Stamps v. New Jersey Auto. Full Ins. Underwriting Ass'n

• Citation: 279 N.J.Super. 485,653 A.2d 587
• Parties: Shirlene Spencer STAMPS, Plaintiff-Appellant, v. NEW JERSEY AUTOMOBILE FULL INSURANCE UNDERWRITING ASSOCIATION, Defendant-Respondent.
• Decision Date: 17 February 1995
• Court: New Jersey Superior Court – Appellate Division

Page 485

279 N.J.Super. 485

653 A.2d 587

Shirlene Spencer STAMPS, Plaintiff-Appellant, v. NEW JERSEY AUTOMOBILE FULL INSURANCE UNDERWRITING

ASSOCIATION, Defendant-Respondent.

Superior Court of New Jersey,

Appellate Division.

Submitted Jan. 25, 1995.

Decided Feb. 17, 1995.

Margulies, Wind, Herrington & Katz, Jersey City, for appellant (Clifford A. Herrington, on the brief).

Edward P. Papalia, Jr., Parsippany, for respondent (Joseph J. Michalowski, on the brief).

Before Judges SHEBELL, SKILLMAN and KLEINER.

The opinion of the court was delivered by

SKILLMAN, J.A.D.

Plaintiff suffered personal injuries on July 31, 1990, when her automobile collided with an uninsured truck. On the date of this accident, plaintiff had an automobile liability insurance policy issued by defendant. When she applied for this insurance coverage, plaintiff elected the "verbal threshold" under which she could seek recovery for "noneconomic loss" only in the circumstances specified in N.J.S.A. 39:6A-8(a).

Defendant paid personal injury protection (PIP) benefits to plaintiff in accordance with the provisions of N.J.S.A. 39:6A-4 for her economic losses resulting from this accident. However, defendant denied plaintiff's claim for uninsured motorist benefits, taking the position that N.J.S.A. 17:28-1.1(a), which governs such benefits, subjects her claim to the verbal threshold and that her injuries do not satisfy this threshold.

Plaintiff then filed this action for a declaratory judgment that her claim for uninsured motorist benefits is not subject to the verbal threshold. The trial court, agreeing with defendant's contention that N.J.S.A. 17:28-1.1(a) subjects plaintiff's claim to the verbal threshold, granted defendant summary judgment. We affirm.

N.J.S.A. 17:28-1.1(a) provides in pertinent part:

[U]ninsured motorist coverage shall provide that in order to recover for non-economic loss, as defined in [ N.J.S.A. 39:6A-2], for accidents to which the benefits of [ N.J.S.A. 39:6A-4] apply, the tort option elected pursuant to [ N.J.S.A. 39:6A-8] shall apply to that injured person.

The insurance policy defendant issued to plaintiff also reflected this limitation upon uninsured motorist benefits. ¹

Plaintiff admits that she elected the verbal threshold option provided by N.J.S.A. 39:6A-8(a). However, plaintiff argues that this election does not apply to her claim for uninsured motorist benefits, because the verbal threshold option applies only when the other vehicle involved in an accident is an automobile covered by the PIP benefits provided under N.J.S.A. 39:6A-4. Since the other vehicle in plaintiff's accident was a truck and thus plaintiff's cause of action against the truck driver would not be subject to the verbal threshold, N.J.S.A. 39:6A-2(a); see Newson v. Hertz Corp., 164 N.J.Super. 141, 144, 395 A.2d 902 (App.Div.1978), plaintiff reasons that her claim for uninsured motorist benefits is likewise exempt from her election of the verbal threshold.

However, plaintiff's claim for uninsured motorist benefits is not governed by N.J.S.A. 39:6A-8 but rather by N.J.S.A. 17:28-1.1(a). This section clearly states that "the tort option elected pursuant to [ N.J.S.A. 39:6A-8] shall apply to" any claim "for non-economic loss" arising out of an accident "to which the benefits of [ N.J.S.A. 39:6A-4] apply." Plaintiff's accident was indisputably one "to which the benefits of [ N.J.S.A. 39:6A-4] apply" because she was operating her own automobile at the time. In fact, plaintiff has already recovered PIP benefits in connection with this accident. It follows under the express terms of N.J.S.A. 17:28-1.1(a) that the tort option she elected pursuant to N.J.S.A. 39:6A-8, which was the verbal threshold, applies to her claim for uninsured motorist benefits.

Although uninsured motorist benefits have been characterized as "compensation for the uninsured driver's common law liability," Montedoro v. City of Asbury Park, 174 N.J.Super. 305, 308, 416 A.2d 433 (App.Div.1980), the application of the verbal threshold to an injured party's claim against his or her own insurance carrier for uninsured motorists benefits is significantly different from its application to a negligence claim against an alleged tortfeasor. Under N.J.S.A. 17:28-1.1(a), an insured's election of the verbal threshold is sufficient by itself to trigger the application of this threshold to his or her claim for uninsured motorist benefits. However, to trigger the application of the verbal threshold to a common law negligence claim, not only must the insured have elected the verbal threshold, but in addition, the alleged tortfeasor must be entitled to the no fault PIP benefits provided under N.J.S.A. 39:6A-4. See Weiss v. Thomas, 274 N.J.Super. 37, 41-42, 643 A.2d 29 (App.Div.1994). This second precondition to the application of the verbal threshold to a tort claim is imposed by the first clause of N.J.S.A. 39:6A-8(a), which states in pertinent part:

Every owner, registrant, operator or occupant of an automobile to which [ N.J.S.A. 39:6A-4] applies, ... is hereby exempted from tort liability for noneconomic loss [to any person who is required to...