Can an Heir to an Uninsured Motorist Maintain an Action under the Wrongful Death Act?

The facts

On September 15, 2005, Lawrence Aronberg was driving southbound on the New Jersey Turnpike in a Volkswagon Jetta when a tractor trailer careened into the rear of his car, killing him. The truck was operated by Wendell Tolbert and owned by Fleetwood Taggart (Fleetwood Trucking). On the day of the fatal accident, Aronberg, then thirty-four-years old, was an uninsured motorist.

History of case

Plaintiff’s Mother brought a survival and wrongful death action on behalf of the estate of her son, an uninsured motorist who was killed by the alleged negligence of another driver. The other driver and his employer (defendants) claimed that the lawsuit was barred by N.J.S.A. 39:6A-4.5(a). That statute provides that any person who fails to maintain statutorily required no-fault insurance “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.” N.J.S.A. 39:6A-4.5(a).

Trial court

The trial court held that the statutory bar applied to the survival claim, but not to the wrongful death action. The court found that the Wrongful Death Act, N.J.S.A. 2A:31-1 to -6, granted heirs an independent right of recovery, regardless of the decedent’s failure to procure insurance. Thus, the court dismissed only the survival claim that would have inured to the benefit of the son’s estate.

Appellate Division

When an uninsured motorist’s cause of action is barred by N.J.S.A. 39:6A-4.5(a), an heir has no right of recovery under the Wrongful Death Act. Under the plain language of the Act, the mother in this case can recover in her lawsuit only if her son would have been “entitled . . . to maintain an action for damages resulting from the injury” had “death . . . not ensued.” N.J.S.A. 2A:31-1. Because her son, an uninsured motorist, could not have maintained a cause of action had he lived due to the statutory bar in N.J.S.A. 39:6A-4.5(a), his heirs cannot recover under the Wrongful Death Act.Judge Fisher filed a dissent.

In his dissent, Judge Fisher stated that he would reverse “because N.J.S.A. 39:6A-4.5(a) unmistakably declares that no cause of action arises when injuries are sustained by a person operating an uninsured vehicle, and the wrongful death statute, N.J.S.A. 2A:31-1, links the viability of a wrongful death action to the” decedent’s ability to have “maintain[ed] an action for damages” had he not died. Id. at 575 (Fisher, J.A.D., dissenting) (internal quotation marks omitted). Judge Fisher did not see why N.J.S.A. 39:6A-4.5(a) would bar a survival action but not a wrongful death action. Id. at 576-77. He observed: “A wrongful death action may provide heirs with a remedy resulting from the loss of a life, but the claim still derives from the tortious conduct upon which a personal injury claim would have been based had the victim lived.” Id. at 576.

He was unable to discern any legislative policy for giving favored treatment to a wrongful death action over the victim’s personal injury claim that could not have been brought had he survived the tortious conduct. Id. at 577.N.J. Supreme Court

N.J. Supreme Court

HELD: When an uninsured motorist’s cause of action is barred by N.J.S.A. 39:6A-4.5(a), an heir has no right of recovery under the Wrongful Death Act, N.J.S.A. 2A:31-1 to -6.