Liability of tortfeasors carrying PIP although not required to do so:. N.J.S.A. 39:6A-9.1 allows for recovery of PIP from a "tortfeasor who was not, at the time of the accident, required to maintain personal injury protection . . . or although required did not maintain personal injury protection . . ." The "or" here is not 100% clear. The plain meaning of the statute is that a tortfeasor that is not required to carry PIP is liable for loss-transfer even if the vehicle did, in fact, carry PIP. To date, there is no published opinion in New Jersey confirming this. In Empire Fire and Marine Ins. Co. V. GSA Ins. Co. 354 N.J. Super. 415, 808 A.2d 98 (App. Div. 2002), the Appellate Division passed on this question, saying, "“In light of the basis for our reversal here, it is not necessary for us to determine whether voluntary PIP coverage on a commercial vehicle would preclude a private vehicle carrier's reimbursement rights under N.J.S.A. 39:6A-9.1 and we express no view as to that.”
It is our view that the statute is clear on its face, that unless the tortfeasing vehicle is subject to the PIP requirement (i.e. meets the statutory definition of "automobile" or "motor bus") then it is subject to recovery of PIP even if its insurance happened to carry a PIP endorsement. This conclusion is supported by the following observations:
The statutory scheme is reasonable and there is no reason to in gore its plain language. Most vehicles which are exempt from PIP requirements will tend to cause more injury to others than will be caused to their occupants. For example, a dump truck will cause more injury leading to medical bills than the average sedan. It makes perfect sense for the legislature to have chosen not to allow this class of vehicles to avail themselves of the PIP scheme. Also, part of the purpose of the PIP scheme is to keep automobile insurance rates low. Allowing recovery from commercial vehicles helps keep costs low.
If the legislature intended to allow those voluntarily carrying PIP to be exempt from PIP recovery, there is no reason for the two pronged nature of the statute. N.J.S.A. 39:6a-9.1 could simply have allowed recovery of PIP from a "tortfeasor that did not maintain personal injury protection . . ." In fact, the original text of N.J.S.A. 39:6A-9.1 permitted recovery of PIP from tortfeasors not required to carry PIP. Only later was a provision added to cover vehicles that failed to carry PIP. Craig & Pomeroy, New Jersey Auto Insurance Law § 14:2. Had the Legislature intended only one class of tortfeasor, the Legislature could have replaced the original recovery language, rather than adding on to it.
Government Employees Ins. Co. v. Allstate Ins. Co., 358 N.J.Super. 555 (App. Div. 2003) is an analogous case. GEICO was not authorized to transact insurance business in New Jersey. However, GEICO believed itself to be subject to the “deemer” statute, N.J.S.A. 17:28-1.4 and was in fact paying New Jersey PIP benefits to its out-of-state insureds for accidents occurring in New Jersey. Geico at 559. The Appellate Division found, however, that GEICO had been mistaken as to its construction of deemer, and had effectively been paying PIP benefits to its insureds voluntarily. The Appellate Division held that the fact of these payments did not insulate GEICO from Allstate’s claims of recovery, since only tortfeasors required to carry PIP were insulated by N.J.S.A. 39:6A-9.1.
Note that it is extremely rare that a vehicle not required to carry PIP actually has PIP. Where this situation appears to come up, it is highly advisable to review the policy declarations as well as the PIP endorsement. Often, the PIP endorsement is designed to carve out any vehicles that are not required to carry PIP. This is what happened in Empire Fire and Marine Ins. Co. V. GSA Ins. Co. 354 N.J. Super. 415, 808 A.2d 98 (App. Div. 2002). Similar circumstances arose in this unreported case litigated by Law Offices of Jan Meyer. (opens in a new window). It is clear that if a tortfeasing vehicle not required to have PIP is listed on a policy which includes a PIP endorsement for other vehicles, this will not insulate the tortfeasor from liability.
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