicle at the time of the second accident pursuant to N.J.S.A. 39:6A-4.5(a). Our courts have not previously addressed N.J.S.A. 39:6A-4.5(a) in the context of the facts presented in this case.”

According to the opinion, N.J.S.A. 39:6A-4.5(a) states, “any person who, at the time of an automobile accident resulting in injuries to that person, is required but fails to maintain medical expense benefits 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.”

The defendants argued that N.J.S.A. 39:6A-4.5(a) should apply to cases where the decedent’s uninsured vehicle is involved in a double impact accident and that the trial court failed to consider the legislative intent and public policy rationale underpinning the statute. And, according to the opinion, the defendants argued, that under Perrelli v. Pastorelle, the statute has been applied to the owner of an uninsured vehicle, even when the owner was injured while a passenger in the vehicle.

Marczyk stated that the dispositive issue in this case is whether Memudu was fatally injured while operating his uninsured vehicle and concluded that for purposes of the pertinent statute, he was not. The judge stated that Mamudu’s vehicle was inoperable after the first accident and the decedent had only entered his car to retrieve his cellphone when he was struck by Gonzalez.

“Even if we were to consider a broader reading of the ‘while operating’ language under N.J.S.A. 39:6A-4.5(a), there is simply no evidence in the record decedent was operating or had any intent to operate the disabled vehicle at that juncture,” stated Marczyk. “In short, the language in the statute is clear and unambiguous, and we conclude decedent was not operating his vehicle for the purposes of N.J.S.A. 39:6A-4.5(a) when he was killed.”

Marczyk addressed the defendant’s reliance on Perrelli v. Pastorelle and called the events of that case “far afield” of the circumstances in this case.

“In Perrelli, the plaintiff was driving her uninsured vehicle with a friend as a passenger,” stated Marczyk. “After stopping at a rest area, the plaintiff’s friend took over driving, while the plaintiff became the passenger. Shortly thereafter, Perrelli’s vehicle was involved in an accident in which she was injured.”

In that case, the New Jersey Supreme Court held that “the preclusion of recovery contained in N.J.S.A. 39:6A-4.5(a) applies to the owner of an uninsured vehicle whether injured as a driver or passenger.”

“We agree a contrary interpretation would lead to an illogical and unintended result, and a culpably uninsured owner assuming the role of a passenger could circumvent the statute by having an unsuspecting driver operate the uninsured vehicle,” said Marczyk. “The Perrelli Court, however, did not address the situation that confronts us in this matter—where an individual was injured unrelated to his or someone else’s operation of the uninsured vehicle.”

Judge Mary Gibbons Whipple and Judge Morris G. Smith joined Marczyk in concluding that N.J.S.A. 39:6A-4.5(a) does not preclude Manudu’s wrongful death and survivor claims.

Amanda J. Hickey of the Law Offices of James H. Rohlfing argued the cause for the defendants and could not be immediately reached for comment. Likewise, counsel to the plaintiff, Charles D. Dawkins, Jr. of solo practice, did not immediately return a call seeking comment.