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Solimano v. Consolidated Mutual Insurance Co.

Decided: January 13, 1977.

MARLENE SOLIMANO, PLAINTIFF,
v.
CONSOLIDATED MUTUAL INSURANCE COMPANY, DEFENDANT



Morrison, J.c.c., Temporarily Assigned.

Morrison

Plaintiff's verified complaint annexed to the order to show cause establishes (solely for the purposes of this motion) that on November 21, 1975 plaintiff, while operating her motor vehicle in returning home from work, was involved in an accident with another vehicle. The automobile she was driving had, at that time, the mandatory PIP coverage under a policy written by defendant Consolidated Mutual Insurance Company. Plaintiff gave notice of the accident to defendant and made claim for personal injury benefits under the policy provisions, in accordance with N.J.S.A. 39:6A-4.

Soon thereafter Consolidated Mutual began to make payments to plaintiff for her loss of wages and her ongoing medical expenses. These payments continued until July 15, 1976 when, by letter of that date, Consolidated Mutual informed plaintiff that no further payments would be made. Accordingly, Consolidated Mutual ceased paying PIP benefits.

Underlying Consolidated Mutual's decision to terminate benefits was its interpretation of N.J.S.A. 39:6A-6. It contended (and it has maintained this position throughout) that the provisions of the statute regarding credits to the insurer for benefits collectible under workmen's compensation obviated its obligation to pay PIP benefits. Consolidated Mutual made a unilateral determination that plaintiff's injuries were compensable under workmen's compensation. As a result of this "determination" it asserted that plaintiff must seek workmen's compensation benefits since its contractual obligation to pay PIP benefits is suspended pending the outcome of any Compensation claim.

In this action, plaintiff seeks an order (1) Compelling Consolidated Mutual to reimburse her for medical expenses incurred since July 15, 1976, and (2) requiring defendant to pay income continuation benefits and future medical benefits as they accrue.

The problem in this situation arises as a result of the inherent condition precedent to a determination of collectibility,

i.e. , in order to be "collectible," as that term is used in the statute (and under the facts presented herein), the injury must be declared "compensable" by the Division of Workers' Compensation. N.J.S.A. 34:15-1 et seq. Without some clarification, this court foresees a recurrence of this dilemma in every case in which there is some nexus, however slight, between the injury and employment.*fn1

This case hinges upon an interpretation of a deceptively perplexing statutory provision, N.J.S.A. 39:6A-6, entitled "Collateral source." It states:

The benefits provided in section 4a., b., c., d., and e. and section 10, shall be payable as loss accrues, upon written notice of such loss and without regard to collateral sources, except that benefits collectible under workmen's compensation insurance, employees temporary disability benefit statutes and medicare provided under Federal law, shall be deducted from the benefits collectible under section 4a., b., c., d. and e. and section 10.

The provision reads easily up to the word "except"; however, at that point the quagmire begins. The statute poses two obvious, yet unanswered, questions: (1) who is to determine "collectible benefits," and (2) In the interim between injury and the determination of collectibility, what is the obligation of the PIP carrier?

If we take defendant's reading, a PIP claimant must dispose of the possibility of collecting from another source (when that issue is raised by the carrier) via a claim in workmen's compensation before she may look to the PIP carrier for policy benefits. This would leave the issue of collectibility squarely in the insured's lap while the insurer sits back -- ...


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