The court granted defendants leave to appeal from the Law Division's orders denying summary judgment and reconsideration. Plaintiff was injured while driving his motorcycle when defendants' tractor trailer pulled into plaintiff's lane of travel. Plaintiff admitted having several drinks throughout the day and that he was speeding at the time of the accident, but, at his deposition, equivocated as to whether he was intoxicated. Blood was drawn at the hospital, and defendants' expert extrapolated from that sample that plaintiff's BAC at the time of the accident was between .159 and .162. Police issued no motor vehicle summonses to plaintiff.
In moving for summary judgment, defendants relied upon N.J.S.A. 39:6A-4.5(b), which provides:
Any person who is convicted of, or pleads guilty to, operating a motor vehicle in violation of [N.J.S.A.] 39:4-50, [N.J.S.A. 39:4-50.4a], or a similar statute from any other jurisdiction, in connection with an accident, shall have no cause of action for recovery of economic or noneconomic loss sustained as a result of the accident.
[(Emphasis added).]
The motion judge denied the motion, concluding that the statute did not apply to plaintiff because he was not convicted of DWI and also because there were material disputed facts as to whether plaintiff was legally intoxicated at the time of the accident.
The court affirmed, agreeing with the motion judge that there were material factual disputes as to plaintiff's state of intoxication at the time of the accident. More importantly, the court concluded the plain language of the statute denied a cause of action only to those plaintiffs actually convicted of DWI.
