Ortiz v. Safeco Ins. Co.

• Decision Date: 10 October 1975
• Citation: 136 N.J.Super. 532,347 A.2d 26
• Parties: Etelvina ORTIZ, as general Administratrix of the Estate of Carmello Ortiz, and individually in her own right, Plaintiff, v. SAFECO INSURANCE COMPANY, a Pennsylvania Corporation, Defendant.
• Court: New Jersey Superior Court

Page 532

136 N.J.Super. 532

347 A.2d 26

Etelvina ORTIZ, as general Administratrix of the Estate of Carmello Ortiz, and individually in her own right, Plaintiff, v. SAFECO INSURANCE COMPANY, a Pennsylvania Corporation, Defendant.

Superior Court of New Jersey Law Division.

Oct. 10, 1975.

Angelo J. Falciani, Woodbury, for plaintiff (Falciani & Di Muzio, Woodbury, attorneys).

Robert Neustadter, Atlantic City, for defendant (Cooper, Perskie, Neustadter & Katzman, Atlantic City, attorneys).

MILLER, J.C.C., Temporarily Assigned.

These are cross-motions for summary judgment pursuant to R. 4:46--2. No material fact being challenged, this determination concerns only legal questions of construction of the New Jersey Automobile Reparation Reform Act, N.J.S.A. 39:6A--1 Et seq. commonly called the 'no fault' statute.

On April 7, 1973 plaintiff's decedent, Ortiz, was struck and killed by a car owned and operated by one Fratto, defendant's insured. Decedent was crossing the street to reach his own automobile. Ortiz owned a New Jersey registered automobile, but did not have the insurance coverage mandated by N.J.S.A. 39:6A--3.

Defendant Safeco issued a policy covering Fratto and the automobile involved in this accident. This policy includes not only the compulsory benefits required by N.J.S.A. 39:6A--4 but also additional personal injury protection offered under N.J.S.A. 39:6A--10. Plaintiff seeks to recover not only the personal injury protection under N.J.S.A. 39:6A--4 but also the additional personal injury protection under N.J.S.A. 39:6A--10 as well as the additional survival benefit of $10,000 according to paragraph (3) of the insured's policy. Defendant contends that the benefits under N.J.S.A. 39:6A--4 are the Only benefits to which plaintiff is entitled, if he is entitled to any benefits at all, and that since plaintiff's decedent did not have insurance required by N.J.S.A. 39:6A--3, neither he nor his survivors are entitled to any benefits from defendant's policy.

The issues presented appear to be ones of first impression.

Defendant seeks to preclude plaintiff's decedent from benefiting under Fratto's policy for failure to have the mandated insurance coverage. In other words, defendant seeks to preclude Ortiz from coverage because of fault under a 'no fault' reparations system. To state the problem is to solve it. N.J.S.A. 39:6A--4 provides that:

Every automobile liability insurance policy insuring an automobile as defined in this act against loss resulting from liability imposed by law for bodily injury, death and property damage sustained by any person arising out of ownership, operation, maintenance or use of an automobile shall provide additional coverage, as defined herein below, under provisions approved by the Commissioner of Insurance, 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 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. (Emphasis supplied).

When the Legislature enacted this statute it had before it the example of the Motor Vehicle Security-Responsibility Law, N.J.S.A. 39:6--70(d), which bars a claimant from recovering from the Unsatisfied claim and Judgment Fund if at the time of the accident his car was not insured. 'No fault' legislation was designed to partially excise the fault system from automobile negligence law and provide a certain minimum amount of protection to the public. Harris v. Osorio, 125 N.J.Super. 468, 311 A.2d 748 (Law Div. 1973). Stringent penalties are provided for those owners, operators or registrants of an automobile registered or principally garaged in New Jersey who operate an automobile without insurance coverage, such as a fine, imprisonment or both,...