Weiss v. Thomas
| Decision Date | 09 June 1994 |
| Citation | 643 A.2d 29,274 N.J.Super. 37 |
| Parties | Sheila WEISS, Plaintiff-Appellant, v. Debra A. THOMAS, Johanna M. Ewald and/or Johanna M. Kroker, Defendants-Respondents. |
| Court | New Jersey Superior Court — Appellate Division |
Leonard & Leonard, Springfield, for appellant. (Steven Mark, on the brief).
O'Donnell, Kennedy, Vespole, Piechta & Trifiolis, West Orange, for respondents (Michael C. Trifiolis, of counsel; Joseph A. Reardon, III, on the brief).
Before Judges PRESSLER, BROCHIN and KLEINER.
The opinion of the court was delivered by
BROCHIN, J.A.D.
Plaintiff Sheila Weiss, a North Carolina resident, alleges that she suffered personal injuries on February 25, 1989, when an automobile in which she was a passenger collided with another automobile that was owned by defendant Johanna M. Ewald and that was being driven by defendant Debra A. Thomas.
The accident occurred in New York. The automobile in which plaintiff was riding was owned and was being operated by her daughter, who was a New Jersey resident. Both that automobile and the automobile with which it collided were registered in New Jersey.
Ms. Weiss sued Ms. Thomas and Ms. Ewald to recover damages for her injuries. Defendants moved for summary judgment dismissing the complaint on the ground that plaintiff had not met the threshold requirements of N.J.S.A. 39:6A-8a. In opposing the motion, plaintiff argued that N.J.S.A. 39:6A-8a was inapplicable to this case because she was a North Carolina resident and the accident happened in New York. She also contended that she had met the statutory threshold requirements.
The Law Division held that plaintiff was subject to the verbal threshold requirements of N.J.S.A. 39:6A-8a and that she had not shown any facts which would allow a trier of fact to conclude that she had met the threshold. The court therefore granted summary judgment dismissing the complaint.
Plaintiff has appealed, arguing the same points before us that she did in the trial court.
To determine whether the plaintiff in the present case is subject to the verbal threshold requirement, we start with an analysis of the language of N.J.S.A. 39:6A-8a and -8b. The portions of that statute which we quote below were adopted by L.1988, c. 119, § 6, and became effective January 1, 1989. N.J.S.A. 39:6A-8 was significantly amended by L.1990, c. 8, § 9, which became effective March 12, 1990. We will point out the effect of that amendment after we have discussed the provisions of N.J.S.A. 39:6A-8 which have remained unchanged.
Our analysis will be facilitated by viewing the corresponding provisions of subsections "a" and "b," side by side. Each material provision of either of the two subsections which does not have a substantially identical counterpart in the other has been underlined.
Subsection a Subsection b
As an alternative to the basic tort
option specified in subsection a
of this section,
Every owner, registrant, operator or every owner, registrant, operator, or
occupant of an automobile to which occupant of an automobile to which
section 4 of P.L.1972, c. 70 (C. section 4 of P.L.1972, c. 70 (C.
39:6A"4), personal injury protection 39:6A"4)
coverage, regardless of fault,
applies, and every person or applies, and every person or
organization legally responsible for organization legally responsible
his acts or omissions, for his acts or omissions,
is hereby exempted from tort liability shall be liable for noneconomic loss
for noneconomic loss
to a person who is subject to this to a person who is subject to this
subsection and who is either a person subsection and who is either a
who is required to maintain the person who is required to maintain
coverage mandated by this act, the coverage mandated by P.L.1972,
c. 70 (C. 39:6A"1 et seq.)
or is a person who has a right to or is a person who has a right to
receive benefits under section 4 of receive benefits under section 4 of
P.L.1972, c. 70 (C. 39:6A"4), that act (C. 39:6A"4),
as a result of bodily injury, arising as a result of bodily injury, arising
out of the ownership, operation, out of the ownership, operation,
maintenance or use of such automobile maintenance, or use of such
in this State, unless that person has automobile in this State.
sustained a personal injury which
results in death .....................
First of all, the only defendants subject to no-fault liability under either subsection "a" or "b" are an "owner, registrant, operator or occupant of an automobile to which" personal injury protection coverage applies, and "every person ... legally responsible for his acts or omissions." N.J.S.A. 39:6A-8. The defendants in this action concededly fall within that category.
Secondly, whether such a defendant is liable only for noneconomic loss that meets the threshold requirements of subsection "a" or is liable for all noneconomic loss pursuant to subsection "b" depends on certain characteristics of the plaintiff. The first such determinative characteristic is whether the plaintiff "is subject to this subsection;" that is, to either subsection "a" or "b." If a plaintiff is a named insured under a New Jersey automobile liability policy, he or she will have selected, or be deemed to have selected, either the verbal threshold or the full coverage tort option when purchasing the policy. The spouse, child, or spouse of a child living in the same household as the named insured and not named as an insured under another policy is bound by the named insured's selection of coverage. N.J.S.A. 39:6A-8.1. If a plaintiff is a named insured or a family member who is bound by the named insured's coverage selection, the plaintiff "is subject" to the subsection, either N.J.S.A. 39:6A-8a or -8b, according to the tort coverage option which has been selected.
However, subsection "a" and subsection "b" each provide that a defendant is liable pursuant to the provisions of that particular subsection only to a plaintiff who is "subject to" that subsection and who, in addition, is either a person "required to maintain [personal injury protection] coverage mandated by" the New Jersey Automobile Reparation Act, N.J.S.A. 39:6A-1 to -35, or "is a person who has a right to receive benefits under" N.J.S.A. 39:6A-4. A person is required to maintain the specified automobile liability coverage if he or she is the "owner ... of an automobile registered or principally garaged in this State." N.J.S.A. 39:6A-3; see also N.J.S.A. 39:6B-1 and -2; cf. Stewart v. Nationwide Ins. Co., 171 N.J.Super. 457, 410 A.2d 48 (App.Div.1979), certif. denied, 82 N.J. 302, 412 A.2d 807 (1980). A person has "a right to receive benefits" under N.J.S.A. 39:6A-4, that is, personal injury protection benefits, if he or she is a named insured [or] member[ ] of his family residing in his household who sustained bodily injury as a result of an accident while occupying, entering into, alighting from or using an automobile, or as a pedestrian, caused by an automobile or by an object propelled by or from an automobile, to other persons sustaining bodily injury while occupying, entering into, alighting from or using the automobile of the named insured, with the permission of the named insured, [or a] pedestrian[ ], sustaining bodily injury caused by the named insured's automobile or struck by an object propelled by or from such automobile.
[ N.J.S.A. 39:6A-4.]
The plaintiff in the present case is not "subject to" either N.J.S.A. 39:6A-8a or -8b because she is not a named insured under a New Jersey automobile liability policy and, at the time she was injured, she did not live in the same household as a named insured under such a policy. See N.J.S.A. 39:6A-8.1. She is a person who has "the right to receive [PIP] benefits" because she was injured while occupying an automobile. But because she was not also "subject to" either N.J.S.A. 39:6A-8a or -8b, neither of those subsections determines whether her personal injury claim is subject to the verbal threshold.
The provision of N.J.S.A. 39:6A-8 which determines whether plaintiff in this case is subject to the verbal threshold requirement of subsection "a" or to the full coverage option of subsection "b" is the first unnumbered paragraph following subsection "b." When the plaintiff in the present case sustained her injury, this paragraph read as follows:
The tort option provisions of subsection a. of this section shall also apply to the right to recover for noneconomic loss of any person eligible for benefits pursuant to [ N.J.S.A. 39:6A-4] but who is not required to maintain personal injury protection coverage and is not an immediate family member, as defined in [ N.J.S.A. 39:6A-8.1], under an automobile insurance policy.
[Emphasis added.]
"Immediate family member" is defined in N.J.S.A. 39:6A-8.1 to include only specified family members residing in the same household as the named insured. The plaintiff in this case meets all of the criteria of the quoted paragraph. She is therefore subject to the verbal threshold provisions of subsection "a" of N.J.S.A. 39:6A-8. Cf. Murphy v. Allstate, 252 N.J.Super. 280, 283-85, 599 A.2d 916 (App.Div.1991).
Effective March 12, 1990, "subsection b" was substituted for "subsection a" in this last quoted paragraph of N.J.S.A. 39:6A-8. If the automobile accident which is the subject of this suit had occurred after that date, plaintiff would have been entitled to the full tort coverage provisions of subsection "b" and would not have been subject to the verbal threshold requirements of subsection "a."
There is another statutory section which we...
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