Bennett v. Hand

• Decision Date: 28 August 1995
• Citation: 284 N.J.Super. 43,663 A.2d 130
• Parties: Robert BENNETT, Plaintiff-Appellant, v. Nancy HAND, Defendant-Respondent.
• Court: New Jersey Superior Court — Appellate Division

Page 43

284 N.J.Super. 43

663 A.2d 130

Robert BENNETT, Plaintiff-Appellant, v. Nancy HAND, Defendant-Respondent.

Superior Court of New Jersey Appellate Division.

Argued Feb. 22, 1995.

Decided Aug. 28, 1995.

Joseph M. Scott, for appellant (Paul J. Baldini, P.A., attorneys; Paul J. Baldini on the brief).

Edward J. Tucker, for respondent (Tucker, Latterman & Munyon, attorneys; Mr. Tucker on the brief).

Before Judges BRODY, ¹ LONG and ARNOLD M. STEIN.

The decision of the court was delivered by

ARNOLD M. STEIN, J.A.D.

We reverse the order entering summary judgment in favor of defendant. We conclude that a plaintiff who is involved in an automobile accident and does not satisfy the verbal threshold requirements of N.J.S.A. 39:6A-8a may sue to recover unreimbursed income losses.

The record is incomplete. Plaintiff claims that he was out of work from the date of the accident, October 12, 1989, until February 9, 1990, with the exception of parts of three days when he unsuccessfully attempted to return to work. We have no record of plaintiff's total claimed wage loss, nor do we know his hourly, daily, weekly, monthly or annual wages. We cannot tell whether plaintiff received the $100 maximum weekly payment of income continuation benefits required by N.J.S.A. 39:6A-4b, or whether plaintiff's auto policy provided him with additional income continuation benefits pursuant to N.J.S.A. 39:6A-10.

N.J.S.A. 39:6A-8a bars persons subject to its provisions from recovery for non-economic loss if they do not meet the verbal threshold standards. Coverage for income continuation benefits must be included in every automobile liability insurance policy. N.J.S.A. 39:6A-4b.

N.J.S.A. 39:6A-12 provides:

[E]vidence of the amounts collectible or paid pursuant to [ N.J.S.A. 39:6A-4] to an injured person, including the amounts of any deductibles, copayments or exclusions ... otherwise compensated is inadmissible in a civil action for recovery of damages for bodily injury by such injured person.

....

Nothing in this section shall be construed to limit the right of recovery, against the tortfeasor, of uncompensated economic loss sustained by the injured party.

[ N.J.S.A. 39:6A-12

(emphasis added).]

Read together, these two sections spell out a legislative purpose to permit an otherwise eligible person injured in an automobile accident to sue for loss of income regardless of whether the injured person has satisfied the verbal threshold requirements of N.J.S.A. 39:6A-8a, at least to the extent that the income loss is otherwise uncompensated by income continuation benefits or otherwise.

Roig v. Kelsey, 135 N.J. 500, 641 A.2d 248 (1994) is not applicable. There the Supreme Court held that the injured party could not recover medical deductible and co-payment not paid under a personal injury protection (PIP) policy. Id. at 515-16, 641 A.2d 248. Compensated medical deductibles and co-payments are fixed and capable of calculation at the time the insured is issued the policy. It is the insured who determines what type of premium he or she will pay by selecting an appropriate deductible in exchange for a premium reduction. Id. at 514, 641 A.2d 248. Income loss is different. After the income continuation benefits are received by the insured, the income loss to the insured is uncollected or uncollectible unless suit can be brought by the insured for reimbursement of these income losses in the form of a lawsuit. We do not know what this plaintiff lost in income, but we do know that he claims to have been out of work for approximately four months. A four-month income loss places considerable stress upon most income earners, even after receipt of income continuation benefits and other collateral sources of payment.

We have considered the particular statute sections in question as part of the framework of an entire legislative scheme. Id. at 500, 641 A.2d 248. We recognize that one of the overall purposes of the no-fault law, N.J.S.A. 39:6A-1 to -20, is to ease court congestion and eliminate suits for relatively small amounts of money. Id. at 513, 641 A.2d 248. Income loss can involve a large sum of money in many cases where the verbal threshold statute cannot be met by the injured party.

Before Roig v. Kelsey, 262 N.J.Super. 579, 621 A.2d 540 (App.Div.1993), rev'd, 135 N.J. 500, 641 A.2d 248 (1994) went to the New Jersey Supreme Court, we said:

If the injured person is not able to sue under N.J.S.A. 39:6A-8 because of failure to meet the threshold applicable to the...