Stewart by Stewart v. Allstate Ins. Co.

• Decision Date: 02 April 1985
• Parties: Pamela STEWART, a minor by her Guardian ad Litem, Richard F. STEWART; Richard Stewart and Donna J. Stewart, Plaintiffs-Respondents, v. ALLSTATE INSURANCE COMPANY, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 350

200 N.J.Super. 350

491 A.2d 746

Pamela STEWART, a minor by her Guardian ad Litem, Richard F.

STEWART; Richard Stewart and Donna J. Stewart, Plaintiffs-Respondents, v. ALLSTATE INSURANCE COMPANY, Defendant-Appellant.

Superior Court of New Jersey,

Appellate Division.

Argued Feb. 19, 1985.

Decided April 2, 1985.

John Haschak, III, Morristown, for defendant-appellant (W. Stephen Leary, Morristown, attorney; John G. Tinker, Jr., Morristown, of counsel; John Haschak, III, Morristown, on the brief).

Thomas J. Shamy, New Brunswick, for plaintiffs-respondents (Thomas J. Shamy, New Brunswick, on the brief).

Before Judges McELROY, DREIER and SHEBELL.

The majority opinion of the court was delivered by

SHEBELL, J.A.D.

Defendant insurance company appeals from a summary judgment finding it responsible under its PIP coverage to pay for the cost of a van with appropriate modifications for operation by plaintiff, a paraplegic. During the pendency of the suit the claim was expanded to include a demand for a "lift chair," explained at oral argument to be a chair used at home with a mechanical device to raise the occupant to a standing position.

Defendant first objects to an earlier trial judge's ruling permitting this suit to proceed by order to show cause and complaint under R. 4:67-1(a) instead of under R. 4:67-1(b) by a summons and complaint followed by a motion for leave to proceed in a summary manner. Defendant's contention is valid, however it is disingenuous for the issue to be raised on appeal after defendant in its brief in opposition to plaintiff's motion for summary judgment stated:

... Technical objections to the Order to Show Cause procedure which were raised by the Defendant in its Answer have been waived by the Defendant in order that the claim for basic transportation expenses could be resolved by way of Summary Judgment....

In view of the specific waiver of this objection and the opportunity of the insurer to present its position fully to the trial judge we find this procedural defect to be without consequence.

Plaintiff seeks to compel payment for the basic cost of the van on the basis that it is a "medical expense" under N.J.S.A. 39:6A-4a. This provision requires payment of medical expense benefits regardless of fault, to persons sustaining bodily injuries while occupying a covered motor vehicle. The carrier is required to provide "[p]ayment of all reasonable medical expenses incurred as a result of personal injury sustained in an automobile accident." Id. N.J.S.A. 39:6A-2e states:

... "Medical expenses" means expenses for medical treatment, surgical treatment, dental treatment, professional nursing services, hospital expenses, rehabilitation services, X-ray and other diagnostic services, prosthetic devices, ambulance services, medication and other reasonable and necessary expenses resulting from the treatment prescribed by persons licensed to practice medicine and surgery ... or by persons similarly licensed in other states and nations or any nonmedical remedial treatment rendered in accordance with a recognized religious method of healing. [ (emphasis ours) ]

We reverse the portion of the court's order requiring Allstate to pay for the basic cost of the van. We do not believe the Legislature intended the cost of basic transportation, in these circumstances, to be included in "medical expenses." The certification of Pamela's father reflects:

A van type vehicle with a lift will permit Pamela to become less reliant upon others in order to continue to participate in a variety of physical activities necessary for her physical and emotional development.... Since both my wife and I are employed on a full time basis, we are not always available to accommodate her transportation needs and desires. As a result, without the appropriate vehicle, she will not be able to pursue these activities as often as she desires.

His certification states that he obtained estimates of the cost of modification of the van of approximately $10,800. Allstate has not declined to pay for such modification. Plaintiff's father also obtained estimates of the cost of a van; a Chevrolet will cost $11,159 and a Ford, $9,808. He alleges funds are not presently available for purchase of the van or modifications. He asserts that if the funds are made available Pamela will "become less dependent on others to transport her to school, therapy, sporting events and other events or places that she desires to go." The trial court noted that the total cost for the van, options and modifications amounts to $21,875.22 and that plaintiff "does not deny that, but for these injuries she would have purchased an ordinary automobile."

The father's certification attempts to intone the van as a "rehabilitation service." Counsel argues it is covered under the provision which refers to "... other reasonable and necessary expenses resulting from the treatment prescribed by persons licensed to practice medicine and surgery...." Under the proofs offered here it is neither of these. Dr. Rosenberg, her urologist, says:

... It is my strong feeling that Pamela would be able to mobilize much better if she had a van type of vehicle to drive around in.... [S]he would not do well in an ordinary vehicle. This van would be both important for her physical and emotional well being and I think with it would be more mobile and could possibly even seek employment in the future.

There does not appear to be any link between his specialty or urology and his opinion, nor has he prescribed the van as a "rehabilitative service" or as necessary medical treatment. Dr. Fleming, plaintiff's orthopedist, states ... I feel this would be an appropriate piece of equipment to have available for her independent transfer and transportation. She has continued to participate in all variety or [sic] social and athletic activities, and this degreee [sic] of self-sufficiency would be a valuable addition to her continuing development.

His comments, as do plaintiff's father's, clearly indicate plaintiff is already very active although as stated by Dr. Bid of Kessler Institute, "... the patient would be more comfortable and will be at ease if she would drive a van." He also states:

... the patient is extremely active in wheelchair sports and she plays basketball two to three times a week on a competitive level ... [that is why] she is using a ... sports chair ... [and t]hese chairs are difficult to fold and [to] be placed in the back seat of a car.

It is not enough that the van will help to relieve the plaintiff from the effects of her injury even if "prescribed" by her physician; to be chargeable to the no-fault carrier the Legislature clearly stated that it must be medical in nature. Cf. Savaria v. Di Sano, 118 R.I. 357, 359, 373 A.2d 820, 822 (R.I.1977). As was pointed out in Camp v. Deseret Mutual Benefit Association, 589 P.2d 780, 782 (Utah 1979) a van cannot be considered medical in nature in circumstances where it serves the same purpose that an automobile serves for everyone. While it may improve the injured person's mobility and make travel more convenient, it does not serve as a substitute for an activity every physically well person can do, such as is the case with a wheelchair or prosthetic apparatus. The van, as the letters from the physicians point out, is intended to make plaintiff's travel more comfortable, quicker and convenient. To constitute a medical expense the nexus between the expense and desired rehabilitative endeavor must be direct and not merely for the sake of allowing greater independence or convenience. See Galindo v. Guarantee Trust Life Insurance Co., 91 Ill.App.3d 61, 66, 46 Ill.Dec. 543, 547, 48, 414 N.E.2d 265, 269-70 (Ill.App.Ct.1980).

The carrier has agreed to bear the cost of modifying a van for plaintiff. We find no statutory provision which requires the carrier to provide the basic cost of the van in these circumstances. It is for the Legislature to decide whether those in Pamela's position must be made "comfortable" and more "at ease" by the providing of such transportation. Extension of the statute as presently written involves considerations of public policy as well as concern for the probable effect upon the general premium structure of the no fault insurance program. Considerations of this nature cannot be met by judicial inquiry. The legislative branch is better equipped by the use of hearings to gather statistical data and to judge these effects. One must also consider where the line is to be drawn. Must the carrier also maintain the vehicle, replace it at regular intervals, supply fuel, oil and insurance coverage? These questions require answers once the decision is made to provide basic transportation. The statute should not be judicially extended.

Defendant also claims error involving the awarding of counsel fees to plaintiffs under R. 4:42-9(a)(6). While the rule permits counsel fees "[i]n an action upon a liability or indemnity policy of insurance, in favor of a successful claimant," Judge Pressler in her annotations to this rule notes:

Since the stated intention of this rule was to permit an award of counsel fees only where an insurer refused to indemnify or defend in respect of its insured's third-party liability to another, it should not be extended, beyond its express terms, to permit a counsel fee award to be made to an insured who brings direct suit against his insurer to enforce casualty or other direct coverage.... Such a fee has, however, been allowed in personal injury protection benefit actions where the insured-claimant is successful. [Pressler, Current N.J. Court Rules, Comment R. 4:42-9(a)(6) (1985) (emphasis ours) (citations omitted) ]

Following two cases wherein the Supreme Court itself authorized counsel fees to successful...