Lisi v. Parnell

• Decision Date: 06 May 1985
• Citation: 201 N.J.Super. 321,493 A.2d 40
• Parties: Roberta M. LISI, Plaintiff-Respondent, v. James N. PARNELL, Jr., Individually and t/a Paramount Cab Inc., and Randy J. Harris, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 321

201 N.J.Super. 321

493 A.2d 40

Roberta M. LISI, Plaintiff-Respondent, v. James N. PARNELL, Jr., Individually and t/a Paramount Cab Inc., and Randy J. Harris, Defendant-Appellant.

Superior Court of New Jersey Appellate Division.

Argued Dec. 17, 1984.

Decided May 6, 1985.

James D. Martin, New Brunswick, for defendant-appellant Harris (Lynch, Mannion, Martin, Benitz & Lynch, New Brunswick, attorneys; James D. Martin, New Brunswick, on brief).

Steven Kessel, Red Bank, for plaintiff-respondent (Drazin & Warshaw, Red Bank, attorneys; John R. Connelly, Red Bank, on brief).

Before Judges McELROY, DREIER and SHEBELL.

The opinion of the court was delivered by

McELROY, P.J.A.D.

The question presented by this appeal is whether the legislative scheme of the New Jersey Automobile Reparation Reform Act, N.J.S.A. 39:6A-1 et seq., more commonly called the no fault law, prohibits an uninsured motorist from proving medical expenses when suit is brought against insured defendants for injuries received in an automobile accident. The issue has been answered affirmatively in two reported law division decisions but we are informed that other law division judges have reached a contrary result in at least two unreported bench decisions. We granted leave to appeal because of this conflict.

On July 23, 1981 plaintiff was injured when her automobile collided with one owned by defendant Parnell and operated by defendant Harris. Plaintiff was an uninsured motorist in violation of N.J.S.A. 39:6A-3 and 4 and N.J.S.A. 39:6B-1 and 2 which require all owners of automobiles registered or principally garaged in this state to be at least minimally insured for liability and for personal injury protection (PIP). Plaintiff sued defendants for personal injury and for property damage. Defendants unsuccessfully moved to exclude from trial any proof of the medical expenses plaintiff incurred as a result of her injuries. We granted defendants leave to appeal from the order denying their motion.

The decision in Mokienko v. Greenan, 178 N.J.Super. 657, 429 A.2d 1109 (Law Div.1981) permitted an uninsured motorist to prove such expenses. The judge did so primarily on the ground that since the uninsured could not legally claim personal injury protection benefits under N.J.S.A. 39:6A-4 and 10, her medical expenses and other special damages were uncollectible and thus not barred by N.J.S.A. 39:6A-12. In Herold v. Inman, 180 N.J.Super. 581, 435 A.2d 1198 (Law Div.1981) the plaintiff apparently was insured but, for reasons not disclosed in the opinion, her medical claims were held uncollectible under her PIP coverage in a separate action against her own insurance carrier. Id. at 585, 435 A.2d 1198. She was permitted to recover those expenses in an action against the owner-operator of the other automobile. Both decisions, in part, turn upon consideration whether the No Fault Law as an act in derogation of common law should be strictly construed to permit the viability of the prior common law right to prove such expenses. Mokienko, 178 N.J.Super. at 661, 429 A.2d 1109; Herold, 180 N.J.Super. at 589-91, 435 A.2d 1198. Each of these decisions regarded a denial of the assertion of the common law right to sue for medical expenses and other PIP benefits as a "sanction" not specifically mandated by the no fault act and therefore one not to be judicially grafted upon the statute. Mokienko, 178 N.J.Super. at 661, 429 A.2d 1109; Herold, 180 N.J.Super. at 589, 435 A.2d 1198. See N.J.S.A. 39:6B-2 (sanctions for driving without the liability coverage mandated by N.J.S.A. 39:6B-1 include fines, imprisonment and loss of driving privileges); Milcarek v. Nationwide Ins. Co., 190 N.J.Super. 358, 463 A.2d 950 (App.Div.1983) (court refused to allow a claim for punitive damages to an insured in a suit for overdue payment of personal injury protection benefits due under N.J.S.A. 39:6A-4 and 5 on the ground, among others, that the 10% interest penalty prescribed by N.J.S.A. 39:6A-5 on overdue PIP payments and the penalties set by N.J.S.A. 17:29B-5, 6 and 7 for unfair claim-settlement practices under N.J.S.A. 17:29B-4(9)(d) provided sufficient remedy).

The parties to this appeal focus attention upon N.J.S.A. 39:6A-12 as partially determinative of the issue presented. That section, as it existed at the date of the accident, provided:

Inadmissibility of evidence of losses collectible under personal injury protection coverage Evidence of the amounts collectible or paid pursuant to sections 4 and 10 of this act to an injured person is inadmissible in a civil action for recovery of damages for bodily injury by such injured person.

Appellants argue that the no fault law mandates that all automobiles principally garaged in this state be at least minimally covered for liability insurance, N.J.S.A. 39:6A-3, and for the PIP benefits required by N.J.S.A. 39:6A-4. They point to the sponsor's statement accompanying the no fault law when it was passed in 1972 and its acknowledgement that the act encompassed the recommendations of the Automobile Insurance Study Commission, created under Joint Resolution 4 of 1970 for the express purpose of studying and recommending changes accomplishing reparation reform for New Jersey motorists. Appellants rely upon the report the Commission submitted to the Governor and to the Legislature in December 1971 as persuasive as to the legislative intent of the no fault law generally and particularly N.J.S.A. 39:6A-12.

Distilled to their essentials, the major arguments made by appellants are that one of the principal objectives of the no fault law is the "judicial objective" recognized in Herold, 180 N.J.Super. at 588; i.e., streamlining of the judicial procedures involved in the presentation of third party claims, an objective they assert is realized in the exclusion by N.J.S.A. 39:6A-12 of "amounts collectible or paid" pursuant to section 4 of the act. They also contend that another legislative objective recognized in Herold is achieved by the evidential exclusion in section 12, i.e., "the reduction or stabilization of the prices charged for automobile insurance (the cost objective)." Ibid. Appellants tie this objective to the statement in the commission report that

[w]ith respect to more serious cases which eventually may reach the courts, the recommendation regarding admissibility of evidence ... is expected to have a leveling effect on verdicts or settlements. Under that rule, injured persons shall not plead or introduce into evidence in an action for damages against a tortfeasor those damages for which PIP benefits are available. [Automobile Insurance Study Commission Report to the Governor and The Legislature on Reparation Reform for New Jersey Motorists at 134a (December 1971) Commission Report.] [Emphasis by appellants.]

From these bases, appellants argue that the exclusion from evidence at trial by section 12 of "amounts collectible ... pursuant to section 4 ... of this act" must be read as excluding the common law right of an uninsured plaintiff to prove medical expenses incurred because to hold otherwise would undercut not only the "judicial objective" of the no fault law by increasing judicial workload but the "cost objective" as well by increasing liability loss factors to insurers and ultimately by increasing the premium burden on those who obey the law and maintain the coverages required by N.J.S.A. 39:6A-3 and 4 and N.J.S.A. 39:6B-1. Finally, appellants contend that the denial to an uninsured of the right to prove special damages does not amount to a sanction, rather the uninsured is merely denied benefits to which she would have been entitled had she obeyed the law and had purchased the required insurance.

We acknowledge that the latter argument has an alluring quality. Despite the concern exhibited by the judge in Mokienko that the statute should not be read "to bar any recovery for injuries allegedly suffered but unredressed," 178 N.J.Super. at 660, 429 A.2d 1109, an expression engendered, we are sure, by the natural sympathy we all have for one who is injured, it is difficult to maintain sympathy for one whose refusal to insure may increase premium costs to those who obey the law. Clearly, the Legislature intended speedy redress for economic loss to be available under the no fault law and all that is required to make it "collectible" is to maintain the insurance coverage mandated. There is beguilement, indeed a degree of just retribution, in an approach that leaves a law-breaker without a remedy. This was the tack taken by one of the two unreported bench decisions we have reviewed. That judge held that the denial of the right to an uninsured motorist to present special damages at trial was not the imposition of a sanction not prescribed by the Legislature, rather, it was a recognition that uninsureds "simply cannot recover because they've not obtained the required insurance." Similarly, the second judge held his denial of the common law right was "simply the ramifications of a person's own voluntary act, voluntary decision not to be insured." Although we recognize the persuasive force of this view, unfortunately, as we will develop, we cannot adopt that course of action.

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