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Berg v. Ohio Casualty Insurance Co.

Decided: January 22, 1979.


MacKenzie, J.s.c.


[166 NJSuper Page 240] A previously unlitigated aspect of the New Jersey Automobile Reparation Act, N.J.S.A. 39:6A-1 et seq. (the No Fault Law) is at issue. The controversy centers around whether personal injury protection benefits (PIP) extend to a pedestrian, the daughter of the

named insured whose vehicle was not involved in the accident, who suffers bodily injuries when struck first by a commercial vehicle, then by an automobile. Is the girl to be considered a member of the family residing in the insured's household who has sustained bodily injury as the result of an accident involving an automobile? If she is, coverage is provided, N.J.S.A. 39:6A-4. If not, there are no collectible PIP benefits.

The facts are not in dispute. R. 4:46-1. Edward Berg (plaintiff) owned and was the named insured on a standard New Jersey family automobile policy in effect on the date of the accident, April 19, 1974. The policy issued by the Ohio Casualty Insurance Company (Ohio) contains basic PIP coverage, including medical expense benefits. Plaintiff's eight-year-old daughter Pamela, while walking in the westbound lane of Route 24 in Madison, New Jersey, was struck by a 1967 Ford truck*fn1 owned by E & B Service Carrier and operated by John Glerum. Pamela was propelled by that impact against the left door of a stationary 1971 Chevrolet four-door sedan operated by Thelma Wilkerson. Mrs. Wilkerson's automobile, a private passenger motor vehicle owned by her husband, was in the eastbound lane of Route 24 waiting for stalled traffic to move. Both vehicles were registered in New Jersey. Insurance coverage for the Wilkerson car is compulsory under the No Fault Law. Pamela suffered severe bodily injuries in the accident. There were no proofs attributing any specific injury to either vehicular contact.

Plaintiffs seek a declaratory judgment construing the terms of the insurance policy and declaring that Ohio is obligated to pay Pamela's medical expenses, N.J.S.A. 2A:16-50, et seq. Ohio seeks dismissal of the complaint on the theory

that this infant pedestrian is not entitled to PIP coverage under the No Fault Law.

Mandatory PIP coverage is provided for in N.J.S.A. 39:6A-4, as follows:

Every automobile liability insurance policy insuring an automobile as defined in this act against loss resulting from liability imposed by law for bodily injury, death and property damage sustained by any person arising out of ownership, operation, maintenance or use of an automobile shall provide additional coverage, as defined herein below, under provisions approved by the Commissioner of Insurance, for the payment of benefits without regard to negligence, liability or fault of any kind, to the named insured and members of his family residing in his household who sustained bodily injury as a result of an accident involving an automobile, to other persons sustaining bodily injury while occupying the automobile of the named insured, or while using such automobile with the permission of the named insured and to pedestrians, sustaining bodily injury caused by the named insured's automobile or struck by an object propelled by or from such automobile.

There is no limit, other than necessity of treatment and reasonableness of charge, on collectibility of medical benefits. The statute requires that all policies be written so as to be consistent with law. N.J.S.A. 39:6A-17.

Three classes of persons are afforded PIP protection under the statute: (1) the named insured and members of his family are covered for bodily injury resulting from "an accident involving an automobile"; (2) other persons are given coverage for bodily injury sustained from an automobile while using the automobile with the insured's permission or while otherwise occupying the car, and (3) pedestrians*fn2 are protected if they sustain bodily injury caused, directly or indirectly, by the insured's vehicle.

Pamela obviously does not fall into the second category of protected persons. She is an infant member of the insured's family who lives with her father. The act provides that family members living in the insured's household enjoy PIP coverage when injured as the result of an automobile accident. Plaintiff contends that his daughter was injured in an automobile accident involving an automobile notwithstanding the initial contact was with a truck. N.J.S.A. 39:6A-2(a). If so, does she fall into the first category of protected persons? Or, since she was injured while ...

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