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Fennell v. Ferreira

New Jersey Superior Court, Law Division

Decided: February 21, 1975.


Dwyer, J.s.c.


[133 NJSuper Page 64] In an action brought for personal injuries sustained by Sarah Fennell in an automobile accident in New Jersey on September 8, 1973, defendant Francisco Ferreira moves for summary judgment against plaintiffs Sarah Fennell and Willie Fennell, her husband, on the ground that defendant is exempt from tort liability under N.J.S.A. 39:6A-8, a section of the No-Fault Law, N.J.S.A. 39:6A-1 et seq., based on answers to interrogatories which showed that the injury was "sprains of cervical spine

[133 NJSuper Page 65]

and left shoulder", and that the wife is no longer under treatment. Another answer refers to an attached medical report dated December 3, 1973 specifying the wife's medical expenses and treatments, here summarized as follows:

The following expenses are listed:

Date Place Service Charge

9/8/73 Offic eInitial examination and

medication $35

9/10/73 OfficeX-Ray cervical spine 30

X-Ray left shoulder 20

9/10/73 to OfficeInfra-red treatments,

11/9/73 Officeexam, medication 170


In the section of the medical report directed to whether or not wife's condition was permanent, the answer is "guarded", and an answer concerning present complaints is that wife still has pain and limitation of cervical motion.

In Hammond v. Doan, 127 N.J. Super. 67, 72 (Law Div. 1974), the court held that an action for declaratory judgment was not proper procedure to determine if exemption under N.J.S.A. 39:6A-8 made trial unnecessary but suggested that a motion for summary judgment if the facts were undisputed would be proper. Defendant's motion is apparently based on this suggestion.

The discovery in this case has been conducted under the applicable New Jersey court rules. Since plaintiffs' claim is based on tort liability and not for payment of benefits under N.J.S.A. 39:6A-4, defendant is probably limited to decide that question. Defendant's motion, therefore, is to discovery under the aforesaid rules and not entitled to discovery under N.J.S.A. 39:6A-13, but there is no need to be determined as would any other motion for summary judgment under R. 4:46-1 et seq.

Defendant urges that plaintiffs have the burden of establishing initially that they are not subject to the exemption and that if they do not, the answers to interrogatories show

[133 NJSuper Page 66]

that they have expended less than $200, the threshold for tort exemption, because the initial examination ($35) must be regarded as diagnostic and hence excludable from the threshold amount together with the X-ray charges ($50). If so, medical expenses would total $170 for treatment.

Plaintiffs urge that the exemption is an affirmative defense to be established by defendant and that the initial examination of the wife for purposes of deciding what treatment to administer must be regarded as treatment and not a diagnostic expense. See Harris v. Osorio, 125 N.J. Super. 463 (Law Div. 1973).

Counsel for neither party has referred the court to any decision construing the statute,*fn1 and the court has not found any New Jersey decision which answers the two questions posed. The court treats them in the order stated.

[133 NJSuper Page 67]

Although not necessary for the decision in Rugamer v. Thompson, 130 N.J. Super. 181 (Law Div. 1974), the court there stated:

N.J.S.A. 39:6A-8 provides for exemption from tort liability and it has been suggested that tort exemption be treated like any other affirmative defense, such as charitable immunity, governmental immunity or contributory negligence. [at 186]

This is consistent with the view expressed in Iavicoli, No Fault and Comparative Negligence in New Jersey, § 57 at 139 (1973). Indeed, defendant in this matter asserted the exemption as the fourth separate defense in his answer.

These views are consistent with general guidelines for construing statutes containing exemptions. In 29 Am. Jur. 2d, Evidence, § 147 at 179, it is stated:

Where an exception or exemption of a statute appears in the enacting clause thereof, the party relying upon the statute to establish a cause of action or defense must prove facts showing that his case does not come within the exception. However, where an exception or exemption appears in a different section, subdivision, or clause from that containing the enacting words of a statute, the party relying upon the statute need not prove that his ease [ sic ] does not some [ sic ] within the exception or exemption, but the burden of proof thereof is upon the opposite party.

In Schlemmer v. Buffalo, Rochester & Pittsburg Railway Co., 205 U.S. 1, 27 S. Ct. 407, 51 L. Ed. 681 (1907), Justice Holmes, in noting a proviso in § 6 of the Safety Appliance Act of 1893 that the act did not apply to four-wheel train cars, stated that if defendant wishes to rely on the proviso, he must satisfy the burden of bringing himself within the statutory exception.

This is the practice in New Jersey as well. In Raison v. Berkeley Tp. Bd. of Ed., 103 N.J.L. 547 (Sup. Ct. 1927), defendant demurred to plaintiff's complaint seeking an order based upon a statute directing the admission of his child to a school within the system, preferably the nearest one to his home, on the ground that the complaint failed to state that

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no other suitable provision had been made for the admission of the child into a convenient school. The court overruled the demurrer and said:

See No-Worry Chemical Co. v. Du-All Chemical Co., 16 N.J. Misc. 99, 197 A. 364 (Cir. Ct. 1938); Annotation, " Burden of Allegation and Proof In Civil Cases As Regards Exception In Statute," 130 A.L.R. 440 (1941).

The statutory exemption in the instant case is found in L. 1972, c. 70, § 8, and not in the enacting clause.

The New Jersey Automobile Insurance Study Commission Report (December 1971) contained the following recommendation concerning tort exemption:

Recommendation 3. Limited Tort Exemption for Certain Soft Tissue Injuries.

(3.0) The right of an injured person to bring an action in tort for damages over and beyond the benefits provided by PIPC (section 1.2) [Personal Injury Protection Benefits under No Fault Insurance] shall be guaranteed, provided however, that injuries involving and limited to "soft tissue" as to which medical treatment by a licensed physician, osteopath, or chiropractor is valued at not more than $100, will not be subject to payment of benefits in excess of those provided by PIPC. (Neither diagnostic nor hospital charges shall be included in valuing the medical treatment for such injuries.) This limitation shall not apply to fatal injuries.

The language of N.J.S.A. 39:6A-8 is not phrased in terms of creating a condition that a plaintiff must satisfy in order to sue. This statute is substantially different from that entitled Death By Wrongful Act, N.J.S.A. 2A:31-1 et seq., referred to by defendant, where a plaintiff should allege facts to bring himself, or herself, within the coverage

[133 NJSuper Page 69]

of the act. Cf. Engel v. Gosper, 71 N.J. Super. 573 (Law Div. 1962).

The language in question is better analogized to the language in the statute limiting charitable liability for negligence, N.J.S.A. 2A:53A-7 et seq.*fn2 It has been held in other jurisdictions that charitable status and the existence of facts which will bring an immunity doctrine into play are matters of defense to be proved by the defendant. Barrett v. Brooks Hospital, Inc., 338 Mass. 754, 157 N.E. 2d 638 (Sup. Jud. Ct. 1959); White v. Central Dispensary and Emergency Hospital, 69 App. D.C. 122, 99 F. 2d 355 (D.C. Cir. 1938).

The court concludes that the exemption from tort liability afforded in N.J.S.A. 39:6A-8 is on that Plaintiffs do not have to negate, but Defendant must prove.

Accordingly, defendant has the burden of showing that the exemption is applicable. The first step is to show that the plaintiffs have a status to which the exemption applies, i.e., either plaintiffs are persons required to maintain the coverage required by the No-Fault Law or are persons entitled to receive benefits under the act, and that defendant has a status which entitles him to assert it -- i.e., defendant is an owner registrant, operator or occupant of an automobile to which N.J.S.A. 39:6A-4 applies, or a person or organization

[133 NJSuper Page 70]

responsible for his acts or omissions. The second step in the process would be to plead the exemption and, if an assertion is made as to its applicability by motion for summary judgment, to establish by undisputed facts the exemption in the manner provided in R. 4:46.

On the record before the court, the complaint lists an address in New Jersey for plaintiffs and alleges ownership of a car involved in an accident in New Jersey on a date after the effective date of the statute.*fn3 No reply was filed as to the fourth separate defense setting forth facts that would negate plaintiffs being subject to the statute or the exemption. The allegations in the complaint suggest that plaintiffs probably are within the status, but the allegations do not state that the car was registered in New Jersey. The test for plaintiffs is whether they are required to have coverage under the statute. Defendant should have established this by affidavit.

The answer prepared and filed by an attorney for whom defendant's present counsel was substituted contains no address for defendant. See R. 1:4-1. It denies the allegation in the complaint concerning the assertion that defendant owned the car he was operating. There is no affidavit on file that states defendant was an "owner * * * [or] operator * * * of an automobile to which [ N.J.S.A. 39:6A-4], personal injury protection coverage, regardless of fault, applies * * *." The standard for the defendant is that he in fact has the insurance coverage, and not just that he is required to have it, for otherwise § 4 of the act would not apply to him.

Defendant therefore has not made an initial showing that the exemption is applicable.

The decision of the first question makes it unnecessary to answer the second. The motion for summary judgment is denied.

[133 NJSuper Page 71]

The court also denies plaintiffs' motion to impose sanctions in the form of costs against defendant. The legislation involved herein is new and there are no applicable decisions construing it in respect to the questions posed. Such assistance as the court received was in the form of letter memoranda from the respective parties after appearance on the motion. There is nothing in the record to indicate that defendant acted in bad faith or solely for the purposes of delay.

Submit order accordingly.

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