Coverage

Plaintiff Edward Siemietkoski sought underinsured motorist (UIM) benefits from Geico Insurance Company (Geico) due to injuries suffered in an automobile accident with defendant Charlie Velasquez-Flores. Geico denied Plaintiff’s claim based on the “regular use” exclusion contained in his insurance policy. This exclusion restricts coverage “where an insured has sustained bodily injury while occupying a vehicle furnished for the regular use of the insured.” The question in Siemietkoski v. Velasquez-Flores, 2020 N.J. Super. Unpub. LEXIS 1438 (App. Div. July 17, 2020) was whether the exclusion was properly applied to this claim.

Plaintiff, an Atlantic County park ranger, was involved in an automobile accident while operating an Atlantic County owned truck during the course of his employment. According to Plaintiff’s testimony, his employer had a pool of vehicles. While the employees generally used one vehicle, they could use any vehicle in the pool.

On the day of the accident, Plaintiff drove his personal vehicle to his job site. The keys to the available County vehicles were kept on a board, which he could pick up. He was not permitted to take the vehicle home at the end of his shift.

Defendant Velasquez-Flores was insured under a “basic” policy which mandated no minimum bodily injury coverage but a policy holder could elect to purchase coverage in the amount of $10,000 dollars. Plaintiff was personally insured by Geico that included both uninsured (UM/UIM) coverage. Plaintiff filed a claim under his UM/UIM coverage but this claim was denied by Geico.

Thereafter, Plaintiff filed an Amended Complaint against the Defendant Velasquez-Flores and Geico, among others. In Count Three, he requested a judgment under his policy’s UM coverage for injuries, losses and damages arising from the accident. The complaint was later amended to include a request for benefits under his UIM coverage.

At the trial court level, Geico filed a motion for summary judgment, on the basis that “Atlantic County furnished for the regular use of the plaintiff a vehicle that he could use at such times as he desired during working hours. He had a general right to use a County vehicle whenever he worked.” Based upon these proofs, the trial court determined that the “use exclusion in this policy would prohibit or it would exclude the UIM coverage in this case.”

This decision was appealed to the Appellate Division which examined the language in the insurance policy. It noted that the Geico insurance policy included coverage for uninsured and underinsured motorist’s coverage. There was no dispute that the tortfeasor’s vehicle was underinsured because he only had a basic policy of insurance, while Plaintiff’s policy included coverage of $50,000/$100,000 for each person/each occurrence in coverage. However, Geico had denied coverage under exclusion six, which excluded UIM coverage for “bodily injuries sustained by an insured while occupying a motor vehicle not owned by, and furnished for the regular use of the insured when involved in an accident with an underinsured motor vehicle.”

Plaintiff argued that he was not using a vehicle for which he had personal or regular unrestricted use because he could not use it outside the scope of his employment. Further, it remained on County property at all times and his ability to use the vehicle was not unrestricted. Also, he did not have the same vehicle every day.

The Appellate Division noted that under New Jersey case law the term “regular use” is not limited to situations where the vehicle is used for both business and personal use nor based on the frequency of use. The question was not whether the Plaintiff was frequently using the vehicle but whether it was furnished for his regular use.

Based upon the case law, the Appellate Division was satisfied that the exclusion did apply. The Court noted that Plaintiff had a general right to use the County vehicle while on the job and the County vehicle was not used occasionally, but daily. Further, the Court noted that the application of this exclusion was not limited to situations where only one vehicle was assigned. Additionally, the court recited the fact that no one denied that the vehicle was furnished by Plaintiff’s employer for use during his work hours and, during that time, the vehicle’s use was not restricted for business purposes.

Accordingly, the Appellate Division found that “[t]hese are exactly the characteristics that other courts have found to constitute a vehicle “furnished” for the “regular use” of the insured.” Hence, the Appellate Division did affirm the trial court’s decision in favor of Geico and upheld the trial court’s order granting Summary Judgment as to Geico.

Craig Crumley, an employee of Thomas Lindstrom Steel ­& Company (“Lindstrom”), a subcontractor of Plaintiff D’Andrea Construction Company (“D’Angelo”), was injured on a job site while assisting in the retrieval of two old welding machines in helping other employees in the loading and unloading of the new welders. The issue in D’Andrea Construction Co. v. Old Republic General Insurance Corp., 2020 N.J. Super. Unpub. Lexis 2088 (App. Div. Nov. 4, 2020) was whether there was coverage for this accident under the policy of D’Andrea’s and Lindstrom’s auto insurance carrier, Everest National Insurance Company (“Everest”).

Crumley was injured during an accident after another Lindstrom employee (Bianco) arrived at the job site with two welding machines, one new welder on the truck’s flatbed and another attached to a hitch on the back of the truck. Bianco was delivering 2 new welding machines and retrieving 2 old machines to Lindstrom and needed help loading and unloading the welders.

The first welder was swapped out without incident. However, Bianco then tried to drive the truck to the location of the other old welder but the ground was too rough and there was insufficient room for the truck. Crumley then asked a D’Andrea employee, Monitzer, to assist with the removal of the welder using a backhoe. Crumley held a chain to prevent the welder from swinging but while Monitzer and Crumley were moving toward the Lindstrom truck, the backhoe struck Crumley’s foot and leg, causing him injuries.

The lawsuit filed by Crumley was settled for $5.8 million dollars. Thereafter, D’Andrea and its general liability insurers sued D’Andrea’s and Lindstrom’s auto insurers, seeking reimbursement for the monies contributed for Crumley’s settlement. All but Everest settled with the plaintiffs.

At the trial court level, the Plaintiffs and Everest filed cross motions for summary judgment. The trial court judge denied the Plaintiffs’ Motion for Summary Judgment, finding that D’Andrea was not insured under the Everest policy and, further, Everest was not given timely notice of the claim.

Upon appeal, the Plaintiffs argued that the trial court judge mistakenly found that Crumley was not using an Everest insured vehicle when the accident occurred and also there was error in the court’s ruling that their claims were barred due to their late notice to Everest. Plaintiffs argued that Crumley should be afforded additional insured status under the Everest policy “because he was using the Lindstrom truck to load and unload the welders.” Their argument was that Crumley’s injuries happened during an essential part of the task and, thus, the completed operations doctrine applies because the task required loading and unloading the welders.

The Appellate Division noted that the courts have “long recognized” that the obligation to provide coverage in a loading and unloading accident arises from statute. Further, the Appellate Division stated that because “New Jersey courts looked to the complete operation of loading and unloading, all that is required to establish coverage is that the act or omission which resulted in the injury was necessary to carry out the loading or unloading.”

Therefore, the critical issue is whether the defendant’s alleged acts or omissions were an “integral part of the unloading activity, and thus covered under the use provision.” The Appellate Division noted that the pivotal question was whether there was a substantial nexus that existed between Crumley’s injury and the use of the Lindstrom truck.

The Court noted that the trial court judge conducted a comprehensive survey and analysis of cases examining “loading and unloading” and found that the condition of the work site was the reason the backhoe struck Crumley. He observed that it was D’Andrea’s decision to dangle a 700 pound welder from a backhoe while crossing an area of uneven terrain between 150 and 500 feet, in order to get the welder to a location on property under D’Andrea’s control, from which it could be loaded onto the Lindstrom trailer. Thus, the Appellate Division agreed that the trial court judge properly concluded that there was no substantial nexus between the “loading and unloading” of the Lindstrom truck and this accident.

Further, the Appellate Division rejected the Plaintiffs’ argument that the trial court made a mistake in holding their claims were time barred due to untimely notice because the statute of limitations for this contractual claim had not run. The Court agreed that Everest was prejudiced by delaying notification. Everest was not named as a defendant until seven years after the accident, almost four years after the settlement, and three years after Plaintiffs filed this most recent declaratory judgment action.            

Accordingly, the Court affirmed the trial court’s opinion, finding that Everest was not responsible for the costs of defense and indemnification of the settlement for this personal injury claim.

On January 30, 2019, plaintiff, Don Washington, drove his car from his home state of New York to North Bergen, New Jersey.  After shopping and leaving a store, he walked in a crosswalk towards his parked car when he was struck by a vehicle and injured.  The issue in Washington v. Progressive Insurance Company, 2020 N.J. Super. Unpub. LEXIS 1890 (App. Div. October 7, 2020), was whether the Deemer Statute required reformation of his insurance policy to increase his $50,000 PIP policy limits to New Jersey’s mandatory PIP limit of $250,000.

Plaintiff applied for and collected PIP benefits under his New York policy, which had only $50,000 in limits.  The defendant insurance company paid PIP benefits on plaintiff’s behalf but exhausted the policy limits.

Thereafter, plaintiff filed a complaint against his insurance company Progressive.  He argued that the carrier was authorized to conduct business and issue automobile insurance policies in New Jersey and claimed that the Deemer Statute (N.J.S.A. 17:28-1.4) applied and required reformation of his policy to provide coverage up to New Jersey’s mandatory policy limits, i.e. $250,000 (per N.J.S.A. 39:6A-4(a)).

The defendant Progressive filed a motion to dismiss the complaint in lieu of filing an Answer.  It argued that the Deemer Statute did not apply because the plaintiff was a pedestrian at the time of the accident.  Progressive relied upon the prior Appellate Division decision of Leggette v. Geico in which, under similar facts, the Appellate Division found that an out of state insurance policy is not deemed by N.J.S.A. 17:28-1.4 to provide PIP benefits when a named insured is injured by a New Jersey driver while a pedestrian.

The trial court judge heard argument on the defendant’s motion.  She found that the facts of this case mirrored those present in Leggette and, thus, that decision controlled.  Accordingly, she entered an Order dismissing the complaint and the plaintiff filed this appeal.

The Appellate Division agreed with its prior Leggette decision and the analysis therein.  The Court held that “[r]equiring defendant to provide greater PIP coverage than was purchased by plaintiff – its New York insured – simply because plaintiff used his car to cross the state line into New Jersey runs counter to the various legislative goals of the Deemer Statute.”  Further, the Court noted that none of the cases cited by the plaintiff “suggest that the Legislature intended to provide out-of-state residents with increased PIP benefits when injured as a pedestrian simply because they had driven their cars into New Jersey.”

The plaintiff tried to factually distinguish this case from Leggette because in this case, he was walking back to his car to drive away whereas in Leggette, the plaintiff was struck by the other driver after she had locked her car and walked away without any indication of her imminent return to use her car.  The Appellate Division stated that plaintiff’s “future unrealized intention to enter his car does not establish a ‘substantial nexus’ to the vehicle at the time he was injured for purposes of the Deemer Statute.”

Accordingly, the Appellate Division affirmed the trial court’s decision, dismissing the complaint.

In the Supreme Court case of Felix v. Richards, 2020 N.J. LEXIS 293 (Feb. 26, 2020), the New Jersey Supreme Court was asked to decide whether an insurer who sold policies in both New Jersey and out-of-state was entitled to rely on the lesser coverage provided under its Florida policy for a vehicle involved in a collision in New Jersey.  The question was whether the deemer statute, N.J.S.A. 17:28-1.4, required that the insurer’s policy provide the minimum bodily injury limits of $15,000 per person/$30,000 per accident as required under New Jersey’s standard policy.

The Felix case involved an automobile accident between Guerline Felix and Brian Richards.  Richards was insured under a New Jersey automobile insurance policy from AAA Mid-Atlantic Insurance Company (AAA).  The Richards’ policy provided bodily injury liability coverage, as well as uninsured and underinsured motorists (UM/UIM) coverage.  The Felix policy was written in Florida by GEICO.  The GEICO policy provided up to $10,000 in property liability and personal injury protection benefits but did not provide any bodily injury liability coverage.

Felix was injured in the accident and sued Richards for personal injuries.  Richards also sued Felix and AAA for personal injuries.  Thereafter, AAA filed a third-party complaint against GEICO, claiming that GEICO’s policy was automatically “deemed” to include $15,000/$30,000 in bodily injury coverage.  That payment would then eliminate the claim for UM/UIM coverage against AAA being asserted by Richards. 

The trial court judge determined that the deemer statute, N.J.S.A. 17:28-1.4, applied to GEICO’s policy, rejecting GEICO’s claim that the statute created a carve out for bodily injury coverage under the basic policy.  GEICO made a constitutional challenge as well, which the court also rejected.  The Appellate Division affirmed the trial court’s decision and the Supreme Court granted GEICO’s petition for certification.

Under New Jersey’s deemer statute, out-of-state motor vehicle insurance policies are “deemed” to guaranty the same $15,000 per person/$30,000 per accident bodily injury liability coverage, which is the required amount under New Jersey’s standard policy.  Since the enactment of the deemer statute, the Legislature created two alternate forms of lesser insurance coverage.  One is the basic policy created in 1998 as part of the Automobile Insurance Cost Reduction Act (AICRA), which carries no bodily injury coverage unless an optional $10,000 amount is selected. 

The deemer statute was enacted back in 1998.  Essentially, the Supreme Court found that the enactment of AICRA did not change the requirement under the deemer statute for an out-of-state insurer (who writes in NJ) to provide the minimum amount of bodily injury coverage under the standard policy.

The Supreme Court noted that automobile insurance is compulsory in New Jersey and that “all owners of automobiles registered or principally garaged in New Jersey are required to insure their motor vehicles for minimum amounts of liability insurance coverage and personal injury protection.”

Further, the Supreme Court noted that “insurers authorized to do business in New Jersey and writing policies for such vehicles must comply with compulsory insurance coverage limits.”  Under the standard policy, the Legislature set minimum compulsory coverages that an insurer must offer and provide insurance in New Jersey, which would be at least $15,000 per person/$30,000 per accident for liability coverage. 

The Supreme Court stated that no insurer is forced to write in New Jersey, but for the privilege of doing so, the insurer is bound by New Jersey law.  One of the demands placed on insurers that choose to write insurance in New Jersey concerns the policies written by such insurers for insureds in other states.   By the enactment of the deemer statute, New Jersey residents injured as a result of an accident with an out-of-state vehicle “will have recourse to policies of insurance that are at least as broad as the presumptive minimum limits of the New Jersey policy.”  Thus, the Supreme Court found that regardless of the actual terms of the out of state policy, those policies “have been deemed to guaranty the same $15,000 per person/$30,000 per accident that New Jersey policies have had to offer.” 

In reaching its decision, the Supreme Court looked at the history of the deemer statute and the history of the amendments.  It rejected GEICO’s argument that the AICRA amendments were intended to relieve insurers with out-of-state policies from the obligation to provide at least the minimum bodily injury liability limits for a New Jersey accident.  Although the Legislature now permits New Jersey insureds to accept something less in bodily injury coverage (namely zero bodily injury coverage), that “does not alter what remains a compulsory minimum BI liability coverage amounts that insurers writing in New Jersey must provide.”  The required compulsory insurance liability limits remain at $15,000/$30,000.            

Additionally, the Supreme Court rejected GEICO’s equal protection argument and found no violation of equal protection in the operation of the deemer statute as construed in this case.  Thus, the Supreme Court found that GEICO was required to provide liability coverage of $15,000/$30,000 policy limits for this accident.

The Appellate Division recently decided a very interesting case addressing the impact of an insurance carrier issuing a “reservation of rights” letter to its insured while also simultaneously agreeing to provide a defense for the insured, but failing to clearly request the insured’s consent to the insurer’s control of that defense.

Northfield Insurance Company v. Mt. Hawley Insurance Company as subrogee of Empress Properties, Inc., 2018 N.J. Super. LEXIS 51 (App. Div. March 28, 2018), was approved for publication on March 28, 2018.  The Appellate Division indicated that the fact pattern required it to consider whether a third party may take advantage of an estoppel doctrine- first recognized in Merchants Indemnity Corp. v. Eggleston, 37 N.J. 114 (1962)- that has been found applicable when an insurer, while reserving its rights or otherwise declining to provide coverage, fails to clearly request its insured’s consent to the insurer’s control of the defense to be provided. The Court held that the insurer should not be estopped from denying coverage because there was no clear evidence that the ostensibly defunct insured changed its position to its detriment even if the insurer assumed the defense without explicit consent. The Court also rejected the argument that Eggleston permits avoidance of estoppel only if the insurer uses certain “magic words” in communicating with its insured, finding that in this matter the carrier’s letter disclaiming coverage could reasonably be interpreted as conveying an “offer” rather than a unilateral declaration of a right to control the defense. Thus, the Appellate Division reversed the entry of summary judgment on behalf of the party seeking estoppel, specifically the alleged victim of the insured’s purported negligence and its property damage insurer.

Empress Properties, Inc. hired CDA Roofing Consultants, LLC to perform roof installation work on a hotel in Asbury Park in June 2012.  CDA subcontracted out some of the necessary labor. The work was deemed completed in July 2012.

The hotel was located less than 1000 feet from the Atlantic Ocean.  “Superstorm Sandy” subsequently made landfall on the Jersey Shore on October 29, 2012, allegedly resulting in roof damage and water damage to the interior of the hotel.

CDA was insured by Northfield Insurance Company both when the roof work was performed as well as when the storm hit. However, CDA apparently did not notify Northfield of the claim being asserted by Empress Properties and its insurer, Mt. Hawley Insurance Company.  However, in correspondence dated November 28, 2012, counsel for Mt. Hawley notified Northfield of the same.  Thereafter, on January 24, 2013, Northfield responded to Mt. Hawley’s counsel denying the claim based on its investigation, including the opinion of an expert apparently retained by Northfield that the damage was caused by Superstorm Sandy’s winds as opposed to any negligence by CDA.

Then, five days later, on January 29, 2013, Northfield wrote to its insured, CDA, regarding its investigation of Mt. Hawley’s claim and citing numerous policy provisions before advising that based upon an “assessment of the information presently available” that coverage under the policy was excluded. However, Northfield did indicate that while one policy provision excluded any “damage to the roof that occurred after (CDA’s) work was completed,” the same would not apply “if the damaged work or the work out of which the damage arises was performed on (CDA’s) behalf by a subcontractor.”  Northfield expressly indicated that it was not admitting or waiving any available coverage defense or limitation, and was reserving any rights it might possess, including the right to modify its position at any time upon receipt of additional information. Further, CDA was advised to “promptly” forward a copy of any Complaint filed for Northfield’s “consideration.”

Empress Properties, Inc. and Mt. Hawley did file suit on March 17, 2015, more than a year later. Significantly, it was claimed that various defects had developed in the ceiling of several rooms on the top floor of the hotel in early October 2012, that CDA was immediately notified of the same, but denied responsibility and took no action.  Most significantly, however, it was alleged that the roof collapsed on October 22, 2018, a week before Superstorm Sandy made landfall. Accordingly, it was alleged that these roof problems were caused by the negligence of CDA, its subcontractor, or both.

Northfield thereafter wrote to CDA on June 9, 2015, advising that it was “disclaiming any obligation to indemnify.” Northfield set forward various bases for the same, including CDA’s failure to timely advise of the claim and the failure of the subcontractor to agree to defend, indemnify and hold harmless CDA, or to name CDA as an additional insured on the subcontractor’s policy.

However, after denying an obligation to indemnify, Northfield nonetheless volunteered to provide what it described as “a courtesy defense for this lawsuit” for CDA.  Northfield identified an attorney to whom the defense had been assigned, and requested CDA’s “complete cooperation” with that counsel. Northfield also indicated that while “providing (CDA) with a defense for the entire lawsuit… (Northfield was) further reserving (its) right to withdraw from the defense of this action at any time and seek reimbursement of defense costs (for) any (defended but uncovered) causes of action.” Northfield then reiterated that nothing in the letter should be construed as an admission or waiver of liability or any coverage defense, and that Northfield “reserves any legal and policy defenses it may have in connection with these matters whether stated or not in this letter” and also “reserves the right to modify its coverage position at any time upon receipt of additional information.”

Six months later, Northfield commenced the instant suit against Mt. Hawley, Empress, CDA and the subcontractor, seeking a declaration that it had no obligation to defend or indemnify CDA in the underlying suit brought by Mt. Hawley and Empress.  That underlying suit was stayed pending resolution of this declaratory judgment action.

Mt. Hawley and Empress thereafter filed a Motion for Summary Judgment, alleging that Northfield should be estopped from denying coverage for the claim against CDA in the underlying action.  The motion Judge granted Mt. Hawley’s motion, holding that Northfield’s actions as set forth above did not comport with Eggleston because Northfield failed to properly seek CDA’s consent to Northfield’s control of the defense and, as such, Northfield could not rightly disclaim coverage for CDA in the underlying action.

On appeal, the Appellate Division held that it did not view the wording of Northfield’s disclaimer as inconsistent, as a matter of law, with Eggleston. Further, it held that the estoppel doctrine has no application absent a showing of prejudice to or detrimental reliance by the insured. The Court held that the facts of this matter were then “too uncertain to make such a determination.”  Finally, the Court also held that Mt. Hawley’s standing to claim application of the estoppel defense was also “plagued by an uncertain context.”

The Appellate Division then discussed Eggleston in some detail. In short, the holding of Eggleston is that “if a carrier wishes to control the defense and simultaneously reserve a right to dispute liability, it can only do so with the consent of the insured.”  37 N.J. at 125.  Without the insured’s specific consent or circumstances that suggest that the insured “acquiesced” in the insurer’s control of the defense, the insurer will be estopped from later disclaiming coverage.  Griggs v. Bertram, 88 N.J. 347, 356 (1982); Sneed v. Concord Ins. Co., 98 N.J. Super. 306, 320 (App. Div. 1967).

While an explicit indication of consent from the insured is obviously preferable, significantly, the Appellate Division made clear that, in Eggleston, the Supreme Court recognized that “an agreement may be inferred from an insured’s failure to reject an offer to defend upon those terms,” although it also recognize that “to spell out acquiescence by silence, the letter must fairly inform the insured that the offer may be accepted or rejected.”  37 N.J. at 127-128.  In this matter, the Court found that Northfield’s correspondence to its insured did meet this standard.  For example, it noted that the reference to a “courtesy defense” could plausibly be interpreted as an offer of a defense, as opposed to Northfield’s insistence on controlling the same. And, if interpreted as such an offer, the silence of insured CDA in response could then be interpreted as “acquiescence by silence” which would not offend Eggleston.

The Appellate Division also made clear that Eggleston “in no way suggests that estoppel immediately attaches when an insurer, while reserving its rights or declining coverage, assumes control of the defense without first obtaining the insured’s consent.”

The Court observed that there was no evidence that CDA – which was apparently defunct by the time that Northfield declined coverage and assumed its defense- in any way relied upon what Northfield wrote or changed its position to its detriment.

Therefore, this opinion is important for its clarification of the potential significance of language utilized by an insurance carrier in a reservation of rights letter to its insured if the carrier also, for any reason, agrees to provide any level of defense to the insured.

Clearly, it is always far preferable to obtain written consent from the insured.  However, in this matter, the Appellate Division makes clear that even in the absence of the same, if the carrier is careful to comply with the requirements previously set forth in Eggleston and now further examined in Northfield v. Mt. Hawley, it can fully preserve all of its rights.

In a novel decision, Ledet v. Oller, No. HUD L-2772-16  (Law Div. Aug. 28, 2017),  the court was asked to decide if the plaintiff was considered to be “culpably uninsured” if his motor vehicle was principally garaged in New Jersey while he attended graduate school but insured and registered in his home state of Louisiana. Plaintiff Ledet was involved in an auto accident in New Jersey while operating his 2006 Volvo. Defendant Oller argued that, due to Ledet’s failure to register and insure his motor vehicle in New Jersey, he should be consider uninsured and, hence, barred from suing for his personal injuries pursuant to N.J.S.A. 39:6A-4.5(a).

Plaintiff owned a home in Louisiana since 2009. In 2013, plaintiff temporarily moved from Louisiana to Jersey City to pursue his PhD at NYU. After graduation, he planned to return to Louisiana to attend Tulane Medical School after his anticipated graduation in 2018.

Plaintiff had enlisted in the United States Navy in 2004 upon his high school graduation. After active duty, he was in the Navy reserves until November 14, 2013.

Plaintiff’s vehicle was registered and insured with a USAA Louisiana policy. Plaintiff did have a New Jersey driver’s license. He told USAA that he was living in New Jersey while attending school and USAA told him that he was insured while he was residing in New Jersey. After the accident, USAA provided the plaintiff with PIP coverage of up to $250,000 in PIP benefits. Although plaintiff’s medical bills exceeded the $5,000 medical expense limit on his Louisiana policy, USAA voluntarily paid $15,699.61 in PIP benefits.

Under N.J.S.A. 39:6A-4.5(a), any person who, at the time of the accident is operating an uninsured vehicle, loses his/her right to sue for his economic and noneconomic loss while operating the uninsured vehicle. This statute gives the uninsured driver a “powerful incentive“ to buy insurance or lose his/her right to sue for injuries suffered in an automobile accident in New Jersey.

Defendant argued that plaintiff failed to comply with N.J.S.A. 39:4-5(a) and, thus, cannot recover his economic and non-economic losses from his accident. Plaintiff, however, contended that he was not operating an uninsured vehicle because it was insured under the USAA Louisiana policy. This statutory provision does not state that the owner must have a New Jersey policy. It only mandates insurance coverage.

The term “uninsured motor vehicle” is not defined in the Title 39 motor vehicle insurance provisions. However, it is defined in N.J.S.A. 17:28-1.1(2)(a)(dealing with uninsured motorist coverage) as a vehicle “for which there is no bodily injury liability insurance or bond applicable at the time of the accident.”

Plaintiff’s USAA policy included out of state coverage. Its policy provided language that its coverage would be provided in the minimum limits of the state in which the accident occurred. It did provide PIP coverage, actually in excess of the minimum of $15,000 in PIP benefits. Thus, plaintiff argued that his claims are not barred under N.J.S.A. 39:6A-45.5(a) because his vehicle was insured.

The Law Division accepted that argument and found that the plaintiff was not uninsured at the time of the accident. Hence, he did not lose his right to sue for his personal injuries suffered in his automobile accident.

Plaintiff Alma Guerrero was driving her car when she was involved in a collision with the defendant Colleen Moore. Plaintiff suffered back injuries from the accident and sued defendant Moore. In Guerrero v. Moore, 2017 N.J. Super. Unpub. LEXIS 21 (App. Div. Jan. 5, 2017), Moore defended on the basis that plaintiff was barred from suing for her personal injuries due to her failure to insure her vehicle in New Jersey, despite residing in New Jersey for at least three to four months before the accident.

Under New Jersey law, a failure to maintain the required medical expense coverage pursuant to N.J.S.A. 39:6A-4.5 bars a person from suing if a New Jersey resident. Although the plaintiff’s vehicle was registered and insured in Pennsylvania, the plaintiff’s policy did not have the PIP coverage as required under New Jersey law. Because the plaintiff admitted that she lived in New Jersey for at least three to four months prior to the accident, the Appellate Division found that the trial court properly granted defendant’s motion for summary judgment, dismissing the complaint.

Although the plaintiff’s vehicle was insured in Pennsylvania, it only had PIP coverage of $5,000. That was less than the required amount under New Jersey law (under either N.J.S.A. 39:6A-3.1 – $15,000, if you qualify for the special insurance for those eligible for Medicaid or $250,000 for policy as required under N.J.S.A. 39:6A-4.) Because plaintiff did not satisfy either insurance requirement, she was considered “uninsured” in New Jersey.

Under New Jersey law, any person who becomes a resident of the State must obtain a New Jersey license and registration within 60 days of becoming a resident. Because plaintiff had been residing in the State for at least 3 – 4 months, she was subject to the laws of New Jersey on insurance and registration. Her failure to register and insure her vehicle in conformance with New Jersey law made her “uninsured.” Hence, the Appellate Division found that she was barred from suing for her personal injuries.

Plaintiff Angel Viruet, Jr. was injured in an automobile accident and sued Defendant Fernando Maoine for his injuries. Plaintiff was insured by GEICO Insurance Company for his automobile insurance and had selected a limited PIP medical coverage benefits of $15,000. In Viruet v. Maoine, 2016 N.J. Super. Unpub. LEXIS 2426 (Law Div. Nov. 4, 2016), the court was asked to decide if the plaintiff’s medical bills in excess of $15,000 would be “boardable” at trial (admissible into evidence) and, if so, whether the full amount could be considered by the jury or would they be limited to the PIP Fee Schedule amounts.

The Plaintiff’s medical bills totaled $56,321 due to injuries suffered in the accident. The PIP carrier (GEICO) only paid $15,000 of those bills. The Defendant moved to have those bills in excess of the $15,000 limit subject to the PIP fee schedule amounts.

The trial court found that the Plaintiff’s medical expenses are clearly subject to the Fee Schedule to the extent they are within the $15,000 coverage limits. The court held that because the PIP carrier is not paying the medical bills in excess of the coverage limit, the Fee Schedule does not apply. The medical provider is not limited to the Fee Schedule and may bill the patient for the full amount. The patient is then personally responsible for the billed amount and, in turn, may seek recovery from the tortfeasor for his economic loss.

This court followed the decision of Wise v. Marienski, 425 N.J. Super. 110 (Law Div. 2011) in ruling that the medical expenses not paid by PIP are recoverable in a tort action. It decided that the full amount of those bills, without any reduction to the PIP Fee Schedule, were admissible into evidence at trial. Thus, they are fully “boardable” to the extent they were not paid by PIP.