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Stewart v. Nationwide Insurance Co.

Decided.: December 6, 1979.

EDWARD R. STEWART AND ANN T. STEWART, INDIVIDUALLY, AND EDWARD R. STEWART, ADMINISTRATOR AD PROSEQUENDUM FOR THE ESTATE OF EDWARD R. STEWART, JR., DECEASED, PLAINTIFFS-APPELLANTS,
v.
NATIONWIDE INSURANCE COMPANY, DEFENDANT-RESPONDENT



On appeal from Superior Court, Law Division, Camden County.

Fritz, Kole and Lane. The opinion of the court was delivered by Kole, J.A.D.

Kole

[171 NJSuper Page 459] On February 20, 1977 plaintiffs' decedent, a pedestrian, was struck by an automobile operated by Perry, defendant's insured, while walking along a road in Camden County, New Jersey. He suffered serious bodily injuries as a result of the accident ultimately causing his death in March 1977. Perry, the driver, was a resident and domiciliary of Pennsylvania at the time of the accident. His automobile, garaged in that state, was insured with defendant insurance company in accordance with the Pennsylvania No Fault Motor Vehicle Insurance Act (hereinafter, the Pennsylvania No Fault statute).

Various medical, funeral and other expenses were incurred as a result of the accident and subsequent death. The expenses totaled $20,631, subject to an offset of $255 representing a Social Security payment.

Plaintiffs notified defendant of the accident and death on or about May 12, 1977. They also informed defendant that neither decedent nor anyone else in his immediate family or household was covered by automobile liability insurance.

Defendant refused to pay the amounts claimed to be due as personal injury protection benefits (PIP), relying on paragraph J of Endorsement 1299A of its policy, which provides that coverage does not apply to bodily injury to "any pedestrian other than the Named Insured or any relative , if the accident occurs outside the Commonwealth of Pennsylvania . . .." (Emphasis in original).*fn1

This declaratory judgment action followed.

The trial judge granted defendant's motion for summary judgment and denied that of plaintiffs. It held that the rights and liabilities of defendant under its policy were to be determined by the law of Pennsylvania, the state where the contract was made. It applied the foregoing policy exclusion from PIP benefits of victims such as plaintiffs' decedent where the accident occurs outside of the state. It appears to have relied on the provisions of the Pennsylvania No Fault statute, hereafter discussed, which permits such exclusion. It noted, however, that the plaintiffs had instituted a "regular negligence action against the defendant's insured in which all of the claims sought in the instant suit are proper elements of damage."

On this appeal plaintiffs contend, among other things, that the availability of PIP benefits to a New Jersey pedestrian injured in New Jersey by a Pennsylvania driver should be governed by the provisions of the New Jersey Automobile

Reparation Reform Act, N.J.S.A. 39:6A-1 et seq. (New Jersey No Fault Act). In that event pedestrians such as decedent who were injured in an accident in New Jersey could obtain PIP benefits. They also contend that even if Pennsylvania law is applicable, defendant is obligated to pay such benefits under Pennsylvania law.

We are satisfied that, irrespective of whether New Jersey or Pennsylvania law is applicable, the summary judgment in favor of defendant was properly granted. We note parenthetically that it would appear that Pennsylvania law should be applied. See Buzzone v. Hartford Acc. and Indem. Co. , 23 N.J. 447, 452 (1957), aff'g. 41 N.J. Super. 511 (App.Div.1956); American Hardware Mut. Ins. Co. v. Bradley , 153 N.J. Super. 72 (App.Div.1977). Plaintiffs' reliance on the workmen's compensation cases such as Boyle v. G. & K. Trucking Co. , 37 N.J. 104 (1962), as authority for applying New Jersey law here is misplaced. In Boyle the court specifically noted that the New Jersey Workmen's Compensation Act did not limit coverage to employees hired by New Jersey employers. 37 N.J. at 112. As indicated below, it is evident that the New Jersey No Fault Act is designed and intended to mandate PIP coverage only for automobiles registered or principally garaged in this State.

Plaintiffs contend that all automobiles, regardless of whether they are owned by nonresidents and garaged out-of-state, are subject to the mandatory coverage requirements of N.J.S.A. 39:6A-4. They note that N.J.S.A. 39:6A-4 extends to "[e]very automobile liability insurance policy insuring an automobile as defined in this act . . .." They assert that since "automobile," as defined in N.J.S.A. 39:6A-2(a), is not restricted to vehicles registered or garaged in this State, it follows that N.J.S.A. 39:6A-4 extends to all automobiles regardless of their place of origin.

This position, which focuses on isolated provisions of the New Jersey No Fault Act, is erroneous. The trial judge properly construed N.J.S.A. 39:6A-4 in ...


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