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Amiano v. Ohio Casualty Insurance Co.

Decided: January 28, 1981.

DANIEL AMIANO, PLAINTIFF-RESPONDENT,
v.
THE OHIO CASUALTY INSURANCE COMPANY, DEFENDANT-APPELLANT



On certification to the Superior Court, Appellate Division.

For affirmance -- Chief Justice Wilentz and Justices Sullivan, Pashman, Schreiber, Handler and Pollock. For reversal -- None. The opinion of the Court was delivered by Sullivan, J.

Sullivan

This case presents the question whether the personal injury protection (PIP) endorsement, a mandatory part of every New Jersey automobile liability insurance policy under the New Jersey Automobile Reparation Reform Act (No Fault Act), N.J.S.A. 39:6A-1 et seq., extends coverage to an insured who, while operating a commercial truck not covered by PIP,*fn1 is injured in an accident involving a passenger automobile. The trial court and the Appellate Division held that the insured was entitled to PIP coverage. These rulings adhered to a prior decision by the Appellate Division on the same issue, Hoglin v. Nationwide Mut. Ins. Co., 144 N.J. Super. 475 (App.Div.1976). For reasons hereinafter set forth, we affirm.

The essential facts are undisputed. Plaintiff Daniel Amiano, while operating a commercial truck, sustained personal injuries when the truck collided with two automobiles. The accident occurred on April 3, 1977 in Green Brook Township, Somerset County. The truck was owned by plaintiff's employer-brother for whom plaintiff regularly worked as a carpenter foreman. At the time of the accident, however, plaintiff was returning home from performing some personal carpentry work not in the course of his regular employment. Consequently, his medical expenses and other losses were not covered by workers' compensation.

At the time of the accident plaintiff's wife, Marianne Amiano, was the owner of an automobile insured under a liability policy

issued by defendant Ohio Casualty Insurance Company (Ohio). The policy provided PIP coverage. It is undisputed that Daniel Amiano, as a resident of the same household, was an insured under the policy. Plaintiff filed a claim for PIP benefits consisting of medical expenses, income continuation and essential services. Ohio denied the claim on the ground that plaintiff was not an "eligible injured person" as defined in section 1 of the policy since he had been driving a commercial truck at the time of the accident.*fn2

Plaintiff then filed the present suit seeking compensatory damages for the benefits withheld and punitive damages based on defendant's alleged willful and wanton disregard of plaintiff's rights, together with interest, counsel fees and costs. The trial court found in favor of plaintiff and awarded him PIP benefits in the amount of $2,300. The claims for punitive damages and for costs were denied. A counsel fee of $2,258.75 was allowed, however, together with 10% interest on the amount of the award. The Appellate Division, in an unreported opinion, affirmed. Defendant's petition for certification was granted. Plaintiff's cross-petition on the issue of punitive damages was denied. 84 N.J. 411 (1980).

Ohio argues that plaintiff is not entitled to benefits since section 1 of the PIP endorsement contained in the Amiano policy defines an "eligible injured person" as

(a) the named insured or any relative of the named insured, if the named insured or relative sustains bodily injury

(1) while occupying, using, entering into or alighting from a private passenger automobile, or

(2) while a pedestrian, caused by a private passenger automobile or as a result of being struck by an object propelled by or ...


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