On certification to the Superior Court, Appellate Division, whose opinion is reported at 150 N.J. Super. 157 (1977), reversing judgment of Superior Court, Law Division, whose opinion is reported at 143 N.J. Super. 307 (1976).
For reversal and remandment -- Chief Justice Hughes and Justices Sullivan, Pashman and Handler and Judge Conford. For affirmance -- Justices Clifford and Schreiber. The opinion of the Court was delivered by Conford, P.J.A.D. (temporarily assigned). Schreiber, J., dissenting. Justice Clifford joins in this opinion.
[76 NJ Page 574] At issue here is the correct construction of the statutory provision ("no fault") for payment by insurers of first-party "survivor benefits" to a survivor for loss of essential services consequent upon the death of a named insured who was providing such services as of the time of the accident. The pertinent factual background and statutory text may be found in the reported decisions of the Appellate Division and Law Division, 150 N.J. Super. 157; 143 N.J. Super. 307. The Law Division held that the survivor is entitled absolutely to payment in full of the maximum amount which could have been paid to the injured person had he lived -- $4380; see N.J.S.A. 39:6A-4 c; 4 d. The Appellate Division reversed, holding that entitlement of the survivor to the essential services benefits was conditional upon the survivor actually arranging and paying for or incurring the expense of provision of
such services, up to the statutory maximum of $4380, and demonstrating those facts to the insurer periodically as payment or incurrence of the expense took place. We granted certification. 75 N.J. 526 (1977).
The named insured here, one Julius Maros, was a retired individual who died December 19, 1975 from injuries sustained in an automobile accident on December 15, 1975. He held a policy of automobile insurance issued by defendant. The trial court found that decedent had as of the time of the accident been rendering various household services such as partial construction of a carport, maintenance of a car, yard and house, shoveling snow, moving furniture, washing windows, caring for his surviving wife, the plaintiff, during illnesses, and driving her to appointments and on errands. No contention is here made that any of these services were not "essential services" within the statutory intent.
When, in February 1976, plaintiff sought from defendant payment of $4380 as maximum essential services benefits the latter refused in the absence of proof by plaintiff that she had in fact incurred the expense of providing for any of the services previously performed by the decedent.
It will be useful at this point to restate the pertinent statutory language. N.J.S.A. 39:6A-4 provides in pertinent part:
Every automobile liability insurance policy * * * shall provide additional coverage * * * for the payment of benefits * * * to the named insured and members of his family residing in his household who sustained bodily injury as a result of an accident * * * "Additional coverage" means and includes:
c. Essential services benefits.
Payment of essential services benefits to an injured person shall be made in reimbursement of necessary and reasonable expenses incurred for such substitute essential services ordinarily performed by the injured person for himself, his family and members of the family residing in the household, subject to an amount or limit of $12.00 per day. Such benefits shall be payable during the life of the injured person and shall be subject to an amount or limit of $4,380.00, on
account of injury to any one person in any one accident.
In the event of the death of one performing essential services as a result of injuries sustained in an accident entitling such person to benefits under section 4 c. of this act, the maximum amount of benefits which could have been paid such person, under section 4 c., shall be paid to the person incurring the expense of providing such essential services.
There can be no dispute that insofar as subparagraph c. is concerned, the injured person can recover for essential service benefits only by way of reimbursement for actual expenses paid or incurred to a third person rendering the services provided by the injured person prior to his incapacitation. Had the intent been for a parallel requirement of actual payment or incurrence by the survivor of the expense of provision of such essential services by third persons, it would have been simple for the draftsmen of subparagraph d. to have so specified by language as free of doubt as that employed in writing subparagraph c. To the contrary, the legislators, in dealing with the entitlement of the survivor after death of the essential services provider, called for the payment to him (or her) of "the maximum amount of benefits which could have been paid [to]" the decedent, had he lived, under subparagraph c. To the extent thus indicated, there is no ambiguity whatever as to ...