Zabilowicz v. Kelsey

• Decision Date: 17 December 2009
• Docket Number: A-87 September Term 2008.
• Citation: 200 N.J. 507,984 A.2d 872
• Parties: Edward ZABILOWICZ, Plaintiff-Appellant, v. Roslyne KELSEY, Defendant-Respondent.
• Court: New Jersey Supreme Court

984 A.2d 872

200 N.J. 507

Edward ZABILOWICZ, Plaintiff-Appellant, v. Roslyne KELSEY, Defendant-Respondent.

A-87 September Term 2008.

Supreme Court of New Jersey.

Argued October 14, 2009.

Decided December 17, 2009.

Frank N. DiMeo, Jr., Philadelphia, PA, argued the cause for appellant (Rosen, Schafer & DiMeo, attorneys).

Sanford D. Kaplan, Fort Lee, argued the cause for respondent (Muscio & Kaplan, attorneys).

Justice ALBIN delivered the opinion of the Court.

Under New Jersey's system of no-fault automobile insurance, owners of motor vehicles registered or principally garaged in New Jersey have certain legal obligations. First, they must purchase standard, basic, or special insurance coverage for their automobiles. N.J.S.A. 39:6B-1; see also Caviglia v. Royal Tours of Am., 178 N.J. 460, 466, 842 A.2d 125 (2004). Second, every automobile insurance policy must provide "personal injury protection [(PIP)] benefits" — the payment of medical expenses to the insured and his family household members who suffer bodily injury in an automobile accident. See N.J.S.A. 39:6A-4, -3.1(a), -3.3(b)(1); see also Caviglia, supra, 178 N.J. at 466, 842 A.2d 125. Those medical benefits are paid without regard to who caused the accident, giving rise to the moniker "no-fault" insurance. Caviglia, supra, 178 N.J. at 466, 842 A.2d 125; see also N.J.S.A. 39:6A-4. Third, New Jersey policyholders — in exchange for lower premium payments — have the option of selecting the limitation-on-lawsuit threshold, which restricts their right to sue for "noneconomic loss" if injured in an accident.¹ DiProspero v. Penn, 183 N.J. 477, 480-81 & n. 1, 874 A.2d 1039 (2005); see also N.J.S.A. 39:6A-8(a).

Those covered by the limitation-on-lawsuit threshold may not sue a tortfeasor for noneconomic damages unless they suffer a serious or permanent bodily injury, as defined in N.J.S.A. 39:6A-8(a) (identifying six categories of injuries that vault limitation-on-lawsuit threshold). DiProspero, supra, 183 N.J. at 481, 497-98, 874 A.2d 1039. Significantly, a New Jersey policyholder who chooses the lawsuit threshold may nonetheless sue for noneconomic damages if the tortfeasor is not a participant in this State's no-fault system and therefore is not insured for PIP benefits. See N.J.S.A. 39:6A-8(a).

In this case, plaintiff, a Pennsylvania resident, while driving a vehicle in New Jersey, was allegedly rear-ended by a car operated by defendant, also a Pennsylvania resident. Although both had automobile insurance, only plaintiff was insured by a carrier authorized to do business in New Jersey. N.J.S.A. 17:28-1.4 — known as the "Deemer Statute" — provides benefits and burdens to out-of-state drivers insured by companies authorized to do business in New Jersey.² On the one hand, such out-of-state drivers, like New Jersey policyholders, receive PIP benefits on a no-fault basis under N.J.S.A. 39:6A-4; on the other hand, they are subject to the limitation-on-lawsuit threshold, as defined in N.J.S.A. 39:6A-8(a).

The issue before us is whether, pursuant to N.J.S.A. 17:28-1.4, plaintiff is bound by the limitation-on-lawsuit threshold when an out-of-state tortfeasor, such as defendant, is not insured by a carrier doing business in New Jersey and therefore is not entitled to New Jersey PIP benefits. The trial court dismissed plaintiff's personal injury suit because he could not prove a qualifying injury under N.J.S.A. 39:6A-8(a). The Appellate Division affirmed.

We now reverse. Plaintiff is subject to all of the provisions of N.J.S.A. 39:6A-8(a) pursuant to the Deemer Statute. Under the plain language of N.J.S.A. 39:6A-8(a), the limitation-on-lawsuit threshold can be invoked only by a defendant who is eligible to receive New Jersey PIP benefits. Because defendant's out-of-state insurance policy does not provide her with this State's PIP benefits, she is subject to suit for noneconomic damages without restriction under N.J.S.A. 39:6A-8(a).

I.

Plaintiff Edward Zabilowicz filed a lawsuit in the Atlantic County Superior Court, Law Division, alleging that on October 18, 2005, defendant Roslyne Kelsey's automobile struck his Chevy truck from behind while he was stopped in traffic at an intersection in Pleasantville, New Jersey. Plaintiff claims that, as a result of defendant's negligence, he has "suffered severe, permanent and painful bodily injuries."

Both plaintiff and defendant are residents of Pennsylvania and are covered by automobile insurance policies written in that state. Plaintiff is insured by State Farm Mutual Automobile Insurance Company, which is authorized to do business in New Jersey. Defendant's insurance carrier, Infinity, is not authorized to do business in this State.

Defendant moved for summary judgment, asserting that plaintiff's injuries did not satisfy the limitation-on-lawsuit threshold and therefore plaintiff could not collect damages for pain and suffering. Plaintiff responded that under the plain terms of N.J.S.A. 39:6A-8(a), the limitation-on-lawsuit threshold did not apply. He argued that the threshold can only be invoked by defendants who have been issued insurance policies by companies doing business in New Jersey and are thus entitled to receive PIP benefits. Plaintiff conceded that his injuries did not fall into any of the six categories in N.J.S.A. 39:6A-8(a). Accordingly, plaintiff could not sue for noneconomic damages if the threshold applied.

For purposes of the summary judgment motion, the parties did not dispute any material facts. On the contested issue of law, the court determined that the limitation-on-lawsuit threshold applied to plaintiff by reason of the Deemer Statute. Because plaintiff did not have a qualifying injury under N.J.S.A. 39:6A-8(a) that allowed him to sue for pain and suffering the court granted summary judgment in favor of defendant and dismissed plaintiff's personal injury action.³

In an unpublished per curiam opinion, the Appellate Division affirmed the dismissal of the action. The panel also concluded that "an out-of-state plaintiff insured by an insurance company authorized to transact business in New Jersey is subject to the New Jersey verbal threshold limitation under the [D]eemer [S]tatute."⁴

We granted plaintiff's petition for certification. Zabilowicz v. Kelsey, 198 N.J. 474, 968 A.2d 1190 (2009).

II.

Plaintiff and defendant contest the interpretation of our laws, not the facts of the case. We review the law de novo and owe no deference to the trial court and Appellate Division if they have wrongly interpreted a statute. M.S. v. Millburn Police Dep't, 197 N.J. 236, 246 n. 10, 962 A.2d 515 (2008); Manalapan Realty, L.P. v. Twp. Comm., 140 N.J. 366, 378, 658 A.2d 1230 (1995) ("A trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference.").

In deciding the issue before us, we must look to the interrelationship between two statutes, N.J.S.A. 17:28-1.4, the Deemer Statute, and N.J.S.A. 39:6A-8(a), which define when the limitation-on-lawsuit threshold shall apply to an out-of-state plaintiff bringing a personal injury action arising from an automobile accident. Both statutes are part of New Jersey's comprehensive scheme of no-fault automobile insurance.

We begin as we must with the plain language of the statutes, mindful that the ordinary meaning and significance given to the words chosen by the Legislature are generally the best indicators of statutory intent. DiProspero, supra, 183 N.J. at 492, 874 A.2d 1039. We must read the two applicable statutes in context with each other and in context with the overall legislative scheme governing automobile insurance. Ibid. It is our purpose to give life to the statutory language, not to "rewrite a plainly-written enactment of the Legislature." Ibid. (citation omitted). Therefore, we will presume that the Legislature intended the outcome dictated by the clear language of the statute. Ibid. Only if the words of the enactment are shrouded in ambiguity will we turn to other sources in search of legislative intent. Id. at 492-93, 874 A.2d 1039.

A.

We first look to the specific language of the Deemer Statute. N.J.S.A. 17:28-1.4 requires insurers authorized to transact automobile insurance business in New Jersey to provide coverage to out-of-state residents consistent with New Jersey law "whenever the automobile or motor vehicle insured under the policy is used or operated in this State." Under the Deemer Statute, those insurance companies must provide out-of-state residents with liability insurance pursuant to N.J.S.A. 39:6B-1 or N.J.S.A. 39:6A-3, uninsured motorist insurance pursuant to N.J.S.A. 17:28-1.1, and personal injury protection benefits pursuant to N.J.S.A. 39:6A-4 or N.J.S.A. 17:28-1.3. In addition to that mandated coverage, the Deemer Statute provides that the named insured and his or her immediate family members "shall be subject to the tort option specified in subsection a. of [N.J.S.A. 39:6A-8]."⁵ N.J.S.A. 17:28-1.4. In short, the Deemer Statute furnishes the covered out-of-state driver with New Jersey's statutory no-fault PIP and other benefits and, in exchange, deems that driver to have selected the limitation-on-lawsuit option of N.J.S.A. 39:6A-8(a).⁶

In Whitaker v. DeVilla, we upheld the constitutionality of the Deemer Statute, which imposed the limitation-on-lawsuit threshold on an out-of-state plaintiff. 147 N.J. 341, 355-58, 687 A.2d 738 (1997). We found that the Legislature, in an effort to contain the rising cost of automobile insurance premiums, made a constitutionally permissible policy determination by imposing the limitation-on-lawsuit threshold on non-residents who are injured in New Jersey and insured by carriers authorized to transact insurance business in this State. Id. at 356-57, 687 A.2d 738. We noted that the limitation-on-lawsuit option is deemed to apply even if a plaintiff has selected, and paid for, full tort coverage in his...