These cross-motions for summary judgment project an issue heretofore apparently not the subject of a reported decision in this jurisdiction. The court is presented with the question of whether the statute of limitations with respect to the personal injury protection benefits of the Automobile Reparation Reform Act, N.J.S.A. 39:6A-13.1(a), is tolled for an infant until such time as he reaches his majority, even though he is represented in a suit for such benefits by a guardian.
The essential facts are uncontroverted. On January 26, 1975 plaintiff Peter Giantonio, then 13 years old, was walking along a sidewalk in Little Ferry. A commercial vehicle was pulling a chassis which was attached to it by a rope. As the chassis was swaying back and forth it struck a passenger car traveling from the opposite direction. Immediately upon impact the chassis bolted in the other direction, striking plaintiff and two other children. One of the children died instantly while plaintiff and the other child were critically injured. Plaintiff suffered severe facial disfigurement in addition to other bodily injuries. He was immediately treated for those injuries and for a period of several months thereafter.
At the time of this accident plaintiff Anthony Giantonio, Peter's father, was insured under a standard automobile policy issued by defendant which provided personal injury protection (PIP) coverage as mandated by N.J.S.A. 39:6A-4. Defendant has paid $1,000 in medical benefits and $2,525 under the uninsured motorists insurance claim arising out of a prior suit against the drivers of the vehicles involved in the accident. These payments are, of course, unrelated to the PIP benefits here sought.
This declaratory judgment action was instituted on September 26, 1979 by Anthony Giantonio as guardian of Peter Giantonio, Anthony Giantonio individually and Peter Giantonio. The complaint alleges that plaintiff Peter's injuries fall within the purview of N.J.S.A. 39:6A-1 et seq. , and seeks judgment declaring, among other things, that defendant is required to pay all reasonable medical expenses incurred as a result of the accident. In its answer defendant has raised as an affirmative defense the statute of limitations set forth in N.J.S.A. 39:6A-13.1(a).
Plaintiffs move for summary judgment, contending that Peter's injuries were as a result of an accident involving an automobile as defined by N.J.S.A. 39:6A-2(a):
"'Automobile' means a private passenger automobile of a private passenger or station wagon type that is owned or hired and is neither used as a public or livery conveyance for passengers nor rented to others with a driver; and a motor vehicle with a pick-up body, a delivery sedan or a panel truck or a camper type vehicle used for recreational purposes owned by an individual or by husband and wife who are residents of the same household, not customarily used in the occupation, profession or business of the insured other than farming or ranching. An automobile owned by a farm family copartnership or corporation which is principally garaged on a farm or ranch and otherwise meets the definitions contained in this section, shall be considered a private passenger automobile owned by two or more relatives resident in the same household."
Plaintiffs argue that although the vehicle primarily responsible for the accident was not a statutory "automobile," but rather a commercial vehicle, it is clear that the chassis struck a private passenger vehicle and was propelled by that impact to the sidewalk, causing the injuries. Employing a comprehensive "chain-of-events" rationale, plaintiffs submit that the accident in question falls within the scope of the statute.
To support this claim of coverage, plaintiffs rely upon Berg v. Ohio Casualty Ins. Co. , 166 N.J. Super. 239 (Law Div. 1979). There the infant plaintiff, Pamela Berg, was walking along Route 24 in Madison, New Jersey, when she was struck by a truck. She was propelled against the left door of a stationary four-door sedan which was in the opposite lane of Route 24, waiting for stalled traffic to move. Defendant argued that Pamela's injuries were not caused by an automobile. In rejecting that contention, the court reasoned that the phrase, "an accident involving an automobile," must be understood to mean incident to, or having connection with, the use of an automobile. The infant's contact with the car was seen by the court as a link in the chain of events occasioning the injury. Thus, "[V]iewed in a broad, transactional sense, she was injured in an automobile accident." 166 N.J. Super. at 246.
Defendant here cross-moves for summary judgment on the ground that the statute of limitations set forth in N.J.S.A. 39:6A-13.1(a) bars the plaintiff's action. That provision reads as follows:
Every action for the payment of benefits set forth in sections 4 and 10 of this act, except an action by a decedent's estate, shall be commenced not later than 2 years after the injured person or survivor suffers a loss or incurs an expense and either knows or in the exercise of reasonable diligence should know that the loss or expense was caused by the accident, or not later than 4 years after the accident whichever is earlier, provided, however, that if benefits have been ...