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Wagner v. Transamerica Insurance Co.

Decided: January 29, 1979.

STUART WAGNER, PLAINTIFF-APPELLANT,
v.
TRANSAMERICA INSURANCE COMPANY, ET AL., DEFENDANTS-RESPONDENTS



On appeal from the Ocean County District Court.

Conford, Pressler and King. The opinion of the court was delivered by King, J.A.D.

King

This case involves the construction of several sections of the New Jersey Automobile Reparation Reform Act of 1972 (commonly called the No-Fault Law): (1) the definition of "automobile" in N.J.S.A. 39:6A-2; and (2) the application of the language "benefits collectible under workers' compensation insurance" in N.J.S.A. 39:6A-6, the collateral source section.

In November 1976 plaintiff filed this complaint claiming the right to recover $2,357 in medical expenses allegedly incurred as a result of an April 5, 1974 two-car automobile accident in which he was injured. The $2,357 represented a bill for chiropractic treatment by a Dr. Nantista for injuries allegedly received in the accident. Defendant Transamerica Insurance Company (Transamerica) was the liability carrier on a standard garage keeper's liability policy insuring

plaintiff's employer, Kroll Motors, Inc. (Kroll) of Long Branch.

Plaintiff was a salesman for Kroll. The April 5, 1974 accident occurred when plaintiff was taking a new automobile, a Ford LTD, bearing dealer's plates, to show to a potential customer. The automobile was from the Kroll's inventory of new vehicles. As a result of his injuries, plaintiff commenced treatment with an orthopedic surgeon, Dr. Walsh, with his employer's authorization. Simultaneously, he embarked on a course of chiropractic treatment with Dr. Nantista, unauthorized by his employer.

Thereafter plaintiff received an award in the Division of Workers' Compensation for his work-related injury resulting from the 1974 accident. His attorney asserted no claim before the Division for the expense of the chiropractic treatment allegedly resulting from plaintiff's concededly work-related accident. After the compensation case was settled plaintiff brought a tort action against Bamford, the driver of the other car involved in the accident. The tort case was settled in July 1976. Plaintiff testified below, over objection, that he did not intend that the amount of the tort settlement include Dr. Nantista's bill for chiropractic treatment. Plaintiff said he would not have settled for the amount agreed upon if he was required to pay Dr. Nantista from the proceeds of the tort settlement.*fn1 Inferentially, and for purposes of this decision, we therefore assume that plaintiff did not claim Dr. Nantista's bill as part of his damages in the tort action.

Plaintiff now claims that the $2,357 chiropractic bill for treatment arising out of the 1974 automobile accident is payable as a Personal Injury Protection (PIP) medical expense benefit under Transamerica's policy insuring his employer,

Kroll, as required by N.J.S.A. 39:6A-4. This section requires that every liability policy insuring an automobile as defined in the No-Fault Law provide "payment of all reasonable medical expenses incurred as a result of personal injury sustained in an automobile accident" to any occupant of the automobile without regard to fault.

Transamerica, whose garage keeper's liability policy does not contain the standard PIP endorsement, resists plaintiff's claim on two grounds, both of which were accepted by the trial court. The carrier asserts that the Ford LTD, as part of the dealer's inventory and stock-in-trade, was not an "automobile" as defined by N.J.S.A. 39:6A-2 and therefore PIP coverage was not compelled by law. The carrier further asserts that even if the Ford LTD was covered by the No-Fault Law, medical expense benefits under the PIP coverage are not payable to the plaintiff as a result of this concededly work-related automobile accident because of the collateral source bar of N.J.S.A. 39:6A-6, which excludes from coverage and "benefits collectible under workers' compensation insurance." The carrier contends that plaintiff's failure to claim the chiropractor's bill allegedly incurred for injuries received in this work-related accident before the Division of Workers' Compensation now bars any recovery of PIP benefits.

For the following reasons we conclude that the dealer's passenger vehicle was covered under the No-Fault Law and that basic PIP benefits must be provided under defendant's policy. However, we agree with the trial court that plaintiff's failure to assert his claim in the Division of Workers' Compensation for the alleged reasonable expense of treatment by Dr. Nantista resulting from this work-related accident ...


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