Darel v. Pennsylvania Mfrs. Ass'n Ins. Co.

• Decision Date: 29 March 1989
• Citation: 555 A.2d 570,114 N.J. 416
• Parties: Dyandria DAREL, Plaintiff-Respondent, v. PENNSYLVANIA MANUFACTURERS ASSOCIATION INSURANCE COMPANY, Defendant-Appellant, and S & N Leasing Corp., and David Wilkerson, Defendants.
• Court: New Jersey Supreme Court

Page 416

114 N.J. 416

555 A.2d 570

Dyandria DAREL, Plaintiff-Respondent, v. PENNSYLVANIA MANUFACTURERS ASSOCIATION INSURANCE COMPANY,

Defendant-Appellant,

and

S & N Leasing Corp., and David Wilkerson, Defendants.

Supreme Court of New Jersey.

Argued Feb. 28, 1989.

Decided March 29, 1989.

Robert F. Colquhoun, for defendant-appellant (Colquhoun & Colquhoun, attorneys; Brian C. Gallagher, Morristown, on the brief).

Dyandria Darel, pro se.

The opinion of the Court was delivered by

CLIFFORD, J.

We granted certification, 113 N.J. 357, 550 A.2d 466 (1988), to review the Appellate Division's affirmance of a judgment awarding plaintiff personal-injury-protection (P.I.P.) benefits and counsel fees in this "no-contact" accident involving an automobile and a pedestrian. The statutory provision at issue grants P.I.P. benefits to pedestrians (other than the named insured and resident members of his or her family) who "sustain[ ] bodily injury caused by the named insured's automobile or struck by an object propelled by or from such automobile." N.J.S.A. 39:6A-4. We conclude that plaintiff's proofs satisfied those statutory conditions and that she is therefore entitled to P.I.P. benefits under the named insured's policy. We likewise affirm the award of counsel fees.

I

On November 9, 1983, plaintiff rode a bicycle off the sidewalk onto the road and into the path of an oncoming automobile insured by defendant-appellant, Pennsylvania Manufacturers Association Insurance Company (PMI). Plaintiff swerved abruptly, as did the driver of the car. As a result of this maneuvering plaintiff fell and sustained personal injuries, for which she brought suit against the PMI-insured-automobile owner and driver, claiming negligent operation. In that same suit plaintiff sought P.I.P. benefits from PMI.

The trial court permitted the personal-injury claim to go to the jury, ruling that the P.I.P. claim would be decided by the court on the basis of the facts as determined by the jury. To a specific interrogatory that asked if the PMI-insured driver was negligent, the jurors responded unanimously in the negative. Thereafter, in considering the P.I.P. claim, the trial court made findings consistent with but going beyond the jury's determination, namely, that not only was the operator of the automobile not negligent but plaintiff herself was negligent and, contrary to plaintiff's assertion at trial, there was no contact between the automobile and the bicycle. The trial court nevertheless found that plaintiff's injuries were "caused by" the automobile, wherefore it awarded plaintiff P.I.P. benefits and counsel fees.

To achieve that result the trial court had to focus on plaintiff's status in the context of the controlling statute, N.J.S.A. 39:6A-4. Plaintiff, as operator of a bicycle, was within the definition of a "pedestrian" in N.J.S.A. 39:6A-2(h), a section of the New Jersey Automobile Reparation Reform Act, sometimes known as the No-Fault Act. Before it was amended on October 4, 1983, that Act, in N.J.S.A. 39:6A-4, provided P.I.P. benefits

without regard to negligence, liability or fault of any kind, to the named insured and members of his family residing in his household who sustained bodily injury as a result of an accident involving an automobile, to other persons sustaining bodily injury while occupying the automobile of the named insured or while using such automobile with the permission of the named insured and to pedestrians, sustaining bodily injury caused by the named insured's automobile or struck by an object propelled by or from such automobile.

The protection, then, extended to three classes of people:

(1) named insureds and members of their family are covered for bodily injury arising from an accident involving an automobile; (2) "other persons" are given protection for bodily injury sustained "while occupying the automobile of the named insured or while using [it] with [the named insured's] permission"; and (3) "pedestrians" are covered for injuries caused by the automobile or when struck by an object propelled by it.

[Hopkins v. Liberty Mutual Ins. Co., 156 N.J.Super. 72, 75, 383 A.2d 458 (App.Div.1978).]

As can be seen, the Act contemplated two classes of pedestrians. The first included the named insured or a familial member of the named insured's household who sustains an injury "as a result of an accident involving an automobile," N.J.S.A. 39:6A-4, in which event "it [made] no difference if the injured person was, at the time of the accident, riding in a car or on a bicycle, motorcycle, truck, snowmobile, horse, donkey or bus. Such [was] the plain language of the statute." Harlan v. Fidelity & Casualty Co., 139 N.J.Super. 226, 229, 353 A.2d 151 (Law Div.1976). The second class of pedestrians--"stranger" pedestrians ("strangers" to the insurance contract)--consisted of pedestrians who "sustain[ ] bodily injury caused by the named insured's automobile or [are] struck by an object propelled by or from such automobile." N.J.S.A. 39:6A-4. The effect of the difference between the two classes was that whereas mere "involvement" with an automobile triggered the availability of P.I.P. benefits for the named insured and resident family members (be they pedestrian, passenger, or operator), pedestrians in the second class had to demonstrate that the insured's automobile "caused" their injuries.

The trial court acknowledged that the statute imposed on this second class of "stranger" pedestrians a more "intensive" or "tighter" test than that controlling the first class of pedestrians, that is, a showing of "causation" between the injuries and the insured automobile rather than of mere "involvement" with the automobile. To determine "causation" the court concluded that a "but for" test was the appropriate one. The court's letter opinion characterized that test as "stricter than 'involved with,' " and therefore "if but for the auto's presence the injuries would not have occurred, the claimant can prevail." The court found that plaintiff's proofs satisfied that test, and therefore it awarded plaintiff P.I.P. benefits and, on the strength of Maros v. Transamerica Insurance Co., 76 N.J. 572, 579, 388 A.2d 971 (1978), counsel fees as well.

The Appellate Division issued two opinions. In the first, reported at 220 N.J.Super. 156, 531 A.2d 767 (1987), it reversed the judgment in favor of plaintiff. The court concluded that (1) the amendment to N.J.S.A. 39:6A-4, which was enacted before plaintiff's accident, controlled her eligibility for benefits; (2) the amendment sharply restricted the eligibility of the named insured and resident members of the insured's family, who under the amendment had to show not simply that they were injured in an accident "involving an automobile" but rather that they were injured as a result of an accident "while occupying, entering into, alighting from or using an automobile," or as a pedestrian, being struck by an automobile, N.J.S.A. 39:6A-4 (emphasis added); and (3) even though the amendment did not expressly change the language covering "stranger" pedestrians (the "causation" language referred to above), nevertheless the legislature could not have intended to create two classes of pedestrians, particularly where the result would be to afford less protection to a pedestrian who was an insured or a resident family member. 220 N.J.Super. at 159-60, 531 A.2d 767. Therefore, because plaintiff had not been struck by the insured's vehicle, the court declared her ineligible for P.I.P. benefits. Id. at 161, 531 A.2d 767.

Six months after publication of its first opinion the Appellate Division, on its own motion, ordered reconsideration of the appeal, directing the attention of the parties to the issue of whether the 1983 amendment to N.J.S.A. 39:6A-4 was in effect and operable so as to affect plaintiff's rights on the date of the accident, November 9, 1983. 226 N.J.Super. 292, 544 A.2d 45 (1988). The court concluded that although the amendment was passed on October 4, 1983, it did not become effective until January 1, 1984, id. at 293, 544 A.2d 45 a determination not challenged here. The Appellate Division therefore held that the earlier statutory provision governed plaintiff's eligibility, and it amended its earlier opinion accordingly to affirm the judgment of the trial court. Ibid.

II

Defendant concedes that the amended version of N.J.S.A. 39:6A-4 was not in effect on the date of plaintiff's accident and that her rights must be determined under the pre-amendment version. Nevertheless, defendant argues that the amendment fortifies the contention that the legislature intended, both before and after the amendment, that "stranger" pedestrians were eligible for P.I.P. benefits only if struck by the named insured's automobile. The argument rests on the assumption that the amendment was the legislature's response to judicial decisions that had permitted recovery of P.I.P. benefits in "no-contact" situations, and that the amendment "unmistakably shows" that the legislature never intended, from the time the No-Fault statute was enacted, to afford P.I.P. benefits to claimants injured in "no contact" accidents--this, as manifested in the Introductory Statement to the 1983 amendment, L.1983, c. 362:

These provisions mainly are designed to tighten statutory eligibility requirements for personal injury protection coverage so as to comport with the original intent of the no fault law.

We disagree with the conclusion that defendant distills from the legislative history, although it is clear that the 1983 amendment to N.J.S.A. 39:6A-4 was indeed prompted by judicial decisions allowing recovery of P.I.P. benefits by a family member resident in the named insured's household against the insured's own carrier. See, e.g., Gerber v. Allstate Insurance Co., 161 N.J.Super. 543, 391 A.2d 1285 (Law Div.1978), and Purdy v. Nationwide Mutual Insurance Co., 184 N.J.Super. 123, 445 A.2d 424 (App.Div.1982). Although in neither...