Empire Fire & Marine Ins. Co. v. GSA Ins. Co.,

• Court: Superior Court of New Jersey
• Writing for the Court: Before s CONLEY, NEWMAN and CARCHMAN.
• Citation: 808 A.2d 98,354 N.J. Super. 415
• Decision Date: 03 October 2002
• Parties: EMPIRE FIRE & MARINE INSURANCE COMPANY, Defendant-Respondent, v. GSA INSURANCE COMPANY, Plaintiff-Appellant.

808 A.2d 98
354 N.J. Super. 415

EMPIRE FIRE & MARINE INSURANCE COMPANY, Defendant-Respondent,
v.
GSA INSURANCE COMPANY, Plaintiff-Appellant

Superior Court of New Jersey, Appellate Division.

Argued September 25, 2002.

Decided October 3, 2002.

Robert P. Clark, Sea Girt, argued the cause for appellant.

Frank P. Brennan, Cherry Hill, argued the cause for respondent.

808 A.2d 99

Spector Gadon & Rosen, attorneys for appellant (Mr. Brennan and Kevin J. DiMedio, Sr., on the brief)

Before Judges CONLEY, NEWMAN and CARCHMAN.

The opinion of the court was delivered by CONLEY, J.A.D.

This appeal arises from a private automobile insurance carrier's efforts to obtain reimbursement for Personal Injury Protection (PIP) benefits paid its injured insureds from the tortfeasors's commercial vehicle carrier. The private vehicle carrier, GSA Insurance Company (GSA), was successful in its arbitration proceedings brought pursuant to N.J.S.A. 39:6A-9.1. However, its subsequent complaint seeking confirmation of the arbitration award was dismissed and the commercial vehicle carrier, Empire Fire & Marine Insurance Company (Empire), obtained a summary judgment in its own separate complaint vacating the award. GSA appeals the April 30, 2001, summary judgment order and a June 8, 2001, order denying its motion for reconsideration. We reverse.

GSA's insureds, Christian and Anna Hernandez, were passengers in a private passenger automobile when it was struck by a commercial van registered to Metro Rental Services and operated by Eustorgio Castro. Empire provided liability insurance to Metro Rental Services at the time which included insurance for the van.

Commercial vehicles are not within the definition of "automobile" as used in N.J.S.A. 39:6A-4 and, therefore, are not statutorily required to maintain PIP coverage. See N.J.S.A. 39:6A-2a; Buoni v. Browning Ferres Indus., 219 N.J.Super. 96, 98, 529 A.2d 1044 (Law Div.1987). Thus, after paying PIP benefits to its insureds, GSA instituted arbitration proceedings against Empire for reimbursement of those benefits pursuant to N.J.S.A. 39:6A-9.1 That statute provides:

An insurer ... paying ... personal injury protection benefits ... shall, within two years of the filing of the claim, have the right to recover the amount of payments from any tortfeasor who was not, at the time of the accident, required to maintain personal injury protection or medical expense benefits coverage, ... or although required did not maintain personal injury protection... at the time of the accident. In the case of an accident ... involving an insured tortfeasor, the determination as to whether an insurer ... is legally entitled to recover the amount of payments and the amount of recovery ... shall be made against the insurer of the tortfeasor, and shall be by agreement of the involved parties or, upon failing to agree, by arbitration.

[N.J.S.A. 39:6A-9.1.]

We pause at this point to correct a misconstruction of this statute expressed in our unreported decision in First Trenton Indemnity v. South Jersey Gas Co., No. A-3534-99T2 (App.Div. March 22, 2001). We there said that under N.J.S.A. 39:6A-9.1:

if the alleged tortfeasor ... did not maintain PIP insurance protection (either because it was not required to do so, or, even if it were required to do so, it failed to comply with that obligation) then [a private automobile carrier], who had made such payments to its own insured, could proceed with a Superior Court action against [the tortfeasor] within two years of the time the original PIP claim was filed against it. On the other hand, if [the tortfeasor] did carry PIP insurance coverage, the determination of responsibility and the amount of any required reimbursement, would be

808 A.2d 100

determined either "by agreement of the involved parties" or, if the parties failed to reach such agreement, then "by arbitration."

[Id., slip op. at 4 (emphasis added).]

To the extent the emphasized language might be understood to reflect a construction of N.J.S.A. 39:6A-9.1 that extends reimbursement rights between two PIP carriers, that is incorrect. See State Farm Mutual Auto. Ins. Co. v. Licensed Bev. Ins. Ex., 146 N.J. 1, 15, 679 A.2d 620 (1996) ("The reimbursement right conferred by section 9.1 encompasses all tortfeasors that are not subject to the No-Fault Law."); Unsatisfied Claim & Judgment Fund Board v. N.J. Mfrs. Ins. Co., 138 N.J. 185, 191, 195, 649 A.2d 1243 (1994) ("the statute allows PIP carriers to recover not from other PIP carriers but from non-PIP carriers and uninsureds ... [t]he legislative history shows a conscious decision to eliminate any right of recovery between two PIP carriers.").

Here, as we have said, the tortfeasor vehicle was a commercial vehicle not requiring PIP coverage. GSA, then, sought reimbursement from Empire. Being unable to resolve its claim by agreement, it filed arbitration proceedings with the Arbitration Forums, Inc. The petitions (one for each of the insureds) were filed on March 23, 2000, and received by Empire on March 27, 2000. Evidently, on March 28, 2000, a representative of Empire contacted GSA and claimed that...