Morrison, J.c.c., Temporarily Assigned.
This is a declaratory judgment action arising out of a suit by plaintiff on a policy of insurance under the provisions of N.J.S.A. 39:6A-1 et seq. , the New Jersey Automobile Reparation Reform Act. Plaintiff Greenberg had in effect at the time of his injury a policy of insurance with defendant Great American Insurance Company, which policy, upon the effective date of N.J.S.A. 39:6A-1 et seq. , was endorsed to provide income continuation benefits as mandated by N.J.S.A. 39:6A-4(b). In addition, plaintiff purchased additional coverage for income continuation benefits under the provisions of N.J.S.A. 39:6A-10. The relevant factual contentions, stipulated solely for the purposes of this action, are as follows:
On March 23, 1973 plaintiff was struck by an automobile while a pedestrian crossing a street. Plaintiff is an "outside salesman" for various manufacturing concerns. His sales functions appear bifurcated, one aspect being the performance of "field work," i.e. , personal solicitations and meetings with present and future clients, the other aspect being the performance of "at home duties," i.e. , telephone solicitations, mailing of catalogues and mailing of correspondence. Plaintiff states that prior to the injury he dedicated five or six days a week working "in the field" and evenings working at home. After the accident the plaintiff's condition improved; his pre-injury ability to work was curtailed but not totally extinguished. The carrier paid the
policy benefits. However, plaintiff was eventually forced to undergo corrective surgery on June 12, 1974. Great American paid benefits at a 100% level until September 24, 1974. At that time it learned that plaintiff's income had in fact increased substantially over his income prior to the date of the accident, notwithstanding his injury, and it ceased paying any further benefits. Its justification was that plaintiff had no "lost income," as that term is used in its coverage pursuant to N.J.S.A. 39:6A-4(b).
Plaintiff claims that he is entitled to income continuation benefits under N.J.S.A. 39:6-4(b) as a result of his not being able to perform "field work" functions up to the level he performed them prior to the accident. He states that he has been impaired in that he can perform field work only up to 60% of his pre-injury capacity; put another way, he is only able to solicit personally three days a week.
The applicable statutory language reads:
b. Income continuation benefits. The payment of the loss of income of an income producer as a result of bodily injury disability, subject to a maximum weekly payment of $100.00 per week. Such sums shall be payable during the life of the injured person and shall be subject to an amount or limit of $5,200.00, on account of injury to any one person, in any one accident. [ N.J.S.A. 39:6A-4(b)]
It is the interpretation of the first sentence of the above quotation that is the key to this case. Has plaintiff, a salesman working on commission, lost "income" as a result of diminished work ability (and the resultant diminishing of personal contacts which are necessary to generate those commissions) even though incoming dollar amounts are greater than those prior to his injury?
There is a dearth of case law on this question in New Jersey. Turning to the other "no fault" jurisdictions, we find the same to be true. Even if available, reliance on case law from other jurisdictions which may seem to be on point has its pitfalls. The apparently relevant cases must be carefully scrutinized in light of the statutory language
under which they are decided. Their value in our jurisdiction is extremely limited, given the nuances of the statutes encompassed under the generic heading of "no fault."
For example, Florida would, at first glance, seem to have cases which might shed light on the issue here presented. See Benton v. State Farm Mut. Auto Ins. Co. , 295 So. 2d 344 (Fla. App. 1974), and Griffin v. ...