Ibarra v. Vetrano

• Decision Date: 30 June 1997
• Citation: 302 N.J.Super. 578,695 A.2d 757
• Parties: Fermina IBARRA, Plaintiff-Appellant, v. Jason J. VETRANO, Defendant-Third Party Plaintiff-Respondent, v. Lourdes M. IBARRA, Third Party Defendant.
• Court: New Jersey Superior Court — Appellate Division

Page 578

302 N.J.Super. 578

695 A.2d 757

Fermina IBARRA, Plaintiff-Appellant, v. Jason J. VETRANO, Defendant-Third Party Plaintiff-Respondent, v. Lourdes M. IBARRA, Third Party Defendant.

Superior Court of New Jersey Appellate Division.

Submitted June 10, 1997.

Decided June 30, 1997.

Joel I. Rachmiel, Springfield, for plaintiff-appellant (Mr. Rachmiel, on the brief).

Edward J. Gilhooly, Morristown, for defendant-third party plaintiff-respondent Jason J. Vetrano (Mr. Gilhooly, on the brief).

Before Judges D'ANNUNZIO, NEWMAN and VILLANUEVA.

The opinion of the court was delivered by

D'ANNUNZIO, J.A.D.

Plaintiff in this automobile negligence action appeals, pursuant to leave granted, from an order determining that she is subject to the verbal threshold contained in her daughter's automobile insurance policy. We reverse.

Plaintiff, Fermina Ibarra, lived with her daughter, Lourdes Ibarra (Lourdes). Plaintiff was a passenger in Lourdes' automobile in July 1995 when it was struck in the rear by a vehicle operated by defendant, Jason Vetrano. Plaintiff owned no vehicle and had no automobile insurance policy of her own. Sentry Insurance insured Lourdes' vehicle, and she was the named insured. Plaintiff was entitled to personal injury protection (PIP) benefits under N.J.S.A. 39:6A-4 because she sustained an injury "arising out of ownership, operation, maintenance or use of an automobile." Ibid. Because plaintiff had no automobile insurance policy of her own, Lourdes' carrier, Sentry, paid PIP benefits to plaintiff.

Pursuant to N.J.S.A. 39:6A-8.1 (section 8.1), Lourdes had elected the "verbal threshold" contained in N.J.S.A. 39:6A-8a (section 8a). A person subject to the verbal threshold may not sue for noneconomic loss unless her personal injuries fit within at least one of nine categories of injury defined in section 8a. An insured party not subject to the verbal threshold may sue for noneconomic loss even if the injury does not fit within one of the defined categories. N.J.S.A. 39:6A-8b (section 8b).

Plaintiff moved for a determination that she was not subject to the verbal threshold contained in section 8a with regard to her personal injury action against Vetrano. Section 8b, the no threshold section, provides in part:

The tort option provisions of subsection b. of this section shall also apply to the right to recover for noneconomic loss of any person eligible for benefits pursuant to section 4 of P.L.1972, c. 70 (C. 39:6A-4) but who is not required to maintain personal injury protection coverage and is not an immediate family member, as defined in section 14.1 of P.L.1983, c. 362 (C. 39:6A-8.1), under an automobile insurance policy.

As previously indicated, plaintiff was eligible for PIP benefits under Lourdes' policy. Because plaintiff did not own an automobile, she was "not required to maintain personal injury protection coverage." Section 8b; N.J.S.A. 39:6A-4. The issue, therefore, was whether plaintiff was "an immediate family member ... under an automobile insurance policy." A related issue was whether Lourdes' election of the verbal threshold contained in Sentry's policy barred plaintiff.

Section 8.1a resolves both issues. It provides:

The tort option elected shall apply to the named insured and any immediate family member residing in the named insured's household. "Immediate family member" means the spouse of the named insured and any child of the named insured or spouse residing in the named insured's household, who is not a named insured under another automobile insurance policy.

The trial court determined that because plaintiff was injured while occupying an automobile and, therefore, had a right to receive PIP benefits, she was bound by Lourdes' election of the verbal threshold. In so ruling, the court relied on Beaugard v. Johnson, 281 N.J.Super. 162, 656 A.2d 1282 (App.Div.1995).

The court misread Beaugard. That case involved a plaintiff who had been injured while a passenger on a school bus. The issue was whether she was bound by the verbal threshold in her father's automobile insurance policy. We noted that the verbal threshold applies to a plaintiff if the plaintiff is "(a) 'subject to' the verbal threshold statute and (b)(i) is required to maintain PIP coverage, or (ii) has a right to receive PIP benefits under N.J.S.A. 39:6A-4." Id. at 168, 656 A.2d 1282. We determined that Beaugard did not qualify under (b)(i) or (ii) because she was not required to maintain PIP coverage as she did not own an automobile, and she was not entitled to PIP benefits because she was injured while a passenger in a commercial vehicle. Id. at 169-71, 656 A.2d 1282.

The issue in the present case involves the element we described in Beaugard as "(a)," whether plaintiff is subject to the statute. Plaintiff was not a named insured under any automobile insurance policy. The only policy which could have bound plaintiff to the verbal threshold was Lourdes' policy, and then only if she was an immediate family member of Lourdes, the named insured. Section 8.1's definition of "immediate family member" is unambiguous, and plaintiff did not qualify. She was not Lourdes' spouse and she is not one of Lourdes' children. See Renz v. Penn Cent. Corp., 87 N.J. 437, 440, 435 A.2d 540 (1981) (stating that "we must first look at the evident wording of the statute to ascertain its plain meaning and...