Ford v. Weisman

• Decision Date: 28 February 1983
• Citation: 188 N.J.Super. 614,458 A.2d 142
• Parties: Catherine FORD and Sandra D. Hickman, Plaintiffs, v. Walter WEISMAN and Selected Risks Insurance Company, Defendants and Third-Party Plaintiffs-Appellants, v. ALLSTATE INSURANCE COMPANY, Third-Party Defendant-Respondent, and Camden Fire Insurance Company, Third-Party Defendant.
• Court: New Jersey Superior Court — Appellate Division

Page 614

188 N.J.Super. 614

458 A.2d 142

Catherine FORD and Sandra D. Hickman, Plaintiffs, v. Walter WEISMAN and Selected Risks Insurance Company, Defendants and Third-Party Plaintiffs-Appellants, v. ALLSTATE INSURANCE COMPANY, Third-Party Defendant-Respondent, and Camden Fire Insurance Company, Third-Party Defendant.

Superior Court of New Jersey Appellate Division.

Submitted Jan. 25, 1983.

Decided Feb. 28, 1983.

Montano, Summers, Mullen & Manuel, Cherry Hill, for defendants and third-party plaintiffs-appellants (Timothy J. Higgins, Cherry Hill, of counsel and on the brief).

Green & Lundgren, Haddonfield, for third-party defendant-respondent (Peter P. Green, Haddonfield, of counsel and on the letter brief).

Before Judges MICHELS, PRESSLER and TRAUTWEIN.

The opinion of the court was delivered by

MICHELS, P.J.A.D.

Pursuant to leave granted by this court, defendants and third-party plaintiffs Walter Weisman (Weisman) and Selected Risks Insurance Company (Selected Risks) appeal from an order of the Law Division denying their motion for reconsideration of a summary judgment entered in favor of third-party defendant Allstate Insurance Company (Allstate). The summary judgment declared that Selected Risks was solely liable to plaintiffs Catherine N. Ford (Ford) and Sandra D. Hickman (Hickman) for personal injury protection (PIP) benefits under its policy of insurance covering plaintiffs' automobile and that Allstate's insurance policy covering another automobile owned by Ford did not apply by virtue of the exclusionary clause contained therein.

The facts are not in dispute. Ford and Hickman were the owners of an automobile that Ford was operating and in which Hickman was a passenger when it collided with an automobile owned and operated by Weisman. Both automobiles were covered by policies of insurance issued by Selected Risks. During pretrial discovery, it was learned that Ford owned a second vehicle, which was covered by a policy of insurance issued to her by Allstate. Selected Risks then filed a third-party complaint against Allstate, seeking a declaration that Allstate, and not Selected Risks, was primarily liable for Ford's personal injury protection benefits.

Allstate moved for summary judgment against Selected Risks, relying on the following exclusionary clause contained in its policy of insurance issued to Ford:

[Basic personal injury protection] does not apply:

* * *

2. to bodily injury to the named insured or any relative of the named insured sustained while occupying, using or entering into or alighting from a private passenger automobile which is not an insured automobile under this policy, if he is required to maintain automobile liability insurance coverage with respect to the automobile under the New Jersey Automobile Reparation Reform Act; ...

Selected Risks argued that Allstate's exclusionary clause was contrary to public policy because it conflicted with the mandatory coverage required by N.J.S.A. 39:6A-4. This statute provides in part that every liability policy that insures an automobile shall provide additional coverage for the payment of 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 sustain bodily injury as a result of an accident involving an automobile.

At the time this motion was decided we had held in Fellippello v. Allstate Ins. Co., 172 N.J.Super. 249, 411 A.2d 1137 (App.Div.1979), that a clause in an insurance contract that excludes from basic personal injury protection bodily injury sustained in an accident outside New Jersey is void because it conflicts with the coverage required by N.J.S.A. 39:6A-4. Despite this precedent, the trial judge granted Allstate's motion for summary judgment, concluding that Fellippello was distinguishable and that N.J.S.A. 39:6A-4 did not make Allstate liable for any of Ford's personal injury protection benefits. Selected Risks did not seek leave to appeal, and the time for seeking such leave is long past.

Following the entry of summary judgment, we held, in Selected Risks Ins. Co. v. Allstate Ins. Co., 179 N.J.Super. 444, 432 A.2d 544 (App.Div.1981), certif. den. 88 N.J. 489, 443 A.2d 705 (1981), that the same exclusionary clause here involved was invalid and against public policy. In reaching this conclusion, we reasoned as follows:

N.J.S.A. 39:6A-4 provides in part that every automobile liability insurance policy insuring an automobile shall provide additional coverage for the payment of 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 sustain bodily injury as a result of an accident involving an automobile.

The statute is clear on its face. There are no exceptions from this coverage and there are no provisions here for relegating one insurer to a classification as the primary insurer and another as a secondary insurer. As noted in Motor Club of America Ins. Co. v. Phillips, 66 N.J. 277 [330 A.2d 360] (1974):

The Legislature must be deemed to have been cognizant that an individual frequently becomes an "insured", named or otherwise included, in more than one automobile liability policy (as here), and thus to have contemplated, when commanding an offer of UM protection to "the insured" in every liability policy issued, that an injured person might have UM recourse on more than one policy. Had that result not been intended, we would expect to find its negation expressed in the statute. [at 292, 330 A.2d 360]

Here, the Legislature must be deemed to have been cognizant that an individual may have his or her own insurance and be residing at home with his or her parents having their own automobile insurance and to have contemplated that there would be recourse on more than one policy. Had the Legislature intended that one insurer would be primary and the other secondary, this would have been expressed in the statute. That the Legislature did not intend such a procedure can be seen from the language of N.J.S.A. 39:6A-11 which provides as follows:

If two or more insurers are liable to pay benefits under sections 4 and 10 of this act for the same bodily injury, or death, of any one person, the maximum amount payable shall be as specified in sections 4 and 10 if additional first party coverage applies and any insurer paying the benefits shall be entitled to recover from each of the other insurers, only by inter-company arbitration or inter-company agreement, an equitable pro-rata share of the benefits paid.

Where insurance policy provisions conflict with the coverage required by statute, they are inapplicable and the policy is deemed amended to conform to the statutory standards. Vicari v. Nationwide Ins. Co., 174 N.J.Super. 463, 468 [416 A.2d 977] (App.Div.1980); Fellippello v. Allstate Ins. Co., supra, 172 N.J.Super. at 261 [411 A.2d 1137]; Selected Risks Ins. Co. v. Zullo, 48 N.J. 362, 373 [225 A.2d 570] (1966).

Personal injury protection coverage should be given the broadest application consistent with the statutory language. Amiano v. Ohio Cas. Ins. Co., 85 N.J. 85, 90 [424 A.2d 1179] (1981).

Defendant's insurance policy provision conflicts...