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De Simone v. Nationwide Mutual Insurance Co.

Decided: March 18, 1977.

DETTA NEMINSKY DE SIMONE, PLAINTIFF,
v.
NATIONWIDE MUTUAL INSURANCE COMPANY, DEFENDANT



Miller, J.c.c., Temporarily Assigned.

Miller

On September 16, 1975 John DeSimone, brother of Antoinette E. Mendick, was killed while operating a motor vehicle belonging to Mrs. Mendick and loaned by her to him. The vehicle is insured by defendant Nationwide. The policy of insurance contained the statutorily-mandated basic personal injury protection (PIP) coverage and, in addition, an endorsement providing the additional personal injury protection permitted under N.J.S.A. 39:6A-10.

While there was some initial dispute as to whether coverage existed at all, Nationwide now concedes (and, indeed, has paid) the basic benefits to the widow of DeSimone, but contends that the additional benefits, primarily the $10,000 death benefit, is not due. This suit followed and these motions have been made for summary judgment.

There is no question but that plaintiff and her decedent are within the periphery of the policy as to the basic benefits. Ortiz v. Safeco Ins. Co. , 136 N.J. Super. 532 (Law Div. 1975). It is the additional benefits endorsement as to which the question arises.

The standard New Jersey basic personal injury protection endorsement distinguishes between the "named insured" and "an eligible injured person". The latter term, by definition, includes the "named insured" or "any relative of the named insured." The "named insured" is defined as "the person or organization named as the insured in the declaration." It is clear that Mrs. Mendick's brother, as a relative, is within the purview of the basic policy, which is why Nationwide paid off. Were this the sole factor, plaintiff would be entitled to recover, but it is not. The "additional benefits" clause contains the following restriction:

SCHEDULE

Item One: Each of the following persons is a Person Insured for Additional Personal Injury Protection Coverage.

(1) The Named Insured and his spouse if a resident of the same household.

(2) . . .

(3) . . .

It is significant that the endorsement thus contains two spaces whereby the parameters may be extended. Presumably, had Mrs. Mendick desired her brother to be included, she could have done so by inserting his name in one of the spaces.

It is noteworthy that the terms of N.J.S.A. 39:6A-10 restrict the additional coverage to the "named insured covered under section 4 (39:6A-4)" and that this coverage is required to be offered. N.J.S.A. 39:6A-4 refers to the "named insured" and also to other classes of persons. Had the Legislature intended to include all the classes of persons covered in N.J.S.A. 39:6A-4 and in the framework of N.J.S.A. 39:6A-10, it could easily have done so by merely providing that additional coverage should be offered ...


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