Hanover Ins. Co. v. Borough of Atlantic Highlands
Decision Date | 25 April 1997 |
Citation | 709 A.2d 328,310 N.J.Super. 599 |
Parties | HANOVER INSURANCE COMPANY, Plaintiff, v. BOROUGH OF ATLANTIC HIGHLANDS and Monmouth County Joint Insurance Fund (JIF), Defendants. |
Court | New Jersey Superior Court |
Perlow & Pescatorem, Bridgeton, for the plaintiff, (Richard M. Pescatore, Esq. appearing).
Cleary, Alfieri & Grasso, P.C., Matawan, for the defendants (John F. Marshall, Esq. appearing).
The sole issue to be decided by the Court is whether an insurance carrier's claim for reimbursement of personal injury protection (PIP) benefits paid to its insured under N.J.S.A. 39:6A-9.1, from a public entity, is barred by N.J.S.A. 59:9-2e. The Court answers the question in the affirmative.
The matter was presented to the Court by the parties filing cross-motions for summary judgment. Both counsel concurred that the issue presented is a matter of law and submitted the same to the Court upon an agreed state of facts as set forth in the moving and opposing papers.
Plaintiff Hanover is an insurance carrier licensed to do business in New Jersey. On January 31, 1996, Hanover's insured, Sandra Mahoney, was the operator of a vehicle which collided with a snow plow truck owned and operated by the defendant Borough of Atlantic Highlands (Borough). The Borough is self-insured for liability purposes as a member of the Monmouth County Joint Insurance Fund (JIF). Mahoney sustained personal injuries and made an application for PIP benefits on March 7, 1996. Hanover paid Mahoney PIP benefits under the insured's policy. Hanover served a Notice of Tort Claim upon the defendant Borough and JIF advising that Hanover was seeking reimbursement of PIP benefits paid to its insured under N.J.S.A. 39:6A-9.1. Hanover demanded that the parties submit to arbitration, but the defendants refused. Hanover instituted the within action seeking an Order of Court compelling defendants to submit to arbitration under N.J.S.A. 39:6A-9.1. 1
Defendants deny liability asserting that Hanover's claim is barred pursuant to N.J.S.A. 59:9-2e which reads as follows:
If a claimant receives or is entitled to receive benefits for the injuries allegedly incurred from a policy or policies of insurance or any other source other than a joint tortfeasor, such benefits shall be disclosed to the court and the amount thereof which duplicates any benefit contained in the award shall be deducted from any award against a public entity or public employee recovered by such claimant; provided, however, that nothing in this provision shall be construed to limit the rights of a beneficiary under a life insurance policy. No insurer or other person shall be entitled to bring an action under a subrogation provision in an insurance contract against a public entity or public employee.
The statute "was designed to prevent plaintiffs from obtaining a double recovery by requiring that any insurance proceeds or other collateral compensation paid to the plaintiff for the alleged injuries sustained as a result of a governmental entity's negligence be subtracted from any judgment against the governmental agency." Pinkowski v. Township of Montclair, 299 N.J.Super. 557, 568, 691 A.2d 837 (App.Div. 1997). Hanover, while acknowledging the aforementioned principle, asserts that statute is not applicable to the present matter in that the statute only bars subrogated claims.
"Subrogation" has been defined as "The substitution of one person in the place of another with reference to a lawful claim, demand or right, so that he who is substituted succeeds to the rights of the other in relation to the debt or claim, and its rights, remedies or securities." BLACK'S LAW DICTIONARY. FIFTH EDITION, 1979. It is Hayes v. Pittsgrove Tp. Bd. of Educ., 269 N.J.Super. 449, 454-455, 635 A.2d 998 (App.Div. 1994). When an insurer brings an action as a subrogor, the insurer only has those rights against the tortfeasor which its insured possessed. Subrogation does not create any additional rights in the insurer. Aetna Ins. Co. v. Gilchrist Brothers, Inc., 85 N.J. 550, 560-562, 428 A.2d 1254 (1981).
Here, Hanover is not seeking to recoup PIP benefits paid to its insured as a subrogor but rather in Hanover's own right. N.J.S.A. 39:6A-9.1 provides in part as follows:
A literal reading of the last sentence of N.J.S.A. 59:9-2e only bars prosecution of subrogated claims and, as such, by itself would not prohibit Hanover's action being that the same is brought as a direct claim under N.J.S.A. 39:6A-9.1. The statute, however, is not to be read in the abstract but rather as part of more encompassing legislative design to establish immunities for public entities. Sims v. City of Newark, et al., 244 N.J.Super. 32, 40, 581 A.2d 524 (App.Div. 1990). One may recover in tort against a public entity but only within the provisions of the Tort Claims Act and the policies guiding its interpretation. Polyard v. Terry, 160 N.J.Super. 497, 506, 390 A.2d 653 (App.Div. 1978); aff'd, 79 N.J. 547, 401 A.2d 532 (1979). Hanover's claim is barred by the announced legislative policy of prohibiting an insurance carrier from shifting losses incurred by reason of paying its insured benefits under an insurance policy, when the tortfeasor to which the insurance carrier seeks to shift the loss, is a public entity protected by the New Jersey Tort Claims Act. The Travelers Ins. Co. v. Collella, 169 N.J.Super. 412, 404 A.2d 1250 (App.Div. 1979); Kramer v. Sony Corp. of America, 201 N.J.Super. 314, 493 A.2d 36 (App.Div. 1985).
In Travelers, a workman's compensation insurance carrier sought reimbursement for benefits paid to an injured employee after the employee settled a damage claim with a third party public entity tortfeasor. The Court, in attempting to reconcile the right of a workman's compensation carrier to recoup benefits paid to an injured employee pursuant to N.J.S.A. 34:15-40 where the tortfeasor was a public entity entitled to tort immunity under N.J.S.A. 59:9-2e held, that the insurance carrier could not bring such an action against a public entity. The underpinning of the Court's decision is set forth on p. 415, 404 A.2d 1250 where the Court looked to the Legislature's intent in enacting the Tort Claims Act Beyond this, it is clear from the very language of the same section that the lawmakers did not intend their legislative relaxation of the bar of sovereign immunity to benefit insurers who receive premiums for underwriting the risk they insure. As is noted in the Comment-1972 appended to the statute, abstracted from the Report of the Attorney General's Task Force on Sovereign Immunity (May 1972), this reflects a recognition that the profit-making insurance companies are in a better position to withstand losses which they contract than are the already economically burdened public entities'.
In Kramer a workman's compensation insurance carrier sought credit against the carrier's obligation to pay benefits after a deceased employee's beneficiary recovered on a third party wrongful death and survival action against a public entity tortfeasor. The Court denied the carrier the credit sought. In reconciling N.J.S.A. 34:15-40 and N.J.S.A. 59:9-2e, the Court held at pp. 317-318, 493 A.2d 36:
Each of these sections seeks to shift the burden of loss compensable under the liability plan established in their respective acts to other parties.
To continue reading
Request your trial-
Liberty Int'l Underwriters Canada v. Scottsdale Ins. Co.
... ... , LLC (“MDD”), owners of the Borgata Hotel and Casino in Atlantic City, New Jersey, hired Tractel to install window washing scaffolding at ... 7, 19–20, 952 A.2d 511 (N.J.Super.2008) (quoting Hanover Ins. Co. v. Borough of Atl. Highlands, 310 N.J.Super. 599, 603, 709 A.2d ... ...
- Hanover Ins. Co. v. Borough of Atlantic Highlands
-
In re State, Docket No. FJ-13-1524-13B
... ... Porch, 53 N.J. 167, 174, 249 A2d 388 (1969); Hanover Insurance Co. v. Borough of Atlantic Highlands, 310 N.J ... ...