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Hunter v. Hartford Accident and Indemnity Co.

Decided: December 8, 1977.

DOLORES L. HUNTER, PLAINTIFF,
v.
HARTFORD ACCIDENT AND INDEMNITY COMPANY, A CORPORATION DOING BUSINESS IN NEW JERSEY, DEFENDANT



McGann, J.s.c.

Mcgann

Plaintiff was injured in an automobile accident on October 4, 1976. At that time she had a policy in effect with defendant Hartford Accident and Indemnity Company which provided her with "first party" personal injury protection benefits in accordance with N.J.S.A. 39:6A-4. She made claim against the carrier for income continuation benefits and the payment of medical expenses she incurred. Payment was refused. This action ensued.

Plaintiff moves for partial summary judgment in her favor on the liability aspect of both medical expense benefits and income continuation benefits. Defendant moves for partial summary judgment in its favor on the income continuation benefit issue. Based on depositions taken and the affidavit submitted by plaintiff, as well as memoranda supplied by counsel, I find that there is no conflict as to the material facts; the matter is ripe for partial summary judgment. R. 4:46-2.

Defendant does not factually or legally contest plaintiff's right to medical expense benefits. Accordingly, partial summary judgment is entered in her favor and against defendant on that issue, leaving for subsequent resolution, if necessary, the amount of the reasonable medical expenses which she incurred as the result of the accident of October 4, 1976.

As to the income continuation benefits issue I find the following facts:

Plaintiff had been employed by R. Hunter and Brother (no relation). That company prepares master copies of sheet music from which sheet music publishers and book publishers reproduce and print the finished sale copies. Plaintiff first worked for that company about 10 to 12 years ago for a period of 2 to 3 years when it was located in North Jersey.

She was employed by them at various times since and, basically, at her choosing. Her tasks were many including "note-stamping," typing, wrapping and other incidental jobs. When employed, she worked full-time.

The Hunter concern moved to the Freehold area from North Jersey in 1976 and at that time plaintiff again came into its employ. She worked regularly and steadily through April 30, 1976. She stopped work after that day in order to undergo an operation which took place on May 13, 1976. She received no salary after April 30, 1976 but did collect disability benefits from some time after the operation.

The Hunter concern wanted her to come back to work as soon as she was able. However, her convalescence took an extended time so that when she finally called in and stated that she was available for work business was slow and she was not immediately rehired.

October 4, 1976 was a Monday. On the previous Thursday or Friday Robert Hunter had called and left word with plaintiff's mother that work was then available and asked that she return. From the employer's standpoint it was not critical that she begin work on October 4 but unquestionably there was work for her to do and if she had reported to work on that day she would have been placed immediately on the payroll. Because of the type of work involved it was not necessary that an employee report at a specified hour. Employees were paid on an hourly basis.

Plaintiff actually intended to go to work on October 4. She did not call Hunter to confirm that fact but a call was not necessary nor did he expect one. The accident causing the injuries occurred on the morning of October 4.

Defendant argues its nonliability for income continuation benefits from the language of the statute which mandates "payment of the loss of income of an income producer." N.J.S.A. 39:6A-4(b). N.J.S.A. ...


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